B-178582, JUL 27, 1973

B-178582: Jul 27, 1973

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DENIED BECAUSE PROCUREMENT IS BY A STATE INSTRUMENTALITY. DOUKAS: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MAY 1. HANOVER CONTENDS THAT THERE WERE THREE SERIOUS FAILURES BY MIDWAY TO COMPLY WITH FEDERAL REQUIREMENTS WHICH SHOULD HAVE RENDERED MIDWAY'S BID NONRESPONSIVE. ENCLOSED HEREWITH IS A COPY OF A REPORT RECEIVED FROM THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (HUD) REGARDING THE CONTENTIONS WHICH YOU RAISED. THE INSTANT PROCUREMENT WAS NOT MADE BY A FEDERAL AGENCY. THERE IS NO BASIS TO APPLY TO THIS NON-FEDERAL PROCUREMENT THE USUAL RULES GOVERNING BID RESPONSIVENESS AS EXEMPLIFIED BY SECTION 1.2-404.2 OF THE FEDERAL PROCUREMENT REGULATIONS. IS INAPPLICABLE TO THE PRESENT SITUATION SINCE THAT CASE WAS A DIRECT FORMALLY ADVERTISED PROCUREMENT BY HUD INVOLVING A BIDDER'S COMMITMENT TO THE WASHINGTON PLAN.

B-178582, JUL 27, 1973

PROTEST ON BEHALF OF HANOVER CONTRACTING COMPANY, INC., AGAINST AWARD OF A CONTRACT TO MIDWAY-EXCAVATIONS, INC., UNDER A FEDERALLY ASSISTED IMPROVEMENT PROJECT NO. MASS. E-11, FOR THE CITY OF LAWRENCE, MASSACHUSETTS, DENIED BECAUSE PROCUREMENT IS BY A STATE INSTRUMENTALITY.

TO JOHN M. DOUKAS:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MAY 1, 1973, WITH ENCLOSURE, PROTESTING ON BEHALF OF HANOVER CONTRACTING COMPANY, INC., AGAINST THE AWARD OF A CONTRACT TO MIDWAY-EXCAVATIONS, INC., UNDER A FEDERALLY ASSISTED IMPROVEMENT PROJECT NO. MASS. E-11, FOR THE CITY OF LAWRENCE, MASSACHUSETTS.

YOU CONTEND THAT AN EXAMINATION OF THE LOW BID OF MIDWAY EXCAVATIONS, INC., DISCLOSED SEVERAL SERIOUS FAILURES BY MIDWAY TO COMPLY WITH THE BID REQUIREMENTS. HANOVER CONTENDS THAT THERE WERE THREE SERIOUS FAILURES BY MIDWAY TO COMPLY WITH FEDERAL REQUIREMENTS WHICH SHOULD HAVE RENDERED MIDWAY'S BID NONRESPONSIVE. HANOVER STATES THAT MIDWAY FAILED TO SUBMIT WITH ITS BID THE "NON-COLLUSION AFFIDAVIT," THE "CERTIFICATION OF NON- SEGREGATED FACILITIES" AS REQUIRED BY FEDERAL LAW OR EXECUTIVE ORDER.

ENCLOSED HEREWITH IS A COPY OF A REPORT RECEIVED FROM THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (HUD) REGARDING THE CONTENTIONS WHICH YOU RAISED. THE INSTANT PROCUREMENT WAS NOT MADE BY A FEDERAL AGENCY, BUT BY AN INSTRUMENTALITY OF THE STATE OF MASSACHUSETTS, WITH FINANCIAL ASSISTANCE IN THE FORM OF A GRANT FROM HUD UNDER SECTION 117 OF TITLE 1 OF THE HOUSING ACT OF 1949, AS AMENDED, 42 U.S.C. 1543. HOWEVER, THE PROCEDURES APPLICABLE TO FORMALLY ADVERTISED PROCUREMENTS BY THE FEDERAL GOVERNMENT DO NOT APPLY TO NON-FEDERAL PROCUREMENTS WHERE, AS HERE, THE FEDERAL GOVERNMENT (HUD) PARTICIPATES AS A GRANTEE OF FUNDS TO PARTIALLY SUPPORT PROCUREMENTS EFFECTED BY LOCAL AGENCIES OR INSTITUTIONS. THUS, THERE IS NO BASIS TO APPLY TO THIS NON-FEDERAL PROCUREMENT THE USUAL RULES GOVERNING BID RESPONSIVENESS AS EXEMPLIFIED BY SECTION 1.2-404.2 OF THE FEDERAL PROCUREMENT REGULATIONS. WE NOTE, FROM THE HUD REPORT, THAT AFTER BID OPENING MIDWAY SUBMITTED ALL THE REQUIRED FORMS.

THE DECISION IN NORTHEAST CONSTRUCTION COMPANY V. GEORGE ROMNEY, ET AL., U.S.C.A. DC NO. 71-1650, MARCH 6, 1973, CITED BY YOU IN SUPPORT OF THE POSITION THAT "MANDATED POLICIES" MAY NOT BE WAIVED, IS INAPPLICABLE TO THE PRESENT SITUATION SINCE THAT CASE WAS A DIRECT FORMALLY ADVERTISED PROCUREMENT BY HUD INVOLVING A BIDDER'S COMMITMENT TO THE WASHINGTON PLAN, A MATERIAL REQUIREMENT OF THE PROCUREMENT.

ACCORDINGLY, THE PROTEST IS DENIED.