B-175099, APR 13, 1972

B-175099, APR 13, 1972

BID PROTEST - NONRESPONSIVENESS - AFFIRMATIVE ACTION COMPLIANCE DECISION DENYING THE PROTEST OF CONTRACTOR, INC., AGAINST AWARD OF A CONTRACT TO GURTLER, HERBERT & CO., INC., UNDER AN IFB ISSUED BY THE NAVAL FACILITIES ENGINEERING COMMAND, SOUTHERN DIVISION, CHARLESTON, S.C. IT IS THE OPINION OF THE COMP. GEN. THAT STATEMENTS INDICATING CURRENT CONFORMITY WITH THE NEW ORLEANS PLAN AND COMPLIANCE WITH THE EQUAL OPPORTUNITY CLAUSE CONTAINED IN THE SOLICITATION, DO NOT CONSTITUTE THE NECESSARY COMMITTMENT TO FUTURE AFFIRMATIVE ACTION. SINCE IT IS WELL- SETTLED THAT AFFIRMATIVE ACTION REQUIREMENTS ARE MATERIAL, IT MUST BE CONCLUDED THAT THE CONTRACTING AGENCY PROPERLY REJECTED CONTRACTOR'S BID AS NONRESPONSIVE. ACCORDINGLY, THE PROTEST IS DENIED.

TO GEO. E. JENSEN:

REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 10, 1972, AND PRIOR CORRESPONDENCE, PROTESTING AGAINST THE AWARD OF A CONTRACT TO GURTLER, HEBERT & CO., INC., ON JANUARY 27, 1972, UNDER INVITATION FOR BIDS (IFB) NO. N62467-71-B-0626, ISSUED BY THE NAVAL FACILITIES ENGINEERING COMMAND, SOUTHERN DIVISION, CHARLESTON, SOUTH CAROLINA.

FOR THE REASONS HEREINAFTER STATED, THE PROTEST IS DENIED.

YOUR LOW BID WAS REJECTED AS NONRESPONSIVE SINCE YOU FAILED TO COMPLETE, OR OTHERWISE COMPLY WITH, THE AFFIRMATIVE ACTION PLAN REQUIREMENTS OF THE IFB, AS AMENDED. THE AFFIRMATIVE ACTION PLAN REQUIREMENT, WHICH YOU FAILED TO COMPLETE, READS, AS FOLLOWS:

"TO BE SUBMITTED IN DUPLICATE ACCOMPANIED BY BID FORM (STANDARD FORM 21)

"AFFIRMATIVE ACTION PLAN

"THE BIDDER MUST SUBMIT THIS FORM WITH HIS BID, AND INDICATE HEREON THAT EITHER (A) OR (B) BELOW IS APPLICABLE. IF (B) IS APPLICABLE, THE BIDDER MUST ALSO INSERT HIS MINORITY MANPOWER UTILIZATION GOALS.

"(A) THE BIDDER HEREBY CERTIFIES THAT HE IS SIGNATORY, EITHER INDIVIDUALLY OR THROUGH AN ASSOCIATION, TO THE HOMETOWN PLAN, AS DEFINED IN THIS SOLICITATION, AND THAT HE WILL COMPLY WITH THE REQUIREMENTS OF THE CONTRACT CLAUSE ENTITLED 'LOCAL AFFIRMATIVE ACTION PLAN' IN THE PERFORMANCE OF THE CONTRACT THAT MAY BE AWARDED PURSUANT TO THIS SOLICITATION.

"(B) THE BIDDER HEREBY SUBMITS THE AMOUNTS SET FORTH BELOW AS HIS MINORITY MANPOWER UTILIZATION GOALS FOR ALL HIS CONSTRUCTION WORK IN THE COVERED AREA DURING THE TERM OF THE CONTRACT THAT MAY BE AWARDED PURSUANT TO THIS SOLICITATION, AND HE AGREES TO PURSUE THESE GOALS IN ACCORDANCE WITH, AND TO COMPLY WITH, THE 'LOCAL AFFIRMATIVE ACTION PLAN' CLAUSE OF THE CONTRACT. *** "

IN ADDITION, AMENDMENT 0001 TO THE IFB, THE RECEIPT THEREOF WHICH WAS ACKNOWLEDGED IN YOUR BID, INTER ALIA, STATES:

"IF THE BIDDER FAILS OR REFUSES TO COMPLETE AND SUBMIT AN AFFIRMATIVE ACTION PLAN WITH HIS BID, OR IF ANY PERCENTAGE GOALS FALL BELOW THE RANGES OF MINORITY MANPOWER UTILIZATION SET FORTH ABOVE, THE BID OR PROPOSAL SHALL BE CONSIDERED NONRESPONSIVE AND WILL BE REJECTED."

YOUR CORRESPONDENCE ADMITS TO THE FACT THAT YOU ARE NOT A SIGNATORY TO THE NEW ORLEANS PLAN, THE AFFIRMATIVE ACTION PLAN APPLICABLE TO THE CONTRACT TO BE AWARDED UNDER THE IFB. YOU POINT OUT THAT, PRIOR TO BID OPENING, THE CONTRACTING AGENCY HAD, IN HAND, THE FOLLOWING TELEGRAPHIC MODIFICATION TO YOUR BID:

" *** AFFIRMATIVE ACTION PLAN PAGE. WE CONFORM WITH ITEM (A) TO THE HOMETOWN PLAN."

HOWEVER, THAT STATEMENT, IN OUR OPINION, DOES NOT INDICATE COMPLIANCE WITH THE REQUIREMENTS OF PARAGRAPH (A), QUOTED ABOVE, SINCE CURRENT CONFORMITY WITH THE NEW ORLEANS PLAN DOES NOT CONSTITUTE THE NECESSARY COMMITMENT TO FUTURE AFFIRMATIVE ACTION. MOREOVER, YOU INVITE OUR ATTENTION TO PRIOR CONTRACTS AND CONTRACTS PRESENTLY BEING PERFORMED BY YOU, AND CORRESPONDENCE WITH PRIVATE ORGANIZATIONS, WHICH, YOU ALLEGE, ESTABLISH YOUR PRESENT ACCEPTANCE AND COMPLIANCE WITH ALL PERTINENT EQUAL OPPORTUNITY PROGRAMS AS WELL AS THE NEW ORLEANS PLAN. ALSO, YOU STATE THAT YOU AFFIRMATIVELY COMPLETED IN YOUR BID THAT PORTION OF STANDARD FORM 19-B WHICH INDICATES COMPLIANCE WITH THE EQUAL OPPORTUNITY CLAUSE CONTAINED THEREIN. THEREFORE, IT IS CONCLUDED THAT YOUR FAILURE TO COMPLETE THE ABOVE-QUOTED SECTION IN THE IFB SHOULD BE WAIVED AS A MINOR INFORMALITY OR IRREGULARITY.

WE ENCLOSE COPIES OF DECISIONS OF OUR OFFICE WHEREIN WE HAVE DENIED PROTESTS OF BIDDERS WHO HAVE FAILED TO COMMIT THEMSELVES TO AFFIRMATIVE ACTION PLAN REQUIREMENTS SIMILAR TO THOSE CONTAINED IN THE INSTANT IFB. SEE B-174932, MARCH 3, 1972; B-174307, FEBRUARY 8, 1972; B 174259, JANUARY 5, 1972; 51 COMP. GEN. (B-172819, DECEMBER 1, 1971); AND 50 COMP. GEN. 844 (1971). WE QUOTE FROM OUR DECISION B 174932, SUPRA, AS ILLUSTRATIVE OF THE RATIONALE TO BE EMPLOYED IN CASES OF THIS TYPE:

"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.

"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."

IN VIEW OF THE FOREGOING, WE CONCLUDE THAT THE CONTRACTING AGENCY PROPERLY REJECTED YOUR BID AS NONRESPONSIVE SINCE NEITHER YOUR BID NOR YOUR PROFFERED DOCUMENTATION CONSTITUTES A COMMITMENT TO THE SPECIFIC AFFIRMATIVE ACTION PLAN REQUIREMENTS OF THE IFB.