B-170064, JUL. 21, 1970

B-170064: Jul 21, 1970

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OF ARMY FOR FAILURE TO ACKNOWLEDGE RECEIPT OF AMENDMENT 0002 WHICH WAS INCLUDED IN A DAVIS BACON ACT WAGE DECISION INCREASING THE MINIMUM WAGE RATES FOR SEVERAL WORK CLASSIFICATIONS. ALTHOUGH BIDDER WAS ON THE MAILING LIST. HE CLAIMS THAT HE DID NOT RECEIVE AN AMENDMENT INCLUDING DAVIS-BACON ACT MINIMUM WAGE RATES FOR SEVERAL CLASSIFICATION OF WORK AND PROTESTS THAT HIS BID SHOULD NOT HAVE BEEN REJECTED. SINCE HE WAS ALREADY PAYING HIS EMPLOYEES EQUAL RATES OR IN EXCESS OF THE MINIMUM PRESCRIBED IN THE ADDENDUM. TO DENVER STEEL PRODUCTS CO: REFERENCE IS MADE TO YOUR LETTER AND AN IDENTICAL LETTER OF JUNE 16. 300 WAS SOME $14. 000 LESS THAN THE NEXT LOW BID AND THE BASIS OF THE PROTEST IS THAT THE BID SHOULD NOT HAVE BEEN REJECTED SINCE YOUR COMPANY IS ALREADY PAYING ITS EMPLOYEES AT RATES EQUAL TO OR IN EXCESS OF THE MINIMUM PRESCRIBED IN AMENDMENT 0002.

B-170064, JUL. 21, 1970

BID PROTEST -- FAILURE TO ACKNOWLEDGE AMENDMENT DECISION TO DENVER STEEL PRODUCTS CO. DENYING PROTEST BECAUSE OF THE REJECTION TO INVITATION FOR BIDS BY THE DEPT. OF ARMY FOR FAILURE TO ACKNOWLEDGE RECEIPT OF AMENDMENT 0002 WHICH WAS INCLUDED IN A DAVIS BACON ACT WAGE DECISION INCREASING THE MINIMUM WAGE RATES FOR SEVERAL WORK CLASSIFICATIONS. ALTHOUGH BIDDER WAS ON THE MAILING LIST, HE CLAIMS THAT HE DID NOT RECEIVE AN AMENDMENT INCLUDING DAVIS-BACON ACT MINIMUM WAGE RATES FOR SEVERAL CLASSIFICATION OF WORK AND PROTESTS THAT HIS BID SHOULD NOT HAVE BEEN REJECTED, SINCE HE WAS ALREADY PAYING HIS EMPLOYEES EQUAL RATES OR IN EXCESS OF THE MINIMUM PRESCRIBED IN THE ADDENDUM, HAD BID PROPERLY REJECTED AS NONRESPONSIVE FOR FAILURE TO ACKNOWLEDGE THE ADDENDUM SINCE ACCEPTANCE OF SUCH A BID WOULD NOT RESULT IN A CONTRACT CONTAINING THE MINIMUM WAGE RATES.

TO DENVER STEEL PRODUCTS CO:

REFERENCE IS MADE TO YOUR LETTER AND AN IDENTICAL LETTER OF JUNE 16, 1970, FROM YOUR GENERAL COUNSEL, PROTESTING THE REJECTION OF YOUR COMPANY'S BID UNDER DEPARTMENT OF THE ARMY INVITATION FOR BIDS DACA45 70-B -0074, FOR FAILURE TO ACKNOWLEDGE RECEIPT OF AMENDMENT 0002 WHICH INCLUDED A DAVIS-BACON ACT WAGE DECISION INCREASING THE MINIMUM WAGE RATES FOR SEVERAL WORK CLASSIFICATIONS.

YOUR COMPANY'S BID IN THE AMOUNT OF $325,300 WAS SOME $14,000 LESS THAN THE NEXT LOW BID AND THE BASIS OF THE PROTEST IS THAT THE BID SHOULD NOT HAVE BEEN REJECTED SINCE YOUR COMPANY IS ALREADY PAYING ITS EMPLOYEES AT RATES EQUAL TO OR IN EXCESS OF THE MINIMUM PRESCRIBED IN AMENDMENT 0002, AND THE FAILURE TO ACKNOWLEDGE THE AMENDMENT WAS DUE TO THE FACT THAT IT HAD NOT BEEN RECEIVED.

THE ADMINISTRATIVE OFFICE HAS REPORTED THAT THE BID WAS REJECTED NOT ONLY FOR FAILING TO ACKNOWLEDGE AMENDMENT 0002 IN THE BID, BUT ALSO BECAUSE A STATEMENT IN THE BID WITH RESPECT TO THE DELIVERY OF BLAST DOORS WAS CONSIDERED TO HAVE QUALIFIED THE CONTRACT COMPLETION DATE. HOWEVER, IT IS NOT NECESSARY TO THE RESOLUTION OF THE PROTEST TO CONSIDER WHETHER THE STATEMENT MADE IN THE BID WITH RESPECT TO DELIVERY OF THE BLAST DOORS QUALIFIED THE BID SINCE, AS HEREINAFTER INDICATED, THE BID WAS OTHERWISE NONRESPONSIVE FOR FAILING TO ACKNOWLEDGE AMENDMENT 0002.

RECENTLY, WE HAD OCCASION TO CONSIDER A SIMILAR CASE WHEREIN A BIDDER FAILED TO ACKNOWLEDGE AN AMENDMENT INCORPORATING A DAVIS-BACON ACT WAGE DECISION INCREASING THE MINIMUM WAGE RATES. B-169581, MAY 8, 1970. THAT DECISION WE DISMISSED AS IMMATERIAL THE FACT THAT THE BIDDER WOULD BE PAYING THE SAME OR HIGHER WAGE RATES UNDER UNION LABOR AGREEMENTS. FURTHER, THE DECISION CONCLUDED:

"IN OUR VIEW THE CONTROLLING CONSIDERATION IN THIS AND SIMILAR CASES IS THAT WHERE A BIDDER FAILS TO ACKNOWLEDGE THE ADDENDUM HIS BID IS NONRESPONSIVE BECAUSE ACCEPTANCE OF THE BID IN THE FORM IT EXISTS AT THE TIME OF OPENING WOULD NOT RESULT IN A CONTRACT CONTAINING A STATEMENT OF THE MINIMUM WAGE RATES TO BE PAID AS REQUIRED BY THE DAVIS BACON ACT, 40 U.S.C. 276A." THE FOREGOING HAS EQUAL APPLICATION HERE.

THE ADMINISTRATIVE OFFICE HAS REPORTED THAT THE NAME OF YOUR COMPANY WAS ON THE ADDRESSOGRAPH MACHINE LIST FOR THE MAILING OF AMENDMENT 0002 AND THAT IT CANNOT UNDERSTAND WHY YOUR COMPANY DID NOT RECEIVE THE AMENDMENT. HOWEVER, THE FACT THAT THE AMENDMENT WAS NOT RECEIVED DOES NOT PROVIDE A BASIS FOR WAIVING THE FAILURE TO ACKNOWLEDGE THE AMENDMENT. IN THAT CONNECTION, IT WAS STATED IN 40 COMP. GEN. 126 (1960), AT PAGE 128, THAT--

" *** WHILE THE GOVERNMENT SHOULD MAKE EVERY EFFORT TO SEE THAT INTERESTED BIDDERS RECEIVE TIMELY COPIES OF THE INVITATIONS FOR BIDS AND AMENDMENTS THERETO, THE FACT THAT THERE WAS A FAILURE TO DO SO IN A PARTICULAR CASE DOES NOT WARRANT THE ACCEPTANCE OF A BID OR A MODIFICATION THEREOF AFTER THE TIME FIXED FOR OPENING. *** "

IN VIEW OF THE FOREGOING, WE CONCLUDE THAT THE REJECTION OF YOUR COMPANY'S BID WAS PROPER IN THE CIRCUMSTANCES. THE PROTEST IS ACCORDINGLY DENIED.