B-175837, SEP 28, 1972

B-175837: Sep 28, 1972

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THE REQUIREMENT THAT THE BIDDERS ARE TO STATE IN THEIR BIDS COMPLIANCE WITH THE WASHINGTON PLAN FOR TRAINING AND HIRING OF MINORITIES IS MATERIAL. FAILURE TO SUBMIT SUCH A PLAN IS FATAL TO THAT BID. THE FACT THAT A COPY OF THE PLAN WAS NOT ENCLOSED WITH THE IFB DOES NOT WARRANT ALLOWANCE OF A MATERIAL MODIFICATION BY THE BIDDER AFTER BID OPENING. INC.: REFERENCE IS MADE TO YOUR LETTER OF JULY 18. IT IS YOUR CONTENTION THAT YOU WERE NOT FURNISHED A COPY OF THE WASHINGTON PLAN WITH THE BID PACKAGE AND THAT. PARAGRAPH 7 ON PAGE 2 OF THE SOLICITATION ADVISED BIDDERS THAT "THE WASHINGTON PLAN IS APPLICABLE TO THIS SOLICITATION.". WHICH ALLEGEDLY WAS NOT INCLUDED IN THE SOLICITATION FURNISHED TO YOUR FIRM.

B-175837, SEP 28, 1972

BID PROTEST - "WASHINGTON PLAN" - NON-SUBMITTAL DECISION DENYING THE PROTEST OF LYON BUILDERS, INC., AGAINST REJECTION OF ITS LOW BID UNDER AN IFB ISSUED BY THE FEDERAL AVIATION ADMINISTRATION. THE REQUIREMENT THAT THE BIDDERS ARE TO STATE IN THEIR BIDS COMPLIANCE WITH THE WASHINGTON PLAN FOR TRAINING AND HIRING OF MINORITIES IS MATERIAL, AND FAILURE TO SUBMIT SUCH A PLAN IS FATAL TO THAT BID. COMP. GEN. 329 (1971). THE FACT THAT A COPY OF THE PLAN WAS NOT ENCLOSED WITH THE IFB DOES NOT WARRANT ALLOWANCE OF A MATERIAL MODIFICATION BY THE BIDDER AFTER BID OPENING, OR WAIVER OF THE REQUIREMENT. 40 COMP. GEN. 126 (1960). COMPLIANCE WITH THE PREAWARD EQUAL OPPORTUNITY ACTIONS PROVISION IN THE IFB DOES NOT EXCUSE COMPLIANCE WITH THE WASHINGTON PLAN PROVISION, SINCE THE LATTER REQUIRES MUCH MORE OF A BIDDER.

TO LYON BUILDERS, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JULY 18, 1972, AND PRIOR CORRESPONDENCE, PROTESTING THE REJECTION OF YOUR LOW BID UNDER FEDERAL AVIATION ADMINISTRATION INVITATION FOR BIDS (IFB) NO. WA5C-2-6279B1 FOR FAILURE TO STATE IN YOUR BID COMPLIANCE WITH THE WASHINGTON PLAN FOR TRAINING AND HIRING MINORITIES AS REQUIRED BY THE IFB.

IT IS YOUR CONTENTION THAT YOU WERE NOT FURNISHED A COPY OF THE WASHINGTON PLAN WITH THE BID PACKAGE AND THAT, THEREFORE, YOU HAD NO OPPORTUNITY TO COMPLY WITH THE PROVISIONS OF THE PLAN.

PARAGRAPH 7 ON PAGE 2 OF THE SOLICITATION ADVISED BIDDERS THAT "THE WASHINGTON PLAN IS APPLICABLE TO THIS SOLICITATION." SIMILARLY, THE SCHEDULE OF ATTACHMENTS AND PRECEDENCE INCLUDED IN THE BID PACKAGE LISTED AS ITEM 6 "WASHINGTON PLAN, ATTACHED HERETO." THE SOLICITATION CONTAINED A "NOTICE OF REQUIREMENT FOR SUBMISSION OF AFFIRMATIVE ACTION PLAN TO ENSURE EQUAL EMPLOYMENT OPPORTUNITY," AND ADVICE IN ARTICLE XXXII, ATTACHMENTS AND PRECEDENCE, I.E., THE WASHINGTON PLAN. THAT NOTICE, WHICH ALLEGEDLY WAS NOT INCLUDED IN THE SOLICITATION FURNISHED TO YOUR FIRM, WARNED BIDDERS THAT FULL COMPLIANCE WITH ITS TERMS AND CONDITIONS WAS NECESSARY IN ORDER TO BE ELIGIBLE FOR AWARD. FURTHER, AND MORE IMPORTANTLY, THE NOTICE PROVIDED:

"IF THE BIDDER FAILS OR REFUSES TO COMPLETE OR SUBMIT SUCH PLAN XXX THE BID OR PROPOSAL SHALL BE CONSIDERED NONRESPONSIVE AND WILL BE REJECTED."

WE HAVE HELD THAT THESE REQUIREMENTS ARE MATERIAL AND MUST BE AGREED TO BY ALL BIDDERS PRIOR TO BID OPENING. SEE 51 COMP. GEN. 329 (1971); B- 174259, JANUARY 5, 1972. AND A FAILURE TO SUBMIT SUCH A PLAN WITH A BID, AS HERE, IS FATAL TO CONSIDERATION OF THE BID FOR AWARD EVEN THOUGH THE NOTICE OF THE PLAN REQUIREMENTS WAS NOT A PART OF THE SOLICITATION TO WHICH YOUR FIRM RESPONDED. IN CASES WHERE THERE HAS BEEN A FAILURE TO FURNISH OR RECEIVE COPIES OF INVITATIONS AND AMENDMENTS THERETO, IT HAS BEEN OUR VIEW THAT SUCH FAILURE DOES NOT WARRANT A MATERIAL MODIFICATION OF THE BID AFTER OPENING. 40 COMP. GEN. 126 (1960). SINCE THE AFFIRMATIVE ACTION PLAN REQUIREMENTS WERE MATERIAL, WE MUST CONCLUDE THAT YOUR FAILURE TO SUBMIT MAY NOT BE WAIVED OR CORRECTED.

YOU POINT TO THE "PREAWARD EQUAL OPPORTUNITY ACTIONS" PROVISION OF THE SOLICITATION AS CURING YOUR OMISSIONS. THAT PROVISION READS:

"PRIOR TO AWARD OF THIS CONTRACT, THE APPARENT LOW RESPONSIBLE BIDDER/OFFEROR SHALL, IF REQUESTED BY THE CONTRACTING OFFICER OR HIS AUTHORIZED REPRESENTATIVE, FURNISH TO THE CONTRACTING OFFICER A WRITTEN PLAN OR PROGRAM ACCEPTABLE TO THE CONTRACTING OFFICER FOR COMPLYING WITH THE CLAUSE TITLED 'EQUAL OPPORTUNITY,' INCLUDING PARTICULARLY A PLAN OR PROGRAM FOR TAKING AFFIRMATIVE ACTION IN ACCORDANCE WITH THE CLAUSE."

YOU BELIEVE THAT THIS PROVISION IMPLIES THAT NO ACTION HAD TO BE TAKEN BY ANY BIDDER UNTIL IT WAS DETERMINED TO BE THE LOW RESPONSIVE AND RESPONSIBLE BIDDER AND THEN, IF REQUESTED BY THE CONTRACTING OFFICER, SUCH BIDDER WOULD SUBMIT THE WASHINGTON PLAN.

ADMITTEDLY, THE ABOVE-CITED PROVISION STATES THAT THE SUCCESSFUL BIDDER MAY FURNISH THE PLAN OR PROGRAM IT PROPOSES TO USE FOR TAKING AFFIRMATIVE ACTION AFTER THE OPENING OF BIDS. BUT, THAT PROVISION REFERS TO THE BIDDER'S OBLIGATION TO COMPLY WITH THE REQUIREMENTS OF THE "CLAUSE TITLED 'EQUAL OPPORTUNITY.'" THE EQUAL OPPORTUNITY CLAUSE COUCHES THE OBLIGATION OF A CONTRACTOR IN THE AREA OF NONDISCRIMINATION IN GENERAL TERMS. CONTRAST, THE WASHINGTON PLAN IMPOSES UPON A BIDDER THE OBLIGATION TO MAKE A PREBID OPENING COMMITMENT IN THE FORM OF THE SUBMISSION OF SPECIFIC GOALS FOR MINORITY MANPOWER UTILIZATION AS APPLIED TO THE TRADES LISTED IN THE PLAN. IT IS CLEAR THAT THE SOLICITATION, BY THE TERMS OF THE WASHINGTON PLAN, REQUIRED SOMETHING MORE OF A BIDDER THAN, AS YOU ALLEGE, A MERE POST BID OPENING COMPLIANCE WITH A REQUEST OF THE CONTRACTING OFFICER.

FURTHERMORE, WE NOTE THAT, ALTHOUGH YOU ALLEGE THE NONRECEIPT OF THE WASHINGTON PLAN WITH YOUR BID PACKAGE, YOUR SOLICITATION MATERIAL DID CONTAIN THE ABOVE-QUOTED CLEAR REFERENCES TO THE FACT THAT THE WASHINGTON PLAN WAS APPLICABLE TO THE PROCUREMENT. THIS BEING THE CASE, WE BELIEVE THAT A BIDDER SHOULD, PRIOR TO BIDDING, ATTEMPT TO ASCERTAIN THE REQUIREMENTS OF THE SPECIFICALLY REFERENCED WASHINGTON PLAN. BUT, OF PARTICULAR IMPORTANCE, OUR OFFICE HAS HELD THAT IRRESPECTIVE OF WHETHER THE AFFIRMATIVE ACTION REQUIREMENTS WERE IN A FORMALLY ADVERTISED INVITATION, THE FAILURE OF A BIDDER TO COMMIT ITSELF PRIOR TO BID OPENING TO THE REQUIREMENTS CANNOT BE WAIVED OR CORRECTED. SEE B-174259, SUPRA. MOREOVER, WE HAVE HELD THAT WHERE, AS HERE, THERE IS NO EVIDENCE OF A CONSCIOUS OR DELIBERATE INTENT TO EXCLUDE PROSPECTIVE CONTRACTORS FROM PARTICIPATING IN THE COMPETITION, THE INADVERTENT FAILURE TO FURNISH A COMPLETE BID SET TO AN INTERESTED FIRM DOES NOT CONSTITUTE A SUFFICIENT BASIS TO CANCEL THE INVITATION OR TO QUESTION AN OTHERWISE PROPER AWARD. SEE B-175217, APRIL 6, 1972.

BASED ON THE FOREGOING REASONS, THE PROTEST IS DENIED.