B-160176, OCT. 11, 1966

B-160176: Oct 11, 1966

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TO ARCHITECT OF THE CAPITOL: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 29. YOU STATE THAT THE INVITATION WAS ISSUED ON AUGUST 15. ONE ADDENDUM WAS ISSUED AND MAILED TO ALL PROSPECTIVE BIDDERS ON SEPTEMBER 1. FIVE BIDS WERE RECEIVED RANGING IN PRICE FROM $55. WHOSE BID IS $4. THE ADDENDUM PROVIDES FOR THE ADDITION OF A MINOR ITEM OF WORK WHICH YOUR PROJECT DIRECTOR ESTIMATES WILL ADD LESS THAN $100 TO THE COST OF THE PERFORMANCE OF THE CONTRACT. THE ADDENDUM ALSO DELETED THE REQUIREMENT THAT THE GOVERNMENT FURNISH TEMPORARY OFFICE SPACE AND INCLUDED A SCHEDULE OF MINIMUM WAGE RATES WHICH WERE REQUIRED TO BE PAID BY THE CONTRACTOR DURING THE LIFE OF THE CONTRACT. WE HELD THAT THE FAILURE TO ACKNOWLEDGE THE AMENDMENT WAS A MATERIAL DEVIATION WHICH WAS NOT SUBJECT TO WAIVER AND RENDERED THE BID NONRESPONSIVE.

B-160176, OCT. 11, 1966

TO ARCHITECT OF THE CAPITOL:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 29, 1966, WITH ENCLOSURES, REQUESTING A DECISION AS TO WHETHER THE BID OF CHAS. H. RIDDLE CO., SUBMITTED IN RESPONSE TO AN INVITATION FOR BIDS FOR CONSTRUCTION WORK PURSUANT TO "SPECIFICATIONS FOR THE FOLLOWING ROOM ADDITION FOR THE UNITED STATES HOUSE OF REPRESENTATIVES, WASHINGTON, D.C., " MAY BE CONSIDERED FOR AWARD.

IN YOUR LETTER OF SEPTEMBER 29, YOU STATE THAT THE INVITATION WAS ISSUED ON AUGUST 15, 1966, AND THAT PRIOR TO THE OPENING OF BIDS ON SEPTEMBER 14, 1966, ONE ADDENDUM WAS ISSUED AND MAILED TO ALL PROSPECTIVE BIDDERS ON SEPTEMBER 1, 1966. FIVE BIDS WERE RECEIVED RANGING IN PRICE FROM $55,390 TO $77,410. THE LOW BIDDER, CHAS. H. RIDDLE CO., WHOSE BID IS $4,710 LOWER THAN THE NEXT LOW BID, FAILED TO ACKNOWLEDGE THE RECEIPT OF THE ADDENDUM TO THE SPECIFICATIONS. SUBSEQUENT TO BID OPENING THE COMPANY ACKNOWLEDGED RECEIPT OF THE ADDENDUM.

THE ADDENDUM PROVIDES FOR THE ADDITION OF A MINOR ITEM OF WORK WHICH YOUR PROJECT DIRECTOR ESTIMATES WILL ADD LESS THAN $100 TO THE COST OF THE PERFORMANCE OF THE CONTRACT. THE ADDENDUM ALSO DELETED THE REQUIREMENT THAT THE GOVERNMENT FURNISH TEMPORARY OFFICE SPACE AND INCLUDED A SCHEDULE OF MINIMUM WAGE RATES WHICH WERE REQUIRED TO BE PAID BY THE CONTRACTOR DURING THE LIFE OF THE CONTRACT. YOU SPECIFICALLY REQUEST ADVICE AS TO WHETHER THE FAILURE OF THE LOW BIDDER TO TIMELY ACKNOWLEDGE THE ADDENDUM MAY BE WAIVED ON THE BASIS OF THE DE MINIMIS DOCTRINE OR FOR OTHER REASONS.

IN OUR DECISION B-157894, NOVEMBER 30, 1965, WE CONSIDERED THE PROPRIETY OF ACCEPTING A BID WHERE THE BIDDER FAILED TO ACKNOWLEDGE THE AMENDMENT TO AN INVITATION FOR BIDS WHICH FURNISHED, PRIOR TO BID OPENING, THE WAGE RATE DECISION OF THE SECRETARY OF LABOR. WE HELD THAT THE FAILURE TO ACKNOWLEDGE THE AMENDMENT WAS A MATERIAL DEVIATION WHICH WAS NOT SUBJECT TO WAIVER AND RENDERED THE BID NONRESPONSIVE. WHAT WE STATED THERE IS EQUALLY APPLICABLE HERE.

IN ADDITION TO THE FACT THAT THE WAGE RATES REQUIRED TO BE PAID BY A CONTRACTOR AFFECT HIS COST OF PERFORMANCE, THE DAVIS-BACON ACT, 40 U.S.C. 276A, IN EFFECT, DIRECTS THAT CONSTRUCTION CONTRACTS SUCH AS HERE INVOLVED "SHALL CONTAIN A PROVISION STATING THE MINIMUM WAGES TO BE PAID," WHEREAS ACCEPTANCE OF THE RIDDLE BID IN THE FORM IT EXISTED AT THE TIME OF OPENING WOULD NOT RESULT IN A CONTRACT CONTAINING A STATEMENT OF THE APPLICABLE MINIMUM WAGE RATES. WHILE ARTICLE 1-20 OF THE ORIGINAL SPECIFICATIONS APPRAISED BIDDERS THAT MECHANICS AND LABORERS MUST BE PAID PREVAILING MINIMUM WAGE RATES, WE HAVE HELD THAT SUCH A PROVISION IS NOT AN ACCEPTABLE SUBSTITUTE FOR THE DAVIS-BACON ACT REQUIREMENT. 40 COMP. GEN. 48.

WE MUST CONCLUDE, THEREFORE, THAT THE BID OF CHAS. H. RIDDLE CO. SHOULD BE CONSIDERED AS NONRESPONSIVE TO THE INVITATION AND THAT THE DE MINIMIS DOCTRINE URGED BY YOU IS NOT FOR APPLICATION.