B-176260, AUG 2, 1972

B-176260, AUG 2, 1972

BID PROTEST - NONRESPONSIVE BID - AFFIRMATIVE ACTION PROGRAMS DENIAL OF PROTEST ON BEHALF OF P. AGNES, INC. (PAI), AGAINST THE REJECTION OF THEIR BID UNDER AN IFB ISSUED BY THE VA HOSPITAL, PHILADELPHIA, PA. ALTHOUGH THE FAILURE OF PAI TO INCLUDE A COPY OF SECTION AAP WITH THEIR BID MAY BE WAIVED AS A MINOR INFORMALITY, THE BID IS STILL NONRESPONSIVE BECAUSE IT DOES NOT BIND PAI TO DEFINITELY CONFORM TO AN ADEQUATE AFFIRMATIVE ACTION PLAN. THE GOAL FOR MINORITY GROUP EMPLOYMENT OF IRON WORKERS FOR CALENDAR YEAR 1973 DOES NOT MEET THE REQUIREMENTS OF THE SOLICITATION'S MINORITY EMPLOYMENT PROGRAM. SINCE THE LETTER CREATES AN AMBIGUITY WITH RESPECT TO THE BIDDER'S COMMITMENT UPON AWARD, THE BID MUST BE CONSIDERED NONRESPONSIVE. SEE B-172179, JULY 26, 1971.

TO MARKS AND MARKS:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 10, 1972, AND PRIOR CORRESPONDENCE FROM P. AGNES, INCORPORATED (PAI), CONCERNING THE PROTEST AGAINST THE REJECTION OF THE FIRM'S BID UNDER AN INVITATION FOR BIDS FOR PROJECT NUMBER 37-5431, ISSUED MARCH 17, 1972, BY THE VETERANS ADMINISTRATION HOSPITAL, PHILADELPHIA, PENNSYLVANIA.

THE PROJECT IS SUBJECT TO THE "PHILADELPHIA PLAN," DESIGNED TO INSURE EQUAL EMPLOYMENT OPPORTUNITY. AMENDMENT NO. 3 TO THE INVITATION FOR BIDS INSTRUCTED EACH BIDDER AS FOLLOWS:

"7. SECTION AAP, AFFIRMATIVE ACTION PLAN:

A. THE ATTACHED SECTION AAP SHALL BE ADDED AND MADE A PART OF THIS CONTRACT.

B. NOTICE TO BIDDER: A BIDDER MAY ELECT TO ADOPT THE BID CONDITIONS OF SECTION AAP IN TOTO AS HIS OWN AFFIRMATIVE ACTION PLAN. IN THIS CASE THE ATTACHED 'BIDDER'S AGREEMENT' MUST BE EXECUTED, ATTACHED TO A COPY OF SECTION AAP AND SUBMITTED WITH THE BID."

SECTION AAP LISTED ACCEPTABLE RANGES FOR MINORITY GROUP EMPLOYMENT AND INCLUDED A BLANK SPACE FOR THE BIDDER TO PROPOSE HIS OWN AAP PLAN, INFORMATION REGARDING SUBCONTRACTING AND THE AWARD OF CONTRACT, A DEFINITION OF THE TERM "MINORITY," A REQUIREMENT TO COMPLY WITH EXECUTIVE ORDER 11246 AND INFORMATION ON REQUIRED RECORD KEEPING. PAGE 4 OF SECTION AAP CONTAINED AN UNDERTAKING DESIGNATED AS A "BIDDER'S AGREEMENT" READING AS FOLLOWS:

"SECTION AAP OF THE PHILADELPHIA PLAN IS ADOPTED BY THE UNDERSIGNED IN TOTO, AS THE BIDDER'S AFFIRMATIVE ACTION PLAN, AND THE BIDDER WILL COMPLY WITH ALL THE PROVISIONS AND REQUIREMENTS THEREIN CONTAINED, INCLUDING THE RANGES OF MINORITY GROUP EMPLOYMENT SET OUT THEREIN."

BIDS WERE OPENED AS SCHEDULED ON JUNE 6, 1972. PAI'S LOW BID OMITTED ALL OF SECTION AAP EXCEPT FOR THE "BIDDER'S AGREEMENT" PROPERLY EXECUTED. THE BID ALSO INCLUDED A LETTER DATED JUNE 6, 1972, PROPOSING THE FOLLOWING MINORITY GROUP GOALS:

ESTIMATED TOTAL NUMBER OF MINORITY

"IDENTIFICATION EMPLOYMENT FOR GROUP EMPLOYEES &

OF TRADE ON CONTRACT THEIR PERCENTAGE OF

TRADE FOR THE CALENDAR THE TOTAL FOR CALENDAR

YEAR 1972 YEAR 1972

IRONWORKERS 400 80

PLUMBERS & PIPEFITTERS 2500 375

STEAMFITTERS 2300 345

SHEETMETAL WORKERS 2500 350

ELECTRICAL WORKERS 7000 1200

ELEVATOR CONST. WORKERS 500 80

CALENDAR YEAR '73 CALENDAR YEAR 1973

IRONWORKERS 800 100

PLUMBERS & PIPEFITTERS 50001000

STEAMFITTERS 4500 900

SHEETMETAL WORKERS 4900 940

ELECTRICAL WORKERS 8000 1600

ELEVATOR CONST. WORKERS 1200 240"

PAI'S BID WAS FOUND NONRESPONSIVE BY THE CONTRACTING OFFICER FOR FAILURE TO INCLUDE A COPY OF THE SECTION AAP PURSUANT TO THE QUOTED INSTRUCTIONS ON THE THEORY THAT THE BID WOULD NOT LEGALLY BIND PAI TO COMPLY WITH SECTION AAP.

PAI CONTENDS THAT IT IS BOUND BY ITS BID, INCLUDING THE SIGNED AGREEMENT AND THE LETTER OF JUNE 6, 1972, LISTING ITS MINORITY MANPOWER GOALS, TO COMPLY WITH ALL THE SECTION AAP REQUIREMENTS. THUS, NOTWITHSTANDING THE QUOTED REQUIREMENT FOR SUBMISSION, IT IS ARGUED THAT THE FAILURE TO SUBMIT THE REMAINDER OF SECTION AAP WITH ITS BID IS A MINOR INFORMALITY, A MATTER OF FORM AND NOT SUBSTANCE, WHICH SHOULD NOT ADVERSELY AFFECT CONSIDERATION OF ITS BID.

PAI CLEARLY FAILED TO COMPLY WITH THE REQUIREMENT IN AMENDMENT NO. 3 TO RETURN A COPY OF SECTION AAP WITH ITS BID. HOWEVER, WE DO NOT BELIEVE THAT A BID MAY BE REJECTED FOR FAILURE TO COMPLY WITH PROVISION OF THE SOLICITATION UNLESS SUCH FAILURE CASTS DOUBT ON THE RIGHT OF THE GOVERNMENT TO ACCEPT THE BID AND OBTAIN PERFORMANCE IN STRICT ACCORDANCE WITH THE TERMS OF THE SOLICITATION. THE GENERAL RULE IS THAT A BID MAY NOT BE REJECTED AS NONRESPONSIVE FOR FAILURE TO COMPLY WITH A REQUIREMENT OF THE SOLICITATION WHICH DOES NOT AFFECT PRICE, QUANTITY, QUALITY OR TIME OF DELIVERY. 30 COMP. GEN. 179 (1950). SPECIFICALLY IN THE AREA OF AFFIRMATIVE ACTION REQUIREMENTS, WE HAVE HELD SUCH PLANS TO BE MATERIAL AND REQUIRE THE BIDDER TO COMMIT HIMSELF, PRIOR TO BID OPENING, TO THE REQUIREMENTS EITHER IN THE MANNER SPECIFIED IN THE SOLICITATION OR BY ANOTHER MEANS WHICH CONSTITUTES A DEFINITE COMMITMENT TO THE REQUIREMENTS. B-174932, MARCH 3, 1972.

CONSEQUENTLY, IF THE PAI BID LEGALLY BINDS THE FIRM TO THE SECTION AAP REQUIREMENT, THE FAILURE TO MEET THE LITERAL REQUIREMENT OF RETURNING THE FORM SHOULD BE WAIVED AS A MINOR INFORMALITY IN ACCORDANCE WITH FPR 1- 2.405. OUR READING OF THE "BIDDER'S AGREEMENT" FURNISHED WITH THE PAI BID MAKES CLEAR THAT IT BINDS THE BIDDER TO REQUIREMENTS OF SECTION AAP INCLUDING THE MINIMUM GOALS FOR MINORITY GROUP EMPLOYMENT. ACCORDINGLY, THE FAILURE TO MEET THE LITERAL REQUIREMENTS OF THE SOLICITATION MAY BE WAIVED AS AN INFORMALITY.

HOWEVER, THE PAI LETTER OF JUNE 6 INCLUDED WITH THE BID SET OUT A GOAL OF MINORITY EMPLOYMENT FOR IRONWORKERS OF 100 OUT OF 800 TOTAL EMPLOYEES IN THE CATEGORY FOR A PERCENTAGE OF 12.5 PERCENT ALTHOUGH THE ACCEPTABLE RANGE IN SECTION AAP WAS FROM 22 TO 26 PERCENT. PAI CONCEDES THE FIGURES BUT ALLEGES THAT THE FAILURE TO COMPLY WAS DUE SOLELY TO A CLERICAL ERROR AND THAT THE FIGURE "200" WAS INTENDED RATHER THAN THE "100" ACTUALLY INCLUDED. USE OF THE HIGHER FIGURE WOULD HAVE MET THE STANDARDS OF THE PLAN. A BID WHICH IS NONRESPONSIVE ON ITS FACE MAY NOT BE CORRECTED AFTER BID OPENING TO MAKE IT RESPONSIVE. 40 COMP. GEN. 432 (1961). ACCORDINGLY, THE MATTER MAY NOT BE CONSIDERED UNDER THE MISTAKE IN BID RULES.

PAI ALSO ARGUES THAT THE ERRONEOUS FIGURE IS INCONSEQUENTIAL SINCE IT IS BOUND BY SUBMISSION OF THE "BIDDER'S AGREEMENT" TO MEET THE PLANNED GOALS. WE BELIEVE THE SITUATION IS ANALOGOUS TO THE CASE WHERE THE BID STATES THAT NO EXCEPTION IS TAKEN TO THE SPECIFICATIONS BUT INCLUDES LITERATURE DESCRIBING A PRODUCT WHICH DOES NOT CONFORM TO THE ADVERTISED SPECIFICATIONS. WE HAVE HELD THAT "IF THESE CIRCUMSTANCES ARE REASONABLY SUSCEPTIBLE OF A CONCLUSION THAT THE LITERATURE WAS INTENDED TO QUALIFY THE BID OR IF THE INCLUSION OF THE LITERATURE CREATES AN AMBIGUITY AS TO WHAT THE BIDDER INTENDED TO OFFER, THEN THE BID MUST BE REJECTED AS NONRESPONSIVE TO THE IFB." B-172179, JULY 26, 1971. WHILE THE PAI BID INCLUDES THE "BIDDER'S AGREEMENT" UNDER WHICH THE PLAN STATED IN THE IFB FOR MINIMUM MINORITY GROUP EMPLOYMENT IS ADOPTED BY THE BIDDER, THE JUNE 6, 1972, LETTER SETS OUT A GOAL FOR MINORITY GROUP EMPLOYMENT FOR IRON WORKERS FOR CALENDAR YEAR 1973 WHICH DOES NOT MEET THE REQUIREMENTS OF THE SOLICITATION'S MINORITY EMPLOYMENT PROGRAM. AT BEST THIS CREATES AN AMBIGUITY WITH RESPECT TO THE BIDDER'S COMMITMENT UPON AWARD. UNDER THE CITED RULE THE BID MUST BE CONSIDERED NONRESPONSIVE.

ACCORDINGLY, THE PAI PROTEST IS DENIED.