B-175752, JUN 7, 1972

B-175752: Jun 7, 1972

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THE FAILURE TO ACKNOWLEDGE IS ONLY SUBJECT TO WAIVER WHEN A BIDDER HAS AGREED TO THE TERMS OF THE AMENDMENT PRIOR TO BID OPENING OR IT WOULD ONLY HAVE A TRIVIAL EFFECT ON PRICE AND NO EFFECT ON QUALITY. IT IS THE OPINION OF THE COMP. THAT THE SUBJECT AMENDMENT CONSTITUTES A MATERIAL REQUIREMENT OF THE SOLICITATION AND IS NOT SUBJECT TO WAIVER. THE PROTEST IS DENIED. TO LANTEX COMPANY: REFERENCE IS MADE TO YOUR TELEFAX DATED APRIL 20. THE SOLICITATION WAS ISSUED ON MARCH 9. WHICH PROVIDES AT CLAUSE 1(A) THAT MECHANICS AND LABORERS EMPLOYED ON THE CONTRACT AT THE SITE OF THE WORK ARE TO BE PAID NOT LESS THAN THE RATES SET PURSUANT TO THE DAVIS-BACON ACT IN THE "WAGE DETERMINATION DECISION OF THE SECRETARY OF LABOR WHICH IS ATTACHED HERETO AND MADE A PART HEREOF.".

B-175752, JUN 7, 1972

BID PROTEST - DAVIS-BACON ACT AMENDMENT - FAILURE TO ACKNOWLEDGE DECISION DENYING THE PROTEST OF LANTEX COMPANY AGAINST REJECTION OF ITS BID FOR FAILURE TO ACKNOWLEDGE AN AMENDMENT IMPLEMENTING THE MINIMUM WAGE PROVISIONS OF THE DAVIS-BACON ACT UNDER AN IFB ISSUED BY THE NAVAL AIR STATION, CORPUS CHRISTI, TEX. THE FAILURE TO ACKNOWLEDGE IS ONLY SUBJECT TO WAIVER WHEN A BIDDER HAS AGREED TO THE TERMS OF THE AMENDMENT PRIOR TO BID OPENING OR IT WOULD ONLY HAVE A TRIVIAL EFFECT ON PRICE AND NO EFFECT ON QUALITY, QUANTITY, DELIVERY, OR THE RELATIVE STANDING OF OTHER BIDDERS. IT IS THE OPINION OF THE COMP. GEN. THAT THE SUBJECT AMENDMENT CONSTITUTES A MATERIAL REQUIREMENT OF THE SOLICITATION AND IS NOT SUBJECT TO WAIVER. B-157832, NOVEMBER 9, 1965. ACCORDINGLY, THE PROTEST IS DENIED.

TO LANTEX COMPANY:

REFERENCE IS MADE TO YOUR TELEFAX DATED APRIL 20, 1972, PROTESTING THE REJECTION OF YOUR BID SUBMITTED UNDER INVITATION FOR BIDS NO. N62467-72-B- 1426, ISSUED BY THE NAVAL AIR STATION, CORPUS CHRISTI, TEXAS, FOR THE REPLACEMENT OF FLOOR TILE IN THE LAGUNA SHORES FAMILY HOUSING.

THE SOLICITATION WAS ISSUED ON MARCH 9, 1972, AND CONTAINED TWO ITEMS. BID ITEM NO. 1 CALLED FOR THE PRICE FOR THE ENTIRE WORK, COMPLETE IN ACCORDANCE WITH THE DRAWINGS AND SPECIFICATIONS BASED ON FURNISHING AND INSTALLING 50,000 SQUARE FEET OF VINYL ASBESTOS FLOOR TILE, AND FURNISHING 450 SQUARE FEET OF VINYL ASBESTOS FLOOR TILE. BID ITEM NO. 2 PROVIDED FOR QUOTATION OF THE AMOUNT TO BE DEDUCTED FROM THE PRICE BID UNDER BID ITEM NO. 1 FOR THE OMISSION OF FURNISHING AND INSTALLING 10,000 SQUARE FEET OF VINYL ASBESTOS FLOOR TILE.

THE SOLICITATION INCORPORATED STANDARD FORM 19-A, WHICH PROVIDES AT CLAUSE 1(A) THAT MECHANICS AND LABORERS EMPLOYED ON THE CONTRACT AT THE SITE OF THE WORK ARE TO BE PAID NOT LESS THAN THE RATES SET PURSUANT TO THE DAVIS-BACON ACT IN THE "WAGE DETERMINATION DECISION OF THE SECRETARY OF LABOR WHICH IS ATTACHED HERETO AND MADE A PART HEREOF." ON APRIL 7, 1972, AMENDMENT NO. 1 TO THE SOLICITATION WAS ISSUED INCORPORATING A NEW DEPARTMENT OF LABOR WAGE DECISION 72-TX-261 OF APRIL 6, 1972 WHICH INCREASED WAGES FOR SOFT FLOOR LAYERS (CARPENTERS). AMENDMENT NO. 1 ALSO PROVIDED AS FOLLOWS:

"NOTICE

"EACH BIDDER SHALL REFER IN HIS BID TO ALL AMENDMENTS TO THIS SPECIFICATION; FAILURE TO DO SO MAY CONSTITUTE AN INFORMALITY IN THE BID."

PARAGRAPH 1B.5 OF THE GENERAL REQUIREMENTS OF THE SOLICITATION AND THE FACE SHEET OF THE AMENDMENT MADE CLEAR THAT THE AMENDMENT WAS TO BE ACKNOWLEDGED IN THE BID. TWO BIDS WERE TIMELY RECEIVED AS FOLLOWS:

ITEM NO. 1 ITEM NO. 2

LANTEX CO. $17,500 $3,500

HEATH FLOOR CO. $22,702.50 $4,500

(GOVERNMENT ESTIMATE) $27,600

AT BID OPENING IT WAS DISCOVERED THAT LANTEX HAD FAILED TO ACKNOWLEDGE THE AMENDMENT. THEREFORE, EVEN THOUGH LANTEX WAS THE APPARENT LOW BIDDER, ITS BID WAS REJECTED AS NONRESPONSIVE. IT IS REPORTED THAT LANTEX ADMITS RECEIVING THE AMENDMENT BUT ACKNOWLEDGED RECEIPT OF THE AMENDMENT ONLY AFTER BIDS WERE OPENED. LANTEX CONTENDS THAT THE FACT THAT THE AMENDMENT WAS NOT ACKNOWLEDGED SHOULD NOT BE THE REASON FOR DISQUALIFYING ITS LOW BID INASMUCH AS THE RECORDS PROBABLY SHOW THAT OTHER CONTRACTS HAVE BEEN AWARDED WHERE AMENDMENTS HAVE NOT BEEN ACKNOWLEDGED.

IN OUR RECENT DECISION OF FEBRUARY 10, 1972, 51 COMP. GEN. , B 174647, A SITUATION NEARLY IDENTICAL TO THE INSTANT MATTER, WE QUOTED APPROVINGLY FROM OUR DECISION OF NOVEMBER 9, 1965, B-157832, AS FOLLOWS:

"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 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. 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."

SEE ALSO B-157894, NOVEMBER 30, 1965; B-160257, DECEMBER 15, 1966; B 171062, DECEMBER 17, 1970.

IN B-171062, DECEMBER 17, 1970, WE STATED:

" *** THE CONTROLLING CONSIDERATION IN THIS AND SIMILAR CASES IS THAT WHERE A BIDDER FAILS TO ACKNOWLEDGE AN AMENDMENT OF SUBSTANCE, 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. SEE B-169581, MAY 8, 1970."

AS TO OTHER CONTRACTS BEING AWARDED IN THE ABSENCE OF ACKNOWLEDGEMENT OF AN AMENDMENT, THE FAILURE TO ACKNOWLEDGE MAY BE WAIVED IN CASES WHERE THE BIDDER HAD MANIFESTED HIS ASSENT TO THE TERMS OF THE ADDENDUM PRIOR TO BID OPENING, OR THE AMENDMENT CLEARLY WOULD HAVE NO EFFECT OR MERELY A TRIVIAL OR NEGLIGIBLE EFFECT ON PRICE, AND NO EFFECT ON QUALITY, QUANTITY, OR DELIVERY, OR THE RELATIVE STANDING OF BIDDERS. HOWEVER, NONE OF THE EXCEPTIONS APPLIES HERE.

FOR THE ABOVE REASONS, WE MUST CONCUR WITH THE CONTRACTING OFFICER'S DECISION TO REJECT THE LANTEX BID AND YOUR PROTEST IS ACCORDINGLY DENIED.