B-179100(1), FEB 28, 1974

B-179100(1): Feb 28, 1974

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A CONTRACT FOR WATER SYSTEM IMPROVEMENTS WAS AWARDED TO BROWN STEEL CONTRACTORS. THE AWARD WAS FINANCED. CHICAGO BRIDGE MAINTAINS THAT BROWN STEEL'S BID FOR THE IMPROVEMENTS SHOULD HAVE BEEN FOUND NONRESPONSIVE BECAUSE IT DID NOT CONTAIN A COMPLETED AFFIRMATIVE ACTION PLAN (AAP) CERTIFICATE REGARDING MINORITY HIRING AND OTHER ACTIONS DURING CONTRACT PERFORMANCE. HUD REPORTS THAT INITIAL BID OPENING FOR THE IMPROVEMENTS WAS HELD ON MAY 30. THAT WHEN BIDS WERE OPENED THE CITY DISCOVERED THAT THE TWO LOWEST BIDDERS HAD NOT SIGNED THEIR AAP CERTIFICATES. IT REQUIRED A BIDDER TO SHOW HIS COMPLIANCE WITH EITHER PART I OR PART II OF "BID CONDITIONS - AFFIRMATIVE ACTION REQUIREMENTS - EQUAL EMPLOYMENT OPPORTUNITY" WHICH WERE INCORPORATED BY REFERENCE IN THE AFB.

B-179100(1), FEB 28, 1974

FAILURE OF LOW BIDDER TO COMPLETE ALL PARAGRAPHS OF AFFIRMATIVE ACTION PLAN CERTIFICATE DOES NOT RENDER BID NONRESPONSIVE SINCE BIDDER SIGNED CERTIFICATE AND CERTIFICATE CONTAINED A LISTING OF TRADES TO BE USED UNDER THE CONTRACT.

TO CHICAGO BRIDGE & IRON COMPANY:

ON JULY 20, 1973, A CONTRACT FOR WATER SYSTEM IMPROVEMENTS WAS AWARDED TO BROWN STEEL CONTRACTORS, INC., BY THE CITY OF JACKSONVILLE, ARKANSAS. THE AWARD WAS FINANCED, IN PART, BY A DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (HUD) GRANT UNDER THE HOUSING DEVELOPMENT ACT OF 1965, AS AMENDED, 42 U.S.C. 3102.

CHICAGO BRIDGE MAINTAINS THAT BROWN STEEL'S BID FOR THE IMPROVEMENTS SHOULD HAVE BEEN FOUND NONRESPONSIVE BECAUSE IT DID NOT CONTAIN A COMPLETED AFFIRMATIVE ACTION PLAN (AAP) CERTIFICATE REGARDING MINORITY HIRING AND OTHER ACTIONS DURING CONTRACT PERFORMANCE. WE DISAGREE FOR THE REASONS STATED BELOW.

HUD REPORTS THAT INITIAL BID OPENING FOR THE IMPROVEMENTS WAS HELD ON MAY 30, 1973; THAT WHEN BIDS WERE OPENED THE CITY DISCOVERED THAT THE TWO LOWEST BIDDERS HAD NOT SIGNED THEIR AAP CERTIFICATES; AND THAT THE CITY THEN ELECTED TO REJECT ALL BIDS AND READVERTISE THE REQUIREMENT.

THE ADVERTISEMENT FOR BIDS (AFB) FOR THE READVERTISEMENT CONTAINED A SECTION CAPTIONED CERTIFICATIONS. IT REQUIRED A BIDDER TO SHOW HIS COMPLIANCE WITH EITHER PART I OR PART II OF "BID CONDITIONS - AFFIRMATIVE ACTION REQUIREMENTS - EQUAL EMPLOYMENT OPPORTUNITY" WHICH WERE INCORPORATED BY REFERENCE IN THE AFB. PART I OF THE CONDITIONS CONCERNED A COMMITMENT TO THE LOCAL ACTION PLAN KNOWN AS THE LITTLE ROCK PLAN. PART II CONCERNED A COMMITMENT TO GOALS AND ACTION STEPS FOR BIDDERS AND TRADES NOT COVERED BY PART I. WE UNDERSTAND THAT BROWN STEEL COULD ONLY QUALIFY UNDER PART II SINCE THE COMPANY WAS NOT SIGNATORY TO THE PLAN AND DID NOT HAVE COLLECTIVE BARGAINING AGREEMENTS WITH TRADES WHICH WERE SIGNATORY TO THE PLAN.

THE CERTIFICATIONS SECTION WAS SET FORTH IN THE AFB AS FOLLOWS:

"CERTIFICATIONS

"A. BIDDERS CERTIFICATIONS. A BIDDER WILL NOT BE ELIGIBLE FOR AWARD OF A CONTRACT UNDER THIS INVITATION FOR BIDS UNLESS SUCH BIDDER HAS SUBMITTED AS A PART OF ITS BID THE FOLLOWING CERTIFICATION, WHICH WILL BE DEEMED A PART OF THE RESULTING CONTRACT:

BIDDERS' CERTIFICATION

CERTIFIES THAT:

(BIDDER)

"1. IT INTENDS TO USE THE FOLLOWING LISTED CONSTRUCTION TRADES IN THE WORK UNDER THE CONTRACT

; AND

"2. (A) AS TO THOSE TRADES SET FORTH IN THE PRECEDING PARAGRAPH ONE HEREOF FOR WHICH IT IS ELIGIBLE UNDER PART I OF THESE BID CONDITIONS FOR PARTICIPATION IN THE LITTLE ROCK PLAN, IT WILL COMPLY WITH THE LITTLE ROCK PLAN ON ALL CONSTRUCTION WORK (BOTH FEDERAL AND NON FEDERAL) IN THE LITTLE ROCK AREA WITHIN THE SCOPE OF COVERAGE OF THAT PLAN, THOSE TRADES BEING:

, AND/OR

"(B) AS TO THOSE TRADES FOR WHICH IT IS REQUIRED BY THESE BID CONDITIONS TO COMPLY WITH PART II OF THESE BID CONDITIONS, IT ADOPTS THE MINIMUM MINORITY MANPOWER UTILIZATION GOALS AND THE SPECIFIC AFFIRMATIVE ACTION STEPS CONTAINED IN SAID PART II, FOR ALL CONSTRUCTION WORK (BOTH FEDERAL AND NON-FEDERAL) IN THE LITTLE ROCK AREA SUBJECT TO THESE BID CONDITIONS, THOSE TRADES BEING:

; AND

"3. IT WILL OBTAIN FROM EACH OF ITS SUBCONTRACTORS AND SUBMIT TO THE CONTRACTING OR ADMINISTERING AGENCY PRIOR TO THE AWARD OF ANY SUBCONTRACT UNDER THIS CONTRACT THE SUBCONTRACTOR CERTIFICATION REQUIRED BY THESE BID CONDITIONS.

" (SIGNATURE OF AUTHORIZED REPRESENTATIVE OF BIDDER)

BROWN STEEL'S BID CONTAINED A SIGNED CERTIFICATE, COMPLETED, WITH RESPECT TO PARAGRAPHS 1, 2(A), AND 2(B), AS FOLLOWS:

"1. III-DHUD PROJECT WSF-AR-06-37-1028 FIELD MECHANIC - CLASS A, B, & C.

2(A) ( )

2(B) ( )"

HUD REPORTS THAT AFTER BID OPENING CHICAGO BRIDGE QUESTIONED THE ACCEPTABILITY OF BROWN STEEL'S CERTIFICATE BECAUSE OF THE COMPANY'S FAILURE TO COMPLETE PARAGRAPH 2(B) OF THE CERTIFICATION; THAT THE CITY SUBMITTED THE MATTER TO THE HUD AREA OFFICE; THAT THE HUD AREA OFFICE SUBSEQUENTLY SUBMITTED THE MATTER TO AN ATTORNEY EMPLOYED BY THE SOLICITOR'S OFFICE, DEPARTMENT OF LABOR (DOL), THE FEDERAL AGENCY THAT DRAFTED THE BID CONDITIONS AND CERTIFICATIONS SECTION IN QUESTION; THAT THE DOL ATTORNEY EXPRESSED THE OPINION THAT THE BROWN STEEL BID WAS RESPONSIVE, NOTWITHSTANDING THE FAILURE TO COMPLETE PARAGRAPH 2(B), BECAUSE PARAGRAPH 1 OF THE SIGNED CERTIFICATE HAD BEEN COMPLETED.

BECAUSE OF THIS ADVICE, THE HUD AREA OFFICE ADVISED THE CITY THAT IT WOULD NOT OBJECT TO AN AWARD TO BROWN STEEL. THE CITY THEREFORE MADE AN AWARD TO THE COMPANY ON JULY 20, 1973.

WE HAVE HELD, IN THIS REGARD, THAT THE FAILURE OF A BIDDER TO COMMIT ITSELF, PRIOR TO BID OPENING, TO MINIMUM AFFIRMATIVE ACTION REQUIREMENTS OF THE SOLICITATION REQUIRES REJECTION OF THE BID. 50 COMP. GEN. 844 (1971). IN DETERMINING WHETHER THE BIDDER HAS COMMITTED ITSELF TO MINIMUM AFFIRMATIVE ACTION REQUIREMENTS, THE ENTIRE CONTENTS OF THE BID MUST BE TAKEN INTO ACCOUNT. 49 COMP. GEN. 851 (1970). HERE, BROWN STEEL LISTED THE TRADES IT INTENDED TO USE IN PARAGRAPH 1 OF THE BIDDER'S CERTIFICATE AND SIGNED THE CERTIFICATE. ALTHOUGH IT DID NOT REPEAT THESE TRADES IN PARAGRAPH 2(B) OF THE CERTIFICATE, GAO BELIEVES THE OMISSION WAS PURELY AN INFORMATIONAL DEFECT SINCE THE BIDDER'S SIGNATURE, WHEN COUPLED WITH THE LISTING OF ALL APPLICABLE TRADES IN PARAGRAPH 1, GAVE RISE TO A BINDING OBLIGATION ON THE BIDDER TO FOLLOW THE REQUIREMENTS OF PART I OR PART II OF THE BID CONDITIONS AS TO THE TRADES LISTED IN PARAGRAPH 1. DOL CONCURS IN THE VIEW THAT THE INFORMATION SUPPLIED IN PARAGRAPH 2(B) IS MERELY INFORMATIONAL AND DOES NOT AFFECT BID RESPONSIVENESS.

IF, IN FACT, A BIDDER POSSESSED AN OPTION TO FOLLOW PART I OR PART II, GAO BELIEVES THAT THE CHOICE COULD BE SUPPLIED AFTER BID OPENING WITHOUT AFFECTING THE RESPONSIVENESS OF THE AAP COMMITMENT. SINCE BROWN STEEL COULD ONLY COMPLY WITH PART II OF THE BID CONDITIONS, IT WAS NOT NECESSARY TO OBTAIN THE INFORMATION HERE. THIS CASE IS THEREFORE DISTINGUISHABLE FROM THE CIRCUMSTANCES IN 52 COMP. GEN. 874 (1973), WHICH INVOLVED A DIFFERENT AAP FORM, WHEN THE BIDDER IN QUESTION DID NOT SIGN THE FORM OR LIST APPLICABLE TRADES IN SUCH A WAY AS TO GIVE RISE TO A BINDING COMMITMENT TO AFFIRMATIVE ACTION.

CHICAGO BRIDGE ALSO QUESTIONS THE PROPRIETY OF THE GRANTEE'S DECISION IN CANCELING THE FIRST SOLICITATION FOR THE REQUIREMENT WHICH WAS MADE KNOWN TO THE COMPANY ON JUNE 12, 1973. THE INTERIM BID PROTEST PROCEDURES AND STANDARDS OF OUR OFFICE PROVIDE, IN THIS REGARD, THAT PROTESTS INVOLVING MATTERS OTHER THAN APPARENT DEFECTS IN SOLICITATIONS ARE TO BE FILED WITH OUR OFFICE WITHIN 5 DAYS AFTER THE BASIS OF PROTEST IS KNOWN, OR SHOULD HAVE BEEN KNOWN. 4 CFR 20.2(A). SINCE THE COMPANY DID NOT PROTEST THE GRANTEE'S ACTION UNTIL JULY 5, 1973, WHICH WAS MORE THAN 5 DAYS AFTER THE BASIS OF PROTEST WAS KNOWN, WE DO NOT THINK IT APPROPRIATE TO CONSIDER THE PROTEST AT THIS TIME.

FOR THESE REASONS, THE PROTEST MUST BE DENIED.