B-179100(2), FEB 28, 1974

B-179100(2): Feb 28, 1974

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SECRETARY: THIS IS IN REFERENCE TO A REQUEST OF MR. BIDDERS ARE DIRECTED TO SHOW THEIR INTENT TO COMPLY WITH THE REQUIREMENTS BY COMPLETING SEVERAL BLANK SPACES IN THE CONDITIONS. THESE BLANK SPACES ARE RESERVED FOR BIDDERS' SIGNATURES. FOR TRADES THAT ARE COMMITTED TO A LOCAL AREA PLAN FOR AFFIRMATIVE ACTION. FOR TRADES THAT ARE NOT COMMITTED TO A LOCAL PLAN. THE CONDITIONS ARE QUITE SPECIFIC THAT FAILURE OF A BIDDER TO COMPLETE THE BLANK SPACES AS PART OF ITS BID OR SUBMIT AN INDEPENDENT AFFIRMATIVE ACTION PLAN. WILL RESULT IN BID REJECTION. WE HAVE HELD THAT A BIDDER'S FAILURE TO SUBMIT HIRING GOALS. IS QUITE SPECIFIC THAT THE BIDDER MUST SUBMIT HIS GOALS. SINCE HIS COMPLIANCE IS MEASURED BY HIS GOALS AND NOT BY THE PRESCRIBED MINIMUMS.

B-179100(2), FEB 28, 1974

THIS OFFICE BOTH OFFERS RECOMMENDATIONS ON POSSIBLE CHANGES TO, AND EXAMINES, BID CONDITIONS SETTING FORTH AFFIRMATIVE ACTION AND EQUAL EMPLOYMENT OPPORTUNITY REQUIREMENTS ISSUED BY DEPT. OF LABOR'S OFFICE OF FEDERAL CONTRACT COMPLIANCE FOR USE IN FEDERAL OR FEDERALLY-INVOLVED CONSTRUCTION CONTRACTS.

TO MR. SECRETARY:

THIS IS IN REFERENCE TO A REQUEST OF MR. FEIGIN OF YOUR SOLICITOR'S OFFICE, CIVIL RIGHTS AND LABOR RELATIONS, THAT WE REPORT ON THE NUMBER OF BID PROTESTS HANDLED BY OUR OFFICE INVOLVING BIDDERS' COMPLIANCE WITH BID CONDITIONS SETTING FORTH AFFIRMATIVE ACTION AND EQUAL EMPLOYMENT OPPORTUNITY REQUIREMENTS ISSUED BY YOUR OFFICE OF FEDERAL CONTRACT COMPLIANCE FOR USE IN FEDERAL OR FEDERALLY-INVOLVED CONSTRUCTION CONTRACTS. MR. FEIGIN ALSO INVITED OUR RECOMMENDATIONS ON POSSIBLE CHANGES TO THE BID CONDITIONS.

THE CONDITIONS LIST AFFIRMATIVE ACTION REQUIREMENTS, INCLUDING PERCENTAGE GOALS FOR MINORITY HIRING, TO BE OBSERVED BY THE CONTRACTOR DURING PERFORMANCE. BIDDERS ARE DIRECTED TO SHOW THEIR INTENT TO COMPLY WITH THE REQUIREMENTS BY COMPLETING SEVERAL BLANK SPACES IN THE CONDITIONS, AND RETURNING THE COMPLETED CONDITIONS WITH THEIR BIDS. THESE BLANK SPACES ARE RESERVED FOR BIDDERS' SIGNATURES, FOR TRADES THE BIDDER PLANS TO USE ON THE PROJECT IN QUESTION, AND FOR TRADES THAT ARE COMMITTED TO A LOCAL AREA PLAN FOR AFFIRMATIVE ACTION. ONE OF THE BID CONDITIONS ISSUED BY YOUR DEPARTMENT ALSO REQUIRES CERTAIN BIDDERS TO SUBMIT AN INDEPENDENT AFFIRMATIVE PLAN, EMBODYING STATED MINIMUM HIRING GOALS AND OTHER ACTION STEPS, FOR TRADES THAT ARE NOT COMMITTED TO A LOCAL PLAN. THE CONDITIONS ARE QUITE SPECIFIC THAT FAILURE OF A BIDDER TO COMPLETE THE BLANK SPACES AS PART OF ITS BID OR SUBMIT AN INDEPENDENT AFFIRMATIVE ACTION PLAN, AS REQUIRED, WILL RESULT IN BID REJECTION.

FOLLOWING THE SPECIFIC DIRECTIVES SET FORTH IN THE BID CONDITIONS, AND PREDECESSOR FORMS, WE HAVE HELD THAT A BIDDER'S FAILURE TO SUBMIT HIRING GOALS, AT LEAST COMPLYING WITH STATED MINIMUM GOALS, OR TO STRICTLY COMPLY WITH THE SIGNATURE AND FILL-IN REQUIREMENTS, REQUIRES BID REJECTION. WE STATED IN 50 COMP. GEN. 844 (1971):

"THE APPENDIX (CONDITIONS), READ AS A WHOLE, IS QUITE SPECIFIC THAT THE BIDDER MUST SUBMIT HIS GOALS, SINCE HIS COMPLIANCE IS MEASURED BY HIS GOALS AND NOT BY THE PRESCRIBED MINIMUMS. ACCORDINGLY, IT IS OUR OPINION THAT A FAILURE BY A BIDDER TO SUBMIT SPECIFIC INDIVIDUAL GOALS FOR MINORITY MANPOWER UTILIZATION CONSTITUTES SUCH A MATERIAL DEVIATION FROM THE STATED REQUIREMENTS OF APPENDIX 'A' THAT SUCH A DEFICIENT BID CANNOT BE REGARDED AS ELIGIBLE FOR AWARD UNDER THE SUBJECT INVITATION."

THIS DECISION, WHICH WAS THE SUBJECT OF LITIGATION, HAS BEEN UPHELD BY THE U.S. COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA IN NORTHEAST CONSTRUCTION COMPANY V. GEORGE ROMNEY ET AL., U.S.C.A. DC NO. 71-1650, MARCH 6, 1973. FURTHER, IT HAS BEEN CITED IN 12 SUBSEQUENT PROTEST DECISIONS, COPIES ENCLOSED, OF OUR OFFICE INVOLVING BIDDERS' FAILURE TO COMPLY STRICTLY WITH ALL SIGNATURE, FILL-IN, AND GOAL SUBMISSION REQUIREMENTS OF THE CONDITIONS.

THERE MAY WELL BE SEVERAL OTHER DECISIONS OF OUR OFFICE INVOLVING COMPLIANCE WITH THE CONDITIONS WHICH HAVE NOT CITED 50 COMP. GEN., SUPRA. IN SOME DECISIONS, WE WERE ABLE TO FIND THAT A LOW BIDDER WAS OTHERWISE BOUND TO THE CONDITIONS NOTWITHSTANDING THE FAILURE TO COMPLY STRICTLY WITH THE SIGNATURE AND FILL-IN REQUIREMENTS; IN SEVERAL CASES THE LOW BID HAD TO BE REJECTED FOR THIS FAILURE.

WE UNDERSTAND THAT THE SIGNATURE, FILL-IN, AND GOAL SUBMISSION REQUIREMENTS WERE IMPOSED SO THAT BIDDERS WOULD BE ADEQUATELY IMPRESSED BY THE IMPORTANCE OF THE ACTION REQUIREMENTS, AND THAT IF BIDDERS TOOK THE TIME TO COMPLETE ALL BLANK SPACES PROPERLY THEY WOULD KNOW IN DETAIL WHAT THE GOVERNMENT EXPECTED OF THEM IN THIS AREA DURING CONTRACT PERFORMANCE.

WE AGREE THAT BIDDERS SHOULD BE ADEQUATELY WARNED OF THE IMPORTANCE OF THE REQUIREMENTS AND THAT A WAY SHOULD BE FOUND TO MAKE SURE THAT BIDDERS UNDERSTAND, PRIOR TO BID OPENING, ALL DETAILS OF THE AFFIRMATIVE ACTION REQUIREMENTS. AT THE SAME TIME, WE ARE CONCERNED THAT THE GOVERNMENT NOT LOSE THE BENEFITS OF LOW BIDS BY REQUIRING STRICT COMPLIANCE WITH WHAT SOME REJECTED BIDDERS MUST FEEL TO BE EXCESSIVE SIGNATURE AND FILL-IN REQUIREMENTS.

WE THINK THE PRESENT CONDITIONS COULD, AND SHOULD, BE REVISED TO MAKE BIDDERS OBLIGED TO FOLLOW THE HIRING GOALS AND ACTION STEPS OF THE LOCAL AREA PLAN FOR COVERED TRADES TO BE USED ON THE JOB AND THE STATED HIRING GOALS AND ACTION STEPS SET FORTH IN THE CONDITIONS FOR SPECIFIC TRADES OR BIDDERS NOT COVERED BY THE LOCAL PLAN WITHOUT SEPARATE SIGNATURE, FILL-IN, AND GOAL SUBMISSION REQUIREMENTS. EMPLOYEE JOB DESCRIPTIONS NOT COVERED BY A FORMAL "TRADE" CLASSIFICATION COULD BE MADE SUBJECT TO MINIMUM HIRING GOALS AND ACTION STEPS THROUGH A SEPARATE PROVISION WITHIN THE ALTERNATIVE FOR TRADES OR BIDDERS NOT COVERED BY THE LOCAL PLAN.

THE CONDITIONS WOULD BE DRAFTED TO MAKE THIS REQUIREMENT BINDING ON ALL BIDDERS WHO SUBMIT SIGNED BIDS. THIS WOULD ELIMINATE THE LEGAL NEED FOR ALL SEPARATE SIGNATURE, FILL-IN, AND GOAL SUBMISSION REQUIREMENTS.

WE THINK THE GOAL OF DRAWING BIDDERS' ATTENTION TO THE IMPORTANCE OF THE AFFIRMATIVE ACTION REQUIREMENTS COULD ALSO BE ACHIEVED IN THE ABSENCE OF THE PRESENT FILL-IN REQUIREMENTS BY INSTRUCTING FEDERAL AGENCIES AND GRANTEES TO PLACE A SEPARATE FACE SHEET ON ALL INVITATIONS FOR BIDS WITH DIRECTIONS (IN BOLDFACE TYPE) WARNING BIDDERS TO READ ALL ACTION REQUIREMENTS AND OF THE CONSEQUENCES OF FAILING TO COMPLY WITH THE REQUIREMENTS DURING CONTRACT PERFORMANCE.

ADDITIONALLY, OR ALTERNATIVELY, YOUR DEPARTMENT COULD REQUIRE THAT BIDDERS' CONFERENCES BE HELD PRIOR TO BID OPENING AT WHICH TIME THE ACTION REQUIREMENTS COULD BE READ AND EXPLAINED TO BIDDERS.

OTHER MEANS TO DRAW BIDDERS' ATTENTION TO THE IMPORTANCE OF THE ACTION REQUIREMENTS WITHOUT REQUIRING SIGNATURE, FILL-IN, AND GOAL SUBMISSION PROVISIONS COULD BE FOUND, NO DOUBT, AND EXAMINED, TOGETHER WITH CONCURRENT EXAMINATION OF PROBLEMS ATTENDING THE REVISION OF THE CONDITIONS, IN COORDINATION WITH REPRESENTATIVES OF YOUR DEPARTMENT, OTHER FEDERAL AGENCIES, OUR OFFICE, AND OTHER INTERESTED GROUPS. WE HOPE THAT THE EXAMINATION AND REVISION OF THE CONDITIONS WOULD MAKE THE AFFIRMATIVE ACTION PROGRAM MORE EFFECTIVE, RESULT IN FINANCIAL SAVINGS FOR THE GOVERNMENT, AND LESSEN OR ELIMINATE THE NUMBER OF PROTESTS INVOLVING COMPLIANCE WITH THESE PROVISIONS.

WE WELCOME YOUR COMMENTS.