B-176171, AUG 29, 1972

B-176171, AUG 29, 1972

BID PROTEST - NONRESPONSIVE BID - AFFIRMATIVE ACTION PLANS DENIAL OF PROTEST ON BEHALF OF A&M GREGOS, INC., AGAINST THE AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER AN IFB ISSUED BY GSA, FOR CONSTRUCTION WORK AT A FEDERAL FACILITY IN PHILADELPHIA, PA. THE FAILURE OF A BIDDER TO SUBMIT INDIVIDUAL GOALS FOR MINORITY MANPOWER UTILIZATION WITHIN THE RANGES ESTABLISHED BY AN IFB IS A MATERIAL DEVIATION WHICH WARRANTS THE REJECTION OF THE BID AS NONRESPONSIVE. COMP. GEN. 844 (1971). THE CIRCUMSTANCES OF THIS CASE ARE NOT SO SUBSTANTIALLY DIFFERENT FROM THOSE PREVIOUSLY DECIDED AS TO WARRANT A DEPARTURE FROM THE EARLIER DECISIONS. ALSO, SINCE THE GREGOS BID WAS NONRESPONSIVE TO THE REQUIREMENTS OF THE IFB, IT CANNOT BE MADE RESPONSIVE BY CORRECTING AN ALLEGED ERROR AFTER BID OPENING. ACCORDINGLY, THE PROTEST IS DENIED.

TO SELLERS, CONNER & CUNEO:

REFERENCE IS MADE TO YOUR LETTER OF JULY 20, 1972, AND PRIOR CORRESPONDENCE, PROTESTING AGAINST THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS (IFB) GS-02B-16698 TO A BIDDER OTHER THAN A&M GREGOS, INC.

THE IFB, AS AMENDED, SOLICITED BIDS FOR CONSTRUCTION WORK AT A FEDERAL FACILITY IN PHILADELPHIA. BIDDERS WERE REQUIRED TO SUBMIT AS A PART OF THEIR BIDS DATA INDICATING THEIR GOALS FOR MINORITY GROUP EMPLOYMENT IN CERTAIN TRADE CATEGORIES FOR THE YEARS IN WHICH WORK WAS TO BE PERFORMED. ADVICE WAS FURNISHED THAT NO AWARD WOULD BE MADE TO A BIDDER WHOSE GOALS DID NOT FALL WITHIN PROVIDED RANGES. FOR THE YEAR 1973, THE RANGE FOR MINORITY GROUP ELECTRICAL WORKERS WAS 19 TO 23 PERCENT OF THE TOTAL NUMBER OF ELECTRICAL WORKERS TO BE EMPLOYED ON THE CONTRACT. THE SIGNED AFFIRMATIVE ACTION PLAN SUBMITTED WITH THE GREGOS BID STATED THAT TWO OF THE TWELVE ELECTRICAL WORKERS TO BE UTILIZED IN 1973 WOULD BE MINORITY GROUP EMPLOYEES. HOWEVER, SINCE SUCH A GOAL WAS BELOW THE MINIMUM ALLOWABLE PERCENTAGE OF 19 PERCENT, THE PROCURING ACTIVITY DETERMINED THAT THE GREGOS BID WAS NONRESPONSIVE AND MADE AN AWARD TO ANOTHER BIDDER.

IN SUPPORT OF THE POSITION THAT THE DETERMINATION WAS ERRONEOUS AND THAT THE AWARDED CONTRACT SHOULD BE CANCELLED, IT IS CONTENDED THAT COMPLIANCE WITH THE AFFIRMATIVE ACTION PLAN REQUIREMENT WAS A MATTER OF RESPONSIBILITY, NOT RESPONSIVENESS, AND THAT, IN VIEW OF THE OTHERWISE PROPER COMPLETION OF THE ACTION PLAN FORM, THE INSERTION OF "2" INSTEAD OF THE INTENDED "3" WAS AN OBVIOUS CLERICAL MISTAKE WHICH THE CONTRACTING OFFICER SHOULD HAVE BEEN AWARE OF AND VERIFIED, AND WHICH GREGOS SHOULD HAVE BEEN ALLOWED TO CORRECT. IT IS FURTHER MAINTAINED THAT THE GREGOS BID IS RESPONSIVE SINCE 19 PERCENT OF 12 WORKERS IS 2.28 WHICH, WHEN ROUNDED OFF, IS "2" WORKERS, THE GOAL STATED IN THE BID; AND THAT THE SPECIFICATIONS ARE DEFICIENT AND AMBIGUOUS BECAUSE THEY CONTAIN NO PROCEDURE EXPLAINING HOW A BIDDER WAS TO MEET THE PERCENTAGE REQUIREMENTS, I. E., WHETHER COMPLIANCE WITH THE GOALS WAS TO BE DETERMINED BY DIVIDING THE NUMBER OF MINORITY WORKERS BY THE TOTAL NUMBER OF WORKERS OR WHETHER THE TOTAL NUMBER OF WORKERS WAS TO BE MULTIPLIED BY 19 PERCENT.

THE FAILURE OF A BIDDER TO SUBMIT INDIVIDUAL GOALS FOR MINORITY MANPOWER UTILIZATION WITHIN THE RANGES ESTABLISHED BY AN IFB HAS BEEN CONSIDERED BY OUR OFFICE TO BE A MATERIAL DEVIATION FROM SPECIFICATION REQUIREMENTS WHICH WARRANTS THE REJECTION OF THE BID AS NONRESPONSIVE. 50 COMP. GEN. 844 (1971); B-174259, JANUARY 5, 1972; B-174307, FEBRUARY 8, 1972; B- 174932, MARCH 3, 1972. THE CIRCUMSTANCES OF THIS CASE ARE NOT SO SUBSTANTIALLY DIFFERENT FROM THOSE PREVIOUSLY DECIDED AS TO WARRANT A DEPARTURE FROM OUR EARLIER DECISIONS. WE CANNOT, THEN, ACCEPT THE POSITION THAT THE DEFECT IN THE GREGOS AFFIRMATIVE ACTION PLAN SHOULD BE TREATED AS A MATTER OF RESPONSIBILITY.

IN REACHING THIS CONCLUSION, WE ARE AWARE OF FEDERAL PROCUREMENT REGULATION (FPR) 1-1.1203-1 WHICH STATES THAT FOR A BIDDER TO BE RESPONSIBLE IT MUST BE OTHERWISE ELIGIBLE AND QUALIFIED FOR AWARD UNDER APPLICABLE LAWS AND REGULATIONS SUCH AS 1-12.8 OF THE FPR. WHILE FPR 1 12.810 HAS REFERENCE TO AFFIRMATIVE ACTION COMPLIANCE PROGRAMS BY CONTRACTORS AND SUBCONTRACTORS, WE DO NOT BELIEVE IT HAS RELEVANCE TO THE BIDDING PROCESS. THE QUESTION IS NOT WHETHER GREGOS HAS DEVELOPED AN AFFIRMATIVE ACTION PLAN, BUT WHETHER IT HAS INDICATED IN ITS BID A COMMITMENT TO A SPECIFIC GOAL WITHIN A RANGE PREDETERMINED BY THE GOVERNMENT. NEITHER DO THE PROVISIONS OF 41 CFR PART 60-2 APPLY SINCE THAT PART RELATES TO COMPLIANCE REVIEWS BY THE DEPARTMENT OF LABOR OF NONCONSTRUCTION CONTRACTORS SUBJECT TO AFFIRMATIVE ACTION PROGRAMS.

WE NEED NOT DECIDE WHETHER THE ALLEGED ERRONEOUS INSERTION OF THE FIGURE "2" CONSTITUTED A CLERICAL MISTAKE PER FPR 1-2.406-2. IT IS THE GENERAL RULE THAT A CORRECTION OF AN ERROR IS PROPER ONLY IN CASES WHERE THE BID IS RESPONSIVE TO THE IFB AND IS OTHERWISE PROPER FOR ACCEPTANCE. 166778, JULY 9, 1969. IN SHORT, A NONRESPONSIVE BID MAY NOT BE MADE RESPONSIVE THROUGH MISTAKE CORRECTION PROCEDURES, AND WE KNOW OF NO REASON WHY THE GENERAL RULE SHOULD NOT BE EQUALLY APPLICABLE TO THE SITUATION WHERE A CLERICAL ERROR IS ALLEGED. B-166778, SUPRA, SO HOLDS WITH RESPECT TO THE COMPARABLE ARMED SERVICES PROCUREMENT REGULATION 2-406.2. SINCE THE GREGOS BID WAS NONRESPONSIVE TO THE REQUIREMENTS OF THE IFB IT CANNOT BE MADE RESPONSIVE BY CORRECTING THE ALLEGED ERROR AFTER BID OPENING. THIS CONTEXT, IT IS NOT RELEVANT WHETHER THE CONTRACTING OFFICER SHOULD HAVE KNOWN OF THE ERROR AND VERIFIED THE BID.

FINALLY, IT IS CONTENDED THAT THE GREGOS BID WAS RESPONSIVE EVEN WITH THE MINORITY MANPOWER UTILIZATION FIGURE OF "2" SINCE 19 PERCENT OF TWELVE TOTAL ELECTRICAL WORKERS IS 2.28 WHICH WHEN ROUNDED OFF ESTABLISHES AN EMPLOYMENT REQUIREMENT FOR TWO MINORITY GROUP WORKERS. WE DO NOT AGREE. ALTHOUGH THE IFB DID NOT FURNISH ADVICE AS TO HOW THE MINORITY GROUP EMPLOYMENT PERCENTAGE WAS TO BE FIGURED, IT DID ESTABLISH A MINIMUM FLOOR FOR MINORITY MANPOWER UTILIZATION OF 19 PERCENT FOR ELECTRICAL WORKERS. WHETHER THIS PERCENTAGE FIGURE IS UTILIZED OR WHETHER IT IS CONVERTED TO A FIGURE OF 2.28 WORKERS THAT MINIMUM MUST STILL BE MET OR EXCEEDED BY A BIDDER ESTABLISHING GOALS FOR THE TRADE INVOLVED. LOOKING AT IT ANOTHER WAY, TWO MINORITY ELECTRICAL WORKERS ONLY REPRESENTS ABOUT 16.6 PERCENT OF THE TOTAL ELECTRICAL WORKERS WHICH SIMPLY DOES NOT MEET THE REQUIRED MINIMUM LEVEL FOR MINORITY EMPLOYMENT IN THE ELECTRICAL TRADE. GIVEN THE REMEDIAL PURPOSE OF AFFIRMATIVE ACTION PLAN GOALS, WE BELIEVE IT WAS CLEAR THAT THE MINIMUM REQUIREMENTS WERE TO BE MET BY RESPONDING BIDDERS.

ACCORDINGLY, THE PROTEST IS DENIED.