B-187041, DECEMBER 9, 1976

B-187041, DECEMBER 9, 1976

BID WHICH FAILED TO ACKNOWLEDGE DAVIS-BACON AMENDMENT INCREASING WAGE RATES APPLICABLE TO NUMBER OF TRADES REQUIRED IN PERFORMANCE OF WORK UNDER IFB PROPERLY WAS REJECTED AS NONRESPONSIVE EVEN THOUGH BIDDER CLAIMS AMENDMENT WAS NEVER RECEIVED, SINCE THERE WAS NO EVIDENCE OF DELIBERATE AND CONSCIOUS EFFORT ON PART OF PROCURING AGENCY TO EXCLUDE BIDDER FROM COMPETITION.

A. BRINDIS COMPANY, INC.:

A. BRINDIS COMPANY, INC. (BRINDIS), PROTESTS THE REJECTION OF ITS BID AND THE SUBSEQUENT AWARD OF A CONTRACT UNDER THE INVITATION FOR BIDS (IFB) ON PROJECT NO. 59028-A ISSUED BY THE GENERAL SERVICES ADMINISTRATION (GSA), REGION 9.

THE IFB, ISSUED ON JUNE 23, 1976, SOLICITED BIDS FOR THE CONSTRUCTION OF A CONCRETE BLOCK ROOM, ELECTRICAL SYSTEMS, AND AIR CONDITIONING FOR THE EQUIPMENT OF AN UNINTERRUPTABLE POWER SERVICE SYSTEMS FOR THE CUSTOMS SERVICE COMPUTER FACILITY IN SAN DIEGO, CALIFORNIA. AMENDMENT NO. 1, ISSUED ON JUNE 30, 1976, INCORPORATED THE LATEST DAVIS-BACON WAGE DETERMINATION DECISION APPLICABLE TO THE PROCUREMENT.

FOUR BIDS WERE RECEIVED AT THE JULY 15, 1976, OPENING. BRINDIS WAS THE LOW BIDDER AT $49,387. THE SECOND LOW BID OF $53,667 WAS SUBMITTED BY THE CHAMPION CONSTRUCTION COMPANY (CHAMPION). IN REVIEWING THE BIDS, IT WAS DISCOVERED THAT THE BRINDIS BID FAILED TO ACKNOWLEDGE RECEIPT OF AMENDMENT NO. 1 WHICH INCREASED THE WAGE RATES FOR A NUMBER OF TRADES REQUIRED IN THE PERFORMANCE OF WORK UNDER THE IFB. BY LETTER DATED JULY 20, 1976, BRINDIS WAS NOTIFIED ITS BID WAS BEING REJECTED AS NONRESPONSIVE FOR FAILURE TO ACKNOWLEDGE RECEIPT OF AMENDMENT NO. 1. CITING THE URGENT NEED FOR THE PROCUREMENT, ON SEPTEMBER 2, 1976, GSA MADE A DETERMINATION, PURSUANT TO THE AUTHORITY OF SECTION 1-2.407 8(B)(4)(I) AND (II) OF THE FEDERAL PROCUREMENT REGULATIONS (FPR) (1964 ED.AMEND 68), TO MAKE AN IMMEDIATE AWARD TO CHAMPION PRIOR TO THE FINAL DISPOSITION OF BRINDIS' PROTEST BY THIS OFFICE. AWARD WAS MADE TO CHAMPION ON SEPTEMBER 10, 1976.

BRINDIS PROTESTS THE REJECTION OF ITS BID ON THE GROUNDS (1) THAT THE FAILURE TO ACKNOWLEDGE RECEIPT OF AMENDMENT NO. 1 WAS A MINOR INFORMALITY OR IRREGULARITY WHICH SHOULD HAVE BEEN WAIVED PURSUANT TO THE PROVISIONS OF FPR SEC. 1-2.405 (1964 ED.CIR. 1); AND (2) THAT IT NEVER RECEIVED AMENDMENT NO. 1 DUE TO GOVERNMENT ERROR BECAUSE GSA FAILED TO INCLUDE IT ON THE LIST OF BIDDERS TO BE NOTIFIED OF SUBSEQUENT AMENDMENTS. REGARDING THE LACK OF ACKNOWLEDGEMENT, IT IS ASSERTED THAT THE AMENDMENT INVOLVED ONLY A MATTER OF FORM AND HAD EITHER NO EFFECT OR A TRIVIAL OR NEGLIGIBLE EFFECT ON PRICE. BRINDIS FURTHER CONTENDS THAT THE INTEGRITY OF THE COMPETITIVE BIDDING PROCESS WAS MAINTAINED BECAUSE ITS BID WAS IN FACT BASED ON WAGE RATES IN EXCESS OF THOSE REQUIRED BY THE AMENDMENT. BRINDIS ARGUES THAT, EVEN ASSUMING THAT ITS BID HAD BEEN BASED ON THE WAGE RATES STATED IN THE ORIGINAL IFB, THE TOTAL EFFECT OF THE AMENDMENT AT THE OUTSIDE LIMIT WOULD BE LESS THAN $625 AND WAS SO MINOR THAT FAILURE TO CONSIDER IT COULD NOT POSSIBLY HAVE AFFECTED BRINDIS' BID IN AN AMOUNT SUFFICIENT TO PREJUDICE THE SECOND LOW BIDDER SINCE THERE WAS A $4,280 DIFFERENCE IN THE BIDS.

WITH RESPECT TO THE FAILURE TO RECEIVE AMENDMENT NO. 1, IT IS MAINTAINED THAT MR. BRINDIS, AS REPRESENTATIVE FOR THE COMPANY, PERSONALLY PICKED UP THE IFB DOCUMENTS ON JULY 1, 1976. AT THAT TIME, MR. BRINDIS IS SAID TO HAVE PROVIDED A GSA CLERK WITH ALL THE INFORMATION NECESSARY FOR THE COMPANY TO BE LISTED ON THE BIDDERS LIST AND PERSONALLY FILLED OUT AND SIGNED A "REQUEST FOR BID INVITATION" FORM FOR THE IFB WHICH WAS PROVIDED BY THE CLERK. BRINDIS FURTHER NOTED THAT ALTHOUGH THE IFB WAS PICKED UP AFTER THE ISSUANCE OF AMENDMENT NO. 1, IT WAS NOT ADVISED THAT ANY AMENDMENTS HAD BEEN ISSUED.

A BIDDER'S FAILURE TO ACKNOWLEDGE PRIOR TO BID OPENING AN AMENDMENT INCORPORATING A DAVIS-BACON WAGE DETERMINATION IN AN IFB HAS BEEN THE SUBJECT OF PREVIOUS DECISION BY THIS OFFICE. WE HAVE HELD THAT THE FAILURE OF A BIDDER TO ACKNOWLEDGE THE LATEST DAVIS-BACON WAGE DETERMINATION AFFECTING EMPLOYEES PERFORMING WORK UNDER A CONTRACT IS MATERIAL AND NOT SUBJECT TO WAIVER AS A MINOR INFORMALITY OR IRREGULARITY. SEE HARTWICK CONSTRUCTION CORPORATION, B-182841, FEBRUARY 27, 1975, 75-1 CPD 118. THE RATIONALE FOR THIS POSITION IS EXPRESSED IN 51 COMP.GEN. 500, 501 (1972), WHEREIN WE REAFFIRMED THE POSITION TAKEN IN B-157832, NOVEMBER 9, 1965, WHICH STATED: ATES PAYABLE UNDER A CONTRACT DIRECTLY AFFECT THE CONTRACT PRICE, THERE CAN BE NO QUESTION THAT THE IFB PROVISION REQUIRING THE PAYMENT OF MINIMUM WAGES TO BE PRESCRIBED BY THE SECRETARY OF LABOR WAS A MATERIAL REQUIREMENT OF THE IFB AS AMENDED. STATED PREVIOUSLY, THE REQUIREMENTS OF THE DAVIS-BACON ACT WERE MET WHEN THE AMENDMENT FURNISHING THE MINIMUM WAGE SCHEDULE WAS ISSUED, THE PURPOSE OF THE ACT BEING TO MAKE DEFINITE AND CERTAIN AT THE TIME OF THE CONTRACT AWARD THE CONTRACT PRICE AND THE MINIMUM WAGES TO BE PAID THEREUNDER. COMP.GEN. 471, 473. IN SUCH CIRCUMSTANCES, IT IS OUR VIEW THAT A BIDDER WHO FAILED TO INDICATE BY ACKNOWLEDGMENT OF THE AMENDMENT OR OTHERWISE THAT HE HAD CONSIDERED THE WAGE SCHEDULE COULD NOT, WITHOUT HIS CONSENT, BE REQUIRED TO PAY WAGE RATES WHICH WERE PRESCRIBED THEREIN BUT WHICH WERE NOT SPECIFIED IN THE ORIGINAL IFB, NOTWITHSTANDING THAT HE MIGHT ALREADY BE PAYING THE SAME OR HIGHER WAGE RATES TO HIS EMPLOYEES UNDER AGREEMENTS WITH LABOR UNIONS OR OTHER ARRANGEMENTS. ACCORDINGLY, IN OUR OPINION, THE DEVIATION WAS MATERIAL AND NOT SUBJECT TO WAIVER UNDER THE PROCUREMENT REGULATION. B-138242, JANUARY 2, 1959. FURTHERMORE, TO AFFORD YOU AN OPPORTUNITY AFTER BID OPENING TO BECOME ELIGIBLE FOR AWARD BY AGREEING TO ABIDE BY THE WAGE SCHEDULE WOULD BE UNFAIR TO THE OTHER BIDDERS WHOSE BIDS CONFORMED TO THE REQUIREMENTS OF THE AMENDED IFB AND WOULD BE CONTRARY TO THE PURPOSE OF THE PUBLIC PROCUREMENT STATUTES. B-149315, AUGUST 28, 1962; B-146354, NOVEMBER 27, 1961."

SECTION 1-2.207 OF THE FPR (1964 ED.AMEND. 139) REQUIRES THAT ANY AMENDMENTS ISSUED BE SENT TO EACH CONCERN THAT HAS BEEN FURNISHED A COPY OF THE IFB. GSA STATES THAT IT HAS NO RECORD THAT A "REQUEST FOR BID INVITATION" FORM WAS EXECUTED BY MR. BRINDIS FOR THE IFB. FOR THIS REASON IT STATES THAT BRINDIS WAS NOT INCLUDED ON THE BIDDERS MAILING LIST NOR SENT A COPY OF AMENDMENT NO. 1.

IT IS APPARENT THAT BRINDIS RECEIVED THE IFB. HOWEVER, THERE IS NO DOCUMENTATION IN THE RECORD OTHER THAN BRINDIS' STATEMENT THAT A FORMAL REQUEST WAS MADE OR THAT THE PROPER STEPS WERE COMPLETED TO INCLUDE THE FIRM ON THE BIDDERS MAILING LIST.

THE PROPRIETY OF A PARTICULAR PROCUREMENT RESTS UPON WHETHER ADEQUATE COMPETITION AND REASONABLE PRICES WERE OBTAINED, NOT UPON WHETHER EACH INDIVIDUAL BIDDER WAS GIVEN AN OPPORTUNITY TO BID. REGARDING THE FAILURE TO RECEIVE AN AMENDMENT, WE HAVE HELD THAT THE PROCUREMENT ACTIVITY IS NOT AN INSURER OF DELIVERY TO EACH PROSPECTIVE BIDDER. THE RISK OF NONRECEIPT OF INVITATIONS AND AMENDMENTS THERETO IS UPON THE BIDDER. SEE 52 COMP.GEN. 281, 284 (1972), AND THE DECISIONS CITED THEREIN. IN THE ABSENCE OF SUBSTANTIVE PROOF THAT A DELIBERATE ATTEMPT HAS BEEN MADE TO PREVENT A BIDDER FROM PARTICIPATING IN A PROCUREMENT, BIDS FAILING TO ACKNOWLEDGE MATERIAL AMENDMENTS MUST BE REJECTED AS NONRESPONSIVE. CENTRAL DELIVERY SERVICE, B-186413, AUGUST 4, 1976, 76-2 CPD 125; PORTER CONTRACTING COMPANY, 55 COMP.GEN. 615 (1976), 76-1 CPD 2. WE FIND NOTHING IN THE RECORD TO INDICATE THAT BRINDIS' FAILURE TO RECEIVE THE AMENDMENT WAS THE RESULT OF ANY DELIBERATE ATTEMPT ON THE PART OF GSA EMPLOYEES TO EXCLUDE IT FROM COMPETITION.

FOR THE AFOREMENTIONED REASONS, WE CONCLUDE THAT THE BRINDIS BID PROPERLY WAS REJECTED AS NONRESPONSIVE. ACCORDINGLY, THE PROTEST IS DENIED.