B-143482, JULY 22, 1960, 40 COMP. GEN. 48

B-143482, JULY 22, 1960, 40 COMP. GEN. 48

CONTRACTS - SPECIFICATIONS - FAILURE TO FURNISH SOMETHING REQUIRED - ADDENDA ACKNOWLEDGMENT - DAVIS-BACON ACT - WAGE RATE DETERMINATION THE FAILURE OF A BIDDER TO ACKNOWLEDGE RECEIPT OF AN ADDENDUM WHICH WAS ATTACHED TO THE ORIGINAL SPECIFICATIONS WHEN GIVEN TO THE BIDDER AND WHICH INCORPORATED THE PREVAILING WAGE RATE DETERMINATION MADE BY THE SECRETARY OF LABOR UNDER THE DAVIS-BACON ACT, 40 U.S.C. 276A, WOULD NOT, IN THE EVENT OF AWARD, EXCUSE THE CONTRACTOR FROM COMPLIANCE WITH THE MINIMUM WAGE RATE PROVISIONS OF THE CONTRACT; THEREFORE, THE FAILURE TO ACKNOWLEDGE RECEIPT OF THE ADDENDUM MAY BE WAIVED AND THE BID CONSIDERED FOR AWARD. IN VIEW OF THE SPECIFIC REQUIREMENT IN THE DAVIS-BACON ACT, 40, U.S.C. 276A, THAT "THE ADVERTISED SPECIFICATIONS FOR EVERY CONTRACT IN EXCESS OF $2,000 * * * SHALL CONTAIN A PROVISION STATING THE MINIMUM WAGES TO BE PAID * * * WHICH SHALL BE BASED UPON THE WAGES THAT WILL BE DETERMINED BY THE SECRETARY OF LABOR TO BE PREVAILING," THE SUBSTITUTION OF A BLANKET PROVISION IN SPECIFICATIONS THAT CONTRACTORS SHALL PAY MINIMUM WAGE RATES, REGARDLESS OF WHETHER THE WAGE RATE DETERMINATIONS ARE RECEIVED BEFORE OR AFTER BID OPENING, IS NOT ACCEPTABLE.

TO LEONARD M. HILL, BUREAU OF INDIAN AFFAIRS, JULY 22, 1960:

REFERENCE IS MADE TO YOUR LETTER OF JULY 8, 1960, WITH ENCLOSURES, FILE REFERENCE 341 COACHELLA VALLEY, REQUESTING A DECISION AS TO WHETHER THE BID OF C. V. CONCRETE PRODUCTS, COACHELLA, CALIFORNIA, SUBMITTED IN RESPONSE TO INVITATION FOR BIDS ON PROJECT 19, CABAZON INDIAN RESERVATION, COACHELLA VALLEY, COVERING THE CONSTRUCTION OF UNDERGROUND IRRIGATION AND DRAINAGE FACILITIES AT THE RESERVATION, MAY BE CONSIDERED FOR AWARD. THE QUESTION ARISES BY REASON OF THE BIDDER'S FAILURE TO ACKNOWLEDGE RECEIPT OF ADDENDUM NO. 1 DATED MAY 20, 1960, INCORPORATING MINIMUM WAGE RATES FOR LABORERS AND MECHANICS DETERMINED TO BE PREVAILING BY THE SECRETARY OF LABOR'S DECISION NO. U-23,178 DATED MAY 12, 1960, IN ACCORDANCE WITH THE DAVIS-BACON ACT, 40 U.S.C. 276A.

IT IS STATED THAT IN ACCORDANCE WITH THE DAVIS-BACON ACT, A REQUEST FOR DETERMINATION OF MINIMUM WAGE RATES FOR LABORERS AND MECHANICS WAS FORWARDED TO YOUR WASHINGTON OFFICE ON APRIL 26, 1960; THAT WAGE RATE DECISION NO. U-23,178 DATED MAY 12, 1960, WAS RECEIVED AFTER THE SPECIFICATIONS WERE ASSEMBLED AND BOUND; AND THAT INSTEAD OF DISASSEMBLING THE BOUND SPECIFICATION PAMPHLETS AND MAKING THE WAGE RATE DECISION A PART THEREIN, IT WAS INCORPORATED AS ADDENDUM NO. 1 AND STAPLED TO THE FRONT COVER OF THE SPECIFICATIONS. IT IS REPORTED THAT YOUR OFFICE DID NOT MAIL THE SPECIFICATIONS DIRECTLY TO C. V. CONCRETE PRODUCTS BUT THAT THE COMPANY OBTAINED THEM DIRECTLY FROM THE COACHELLA VALLEY COUNTY WATER DISTRICT. YOU STATE THAT C. V. CONCRETE PRODUCTS DID NOT ACKNOWLEDGE RECEIPT OF ADDENDUM NO. 1 IN THE SPACE PROVIDED ON STANDARD FORM 21, NOR BY POST CARD OR ANY OTHER FORM PRIOR TO BID OPENING. THE ADDENDUM PROVIDED THAT---

BIDDERS ARE REQUESTED TO ACKNOWLEDGE RECEIPT OF THIS ADDENDUM PRIOR TO THE TIME SET FOR BID OPENING BY ONE OF THE FOLLOWING METHODS:

(1) BY FILLING IN THE NUMBER AND DATE OF EACH ADDENDUM IN THE SPACE PROVIDED ON THE REVERSE SIDE OF STANDARD FORM 21, BID FORM.

(2) BY TELEGRAPHIC NOTIFICATION IF BID HAS BEEN MAILED PRIOR TO RECEIPT OF THIS ADDENDUM, PROPERLY IDENTIFYING THE INVITATION OR PROJECT CONCERNED, AND SPECIFICALLY INDICATING THE AMOUNT, IF ANY, THAT SHOULD BE ADDED TO OR DEDUCTED FROM THE BID, STATING "NO CHANGE IN BID" IF NO ADJUSTMENT IN BID PRICE IS REQUIRED. FAILURE TO ACKNOWLEDGE THIS ADDENDUM BY ONE OF THE ABOVE METHODS MAY CAUSE THE BID TO BE DISREGARDED.

THE BID OF C. V. CONCRETE PRODUCTS WAS OPENED ON JUNE 9, 1960. THE COMPANY'S BID DID NOT REFER TO THE ADDENDUM NOR DID IT OTHERWISE INDICATE THAT THE BID INCLUDED THE ADDENDUM.

IT IS THE GENERAL RULE THAT IF AN ADDENDUM TO AN INVITATION AFFECTS THE PRICE, QUANTITY OF QUALITY OF THE PROCUREMENT, FAILURE OF THE BIDDER TO ACKNOWLEDGE ITS RECEIPT IN THE MANNER REQUIRED BY THE INVITATION RENDERS THE BID NONRESPONSIVE. 37 COMP. GEN. 785. THE BASIS FOR SUCH RULE IS THAT GENERALLY IN SUCH A SITUATION A BIDDER HAS AN OPTION TO DECIDE AFTER BID OPENING TO BECOME ELIGIBLE FOR THE AWARD BY COMING FORTH WITH EVIDENCE OUTSIDE THE BID ITSELF THAT THE MATERIAL ADDENDUM HAD BEEN CONSIDERED, OR TO AVOID AWARD BY REMAINING SILENT. HOWEVER, UNDER THE CIRCUMSTANCES OF THIS CASE HEREAFTER REFERRED TO, WE DO NOT THINK THAT THE C. V. CONCRETE PRODUCTS COMPANY HAS SUCH AN OPTION.

PARAGRAPH 19 OF THE GENERAL CONDITIONS OF THE INVITATION SPECIFICALLY PROVIDES THAT "1THE WAGE DETERMINATION DECISION OF THE SECRETARY OF LABOR REFERRED TO IN CLAUSE 20 OF STANDARD FORM 23A IS HEREBY INCORPORATED HEREIN BY REFERENCE AND MADE A PART OF THE CONTRACT.' ALSO, CLAUSE 20 OF STANDARD FORM 23A, PROVIDES, IN PERTINENT PART, THAT WAGES PAID BY THE CONTRACTOR TO LABORERS AND MECHANICS SHALL BE "COMPUTED AT THE WAGE RATES NOT LESS THAN THOSE CONTAINED IN THE WAGE DETERMINATION DECISION OF THE SECRETARY OF LABOR WHICH IS ATTACHED HERETO AND MADE A PART HEREOF.'

CONSIDERING THESE PROVISIONS, BY WHICH THE BIDDER OBVIOUSLY WAS BOUND, IN CONJUNCTION WITH THE FACT THAT IT IS ESTABLISHED, WITHOUT QUESTION, THAT THE ADDENDUM INCORPORATING THE WAGE RATE DECISION WAS IN FACT ATTACHED TO THE SPECIFICATIONS, AND THE COACHELLA VALLEY COUNTY WATER DISTRICT HAS STATED THAT THE ADDENDUM WAS DELIVERED WITH THE CONTRACT AND SPECIFICATIONS TO THE BIDDER, WE BELIEVE THERE IS A SOUND BASIS FOR CONCLUDING THAT THE BIDDER COULD BE HELD TO PAY WAGES AT THE MINIMUM RATES SPECIFIED IN THE ADDENDUM, IF AWARD WERE TO BE MADE TO IT, NOTWITHSTANDING THE FAILURE TO ACKNOWLEDGE THE ADDENDUM. ACCORDINGLY, IT IS OUR CONCLUSION THAT IN THE CIRCUMSTANCES OF THIS CASE SUCH FAILURE MAY BE WAIVED AND AWARD MADE TO THE C. V. CONCRETE PRODUCTS COMPANY.

YOU ALSO ASK WHETHER IT IS PERMISSIBLE TO INCLUDE IN THE SPECIFICATIONS A REQUIREMENT THAT CONTRACTORS SHALL PAY MINIMUM WAGE RATES, AS DETERMINED BY THE SECRETARY OF LABOR, REGARDLESS OF WHETHER THE WAGE RATE DETERMINATIONS ARE RECEIVED BY THEM BEFORE OR AFTER BID OPENING. BELIEVE THAT SUCH A PROVISION WOULD NOT BE AN ACCEPTABLE SUBSTITUTE FOR THE REQUIREMENT OF THE DAVIS-BACON ACT, 40 U.S.C. 276A, THAT "1THE ADVERTISED SPECIFICATIONS FOR EVERY CONTRACT IN EXCESS OF $2,000 * * * SHALL CONTAIN A PROVISION STATING THE MINIMUM WAGES TO BE PAID * * * WHICH SHALL BE BASED UPON THE WAGES THAT WILL BE DETERMINED BY THE SECRETARY OF LABOR TO BE PREVAILING * * *.'