B-177264, FEB 8, 1973

B-177264: Feb 8, 1973

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PART I OF THE ABOVE BID CONDITIONS APPLIED TO BIDDERS WHO WERE SIGNATORY TO THE NEW YORK CITY PLAN (AN AFFIRMATIVE ACTION PROGRAM FOR MINORITY HIRING IN THE NEW YORK CITY AREA). ON EACH PARAGRAPH OF PART I THE WORD "DELETED" WAS STAMPED. THE CONTRACTING OFFICER REPORTS THAT THIS DELETION WAS MADE PURSUANT TO THE ADVICE OF THE OFFICE OF FEDERAL CONTRACT COMPLIANCE THAT THE NEW YORK CITY PLAN HAD EXPIRED ON JUNE 30. THAT PART II OF THE BID CONDITIONS WAS STILL IN EFFECT FOR THE SUBJECT PROCUREMENT. PARAGRAPH 15 ON PAGE 4 OF THE IFB SET FORTH THE FOLLOWING PERTINENT NOTE ABOUT THE NEED FOR BIDDERS TO SUBMIT THIS ACTION PLAN: NOTE: ATTENTION IS INVITED TO PART II OF THE ATTACHED AFFIRMATIVE ACTION REQUIREMENTS.

B-177264, FEB 8, 1973

BID PROTEST - AFFIRMATIVE ACTION PLAN - NONRESPONSIVE BID DECISION DENYING THE PROTEST OF RAYMOR ELECTRIC CORPORATION AGAINST REJECTION OF ITS BID UNDER AN IFB ISSUED BY THE U.S. COAST GUARD FOR THE INSTALLATION OF AN UNDERGROUND WIRE AND DUCTBANK SYSTEM AT THE COAST GUARD BASE, GOVERNORS ISLAND, N. Y. WHERE THE IFB CLEARLY EXPLAINED THE NEED FOR ALL BIDDERS TO SUBMIT AN AFFIRMATIVE ACTION PLAN WITH THEIR BIDS, FAILURE OF A BIDDER TO SUBMIT SUCH A PLAN MAKES HIS BID NONRESPONSIVE AND THIS DEFECT CANNOT BE WAIVED AS A MINOR IRREGULARITY. SEE 50 COMP. GEN. 844, 846 (1971).

TO RAYMOR ELECTRIC CORPORATION:

WE REFER TO YOUR LETTER OF OCTOBER 12, 1972, AND SUBSEQUENT CORRESPONDENCE, CONCERNING YOUR PROTEST UNDER INVITATION FOR BIDS (IFB) NO. 03-5564-73, ISSUED BY THE U.S. COAST GUARD ON SEPTEMBER 12, 1972, FOR THE INSTALLATION OF AN UNDERGROUND WIRE AND DUCTBANK SYSTEM AT THE COAST GUARD BASE, GOVERNORS ISLAND, NEW YORK.

THE IFB CONTAINED AN ATTACHMENT ENTITLED BID CONDITIONS, AFFIRMATIVE ACTION REQUIREMENTS, EQUAL EMPLOYMENT OPPORTUNITY, THAT SET FORTH MINORITY GROUP HIRING REQUIREMENTS FOR THE PROJECT. PART I OF THE ABOVE BID CONDITIONS APPLIED TO BIDDERS WHO WERE SIGNATORY TO THE NEW YORK CITY PLAN (AN AFFIRMATIVE ACTION PROGRAM FOR MINORITY HIRING IN THE NEW YORK CITY AREA). HOWEVER, ON EACH PARAGRAPH OF PART I THE WORD "DELETED" WAS STAMPED. THE CONTRACTING OFFICER REPORTS THAT THIS DELETION WAS MADE PURSUANT TO THE ADVICE OF THE OFFICE OF FEDERAL CONTRACT COMPLIANCE THAT THE NEW YORK CITY PLAN HAD EXPIRED ON JUNE 30, 1972, BUT THAT PART II OF THE BID CONDITIONS WAS STILL IN EFFECT FOR THE SUBJECT PROCUREMENT.

PART II OF THE BID CONDITIONS REQUIRED BIDDERS, NOT OTHERWISE COVERED BY THE PROVISIONS OF PART I, TO SUBMIT AN AFFIRMATIVE ACTION PLAN WITH THEIR BIDS, EMBODYING BOTH (1) GOALS AND TIMETABLES OF MINORITY MANPOWER UTILIZATION AND (2) OTHER SPECIFIC AFFIRMATIVE ACTION STEPS DIRECTED AT INCREASING MINORITY MANPOWER UTILIZATION. PARAGRAPH 15 ON PAGE 4 OF THE IFB SET FORTH THE FOLLOWING PERTINENT NOTE ABOUT THE NEED FOR BIDDERS TO SUBMIT THIS ACTION PLAN:

NOTE: ATTENTION IS INVITED TO PART II OF THE ATTACHED AFFIRMATIVE ACTION REQUIREMENTS. THESE REQUIREMENTS APPLY TO ANY PRIME CONTRACT OR SUB- CONTRACT OVER $10,000.00. WRITTEN AFFIRMATIVE ACTION PLAN REQUIRED IN PAGE 6 MUST BE FURNISHED WITH THE BID. FAILURE TO DO SO WILL BE CAUSE FOR REJECTION OF THE BID. FOR FURTHER INFORMATION, CALL MISS Y. KERNER (212) 264-4956.

THE COAST GUARD REPORTS THAT SEVEN BIDS WERE RECEIVED FOR THE PROJECT ON OCTOBER 5, 1972; THAT YOU SUBMITTED THE LOWEST BID FOR THE PROJECT; AND THAT YOU DID NOT SUBMIT AN AFFIRMATIVE ACTION PLAN WITH YOUR BID, AS WAS REQUIRED BY THE ABOVE NOTE AND PART II OF THE BID CONDITIONS. IN VIEW OF YOUR FAILURE TO SUBMIT AN AFFIRMATIVE ACTION PLAN WITH YOUR BID, THE CONTRACTING OFFICER DECIDED THAT YOUR BID MUST BE REJECTED AS NONRESPONSIVE.

YOU MAINTAIN THAT YOU WERE MISLED BY THE APPEARANCE OF THE WORD "DELETED" ON THE PARAGRAPHS OF PART I OF BID CONDITIONS; THAT THERE SHOULD HAVE BEEN AN EXPLANATION IN THE BID THAT PART II OF THE BID CONDITIONS WAS NOT DELETED; THAT YOU HAD PREVIOUSLY COMPLETED AN AFFIRMATIVE ACTION FORM UNDER A PRIOR IFB FOR THE SAME PROJECT; AND THAT YOUR FAILURE TO SUBMIT AN AFFIRMATIVE ACTION PLAN WITH YOUR BID SHOULD BE WAIVED AS A MINOR INFORMALITY.

IN OUR VIEW, PARAGRAPH 15 ON PAGE 4 OF THE IFB CLEARLY EXPLAINED THE NEED FOR ALL BIDDERS, INCLUDING THOSE FIRMS WHICH MIGHT HAVE PREVIOUSLY BEEN SIGNATORIES TO THE NEW YORK CITY PLAN, TO SUBMIT AN ACCEPTABLE AFFIRMATIVE ACTION PLAN WITH THEIR BIDS AND THE CONSEQUENCE OF A BIDDER'S FAILURE TO DO SO. WE ALSO THINK THE STAMPING OF "DELETED" ON EACH PARAGRAPH IN PART I CLEARLY ADVISES BIDDERS THAT ONLY THOSE PROVISIONS SO STAMPED WERE NO LONGER IN EFFECT FOR THE PROCUREMENT. CONSEQUENTLY, WE CANNOT CONCLUDE THAT THE STAMPING OF "DELETED" THROUGHOUT PART I SHOULD HAVE MISLED A JUDICIOUS BIDDER INTO BELIEVING THAT PART II WAS ALSO DELETED, OR THAT, APART FROM THE ADVICE IN PARAGRAPH 15, THE IFB SHOULD HAVE CONTAINED AN ADDITIONAL EXPLANATION THAT PART II OF THE BID CONDITIONS WAS NOT DELETED.

CONCERNING YOUR STATEMENT THAT YOU HAD PREVIOUSLY SUBMITTED AN AFFIRMATIVE ACTION FORM WITH YOUR BID UNDER A PRIOR IFB FOR THE SAME PROJECT, WE PERCEIVE NO BASIS ON WHICH THIS PRIOR BIDDING CAN FULFILL THE REQUIREMENT FOR SUBMISSION OF AN AFFIRMATIVE ACTION PLAN IN THE SUBJECT PROCUREMENT. IN THIS REGARD, YOU STATE THAT THE PRIOR IFB WAS CANCELLED, AND WE BELIEVE THIS ACTION, WHICH REQUIRES THE REJECTION OF ALL BIDS RECEIVED, EXTINGUISHED, FOR PROCUREMENT PURPOSES, ALL ASPECTS OF YOUR PREVIOUS BID INCLUDING YOUR AFFIRMATIVE ACTION COMMITMENTS SET OUT THEREIN.

WITH RESPECT TO YOUR ARGUMENT THAT FAILURE TO SUBMIT AN AFFIRMATIVE ACTION PLAN SHOULD BE VIEWED AS A MINOR IRREGULARITY, WE HAVE HELD THAT THE REQUIREMENT FOR SUBMISSION OF AN ACCEPTABLE AFFIRMATIVE ACTION PLAN RELATES TO THE BIDDER'S AGREEMENT TO PURSUE CERTAIN MINORITY HIRING PRACTICES DURING CONTRACT PERFORMANCE; THAT THE BIDDER'S AGREEMENT BECOMES A MATERIAL REQUIREMENT OF THE CONTRACT AGAINST WHICH THE CONTRACTOR'S PERFORMANCE WILL BE JUDGED; AND THAT THE SUBMISSION OF AN ACCEPTABLE PLAN MUST BE CONSIDERED A MATTER OF BID RESPONSIVENESS WHICH IS DETERMINED AT BID OPENING. SEE 50 COMP. GEN. 844, 846 (1971); B 174307, FEBRUARY 8, 1972. IN VIEW THEREOF, YOUR FAILURE TO SUBMIT AN ACCEPTABLE AFFIRMATIVE ACTION PLAN WITH YOUR BID CANNOT BE REGARDED AS A MINOR IRREGULARITY.

FOR THE ABOVE REASONS, YOUR PROTEST MUST BE DENIED.