B-176487, SEP 28, 1972

B-176487: Sep 28, 1972

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THE FAILURE OF A BIDDER TO SUBMIT HIS COMPLIANCE WITH THE WASHINGTON PLAN AS REQUIRED BY THE IFB IS FATAL TO THE CONSIDERATION OF THE BID AND THE CONTRACTING AGENCY CANNOT WAIVE THIS REQUIREMENT OR PERMIT THE BID TO BE MODIFIED TO COMPLY SUBSEQUENT TO BID OPENING. WHERE THE BIDDER IS TO COMPLY WITH THE WASHINGTON PLAN. DOES NOT FEEL THAT THE CLASSIFICATIONS IN IT ARE PERTINENT TO HIM. HE CANNOT IGNORE THE REQUIREMENT COMPLETELY SINCE HE EASILY COULD HAVE REQUESTED CLARIFICATION FROM THE CONTRACTING OFFICER. INC.: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 11. THE PROTEST IS DENIED. YOUR LOW BID WAS REJECTED FOR FAILURE TO COMPLY WITH THE AFFIRMATIVE ACTION PLAN REQUIREMENTS OF THE IFB.

B-176487, SEP 28, 1972

BID PROTEST - "WASHINGTON PLAN" - NON-SUBMITTAL DECISION DENYING THE PROTEST OF R. E. LEE ELECTRIC CO., INC., AGAINST REJECTION OF ITS BID UNDER AN IFB ISSUED BY THE U.S. ARMY ENGINEER DISTRICT, BALTIMORE, MD. THE FAILURE OF A BIDDER TO SUBMIT HIS COMPLIANCE WITH THE WASHINGTON PLAN AS REQUIRED BY THE IFB IS FATAL TO THE CONSIDERATION OF THE BID AND THE CONTRACTING AGENCY CANNOT WAIVE THIS REQUIREMENT OR PERMIT THE BID TO BE MODIFIED TO COMPLY SUBSEQUENT TO BID OPENING. WHERE THE BIDDER IS TO COMPLY WITH THE WASHINGTON PLAN, BUT DOES NOT FEEL THAT THE CLASSIFICATIONS IN IT ARE PERTINENT TO HIM, HE CANNOT IGNORE THE REQUIREMENT COMPLETELY SINCE HE EASILY COULD HAVE REQUESTED CLARIFICATION FROM THE CONTRACTING OFFICER.

TO R. E. LEE ELECTRIC CO., INC.:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 11, 1972, AND PRIOR CORRESPONDENCE PROTESTING AGAINST THE REJECTION OF YOUR BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS (IFB) NO. DACA31-72-B-0082, ISSUED BY THE UNITED STATES ARMY ENGINEER DISTRICT, BALTIMORE, MARYLAND.

FOR REASONS SET FORTH IN MORE DETAIL BELOW, THE PROTEST IS DENIED.

YOUR LOW BID WAS REJECTED FOR FAILURE TO COMPLY WITH THE AFFIRMATIVE ACTION PLAN REQUIREMENTS OF THE IFB, AS AMENDED. IN THIS REGARD, PARAGRAPH 24 OF THE IFB READS, IN PERTINENT PART, AS FOLLOWS:

"WASHINGTON PLAN: THE BIDDER IS CAUTIONED THAT THE REQUIREMENTS OF THE WASHINGTON PLAN APPLY TO THIS PROJECT. THEREFORE THE BIDDER SHALL SUBMIT WITH HIS BID, HIS PLAN TO COMPLY WITH THOSE REQUIREMENTS. FAILURE TO DO SO WILL CAUSE HIS BID TO BE CONSIDERED NONRESPONSIVE AND WILL BE REJECTED. ***"

PARAGRAPH 25 OF THE IFB, ENTITLED "NOTICE OF REQUIREMENT FOR SUBMISSION OF AFFIRMATIVE ACTION PLAN TO ENSURE EQUAL EMPLOYMENT OPPORTUNITY," WARNED BIDDERS THAT FULL COMPLIANCE WITH THE REQUIREMENTS, TERMS AND CONDITIONS WAS NECESSARY TO BE ELIGIBLE FOR CONTRACT AWARD. SIMILAR TO THE LANGUAGE QUOTED ABOVE FROM PARAGRAPH 24, THE NOTICE PROVIDED: "IF THE BIDDER FAILS OR REFUSES TO COMPLETE OR SUBMIT SUCH PLAN, *** THE BID OR PROPOSAL SHALL BE CONSIDERED NONRESPONSIVE AND WILL BE REJECTED." FURTHERMORE, ALMOST 3 WEEKS BEFORE BID OPENING, THE PROCURING ACTIVITY SENT ALL PROSPECTIVE BIDDERS, INCLUDING YOUR FIRM, A TELEGRAM STATING THAT: "ALL BIDDERS ARE REMINDED THAT FAILURE TO SUBMIT THE WASHINGTON PLAN WITH THE BID WILL BE CAUSE FOR REJECTION OF THE BID."

IN SPITE OF THESE CAVEATS, YOUR BID FAILED TO INCLUDE THE WASHINGTON PLAN OR ANY OTHER STATEMENT CONSTITUTING A COMMITMENT TO THE REQUIREMENTS OF THE PLAN. FOR THIS REASON, THE CONTRACTING OFFICER REJECTED YOUR BID.

OUR OFFICE HAS TAKEN THE CONSISTENT POSITION THAT THE FAILURE OF A BIDDER TO SUBMIT AN AFFIRMATIVE ACTION PLAN WITH THE BID AS REQUIRED OR OTHERWISE COMMIT ITSELF PRIOR TO BID OPENING IS FATAL TO THE CONSIDERATION OF THE BID. THIS IS SO SINCE THE PREBID OPENING COMMITMENT IS A MATERIAL PART OF THE CONTRACT OBLIGATIONS. THEREFORE, THE FACT THAT YOU HAVE NOW INDICATED THAT YOU WILL COMPLY WITH THE PLAN IS OF NO CONSEQUENCE. CONTRACTING AGENCIES CANNOT WAIVE OR PERMIT CORRECTIONS OF DEVIATIONS FROM MATERIAL REQUIREMENTS IN SOLICITATIONS TO RENDER A BID ELIGIBLE FOR AWARD. MOREOVER, WE HAVE MAINTAINED THAT THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM IS FAR MORE IMPORTANT THAN ANY PECUNIARY BENEFIT TO BE DERIVED FROM AN AWARD TO A BIDDER NOT COMPLYING WITH A MANDATORY REQUIREMENT IN A SOLICITATION. FOR YOUR INFORMATION, WE ENCLOSE COPIES OF DECISIONS OF OUR OFFICE DENYING PROTESTS OF BIDDERS FAILING TO COMMIT THEMSELVES TO AFFIRMATIVE ACTION PLAN REQUIREMENTS SIMILAR TO THOSE CONTAINED IN THE INSTANT IFB. B 176171, AUGUST 29, 1972; B-176260, AUGUST 2, 1972; AND B- 174932, MARCH 3, 1972.

YOU CONTEND THAT CERTAIN PORTIONS OF THE WASHINGTON PLAN CONTAINED IN THE IFB WERE CONSTRUED BY YOU TO MEAN THAT THE PLAN WAS NOT APPLICABLE TO THE CONTRACT. MORE SPECIFICALLY, YOU POINT OUT THAT THE PLAN DOES NOT REQUIRE THE SUBMISSION OF GOALS FOR MINORITY MANPOWER UTILIZATION FOR TRADES NOT TO BE USED IN THE PERFORMANCE OF THE CONTRACT. IN THIS REGARD, YOU ALLEGE THAT NO TRADE CATEGORIES WERE LISTED FOR THOSE TRADES WITH WHICH YOU INTEND TO PERFORM THE CONTRACT.

OUR OFFICE SUPPLIED YOU WITH A COPY OF THE DEPARTMENT OF THE ARMY ADMINISTRATIVE REPORT ON THE PROTEST. THAT REPORT CONTAINS A DETAILED TECHNICAL ENGINEERING EVALUATION OF THE SUBJECT PROJECT. THAT EVALUATION DISCLOSES THAT SOME PORTION OF THE WORK WILL BE PERFORMED BY ELECTRICIANS, ONE OF THE TRADE CATEGORIES LISTED IN THE WASHINGTON PLAN REQUIRING THE SUBMISSION OF GOALS. YOU HAVE NOT SUBMITTED A CONVINCING REBUTTAL TO THE AFOREMENTIONED EVALUATION.

IN ADDITION, YOU ARE APPARENTLY COMPLAINING THAT YOU WERE MISLED BY IMPROPER TRADE CLASSIFICATION LISTINGS IN THE PLAN. WE HAVE STATED BEFORE THAT WHERE, AS HERE, SPECIFICATIONS REQUIRE THAT A BIDDER COMPLETE OR SUBMIT A PARTICULAR DOCUMENT ON PENALTY OF HAVING ITS BID DECLARED NONRESPONSIVE, A BIDDER CAN ONLY REASONABLY ASSUME THE PROPER INCLUSION OF THE REQUIREMENT. IN THIS REGARD, THE RATIONALE EMPLOYED IN OUR DECISION AT 51 COMP. GEN. 264, 267 (1971), IS EQUALLY APPLICABLE TO THIS CASE:

"IN THIS CASE, BIBB WAS FACED WITH HAVING TO COMPLETE A CATEGORY ON THE SUBCONTRACTOR LIST WHICH IT DID NOT FEEL WAS PERTINENT TO THE PROCUREMENT. IN OUR OPINION, BIBB WAS UNDER AN OBLIGATION TO CLARIFY ANY DOUBTS ABOUT THE APPLICABILITY OF THE CATEGORY IN QUESTION TO THE INSTANT JOB BEFORE, NOT AFTER, BID OPENING. TO ALLOW THE ARGUMENT AFTER BID OPENING THAT THE CATEGORY DESCRIPTION IS NOT APPLICABLE TO THE JOB AT HAND WOULD BE TO AFFORD THE BIDDER AN OPPORTUNITY NOT EXTENDED TO OTHER BIDDERS, I.E., TO DECIDE AFTER THE EXPOSURE OF BID PRICES WHETHER TO WITHDRAW ITS BID OR TO ARGUE FOR ITS ACCEPTANCE. INSTEAD, HOWEVER, BIBB CHOSE TO DISREGARD A LISTED CATEGORY OF WORK WITHOUT ATTEMPTING THE SIMPLE EXPEDIENT OF REQUESTING CLARIFICATION FROM THE CONTRACTING OFFICER. BY SO DOING, IT ASSUMED THE RISK, CLEARLY STATED IN THE IFB, THAT ITS BID WOULD BE REJECTED AS NONRESPONSIVE. ***"

IN VIEW OF THE FOREGOING, WE MUST DENY YOUR PROTEST.