B-180073, FEB 26, 1974

B-180073, FEB 26, 1974

REQUEST THAT GAO RULE ON MERITS OF PROTEST INVOLVING RESPONSIVENESS OF BID TO AFFIRMATIVE ACTION REQUIREMENTS OF FEDERALLY FUNDED LOCAL CONSTRUCTION PROJECT DESPITE CANCELLATION OF SOLICITATION, ON BASIS THAT DECISIONS WOULD BE HELPFUL TO BIDDERS IN FUTURE DENIED, SINCE IT DOES NOT APPEAR THAT PROTEST INVOLVES PRINCIPLE OF WIDESPREAD INTEREST OR APPLICATION OR THAT A DECISION ON MERITS WOULD SERVE ANY USEFUL PURPOSE.

TO OSBERG CONSTRUCTION CO.:

THIS INVOLVES A PROTEST FILED BY OSBERG CONSTRUCTION COMPANY CONCERNING THE AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER AN INVITATION FOR BIDS ISSUED BY THE CITY OF LEWISTON, IDAHO, FOR A SEWAGE PUMP STATION AND UTILITY RELOCATION PROJECT. THIS PROJECT IS BEING FUNDED BY THE ENVIRONMENTAL PROTECTION AGENCY (EPA PROJECT NO. C 160147), WITH THE CORPS OF ENGINEERS ALSO ASSISTING ON THE PROJECT. FOR THE REASONS STATED BELOW WE DECLINE TO TAKE ANY FURTHER ACTION IN THIS CASE.

THE SUBJECT OF THE PROTEST CONCERNS WHETHER THE BID SUBMITTED BY LINDBROOK CONSTRUCTION, INCORPORATED, OBLIGATED THAT BIDDER TO COMPLY WITH THE AFFIRMATIVE ACTION REQUIREMENTS IN THE SOLICITATION. OSBERG URGES THAT LINDBROOK'S BID WAS DEFICIENT SINCE THAT BIDDER DID NOT FURNISH THE HOMETOWN PLAN CERTIFICATE. IT IS FURTHER URGED THAT THE AFFIRMATIVE ACTION PLAN AND THE MANPOWER PROJECTION REPORT SUBMITTED BY LINDBROOK WERE NOT ADEQUATE TO OBLIGATE THAT BIDDER TO COMPLY WITH THE AFFIRMATIVE ACTION REQUIREMENTS. THE AFFIRMATIVE ACTION REQUIREMENTS INCLUDED IN THE SOLICITATION WERE THE STANDARD PROVISIONS FOR EQUAL EMPLOYMENT OPPORTUNITY, WHICH ARE INCLUDED IN FEDERALLY FUNDED CONSTRUCTION CONTRACTS.

WE HAVE BEEN ADVISED THAT EPA HAS NOT MADE ANY FINAL DETERMINATION AS TO WHETHER LINDBROOK'S BID IS RESPONSIVE SINCE AN AWARD WILL NOT BE MADE TO THAT BIDDER OR ANY OTHER BIDDER UNDER THE SOLICITATION WHICH IS THE SUBJECT OF OSBERG'S PROTEST. IN THIS REGARD, OUR OFFICE HAS BEEN ADVISED THAT THE SUBJECT SOLICITATION WAS CANCELLED BY THE CITY OF LEWISTON SINCE IT WAS FOUND NECESSARY TO REVISE THE SCOPE OF THE WORK. THE CITY OF LEWISTON NOTIFIED THE VARIOUS BIDDERS, INCLUDING OSBERG, OF THE CANCELLATION OF THE IFB BY LETTER OF DECEMBER 19, 1973. THIS LETTER FURTHER STATED THAT AN IFB RESOLICITING THE REQUIREMENT WOULD BE ISSUED SOON THEREAFTER. NEVERTHELESS, COUNSEL FOR OSBERG HAS URGED THAT WE CONSIDER THE MERITS OF THE PROTEST ON THE BASIS THAT THIS WOULD HELP BIDDERS TO BETTER UNDERSTAND THE INTERPRETATION TO BE GIVEN TO THE EQUAL EMPLOYMENT OPPORTUNITY REQUIREMENTS IN PROJECTS FUNDED BY EPA.

HOWEVER, WE DO NOT FIND THAT THE PROTEST INVOLVES A PRINCIPLE OF WIDESPREAD INTEREST OR APPLICATION AS SUGGESTED. RATHER THE PROTEST ESSENTIALLY INVOLVES WHETHER A PARTICULAR BID MET THE SOLICITATION REQUIREMENTS. SPECIFICALLY, IT IS CONTENDED THAT THE INDIVIDUAL PLAN SUBMITTED BY A BIDDER WAS NOT IN SUBSTANTIAL COMPLIANCE WITH THE AFFIRMATIVE ACTION REQUIREMENTS OF THE SOLICITATION. SINCE THE SOLICITATION HAS BEEN CANCELLED, WE DO NOT BELIEVE THAT A DECISION ON THE MERITS OF THE PROTEST WOULD SERVE ANY USEFUL PURPOSE AT THIS TIME.