B-164437, JUN. 26, 1968

B-164437: Jun 26, 1968

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INC.: REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER OF MAY 27. BID OPENING WAS SCHEDULED FOR APRIL 16. THE WAGE DETERMINATION DECISION OF THE SECRETARY OF LABOR IS ATTACHED SOLELY FOR THE PURPOSE OF SETTING FORTH THE MINIMUM HOURLY WAGE RATES REQUIRED TO BE PAID DURING THE LIFE OF THE CONTRACT AND IS NOT TO BE ACCEPTED AS A GUARANTEE. SINCE COPIES OF THE WAGE RATE DECISION APPARENTLY WERE NOT AVAILABLE AT THE TIME THE IFB WAS ISSUED. ALERTED BIDDERS THAT SUCH WAGE RATES WERE "TO BE ISSUED BY AMENDMENT.'. HAVE YOU ACKNOWLEDGED. GSA ISSUED AMENDMENT NO. 1 TO THE IFB WHEREUNDER BIDDERS WERE FURNISHED WAGE RATE DECISION NO. FIVE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION AND OPENED ON APRIL 16.

B-164437, JUN. 26, 1968

TO SEAL AND COMPANY, INC.:

REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER OF MAY 27, 1968, PROTESTING THE REJECTION OF YOUR BID AND THE AWARD OF CONTRACT NO. GS 03B-15670 TO ANOTHER BIDDER UNDER INVITATION FOR BIDS (IFB) PROJECT NO. 18108/18117, ISSUED BY THE PUBLIC BUILDINGS SERVICE, GENERAL SERVICES ADMINISTRATION (GSA).

THE INVITATION, ISSUED ON MARCH 15, 1968, SOLICITED BIDS FOR FURNISHING SUBSTATION EQUIPMENT AND UTILITIES, MASTER UTILITIES EXTENSION, PHASE 1-B, AT THE NATIONAL INSTITUTES OF HEALTH, BETHESDA, MARYLAND. BID OPENING WAS SCHEDULED FOR APRIL 16, 1968.

SECTION 1 OF THE LABOR STANDARDS PROVISIONS, STANDARD FORM 19-A, OF THE IFB PROVIDED FOR THE PAYMENT, PURSUANT TO THE DAVIS-BACON ACT (40 U.S.C. 276A-A (7) (, OF MINIMUM WAGE RATES AS PRESCRIBED IN A WAGE DETERMINATION DECISION OF THE SECRETARY OF LABOR. SECTION 3-3 OF THE SPECIFICATION OF THE IFB, RELATING TO SUCH MINIMUM WAGE RATES (GSA FORM 1083), READS AS FOLLOWS:

"3-3. THE WAGE DETERMINATION DECISION OF THE SECRETARY OF LABOR IS ATTACHED SOLELY FOR THE PURPOSE OF SETTING FORTH THE MINIMUM HOURLY WAGE RATES REQUIRED TO BE PAID DURING THE LIFE OF THE CONTRACT AND IS NOT TO BE ACCEPTED AS A GUARANTEE, WARRANTY OR REPRESENTATION AS TO THE WAGE RATES INDICATED. UNDER NO CIRCUMSTANCES SHALL ANY MISTAKE IN ATTACHING THE APPROPRIATE WAGE DETERMINATION DECISION OF THE SECRETARY OF LABOR AND IN THE WAGE RATES SET FORTH ENTITLE THE SUCCESSFUL BIDDER TO CANCELLATION OF HIS BID OR CONTRACT OR TO AN INCREASE IN THE CONTRACT PRICE OR OTHER ADDITIONAL PAYMENT OR RECOVERY.'

SINCE COPIES OF THE WAGE RATE DECISION APPARENTLY WERE NOT AVAILABLE AT THE TIME THE IFB WAS ISSUED, PAGE 3-3 OF THE SPECIFICATIONS (WAGE RATE SCHEDULE, GSA FORM 1085), HAVING REFERENCE TO THE MINIMUM HOURLY RATES REQUIRED BY SECTION 3, ALERTED BIDDERS THAT SUCH WAGE RATES WERE "TO BE ISSUED BY AMENDMENT.'

THE IFB ALSO INCLUDED GSA FORM 1903,"NOTICE TO BIDDER (CONSTRUCTION CONTRACT)," WHICH LISTED THE FOLLOWING AMONG VARIOUS REQUIREMENTS TO BE CHECKED BY BIDDERS BEFORE BID SUBMISSION:

"3. HAVE YOU ACKNOWLEDGED, ON THE SF-21, BID FORM, RECEIPT OF ALL AMENDMENTS (IF ANY) ISSUED TO THE SPECIFICATIONS?

ON MARCH 18, 1968, GSA ISSUED AMENDMENT NO. 1 TO THE IFB WHEREUNDER BIDDERS WERE FURNISHED WAGE RATE DECISION NO. AH-9757, ISSUED MARCH 12, 1968, BY THE SECRETARY OF LABOR, SETTING FORTH THE APPLICABLE MINIMUM WAGE RATES FOR THE PROJECT, TO BE INSERTED IN THE SPECIFICATIONS IN PLACE OF THE BLANK GSA FORM 1085. THE AMENDMENT CARRIED A NOTATION READING AS FOLLOWS:

"IMPORTANT "BIDDER MUST ACKNOWLEDGE THE RECEIPT OF THIS AMENDMENT ON THE BID FORM, GIVING THE NUMBER AND DATE. FAILURE TO DO SO MAY BE GROUNDS FOR REJECTION OF THE BID.'

FIVE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION AND OPENED ON APRIL 16, 1968. THE THREE LOW BIDS AND THE GOVERNMENT'S ESTIMATE FOR THE PROJECT WERE AS FOLLOWS:

ALTERNATE ALTERNATE

BASE BID "A" ADD "B" ADD SEAL AND CO., INC. $259,400 $33,450 $66,250 C. TAZ TURNER, INC. 275,400 45,000 65,000 WALTER C. DOE AND CO. 283,000 42,000 58,000 GOVERNMENT'S ESTIMATE

310,000 50,000 43,000

WHILE YOU SUBMITTED THE APPARENT LOW BID, YOU DID NOT ACKNOWLEDGE RECEIPT OF AMENDMENT NO. 1 (WHICH CONTAINED THE WAGE RATES) IN THE SPACE PROVIDED ON STANDARD FORM 21 OF YOUR BID, OR OTHERWISE, PRIOR TO BID OPENING. THEREFORE, IT WAS DETERMINED THAT YOUR BID WAS NONRESPONSIVE. SINCE IT WAS ALSO DETERMINED THAT THE SECOND LOW BID SUBMITTED BY TURNER WAS NONRESPONSIVE, AWARD WAS MADE TO THE THIRD LOW BIDDER, WALTER C. DOE AND CO., ON MAY 31, 1968.

IN YOUR PROTEST, YOU RECOGNIZE THAT THE GOVERNMENT HAS THE RIGHT TO REJECT ANY NONRESPONSIVE BID, BUT YOU URGE THAT YOUR FAILURE TO ACKNOWLEDGE AMENDMENT NO. 1 WAS MERELY AN INFORMALITY WHICH COULD HAVE BEEN WAIVED BY THE CONTRACTING OFFICER AFTER CONTACTING YOU CONCERNING THE AMENDMENT. YOU ALSO URGE THAT A SAVINGS OF $23,850 COULD HAVE BEEN MADE TO THE GOVERNMENT BY ACCEPTANCE OF YOUR BID.

IN OUR DECISION B-157832, NOVEMBER 9, 1965, THERE EXISTED A SITUATION VERY SIMILAR TO THAT PRESENT IN THE INSTANT CASE AND WE BELIEVE THE RULES STATED THEREIN ARE APPLICABLE TO THE SITUATION AT HAND. WE STATED THEREIN:

"TURNING NOW TO THE EFFECT OF YOUR FAILURE TO ACKNOWLEDGE THE AMENDMENT, IT IS THE GENERAL RULE THAT IF AN ADDENDUM TO AN INVITATION AFFECTS THE PRICE, QUANTITY OR QUALITY OF THE PROCUREMENT, THE FAILURE OF THE BIDDER TO ACKNOWLEDGE ITS RECEIPT IN THE MANNER REQUIRED BY THE INVITATION RENDERS THE BID NONRESPONSIVE AND CANNOT BE WAIVED. 37 COMP. GEN. 785. THE BASIS FOR SUCH RULE IS THAT GENERALLY THE BIDDER WOULD HAVE AN OPTION TO DECIDE AFTER BID OPENING TO BECOME ELIGIBLE FOR AWARD BY FURNISHING EXTRANEOUS EVIDENCE THAT THE ADDENDUM HAD BEEN CONSIDERED OR TO AVOID AWARD BY REMAINING SILENT. 41 COMP. GEN. 550 AND DECISIONS THEREIN CITED.

"THE PROCUREMENT REGULATION WHICH GOVERNS WAIVER OF MINOR INFORMALITIES OR IRREGULARITIES IN BIDS SUBMITTED UNDER GSA INVITATIONS TO BID IS FEDERAL PROCUREMENT REGULATION 1-2.405, WHICH READS, IN PART, AS FOLLOWS:

"-A MINOR INFORMALITY OR IRREGULARITY IS ONE WHICH IS MERELY A MATTER OF FORM AND NOT OF SUBSTANCE OR PERTAINS TO SOME IMMATERIAL OR INCONSEQUENTIAL DEFECT OR VARIATION OF A BID FROM THE EXACT REQUIREMENT OF THE INVITATION FOR BIDS, THE CORRECTION OR WAIVER OF WHICH WOULD NOT BE PREJUDICIAL TO OTHER BIDDERS. THE DEFECT OR VARIATION IN THE BID IS IMMATERIAL AND INCONSEQUENTIAL WHEN ITS SIGNIFICANCE AS TO PRICE, QUANTITY, QUALITY, OR DELIVERY IS TRIVIAL OR NEGLIGIBLE WHEN CONTRASTED WITH THE TOTAL COST OR SCOPE OF THE SUPPLIES OR SERVICES BEING PROCURED. THE CONTRACTING OFFICER SHALL EITHER GIVE THE BIDDER AN OPPORTUNITY TO CURE ANY DEFICIENCY RESULTING FROM A MINOR INFORMALITY OR IRREGULARITY IN A BID OR WAIVE SUCH DEFICIENCY, WHICHEVER IS TO THE ADVANTAGE OF THE GOVERNMENT. EXAMPLES OF MINOR INFORMALITIES OR IRREGULARITIES INCLUDE:

"-/D) FAILURE OF A BIDDER TO ACKNOWLEDGE RECEIPT OF AN AMENDMENT TO AN INVITATION FOR BIDS BUT ONLY IF:

"-/1) THE BID RECEIVED CLEARLY INDICATES THAT THE BIDDER RECEIVED THE AMENDMENT, SUCH AS WHERE THE AMENDMENT ADDED ANOTHER ITEM TO THE INVITATION FOR BIDS AND THE BIDDER SUBMITTED A BID HEREON; OR

"-/2)THE AMENDMENT INVOLVES ONLY A MATTER OF FORM OR IS ONE WHICH HAS EITHER NO EFFECT OR MERELY A TRIVIAL OR NEGLIGIBLE EFFECT ON PRICE, QUANTITY, QUALITY, OR DELIVERY OF THE ITEM BID UPON.-

"SINCE THE WAGE RATES 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. AS 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. 17 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.'

SEE, ALSO, B-160257, DECEMBER 15, 1966; B-157894, NOVEMBER 30, 1965; AND B-138242, JANUARY 2, 1959. ALSO, CONCERNING THE SAVINGS OF $23,850 WHICH COULD BE REALIZED BY AN AWARD TO YOU, IT LONG HAS BEEN HELD THAT IT IS INFINITELY MORE IN THE PUBLIC INTEREST TO ABIDE BY THE RULES OF COMPETITIVE BIDDING THAN TO OBTAIN A PECUNIARY ADVANTAGE IN A PARTICULAR CASE BY THE VIOLATION OF SUCH RULES. 17 COMP. GEN. 554 (1938).

FOR THE REASONS STATED, WE FIND NO LEGAL BASIS TO OBJECT TO THE ADMINISTRATIVE REJECTION OF YOUR BID AS NONRESPONSIVE. THEREFORE, YOUR PROTEST IS DENIED.