B-174932, MAR 3, 1972

B-174932: Mar 3, 1972

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IT IS THE OPINION OF THE COMP. THAT AFFIRMATIVE ACTION REQUIREMENTS ARE MATERIAL AND THE COMMITMENT TO THEM MUST BE MADE PRIOR TO BID OPENING. A FAILURE TO COMPLY BEFORE THIS TIME IS NOT SUBJECT TO SUBSEQUENT WAIVER OR CORRECTION. ZOERB'S BID WAS NONRESPONSIVE AND MAY NOT BE CONSIDERED FOR AWARD. IS RESTRICTED TO SMALL BUSINESS CONCERNS. WILL RENDER THE BID NONRESPONSIVE. SUCCESSFUL BIDDERS WILL BE REQUIRED TO SUBMIT THE MONTHLY MANPOWER UTILIZATION REPORT OPTIONAL FORM 66 (COPY ATTACHED) AS SPECIFIED ON PAGE 13. WHERE A BIDDER WILL NEED ADDITIONAL COPIES OF BID CONDITIONS AFFIRMATIVE ACTION REQUIREMENTS. COPIES WILL BE FURNISHED BY THE CONTRACTING OFFICER UPON REQUEST.". PROVIDED THERE IS SET FORTH IN THE BUFFALO PLAN A SPECIFIC COMMITMENT BY THAT UNION TO A GOAL OF MINORITY MANPOWER UTILIZATION FOR SUCH TRADE 'A'.

B-174932, MAR 3, 1972

BID PROTEST - NONRESPONSIVENESS - AFFIRMATIVE ACTION REQUIREMENTS - TIMELY COMPLIANCE CONCERNING WHETHER A BID SUBMITTED BY ZOERB AND COMPANY, INC., MAY BE REGARDED AS RESPONSIVE TO AN IFB ISSUED BY THE VETERANS ADMINISTRATION HOSPITAL, BUFFALO, N.Y., FOR A PROCUREMENT OF FLUORESCENT LIGHTING FIXTURES. IT IS THE OPINION OF THE COMP. GEN. THAT AFFIRMATIVE ACTION REQUIREMENTS ARE MATERIAL AND THE COMMITMENT TO THEM MUST BE MADE PRIOR TO BID OPENING. B-174259, JANUARY 5, 1972. A FAILURE TO COMPLY BEFORE THIS TIME IS NOT SUBJECT TO SUBSEQUENT WAIVER OR CORRECTION. IN THE INSTANT CASE, THE INFORMATION SUPPLIED BY ZOERB IN STANDARD FORM 19-B PRIOR TO BID OPENING CANNOT BE REGARDED AS A COMMITMENT TO THE AFFIRMATIVE ACTION REQUIREMENTS EQUAL EMPLOYMENT OPPORTUNITY, BUFFALO, N.Y. PLAN, SINCE SUCH INFORMATION ONLY REFLECTS PAST OEE COMPLIANCE AND DOES NOT BIND THE CONTRACTOR TO THE SPECIFIC AAP IN PERFORMING THE CONTRACT UNDER THE PRESENT SOLICITATION. ACCORDINGLY, ZOERB'S BID WAS NONRESPONSIVE AND MAY NOT BE CONSIDERED FOR AWARD.

TO MR. DONALD E. JOHNSON:

WE REFER TO A LETTER DATED JANUARY 6, 1972, 134G, FROM THE DIRECTOR, SUPPLY SERVICE, DEPARTMENT OF MEDICINE AND SURGERY, REQUESTING A DECISION BY OUR OFFICE WHETHER A BID SUBMITTED BY ZOERB AND COMPANY, INC. (ZOERB), MAY BE REGARDED AS RESPONSIVE TO INVITATION FOR BIDS (IFB) 528-32-72, ISSUED DECEMBER 3, 1971, BY THE VETERANS ADMINISTRATION HOSPITAL, BUFFALO, NEW YORK. THE PROCUREMENT INVOLVES THE FURNISHING AND INSTALLATION IN THE HOSPITAL OF FLUORESCENT LIGHTING FIXTURES, AND IS RESTRICTED TO SMALL BUSINESS CONCERNS.

THE IFB, STANDARD FORM 20, INVITATION FOR BIDS (CONSTRUCTION CONTRACT), STATED THAT BIDS WOULD BE OPENED AT 10:00 A.M., DECEMBER 17, 1971. ON THE REVERSE SIDE OF THE FORM, THERE APPEARED THE FOLLOWING PERTINENT LANGUAGE:

"IMPORTANT NOTICE:

"BIDDER MUST COMPLY WITH BID CONDITIONS, AFFIRMATIVE ACTION REQUIREMENTS EQUAL EMPLOYMENT OPPORTUNITY, BUFFALO, N.Y. PLAN. (COPY ENCLOSED). FAILURE TO SUBMIT A PART I CERTIFICATION OR A PART II AFFIRMATIVE ACTION PLAN, AS APPLICABLE, WILL RENDER THE BID NONRESPONSIVE. SUCCESSFUL BIDDERS WILL BE REQUIRED TO SUBMIT THE MONTHLY MANPOWER UTILIZATION REPORT OPTIONAL FORM 66 (COPY ATTACHED) AS SPECIFIED ON PAGE 13, PART III OF THE ABOVE.

"IN CIRCUMSTANCES, WHERE A BIDDER WILL NEED ADDITIONAL COPIES OF BID CONDITIONS AFFIRMATIVE ACTION REQUIREMENTS, EQUAL OPPORTUNITY, BUFFALO, N.Y. PLAN, FOR HIS SUBMITTAL TO SUB-CONTRACTORS, COPIES WILL BE FURNISHED BY THE CONTRACTING OFFICER UPON REQUEST."

THE BID CONDITIONS, WHICH APPLY TO ALL NONEXEMPT FEDERAL AND FEDERALLY ASSISTED CONSTRUCTION CONTRACTS TO BE AWARDED IN ERIE COUNTY AND BUFFALO, NEW YORK, REQUIRE BIDDERS, CONTRACTORS AND SUBCONTRACTORS TO BE COMMITTED TO A PROGRAM FOR MINORITY MANPOWER UTILIZATION FOR EACH TRADE TO BE UTILIZED ON THE CONTRACT. IN THIS CONNECTION, PART I OF THE BID CONDITIONS READS, IN PERTINENT PART, AS FOLLOWS:

"ANY BIDDER, CONTRACTOR OR SUBCONTRACTOR USING ONE OR MORE TRADES OF CONSTRUCTION EMPLOYEES MUST COMPLY WITH EITHER PART I OR PART II OF THESE BID CONDITIONS AS TO EACH SUCH TRADE. THUS, A BIDDER, CONTRACTOR OR SUBCONTRACTOR MAY BE IN COMPLIANCE WITH THESE CONDITIONS BY ITS INCLUSION, WITH ITS UNION, IN THE BUFFALO PLAN AS TO TRADE 'A', PROVIDED THERE IS SET FORTH IN THE BUFFALO PLAN A SPECIFIC COMMITMENT BY THAT UNION TO A GOAL OF MINORITY MANPOWER UTILIZATION FOR SUCH TRADE 'A', THEREBY MEETING THE PROVISIONS OF THIS PART I, AND BY ITS COMMITMENT TO PART II IN REGARD TO TRADE 'B' IN THE INSTANCE IN WHICH IT IS NOT INCLUDED IN THE BUFFALO PLAN AND, THEREFORE, CANNOT MEET THE PROVISIONS OF THIS PART I.

"TO BE ELIGIBLE FOR AWARD OF A CONTRACT UNDER PART I OF THIS INVITATION FOR BIDS, A BIDDER MUST EXECUTE AND SUBMIT AS PART OF ITS BID THE FOLLOWING CERTIFICATION, WHICH WILL BE DEEMED A PART OF THE RESULTING CONTRACT:

(NAME OF BIDDER) CERTIFIES THAT:

(A) IT INTENDS TO USE THE FOLLOWING LISTED CONSTRUCTION TRADES IN THE WORK UNDER THE CONTRACT, EITHER ITSELF OR THROUGH SUBCONTRACTORS AT ANY TIER

(B) THE LABOR ORGANIZATIONS WITH WHOM IT HAS COLLECTIVE BARGAINING AGREEMENTS WHO ARE SIGNATORIES TO THE BUFFALO PLAN AND AS TO WHICH TRADES THERE ARE SET FORTH IN THE BUFFALO PLAN, SPECIFIC COMMITMENTS TO GOALS OF MINORITY MANPOWER UTILIZATION ARE AS FOLLOWS:

(C) THE LABOR ORGANIZATIONS WITH WHOM IT HAS COLLECTIVE BARGAINING AGREEMENTS WHO ARE NOT SIGNATORIES TO THE BUFFALO PLAN OR WHO ARE SIGNATORIES THERETO BUT WITH RESPECT TO TRADES FOR WHICH NO SPECIFIC COMMITMENTS TO GOALS OF MINORITY MANPOWER UTILIZATION ARE SET FORTH IN THE BUFFALO PLAN ARE AS FOLLOWS: ;

(D) THE FOLLOWING IS A FULL LIST OF ALL PRESENT CONSTRUCTION WORK OR CONTRACTS (BOTH FEDERAL AND NON-FEDERAL) TO WHICH IT IS A PARTY IN ANY CAPACITY IN ERIE COUNTY AND BUFFALO, NEW YORK:

(E) IT WILL COMPLY, AND REQUIRE ITS SUBCONTRACTORS TO COMPLY, WITH ALL OF THE TERMS OF THE BUFFALO PLAN ON ALL WORK (BOTH FEDERAL AND NON FEDERAL) IN THE COUNTIES DESCRIBED IN THE PRECEDING PARAGRAPH (D) HEREOF, IN ANY TRADE AS SET FORTH IN PARAGRAPH (B) HEREOF FOR WHICH IT OR ITS SUBCONTRACTORS ARE COMMITTED TO THE BUFFALO PLAN, AND WILL BE BOUND BY THE PROVISIONS OF PART II OF THESE BID CONDITIONS ON ALL WORK IN SUCH COUNTIES, FOR ALL OTHER TRADES AS SET FORTH IN PARAGRAPH (C) HEREOF; AND (F) IN THE EVENT THE BIDDER IS NO LONGER PARTICIPATING IN AN AFFIRMATIVE ACTION PLAN ACCEPTABLE TO THE DIRECTOR OF THE OFFICE OF FEDERAL CONTRACT COMPLIANCE, INCLUDING THE BUFFALO PLAN, OR IT OR THE UNION WITH WHOM IT MAINTAINS A COLLECTIVE BARGAINING AGREEMENT CEASES TO BE A PARTICIPATING SIGNATORY TO THE BUFFALO PLAN, THE BIDDER WILL COMPLY WITH PART II OF THESE BID CONDITIONS.

(SIGNATURE OF AUTHORIZED REPRESENTATIVE OF BIDDER.)

"THE BIDDER SHALL CAUSE THE FOLLOWING CERTIFICATION TO BE INCLUDED IN ALL BID INVITATIONS TO PROSPECTIVE SUBCONTRACTORS, REGARDLESS OF WHETHER THEY ARE SIGNATORIES TO THE BUFFALO PLAN AND REGARDLESS OF TIER; AND SHALL CAUSE THE FOLLOWING CERTIFICATION, AS EXECUTED, TO BE MADE A PART OF ALL SUBCONTRACTS, REGARDLESS OF TIER:

(NAME OF SUBCONTRACTOR) CERTIFIES THAT IT UNDERSTANDS THE EQUAL EMPLOYMENT OPPORTUNITY REQUIREMENTS OF THE BUFFALO PLAN REGARDING EQUAL EMPLOYMENT OPPORTUNITY IN THE CONSTRUCTION INDUSTRY IN ERIE COUNTY AND BUFFALO, NEW YORK; THAT IT EITHER INDIVIDUALLY OR THROUGH AN ASSOCIATION AND THE LABOR ORGANIZATIONS WITH WHOM IT HAS COLLECTIVE BARGAINING AGREEMENTS ARE SIGNATORIES AND AGREE TO COMPLY WITH THE BUFFALO PLAN AND THERE ARE SET FORTH IN THE BUFFALO PLAN SPECIFIC COMMITMENTS TO GOALS OF MINORITY MANPOWER UTILIZATION AS TO SUCH TRADES OR IF SUCH IS NOT THE CASE IT AGREES TO COMPLY WITH THE REQUIREMENTS OF PART II OF THE BID CONDITIONS; THAT IN THE EVENT THE SUBCONTRACTOR IS NO LONGER PARTICIPATING IN AN AFFIRMATIVE ACTION PLAN ACCEPTABLE TO THE DIRECTOR OF THE OFFICE OF FEDERAL CONTRACT COMPLIANCE, INCLUDING THE BUFFALO PLAN, THE SUBCONTRACTOR WILL COMPLY WITH PART II OF THESE BID CONDITIONS; THAT IT SHALL REQUIRE THE EXECUTION OF THIS CERTIFICATION BY ANY OF ITS SUBCONTRACTORS, REGARDLESS OF TIER; AND THAT THIS CERTIFICATION SHALL BE A PART OF ANY SUBCONTRACT.

(SIGNATURE OF AUTHORIZED REPRESENTATIVE OF SUBCONTRACTOR)

IN ORDER TO ENSURE THAT THE SAID SUBCONTRACTOR CERTIFICATION BECOMES A PART OF ALL SUBCONTRACTS UNDER THE PRIME CONTRACT OF A PRIME CONTRACTOR WITH RESPECT TO WHOM THIS PART I IS APPLICABLE, NO SUBCONTRACT SHALL BE EXECUTED UNTIL AN AUTHORIZED REPRESENTATIVE OF THE VETERANS (VA) ADMINISTRATION HAS DETERMINED, IN WRITING, THAT THE SAID CERTIFICATION HAS BEEN INCORPORATED IN SUCH SUBCONTRACT, REGARDLESS OF TIER. ANY SUBCONTRACT EXECUTED WITHOUT SUCH WRITTEN APPROVAL SHALL BE VOID."

PART II OF THE BID CONDITIONS CALLS FOR AN AFFIRMATIVE ACTION PLAN WITH THE BID OF ANY BIDDER, CONTRACTOR OR SUBCONTRACTOR NOT ELIGIBLE FOR AWARD UNDER PART I. THE GOALS AND TIMETABLES AND AFFIRMATIVE ACTION STEPS TO BE INCLUDED IN THE PLAN ARE SET FORTH IN PART II.

PART III OF THE BID CONDITIONS, ENTITLED "MATERIALITY AND RESPONSIVENESS," READS AS FOLLOWS:

"ANY EQUAL EMPLOYMENT OPPORTUNITY SUBMISSION REQUIRED TO BE MADE BY THE PROSPECTIVE CONTRACTOR PURSUANT EITHER TO PART I OR PART II OF THESE BID CONDITIONS WHICH IS MATERIAL AND WHICH WILL GOVERN THE CONTRACTOR'S PERFORMANCE ON THE PROJECT SHALL BE MADE A PART OF HIS BID. FAILURE TO SUBMIT A PART I CERTIFICATION OR A PART II AFFIRMATIVE ACTION PLAN, AS APPLICABLE, WILL RENDER THE BID NONRESPONSIVE."

PART IV COVERS COMPLIANCE AND ENFORCEMENT OF THE OBLIGATIONS OF BIDDERS, CONTRACTORS AND SUBCONTRACTORS UNDER PART I OR PART II AS APPLICABLE.

STANDARD FORM 21, BID FORM (CONSTRUCTION CONTRACT), ON WHICH THE BID WAS SUBMITTED, CARRIES THE PRINTED NOTATION, "THE REPRESENTATIONS AND CERTIFICATIONS ON THE ACCOMPANYING STANDARD FORM 19-B ARE MADE A PART OF THE BID." STANDARD FORM 19-B, WHICH IS ENTITLED "REPRESENTATIONS AND CERTIFICATIONS (CONSTRUCTION CONTRACT)," AS AMENDED AND INCORPORATED IN THE BID PAPERS, INCLUDES THE FOLLOWING PERTINENT PARAGRAPHS:

"5. EQUAL OPPORTUNITY

HE HAS, HAS NOT, PARTICIPATED IN A PREVIOUS CONTRACT OR SUBCONTRACT SUBJECT TO THE EQUAL OPPORTUNITY CLAUSE HEREIN, THE CLAUSE ORIGINALLY CONTAINED IN SECTION 301 OF EXECUTIVE ORDER NO. 10925, OR THE CLAUSE CONTAINED IN SECTION 201 OF EXECUTIVE ORDER NO. 11114; HE HAS, HAS NOT, FILED ALL REQUIRED COMPLIANCE REPORTS; AND REPRESENTATIONS INDICATING SUBMISSION OF REQUIRED COMPLIANCE REPORTS, SIGNED BY PROPOSED SUBCONTRACTORS, WILL BE OBTAINED PRIOR TO SUBCONTRACT AWARDS. (THE ABOVE REPRESENTATION NEED NOT BE SUBMITTED IN CONNECTION WITH CONTRACTS OR SUBCONTRACTS WHICH ARE EXEMPT FROM THE CLAUSE.)

"CHANGE NO. 1, TO REPRESENTATIONS AND CERTIFICATIONS, OCTOBER 1969 EDITION

NOTICE: REPRESENTATIONS AND CERTIFICATIONS, SF-19B, IS CHANGED AS FOLLOWS:

ITEM 1. CLAUSE 5 IS AMENDED TO INCLUDE THE FOLLOWING:

THE BIDDER (OR OFFEROR) REPRESENTS THAT (1) HE HAS DEVELOPED AND HAS ON FILE HAS NOT DEVELOPED AND DOES NOT HAVE ON FILE AT EACH ESTABLISHMENT AFFIRMATIVE ACTION PROGRAMS AS REQUIRED BY THE RULES AND REGULATIONS OF THE SECRETARY OF LABOR (41 CFR 60-1 AND 60-2), OR (2) HE HAS NOT PREVIOUSLY HAD CONTRACTS SUBJECT TO THE WRITTEN AFFIRMATIVE ACTION PROGRAM REQUIREMENT OF THE RULES AND REGULATIONS OF THE SECRETARY OF LABOR."

ON DECEMBER 17 THE BIDS RECEIVED BY THE HOSPITAL WERE OPENED AT 10:00 A.M. AS SCHEDULED. ZOERB'S BID OF $74,950 FOR THE WORK COVERED BY ITEM 1 AND $61,514 FOR A LESSER QUANTITY OF WORK COVERED BY ALTERNATE ITEM 2 WAS LOWEST. THE SECOND LOW BID QUOTED $85,585 FOR ITEM 1 AND $72,000 FOR ITEM 2, AND THE THIRD BID QUOTED $87,900 FOR ITEM 1 AND $72,986 FOR ITEM 2.

ON STANDARD FORM 19-B, ZOERB HAD CHECKED CLAUSE 5, EQUAL OPPORTUNITY, TO INDICATE THAT IT HAD PARTICIPATED IN A PREVIOUS CONTRACT OR SUBCONTRACT SUBJECT TO THE EQUAL OPPORTUNITY CLAUSE INCLUDED IN THE IFB AND HAD FILED ALL REQUIRED COMPLIANCE REPORTS AND WOULD OBTAIN, PRIOR TO SUBCONTRACT AWARD, REPRESENTATIONS FROM PROPOSED SUBCONTRACTORS INDICATING SUBMISSION OF REQUIRED COMPLIANCE REPORTS. ZOERB ALSO INDICATED IN THE PARAGRAPH ADDED TO CLAUSE 5 CHANGE NO. 1 THAT ZOERB HAD DEVELOPED AND HAD ON FILE AT EACH ESTABLISHMENT AFFIRMATIVE ACTION PROGRAMS AS REQUIRED BY THE RULES AND REGULATIONS OF THE SECRETARY OF LABOR. ZOERB DID NOT, HOWEVER, INCLUDE IN ITS BID OR ACCOMPANYING PAPERS THE CERTIFICATION REQUIRED BY PART I OF THE BID CONDITIONS RESPECTING THE BUFFALO PLAN, OR THE PART II AFFIRMATIVE ACTION PLAN REQUIRED OF BIDDERS NOT COVERED BY PART I.

THE SECOND AND THIRD BIDDERS EXECUTED CLAUSE 5, AS AMENDED, IN THE STANDARD FORM 19-B IN THE SAME MANNER AS ZOERB. IN ADDITION, EACH INCLUDED IN ITS BID THE CERTIFICATION REQUIRED BY PART I OF THE BID CONDITIONS INDICATING THAT IT INTENDED TO USE ONLY THE ELECTRICAL TRADE, WHOSE UNION HAS A COLLECTIVE BARGAINING AGREEMENT WITH THE BIDDER AND IS ALSO SIGNATORY TO THE BUFFALO PLAN, AND THAT NO SUBCONTRACTOR WOULD BE USED IN PERFORMING THE CONTRACT.

AT 3:30 P.M., DECEMBER 17, MORE THAN FIVE HOURS AFTER THE TIME OF BID OPENING, ZOERB PRESENTED TO THE CONTRACTING OFFICER ITS CERTIFICATION UNDER PART I OF THE BID CONDITIONS INDICATING THAT IT INTENDS TO USE ONLY ELECTRICAL WORKERS TO PERFORM THE CONTRACT; THAT THESE ELECTRICAL WORKERS ARE REPRESENTED BY LOCAL 41, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS (IBEW), WHICH IS PARTY TO THE BUFFALO PLAN; THAT ZOERB HAS A COLLECTIVE BARGAINING AGREEMENT WITH IBEW LOCAL 41; AND THAT NO SUBCONTRACTOR WILL BE USED BY ZOERB. IN AN ACCOMPANYING LETTER, WHICH BEARS THE DATE DECEMBER 16, ZOERB MADE THE FOLLOWING STATEMENTS:

"WE HAVE ENCLOSED A SIGNED COPY OF YOUR FORM BID CONDITIONS AFFIRMATIVE ACTION REQUIREMENTS EQUAL EMPLOYMENT OPPORTUNITY AND MAKE THIS PART OF OUR BID.

"IT IS OUR UNDERSTANDING THAT OUR FILLING OUT OF CHANGE #1 TO REPRESENTATIONS AND CERTIFICATIONS OCT. 1969 EDITION WAS EVIDENCE ON THE BID FORM THAT WE HAVE PREVIOUSLY AND ARE NOW COMPLYING WITH ALL FACETS OF EQUAL OPPORTUNITY EMPLOYMENT IN PARTICULAR THE BUFFALO PLAN.

"IT IS ALSO OUR UNDERSTANDING THAT WE ARE THE LOW BIDDERS AND KNOWN AS A BIDDER UNTIL SUCH TIME WE ARE AWARDED A CONTRACT AT WHICH TIME WE WILL BE A CONTRACTOR.

"WE FIND NO INDICATION ON THE BID FORM OR IN THE INVITATION TO BID THAT THIS FORM HAS TO BE SUBMITTED AT TIME OF BIDDING, ONLY IT BE SUBMITTED BY THE BIDDER - WHICH WE ARE UP TO THE TIME WE ARE AWARDED A CONTRACT.

"WE HAVE BEEN LED TO BELIEVE OUR BID IS UNACCEPTABLE BECAUSE THIS FORM WAS NOT INCLUDED AT THE TIME OF BIDDING. NO WHERE CAN WE FIND WHERE IT HAS TO BE INCLUDED AT TIME OF BIDDING OR THAT THE BID IS UNACCEPTABLE IF IT IS NOT RECEIVED AT TIME OF BIDDING. THE INSTRUCTION TO BIDDERS SAYS THE BID IS NON-RESPONSIVE IF THE FORM IS NOT SUBMITTED, THEREFORE WE ARE NOW SUBMITTING IT, NOT AT THE TIME OF BIDDING BUT DURING THE TIME WE ARE A BIDDER. "WE ARE ANXIOUS TO DO THE WORK AND WE ARE CONFIDENT OUR INTERPRETATION IS CORRECT. OUR INTERPRETATION IS REINFORCED IN THE LAST PARAGRAPH OF PART I, WHICH INDICATES HOW SUBCONTRACTS ARE TO BE AFFIRMED, THAT IS NOT AT TIME OF BIDDING BUT BEFORE CONTRACTS ARE AWARDED, WHEN THE APPARENT CONTRACTOR IS THE APPARENT LOW BIDDER.

"IF WE ARE NOT CORRECT PLEASE ADVISE US IN WRITING WHY OUR INTERPRETATION IS NOT CORRECT, AND WHY OUR BID IS UNACCEPTABLE."

THE CONTRACTING OFFICER, IN A MEMORANDUM DATED DECEMBER 17, 1971, STATED THAT HE HAD TWICE ADVISED ZOERB THAT ITS BID WAS NONRESPONSIVE FOR FAILURE TO SUBMIT PRIOR TO BID OPENING EITHER THE PART I CERTIFICATION OR THE PART II AFFIRMATIVE ACTION PLAN REQUIRED BY THE BID CONDITIONS.

BY LETTER DATED DECEMBER 17 ZOERB APPEALED TO THE DIRECTOR OF THE HOSPITAL FROM THE CONTRACTING OFFICER'S ACTION. THE LETTER INCLUDES THE FOLLOWING PERTINENT STATEMENTS:

"IF MR. BUWAJ'S INTERPRETATION IS CORRECT (THAT IS THE FORM IN QUESTION WAS TO BE SUBMITTED WITH THE BID) THE FORM SHOULD HAVE BEEN INCLUDED AS PART OF THE BID FORM. YOUR STANDARD FORM #19B DOES HAVE A PLACE TO INDICATE COMPLIANCE WITH EQUAL OPPORTUNITIES LAWS AND WE COMPLETED THIS PART OF THE BID FORM.

"THE FORM IN QUESTION WAS INCLUDED IN THE SPECIFICATIONS ALONG WITH OTHER FORMS THAT DID NOT HAVE TO BE SUBMITTED WITH THE BID. WE TOOK THIS TO MEAN THE GOVERNMENT SPECIFICALLY WANTED TO SHOW THE BIDDER THE EXACT CRITERIA TO BE FOLLOWED DURING THE LIFE OF THE CONTRACT.

"THERE IS AN HONEST DIFFERENCE OF OPINION HERE AND WE ASKED MR. BUWAJ TO PLEASE REFER THIS DIFFERENCE TO A HIGHER AUTHORITY FOR AN INTERPRETATION ON HOW THIS FORM WAS TO BE HANDLED. HE REFUSED.

"WE NOW REFUSE TO BE BOUND BY MR. BUWAJ'S INTERPRETATION AND THAT IS THE REASON FOR THIS LETTER.

"WE ARE PART OF THE BUFFALO PLAN AND WANT TO KNOW WHY, IF WE INDICATE THIS BY COMPLETING THE FORM IN QUESTION BEFORE A CONTRACT IS AWARDED, WHY WE AS RESPONSIBLE LOW BIDDERS SHOULD NOT BE AWARDED A CONTRACT."

THE HOSPITAL DIRECTOR STATES THAT THE CONTRACTING OFFICER HAS HAD SEVERAL TELEPHONE CONVERSATIONS WITH A REPRESENTATIVE OF THE OFFICE OF FEDERAL CONTRACT COMPLIANCE (OFCC), UNITED STATES DEPARTMENT OF LABOR, AND THAT THE OFCC REPRESENTATIVE STRESSED IN EACH CONVERSATION THAT "BIDDERS MUST BE CONSIDERED NONRESPONSIVE IF THEY DO NOT COMPLY WITH THE 'BUFFALO PLAN'."

THE DIRECTOR, SUPPLY SERVICE, EXPRESSES HIS VIEW THAT THE FAILURE OF ZOERB TO EXECUTE THE PART I CERTIFICATION AND SUBMIT IT WITH ITS BID MAY BE WAIVED AS A MINOR INFORMALITY. IN THIS CONNECTION, THE DIRECTOR POINTS OUT THAT ONLY PART I IS APPLICABLE TO ZOERB, SINCE ONLY ONE TRADE IS TO BE USED ON THE CONTRACT AND ZOERB, WHO IS A SIGNATORY TO THE BUFFALO PLAN, HAS A COLLECTIVE BARGAINING AGREEMENT WITH THE UNION WHICH REPRESENTS THAT TRADE AND IS ITSELF SIGNATORY TO THE BUFFALO PLAN.

IN B-172819, DECEMBER 1, 1971 (51 COMP. GEN. ), AND B-174259, JANUARY 5, 1972, WE CONSIDERED PROCUREMENT SOLICITATIONS WHICH INCLUDED AFFIRMATIVE ACTION REQUIREMENTS WORDED SIMILAR TO THE REQUIREMENTS WHICH ARE SET FORTH IN IFB 528-32-72. WE HELD THAT SUCH REQUIREMENTS ARE MATERIAL, AND WE CONSTRUED THE LANGUAGE USED IN THE SOLICITATIONS AS REQUIRING A BIDDER TO COMMIT ITSELF, PRIOR TO BID OPENING, TO THE AFFIRMATIVE ACTION REQUIREMENTS EITHER IN THE MANNER SPECIFIED IN THE SOLICITATIONS OR BY A SEPARATE STATEMENT CONSTITUTING A DEFINITE COMMITMENT TO THE REQUIREMENTS. WE THEREFORE FURTHER HELD THAT A BIDDER WHO FAILS TO MAKE SUCH A PREBID OPENING COMMITMENT MAY NOT HAVE THE DEVIATION WAIVED, NOR MAY THE BIDDER BE PERMITTED TO CORRECT THE DEFICIENCY AFTER BID OPENING SO AS TO RENDER THE BID ELIGIBLE FOR CONSIDERATION FOR AWARD.

IN THIS CASE, ZOERB DID NOT INCLUDE IN ITS BID, OR SUBMIT PRIOR TO BID OPENING, THE PART I CERTIFICATION REQUIRED IN THE BID CONDITIONS APPLICABLE TO ZOERB. THERE REMAINS FOR CONSIDERATION WHETHER THE INFORMATION WHICH ZOERB SUPPLIED IN THE STANDARD FORM 19-B REPRESENTATION WITH RESPECT TO EQUAL OPPORTUNITY MAY BE REGARDED, AS ZOERB CONTENDS, AS A COMMITMENT TO THE BUFFALO PLAN WHICH WILL SATISFY THE CERTIFICATION REQUIREMENT IN THE BID CONDITIONS.

THE INFORMATION WHICH A BIDDER IS REQUESTED TO FURNISH WITH RESPECT TO AFFIRMATIVE ACTION PROGRAMS IN THE EQUAL OPPORTUNITY CLAUSE ON STANDARD FORM 19-B, AS AMENDED BY CHANGE NO. 1, RELATES TO THE BIDDER'S PAST PARTICIPATION ON CONTRACTS SUBJECT TO OFCC AFFIRMATIVE ACTION PROGRAM REQUIREMENTS AND TO THE BIDDER'S COMPLIANCE WITH SUCH REQUIREMENTS. SUCH INFORMATION, LIKE THE INFORMATION REQUESTED IN THE FIRST PARAGRAPH OF THE CLAUSE CONCERNING THE BIDDER'S PARTICIPATION IN PREVIOUS CONTRACTS OR SUBCONTRACTS SUBJECT TO THE EQUAL OPPORTUNITY CLAUSE AND THE BIDDER'S FILING OF REQUIRED COMPLIANCE REPORTS, RELATES, IN OUR OPINION, TO THE BIDDER'S QUALIFICATIONS AS A RESPONSIBLE PROSPECTIVE CONTRACTOR AND MAY THEREFORE BE FURNISHED UP TO THE TIME OF AWARD. B-165186, NOVEMBER 7, 1968. THERE IS NOTHING IN THE WORDING OF THE STANDARD FORM 19-B REPRESENTATION, HOWEVER, WHICH WOULD CONSTITUTE A COMMITMENT BY A BIDDER TO BE BOUND TO A SPECIFIC AFFIRMATIVE ACTION PLAN IN PERFORMING THE CONTRACT TO BE AWARDED UNDER THE PRESENT SOLICITATION. WITHOUT ADDITION TO THE REPRESENTATION, THEREFORE, OF LANGUAGE IDENTIFYING THE BUFFALO PLAN AS A PLAN TO WHICH THE BIDDER IS ALREADY COMMITTED AND TO WHICH HE WILL CONTINUE TO BE COMMITTED IN PERFORMING THE PROPOSED CONTRACT, EXECUTION OF THE REPRESENTATION CANNOT BE VIEWED AS COMPLIANCE WITH THE AFFIRMATIVE ACTION REQUIREMENTS OF THE SOLICITATION. NO SUCH LANGUAGE WAS INCORPORATED IN THE REPRESENTATION BY ZOERB.

FOR THE REASONS STATED, WE MUST CONCLUDE THAT ZOERB'S BID WAS NONRESPONSIVE TO A MATERIAL REQUIREMENT OF THE IFB, AND THEREFORE MAY NOT BE CONSIDERED FOR AWARD.

THE FILE WHICH WAS FORWARDED WITH THE LETTER OF JANUARY 6, 1972, FROM THE DIRECTOR, SUPPLY SERVICE, IS RETURNED.