B-161430, JUL. 25, 1967

B-161430: Jul 25, 1967

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PROSPECTIVE CONTRACTORS WERE GIVEN AN OPPORTUNITY TO SUBMIT BIDS TO THE SCHOOL FOR THE CONSTRUCTION OWRK. 654 WAS LOW AMONG THE FIVE BIDS SUBMITTED. BECAUSE THIS LOW BID WAS NOT ACCOMPANIED BY A CERTIFICATION OF BIDDER REGARDING EQUAL EMPLOYMENT OPPORTUNITY FORM. IT WAS REJECTED AND AWARD MADE TO THE NEXT LOW BIDDER. ITS OFFER WAS REJECTED AS UNTIMELY. THE FORM WHICH WAS OMITTED FROM SKINKER AND GARRETT'S BID CONTAINS BLANK SPACES FOR THE BIDDER TO INDICATE WHETHER HE HAS PARTICIPATED IN ANY PREVIOUS CONTRACT OR SUBCONTRACT SUBJECT TO THE EQUAL OPPORTUNITY CLAUSE. WHETHER ALL NECESSARY REPORTS HAVE BEEN FILED. THE FORM FURTHER STATES THAT ITS SUBMISSION IS REQUIRED BY EXECUTIVE ORDER NO. 11246 OF SEPTEMBER 28.

B-161430, JUL. 25, 1967

BIDS - LABOR STIPULATIONS - EQUAL EMPLOYMENT AN UNSUCCESSFUL LOW BIDDER FOR CONSTRUCTION AT JOHNS HOPKINS UNIVERSITY UTILIZING FEDERAL GRANT FUNDS WHO FAILED TO FURNISH AN EQUAL EMPLOYMENT CERTIFICATION WITH HIS BID HAD IT PROPERLY REJECTED AS NONRESPONSIVE.

TO SKINKER AND GARRETT, INC., CONTRACTORS AND BUILDERS:

WE REFER TO YOUR LETTER OF MAY 2, 1967, PROTESTING THE REJECTION OF YOUR LOW BID FOR THE CONSTRUCTION OF AN ADDITION TO THE JOHNS HOPKINS UNIVERSITY SCHOOL OF ADVANCED INTERNATIONAL STUDIES WITH FUNDS GRANTED PURSUANT TO THE HIGHER EDUCATION FACILITIES ACT OF 1963, PUBLIC LAW 88 204, BECAUSE YOUR BID DID NOT CONTAIN A CERTIFICATION OF BIDDER REGARDING EQUAL EMPLOYMENT OPPORTUNITY, FORM HUD-4238-CD-1 (6-66).

ALTHOUGH THE GOVERNMENT'S INTEREST IN THIS CONSTRUCTION PROJECT BEGAN WITH THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, UPON THE TRANSFER OF CONTROL OVER THE EDUCATIONAL FACILITIES PROGRAM TO THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, THAT AGENCY ASSUMED THE RESPONSIBILITY FOR THE ADMINISTRATION OF THIS GRANT.

FOLLOWING THE APPROVAL OF THE GRANT TO JOHNS HOPKINS, IN THE AMOUNT OF $53,567 FOR THE EXPANSION OF THEIR ACADEMIC FACILITIES, PROSPECTIVE CONTRACTORS WERE GIVEN AN OPPORTUNITY TO SUBMIT BIDS TO THE SCHOOL FOR THE CONSTRUCTION OWRK. AT BID OPENING, APRIL 25, 1967, THE BID OF SKINKER AND GARRETT, INC. OF $72,654 WAS LOW AMONG THE FIVE BIDS SUBMITTED. BECAUSE THIS LOW BID WAS NOT ACCOMPANIED BY A CERTIFICATION OF BIDDER REGARDING EQUAL EMPLOYMENT OPPORTUNITY FORM, IT WAS REJECTED AND AWARD MADE TO THE NEXT LOW BIDDER, THOMAS W. YODER, AT $76,200.

ON THE FOLLOWING DAY, APRIL 26, 1967, SKINKER AND GARRETT OFFERED TO FURNISH A COMPLETED CERTIFICATION FORM, BUT ITS OFFER WAS REJECTED AS UNTIMELY.

THE FORM WHICH WAS OMITTED FROM SKINKER AND GARRETT'S BID CONTAINS BLANK SPACES FOR THE BIDDER TO INDICATE WHETHER HE HAS PARTICIPATED IN ANY PREVIOUS CONTRACT OR SUBCONTRACT SUBJECT TO THE EQUAL OPPORTUNITY CLAUSE, AND, IF SO, WHETHER ALL NECESSARY REPORTS HAVE BEEN FILED. THE FORM FURTHER STATES THAT ITS SUBMISSION IS REQUIRED BY EXECUTIVE ORDER NO. 11246 OF SEPTEMBER 28, 1965.

THE INFORMATION FOR BIDDERS (ACADEMIC FACILITIES PROGRAM) FORM HUD 4238-B -1 (7-66), WHICH WAS A PART OF THIS INVITATION FOR BIDS, REFERS TO THE CERTIFICATION FORM BY NAME AND NUMBER AND REQUIRES THAT EACH BID BE ACCOMPANIED BY A FULLY COMPLETED AND EXECUTED COPY OF THAT FORM. THIS REQUIREMENT OF THE INVITATION IS CLEARLY WITHIN THE SCOPE OF THE APPLICABLE REGULATION, 41 CODE OF FEDERAL REGULATIONS 60-1.6 (B) (1), WHICH PROVIDES IN PART:

"EACH AGENCY SHALL REQUIRE * * * ANY BIDDER * * * TO STATE AS AN INITIAL PART OF THE BID * * * WHETHER IT HAS PARTICIPATED IN ANY PREVIOUS CONTRACT OR SUBCONTRACT SUBJECT TO THE EQUAL OPPORTUNITY CLAUSE; * * * .' AGAIN, THIS REGULATION FALLS WITHIN THE EXPRESS INTENT OF EXECUTIVE ORDER NO. 11246 OF SEPTEMBER 28, 1965, WHICH IT IMPLEMENTS. PARAGRAPH 203/B) OF THIS EXECUTIVE ORDER PROVIDES, IN PERTINENT PART:

"BIDDERS * * * MAY BE REQUIRED TO STATE WHETHER THEY HAVE PARTICIPATED IN ANY PREVIOUS CONTRACT SUBJECT TO THE PROVISIONS OF THIS ORDER * * * PRIOR TO OR AS AN INITIAL PART OF THEIR BID * * * .'

ALTHOUGH EXECUTIVE ORDER NO. 11246 DOES NOT COMPEL EXECUTIVE AGENCIES TO REJECT BIDS WHICH DO NOT STATE WHETHER THE BIDDER HAS PARTICIPATED IN PRIOR CONTRACTS SUBJECT TO THE EQUAL OPPORTUNITY EXECUTIVE ORDER, IT DOES CLEARLY GRANT THE AGENCIES THE DISCRETIONARY POWER TO DO SO.

41 CODE OF FEDERAL REGULATIONS 60-1.6/B) (1), WHICH DOES DIRECT THAT THIS INFORMATION BE FURNISHED "AS AN INITIAL PART OF THE BID," IS AN ADMINISTRATIVE DETERMINATION TO EXERCISE THE DISCRETION EXPRESSLY GRANTED UNDER THE EXECUTIVE ORDER. EXECUTIVE ORDER NO. 11246, AND ITS IMPLEMENTING REGULATIONS TO THE EXTENT THEY FALL WITHIN THE ORDER'S EXPRESS GRANT OF AUTHORITY, ARE CONCLUSIVE UPON THE MATTER. WE HELD THAT EXECUTIVE ORDER NO. 10925 OF MARCH 6, 1961, WHICH WAS SUPERSEDED BY THE PRESENT ORDER, HAD THE FORCE AND EFFECT OF A STATUTE. 42 COMP. GEN. 692, 693-94.

EXECUTIVE ORDER NO. 11246, AS ITS PREDECESSOR, IS EXPRESSLY APPLICABLE TO PRIVATE CONSTRUCTION UNDERTAKEN IN CONNECTION WITH FEDERAL GRANTS, LOANS, OR AID PROGRAMS, WHICH WOULD COVER THE CASE HERE, THE EXPANSION OF THE FACILITIES OF JOHNS HOPKINS UNIVERSITY SCHOOL OF ADVANCED INTERNATIONAL STUDIES WITH PARTIAL PAYMENT TO BE MADE WITH FEDERAL FUNDS GRANTED UNDER THE HIGHER EDUCATION FACILITIES ACT OF 1963, PUBLIC LAW 88-204. SEE PARAGRAPH 301 OF EXECUTIVE ORDER NO. 11246 AND ITS IMPLEMENTING REGULATION, 41 CODE OF FEDERAL REGULATIONS 60-1.1.

WE MAY CONCLUDE, THEREFORE, THAT YOUR FAILURE TO SUBMIT THE FORM CERTIFICATION OF BIDDER REGARDING EQUAL EMPLOYMENT OPPORTUNITY WITH YOUR INITIAL BID, AS DIRECTED ON THE BID FORMS, RENDERED YOUR BID NONRESPONSIVE TO THE REQUIREMENTS OF EXECUTIVE ORDER NO. 11246, AS IMPLEMENTED BY THE CODE OF FEDERAL REGULATIONS, SO THAT THE REJECTION OF YOUR BID BY JOHNS HOPKINS UNIVERSITY WAS LEGALLY PROPER. ACCORDINGLY, YOUR PROTEST IS DENIED.