B-168551, FEB. 3, 1970

B-168551: Feb 3, 1970

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TO WEDDLE PLUMBING AND HEATING: REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 3. WAS ISSUED ON OCTOBER 8. BIDS WERE OPENED AT 2:00 P.M. WHICH IS CONCERNED WITH APPLICABLE MINIMUM HOURLY RATES OF WAGES REQUIRED BY THE DAVIS BACON ACT. AMENDMENTS TO THE INVITATION WERE TO BE ACKNOWLEDGED ON THE REVERSE SIDE OF THE BID FORM. WHICH IS A CHECK LIST FOR THE BIDDER. THE WAGE RATES WERE ISSUED BY AMENDMENT NO. 1 DATED OCTOBER 16. YOU CONTEND THAT THE AMENDMENT STATES THAT FAILURE TO ACKNOWLEDGE IT "MAY BE GROUNDS FOR REJECTION" NOT THAT "IT WILL BE.". 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.

B-168551, FEB. 3, 1970

BID PROTEST--AMENDMENT ACKNOWLEDGMENT REQUIREMENT DECISION TO WEDDLE PLUMBING AND HEATING, LOW BIDDER, DENYING PROTEST AGAINST REJECTION OF BID BY GENERAL SERVICES ADMINISTRATION FOR LIGHTING AND BOILER CONVERSION AT POST OFFICE AT CLIFTON FORGE, VIRGINIA. BIDDER WHO FAILED TO ACKNOWLEDGE AMENDMENT PRESCRIBING MINIMUM WAGE RATES HAD BID PROPERLY REJECTED AS NONRESPONSIVE.

TO WEDDLE PLUMBING AND HEATING:

REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 3, 1969, QUESTIONING THE PROPRIETY OF THE REJECTION OF YOUR BID BY THE GENERAL SERVICES ADMINISTRATION UNDER PROJECT NO. 450031/78298, CONTRACT NO. GS 03B-15455, FOR LIGHTING AND BOILER CONVERSION AT THE UNITED STATES POST OFFICE, CLIFTON FORGE, VIRGINIA.

THE SOLICITATION, A TOTAL SMALL BUSINESS SET-ASIDE, WAS ISSUED ON OCTOBER 8, 1969, AND BIDS WERE OPENED AT 2:00 P.M; ON OCTOBER 30, 1969. OF THE TWO BIDS RECEIVED, WEDDLE PLUMBING AND HEATING SUBMITTED THE LOW BID IN THE AMOUNT OF $35,715 AND WHITLOCK-DUNN, INCORPORATED, SUBMITTED THE OTHER IN THE AMOUNT OF $39,000. THE CONTRACTING OFFICER DETERMINED YOUR BID TO BE NONRESPONSIVE BECAUSE YOU FAILED TO ACKNOWLEDGE RECEIPT OF AMENDMENT NO. 1 TO THE SOLICITATION WHICH PRESCRIBED THE APPLICABLE MINIMUM HOURLY RATES OF WAGES REQUIRED BY THE DAVIS-BACON ACT.

SECTION 3 OF THE SPECIFICATIONS AND BID FORMS, WHICH IS CONCERNED WITH APPLICABLE MINIMUM HOURLY RATES OF WAGES REQUIRED BY THE DAVIS BACON ACT, PROVIDED AT PAGE 3-3, WAGE RATE SCHEDULE, THAT WAGE RATES WOULD BE ISSUED BY LATER AMENDMENT. AMENDMENTS TO THE INVITATION WERE TO BE ACKNOWLEDGED ON THE REVERSE SIDE OF THE BID FORM, STANDARD FORM 21. FURTHERMORE, AS INDICATED IN THE ADMINISTRATIVE REPORT, THE IFB INCLUDED GSA FORM 1903, NOTICE TO BIDDER, WHICH IS A CHECK LIST FOR THE BIDDER. ITEM NO. 4 ON THE CHECK LIST ASKS THE BIDDER IF HE HAS ACKNOWLEDGED ON S.F. 21, RECEIPT OF ALL AMENDMENTS. AS STATED ABOVE, THE WAGE RATES WERE ISSUED BY AMENDMENT NO. 1 DATED OCTOBER 16, 1969.

BLOCK 6 OF AMENDMENT NO. 1 STATES AS FOLLOWS:

"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." YOU CONTEND THAT THE AMENDMENT STATES THAT FAILURE TO ACKNOWLEDGE IT "MAY BE GROUNDS FOR REJECTION" NOT THAT "IT WILL BE."

IN OUR DECISIONS B-157832, NOVEMBER 9, 1965, AND B-164437, JUNE 26, 1968, 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. IN BOTH CASES WE STATED:

"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 THEREON; 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."

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