B-172581, JUN 7, 1971, 50 COMP GEN 844

B-172581: Jun 7, 1971

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CONTRACTS - LABOR STIPULATIONS - NONDISCRIMINATION - "AFFIRMATIVE ACTION PROGRAMS" WHEN AN INVITATION FOR BIDS TO REHABILITATE AND REMODEL APARTMENT BUILDINGS REQUIRES BIDDERS TO COMPLETE AN APPENDIX TO THE INVITATION WHICH IS INTENDED TO IMPLEMENT THE WASHINGTON PLAN THAT PROVIDES EQUAL EMPLOYMENT OPPORTUNITY ON FEDERAL CONSTRUCTION PROJECTS EXCEEDING $500. WHICH WAS ISSUED PURSUANT TO EXECUTIVE ORDER NO. 11246. THE MERE SIGNING OF THE APPENDIX WITHOUT SUBMITTING THE REQUIRED SPECIFIC PERCENTAGE GOALS FOR MINORITY MANPOWER UTILIZATION RENDERS THE LOW BID NONRESPONSIVE AS THE COMPLETION OF THE APPENDIX IS A CONDITION PRECEDENT TO BID ACCEPTANCE. THE FAILURE TO FURNISH THE MINORITY MANPOWER GOALS IS NOT A MINOR INFORMALITY THAT MAY BE CORRECTED OR WAIVED UNDER SECTION 1-2.405 OF THE FEDERAL PROCUREMENT REGULATIONS AND THE DEFICIENT BID IS NOT ELIGIBLE FOR AWARD.

B-172581, JUN 7, 1971, 50 COMP GEN 844

CONTRACTS - LABOR STIPULATIONS - NONDISCRIMINATION - "AFFIRMATIVE ACTION PROGRAMS" WHEN AN INVITATION FOR BIDS TO REHABILITATE AND REMODEL APARTMENT BUILDINGS REQUIRES BIDDERS TO COMPLETE AN APPENDIX TO THE INVITATION WHICH IS INTENDED TO IMPLEMENT THE WASHINGTON PLAN THAT PROVIDES EQUAL EMPLOYMENT OPPORTUNITY ON FEDERAL CONSTRUCTION PROJECTS EXCEEDING $500,000, AND WHICH WAS ISSUED PURSUANT TO EXECUTIVE ORDER NO. 11246, THE MERE SIGNING OF THE APPENDIX WITHOUT SUBMITTING THE REQUIRED SPECIFIC PERCENTAGE GOALS FOR MINORITY MANPOWER UTILIZATION RENDERS THE LOW BID NONRESPONSIVE AS THE COMPLETION OF THE APPENDIX IS A CONDITION PRECEDENT TO BID ACCEPTANCE. THEREFORE, THE FAILURE TO FURNISH THE MINORITY MANPOWER GOALS IS NOT A MINOR INFORMALITY THAT MAY BE CORRECTED OR WAIVED UNDER SECTION 1-2.405 OF THE FEDERAL PROCUREMENT REGULATIONS AND THE DEFICIENT BID IS NOT ELIGIBLE FOR AWARD.

TO SHER AND HARRIS, JUNE 7, 1971:

YOU HAVE PROTESTED BY LETTERS OF APRIL 15, MAY 3 AND 4, 1971, AGAINST THE REJECTION OF THE LOW BID OF THE NORTHEAST CONSTRUCTION CO. UNDER INVITATION FOR BIDS (IFB) NO. 71-481, ISSUED BY THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT FOR THE GENERAL REHABILITATION AND REMODELING OF VACANT APARTMENT BUILDINGS IN THE SOUTHEAST SECTION OF WASHINGTON, D.C.

THE NEXT LOW BIDDER, BIRD ASSOCIATES, INC., HAS OBJECTED TO AN AWARD TO NORTHEAST BECAUSE IT FAILED TO COMPLETE APPENDIX "A" OF THE INVITATION. APPENDIX "A" IS AN IMPLEMENTATION OF THE WASHINGTON PLAN (SEE 41 CFR 60-5) FOR EQUAL EMPLOYMENT OPPORTUNITY ON FEDERAL CONSTRUCTION PROJECTS EXCEEDING $500,000. BIRD CONTENDS THAT COMPLETION OF THE APPENDIX BY A BIDDER "IS A CONDITION PRECEDENT TO ANY BID BEING ACCEPTED AS BEING RESPONSIVE." CONSEQUENTLY, IT IS ARGUED THAT THE MERE SIGNING OF APPENDIX "A" IN TWO PLACES BY NORTHEAST WITHOUT SUBMITTING THEREIN ITS SPECIFIC PERCENTAGE GOALS FOR MINORITY MANPOWER UTILIZATION RENDERED ITS BID NONRESPONSIVE. FOR THE REASONS HEREINAFTER STATED, WE AGREE.

PARAGRAPH 2 OF AMENDMENT NO. 1 INCORPORATED APPENDIX "A" INTO THE IFB STATING THAT THE APPENDIX "STIPULATES CONTRACTOR RESPONSIBILITIES UNDER GOVERNMENT REQUIREMENTS FOR AFFIRMATIVE ACTION TO ASSURE COMPLIANCE WITH EQUAL EMPLOYMENT OPPORTUNITY REQUIREMENTS OF EXECUTIVE ORDER NO. 11246 FOR FEDERALLY INVOLVED CONSTRUCTION CONTRACTS."

THE APPENDIX, ENTITLED "NOTICE OF REQUIREMENT FOR SUBMISSION OF AFFIRMATIVE ACTION PLAN TO ENSURE EQUAL EMPLOYMENT OPPORTUNITY," WAS INCLUDED IN THE IFB IN COMPLIANCE WITH AND IMPLEMENTATION OF AN ORDER ISSUED ON JUNE 1, 1970, BY THE SECRETARY OF LABOR, ASSISTANT SECRETARY OF LABOR FOR WAGE AND LABOR STANDARDS, AND THE DIRECTOR OF THE OFFICE OF FEDERAL CONTRACT COMPLIANCE. THE ORDER INDICATED THAT THE WASHINGTON PLAN IS TO BE IMPLEMENTED BY INCLUDING IN THE INVITATION FOR BIDS A NOTICE SUBSTANTIALLY SIMILAR TO ONE CAPTIONED "APPENDIX A," WHICH IS ATTACHED TO THE ORDER. APPENDIX "A" OF THE IFB CONTAINS SUBSTANTIALLY SIMILAR LANGUAGE TO THAT REQUIRED BY THE ORDER. THE REQUIREMENTS, TERMS AND CONDITIONS OF THE APPENDIX INCLUDE A STATEMENT OF THE PRESCRIBED RANGES OF MINORITY MANPOWER UTILIZATION FOR SPECIFICALLY DESIGNATED TRADES COVERING FOUR DISTINCT TIME PERIODS WHICH WOULD CONSTITUTE AN ACCEPTABLE AFFIRMATIVE ACTION PROGRAM; FOR EXAMPLE:

RANGE OF MINORITY GROUP

EMPLOYMENT FROM MAY 31,

TRADE 1971 UNTIL MAY 31, 1972

ELECTRICIANS 16%-22%

BIDDERS WERE REQUIRED TO SUBMIT SPECIFIC GOALS FOR MINORITY MANPOWER UTILIZATION WITHIN THE PRESCRIBED RANGES FOR EACH PARTICULAR TRADE TO BE ACHIEVED ON ALL WORK OF THE BIDDER DURING THE TERM OF THE PERFORMANCE OF ANY RESULTANT CONTRACT, AS FOLLOWS:

NUMBER OF MINORITY GROUP

ESTIMATED TOTAL EMPLOYMENT FOR THE EMPLOYEES AND THEIR

PERCENTAGE OF THE TOTAL

TRADE ON THE CONTRACT FROM MAY 31, FROM MAY 31, 1971

TRADE 1971 UNTIL MAY 31, 1972 UNTIL MAY 31, 1972

WHILE YOU ADMIT THAT NORTHEAST DID NOT SUBMIT SPECIFIC GOALS FOR MINORITY MANPOWER UTILIZATION AS REQUIRED BY THE APPENDIX, YOU INVITE OUR ATTENTION TO THE FACT THAT NORTHEAST SIGNED AND DATED THE APPENDIX AT PAGES 4 AND 12 THEREOF. THEREFORE, IT IS CONTENDED THAT THE BID WAS RESPONSIVE IN ALL MATERIAL RESPECTS SINCE THE SIGNATURES WERE "INTENDED TO MEAN, AND INDEED COULD ONLY MEAN THAT NORTHEAST *** WAS COMMITTING ITSELF AND COMMITTED ITSELF TO ADOPT AS ITS GOALS FOR MINORITY MANPOWER UTILIZATION, THE GOALS (RANGES) OF THE WASHINGTON PLAN AS SET FORTH IN THE REQUIREMENTS, TERMS AND CONDITIONS OF APPENDIX A." FURTHER, IT IS ARGUED THAT NORTHEAST'S FAILURE TO COMPLETE THE BLANK SPACES CALLING FOR SPECIFIC GOALS OF MINORITY MANPOWER UTILIZATION WAS A MINOR INFORMALITY OR IRREGULARITY, MERELY A MATTER OF FORM AND NOT OF SUBSTANCE, OR, AT MOST, A VARIATION FROM THE EXACT REQUIREMENT OF THE IFB, WHICH CAN BE CORRECTED OR WAIVED IN ACCORDANCE WITH SECTION 1 2.405 OF THE FEDERAL PROCUREMENT REGULATIONS (FPR).

SECTION 1 OF THE REQUIREMENTS, TERMS AND CONDITIONS OF APPENDIX "A" FORBIDS THE AWARDING OF A CONSTRUCTION CONTRACT OF THE TYPE INVOLVED HERE

*** UNLESS THE BIDDER COMPLETES AND SUBMITS, PRIOR TO BID OPENING, THIS DOCUMENT DESIGNATED AS APPENDIX A *** WHICH SHALL INCLUDE SPECIFIC GOALS OF MINORITY MANPOWER UTILIZATION FOR EACH TRADE DESIGNATED BELOW *** DURING THE TERM OF HIS PERFORMANCE OF THE CONTRACT, SUCH GOALS TO BE ESTABLISHED *** AT LEAST WITHIN THE RANGES ESTABLISHED BY THIS APPENDIX

A BIDDER WHO FAILS OR REFUSED TO COMPLETE OR SUBMIT SUCH GOALS SHALL NOT BE DEEMED A RESPONSIVE BIDDER AND MAY NOT BE AWARDED THE CONTRACT *** . IN NO CASE SHALL THERE BE ANY NEGOTIATION OVER THE PROVISIONS OF THE SPECIFIC GOALS SUBMITTED BY THE BIDDER AFTER THE OPENING OF BIDS AND PRIOR TO THE AWARD OF THE CONTRACT.

TO BE ELIGIBLE FOR AWARD, EACH BIDDER WILL BE REQUIRED TO COMPLY WITH THIS APPENDIX FOR THE HEREINBEFORE DESIGNATED TRADES TO BE USED DURING THE TERM OF THE PERFORMANCE OF THE CONTRACT *** .

IN ADDITION, PARAGRAPH 2 OF AMENDMENT NO. 1 STATES:

*** BIDDER IS CAUTIONED TO COMPLETE APPENDIX A AS REQUIRED THEREIN AND RETURN THE COMPLETED APPENDIX A WITH THE BID. FAILURE TO DO SO SHALL CAUSE THE BID TO BE REECTED AS NONRESPONSIVE.

IN VIEW OF THE ABOVE, AND AS SET FORTH BELOW, WE DO NOT AGREE THAT A FAILURE TO SUBMIT SPECIFIC GOALS FOR MINORITY MANPOWER UTILIZATION IS A DEVIATION WHICH CAN BE WAIVED OR CORRECTED. SECTION 3 OF THE REQUIREMENTS, TERMS AND CONDITIONS OF APPENDIX "A" STATES THAT "THE CONTRACTOR'S OR SUBCONTRACTOR'S GOALS ESTABLISHED WITHIN THE ABOVE RANGES SHALL EXPRESS THE CONTRACTOR'S *** COMMITMENT OF THE PERCENTAGE OF MINORITY PERSONNEL WHO WILL BE WORKING IN EACH SPECIFIED CRAFT ON EACH OF HIS PROJECTS." ALSO, SECTION 4 THEREOF NOTES THAT THE COMMITMENT TO SPECIFIC GOALS IS TO MEET AFFIRMATIVE ACTION OBLIGATIONS. SECTION 5 THEREOF FURTHER BUTTRESSES OUR CONCLUSION. IT READS, IN PERTINENT PART, THAT:

THE CONTRACTOR'S OR SUBCONTRACTOR'S *** COMMITMENT TO SPECIFIC GOALS FOR MINORITY MANPOWER UTILIZATION AS REQUIRED BY THIS APPENDIX A SHALL CONSTITUTE A COMMITMENT TO MAKE EVERY GOOD FAITH EFFORT TO MEET SUCH GOALS

IN THE EVENT THAT THE CONTRACTOR FAILS TO MEET THE SPECIFIC GOALS WHICH HE ESTABLISHES, A DETERMINATION OF WHETHER OR NOT HE EXERCISED "GOOD FAITH" IN ATTEMPTING TO MEET SAID GOALS IS BASED AND CORRELATIVE UPON HIS SPECIFIC COMMITMENT THEREON. SANCTIONS SUCH AS CONTRACT CANCELLATION CAN BE IMPOSED IF IT IS DETERMINED THAT THE CONTRACTOR DID NOT EMPLOY THE REQUISITE "GOOD FAITH." IT IS OUR VIEW THAT THE SUBMISSION OF GOALS BY THE SUCCESSFUL BIDDER WOULD OPERATE TO MAKE THE REQUIREMENT FOR "EVERY GOOD FAITH EFFORT" TO ATTAIN SUCH GOALS A MATERIAL PART OF HIS CONTRACTUAL OBLIGATION UPON AWARD OF A CONTRACT. THEREFORE, THE OBLIGATIONS IMPOSED BY APPENDIX "A" WOULD BECOME A PART OF THE CONTRACT SPECIFICATIONS AGAINST WHICH A CONTRACTOR'S PERFORMANCE WILL BE JUDGED IN THE EVENT HE FAILS TO ATTAIN HIS STATED GOALS, JUST AS MUCH AS HIS STATED GOALS BECOME A PART OF THE CONTRACT SPECIFICATIONS AGAINST WHICH HIS PERFORMANCE WILL BE JUDGED IN THE EVENT HE DOES ATTAIN HIS STATED GOALS.

WITH THE FOREGOING IN MIND, WE CANNOT AGREE THAT, BECAUSE IT SIGNED APPENDIX "A" IN TWO PLACES, NORTHEAST WAS COMMITTED TO THE PRESCRIBED MINIMUM PERCENTAGE RANGES FOR MINORITY GROUP EMPLOYMENT SET FORTH IN THE REQUIREMENTS, TERMS AND CONDITIONS OF THE APPENDIX. UPON EXAMINATION OF THE NORTHEAST BID AND THE ATTACHED APPENDIX "A," WE FIND NO BASIS TO CONCLUDE THAT NORTHEAST WAS LEGALLY BOUND TO AT LEAST THE MINIMUM PRESCRIBED PERCENTAGE RANGES. THE APPENDIX, READ AS A WHOLE, IS QUITE SPECIFIC THAT THE BIDDER MUST SUBMIT HIS GOALS, SINCE HIS COMPLIANCE IS MEASURED BY HIS GOALS AND NOT BY THE PRESCRIBED MINIMUMS. ACCORDINGLY, IT IS OUR OPINION THAT A FAILURE BY A BIDDER TO SUBMIT SPECIFIC INDIVIDUAL GOALS FOR MINORITY MANPOWER UTILIZATION CONSTITUTES SUCH A MATERIAL DEVIATION FROM THE STATED REQUIREMENTS OF APPENDIX "A" THAT SUCH A DEFICIENT BID CANNOT BE REGARDED AS ELIGIBLE FOR AWARD UNDER THE SUBJECT INVITATION.