B-181608, NOV 22, 1974

B-181608: Nov 22, 1974

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PACIFIC WEST CONSTRUCTORS: INVITATION FOR BIDS (IFB) NO. 17-64-74 WAS ISSUED BY THE UNITED STATES COAST GUARD. REQUIRED A BIDDER TO DEMONSTRATE HIS INTENT TO COMPLY WITH EITHER PART I OR PART II OF "BID CONDITIONS - AFFIRMATIVE ACTION REQUIREMENTS - EQUAL EMPLOYMENT OPPORTUNITY" WHICH ARE INCLUDED IN THE IFB PACKAGE. PROVIDED: "THE BIDDERS *** WILL NOT BE ELIGIBLE FOR AWARD *** UNLESS IT CERTIFIES AS PRESCRIBED IN PARAGRAPH 2B OF THE CERTIFICATION SPECIFIED IN PART III HEREOF THAT IT ADOPTS THE MINIMUM GOALS AND TIMETABLES OF MINORITY MANPOWER UTILIZATION ***.". THE PART III CERTIFICATION WAS SET FORTH IN THE IFB AS FOLLOWS: "BIDDERS' CERTIFICATION" (CERTIFICATION OMITTED) OF THE NINE BIDS RECEIVED FOR THE WORK ON JUNE 18.

B-181608, NOV 22, 1974

BIDDER'S LISTING OF APPLICABLE CONSTRUCTION TRADES IN PARAGRAPH 2(B) OF AFFIRMATIVE ACTION CERTIFICATE IN RESPONSE TO IFB PROVISION DIRECTING BIDDERS TO EVIDENCE INTENT TO COMPLY WITH PART II OF "BID CONDITIONS - AFFIRMATIVE ACTION REQUIREMENTS - EQUAL EMPLOYMENT OPPORTUNITY" BY "(CERTIFYING) IN PARAGRAPH 2B OF CERTIFICATE" GAVE RISE TO BINDING OBLIGATION ON BIDDER TO FOLLOW REQUIREMENTS OF PART II NOTWITHSTANDING FAILURE OF BIDDER TO SIGN CERTIFICATE.

PACIFIC WEST CONSTRUCTORS:

INVITATION FOR BIDS (IFB) NO. 17-64-74 WAS ISSUED BY THE UNITED STATES COAST GUARD, SEVENTEENTH COAST GUARD DISTRICT, ON MARCH 12, 1974, FOR THE RESIDING OF BUILDING 12, POWERHOUSE ANNEX, KODIAK, ALASKA.

THE IFB CONTAINED A SECTION CAPTIONED "BIDDERS' CERTIFICATION." REQUIRED A BIDDER TO DEMONSTRATE HIS INTENT TO COMPLY WITH EITHER PART I OR PART II OF "BID CONDITIONS - AFFIRMATIVE ACTION REQUIREMENTS - EQUAL EMPLOYMENT OPPORTUNITY" WHICH ARE INCLUDED IN THE IFB PACKAGE.

PART I OF THE CONDITIONS CONCERNED AN EQUAL EMPLOYMENT OPPORTUNITY COMMITMENT TO THE LOCAL ACTION PLAN KNOWN AS THE ALASKA PLAN. PART I INFORMED BIDDERS THAT TO BE ELIGIBLE FOR AWARD UNDER PART I THEY MUST "EXECUTE" (SIGN) THE CERTIFICATION REQUIRED BY PART III OF THE CONDITIONS. PART II CONCERNED A COMMITMENT TO GOALS AND ACTION STEPS FOR BIDDERS AND CONSTRUCTION TRADES NOT COVERED BY PART I AND, WITH RESPECT TO BIDDERS REQUIRED TO QUALIFY UNDER PART II, PROVIDED:

"THE BIDDERS *** WILL NOT BE ELIGIBLE FOR AWARD *** UNLESS IT CERTIFIES AS PRESCRIBED IN PARAGRAPH 2B OF THE CERTIFICATION SPECIFIED IN PART III HEREOF THAT IT ADOPTS THE MINIMUM GOALS AND TIMETABLES OF MINORITY MANPOWER UTILIZATION ***."

THE PART III CERTIFICATION WAS SET FORTH IN THE IFB AS FOLLOWS:

"BIDDERS' CERTIFICATION"

(CERTIFICATION OMITTED)

OF THE NINE BIDS RECEIVED FOR THE WORK ON JUNE 18, 1974, PACIFIC WEST CONSTRUCTORS SUBMITTED THE LOWEST BID OF $94,498; CONTINENTAL CONSTRUCTION COMPANY, INC., SUBMITTED THE NEXT LOWEST BID OF $100,000. CONTINENTAL REFUSED, HOWEVER, TO EXTEND ITS BID DURING THE PENDENCY OF THE PROTEST.

PACIFIC WEST SUBMITTED WITH ITS BID AN UNSIGNED AFFIRMATIVE ACTION CERTIFICATE WITH THE FOLLOWING TYPED INSERTIONS IN PARAGRAPHS 1, 2(B), AND 3:

1. ROOFERS, CARPENTERS, AND LABORERS"

2(B). "ROOFERS CARPENTERS AND LABORERS"

3. "PACIFIC WEST CONSTRUCTORS"

"BY:"

(SIGNATURE OF AUTHORIZED REPRESENTATIVE OF BIDDER)

"FRANK J. MILLER, PARTNER"

BECAUSE PACIFIC WEST'S AUTHORIZED REPRESENTATIVE (FRANK J. MILLER) FAILED TO SIGN THE CERTIFICATE, THE CONTRACTING OFFICER DECIDED THAT THE COMPANY'S BID WAS NONRESPONSIVE.

THIS DECISION HAS SINCE BEEN EXPLAINED BY THE CONTRACTING OFFICER TO BE PARTLY BASED ON APPLICATION OF THE FOLLOWING IFB PROVISIONS TO PACIFIC WEST'S BID: (1) THE "CHECK-OFF LIST FOR BID PACKAGE" PROVISION WHICH INFORMED BIDDERS THAT AN ORIGINAL AND ONE COPY OF THE AFFIRMATIVE ACTION CERTIFICATE WAS TO BE RETURNED WITH A SUBMITTED BID; (2) THE "NOTICE- CONSTRUCTION" PROVISION WHICH INFORMED BIDDERS THAT THE AFFIRMATIVE ACTION CERTIFICATE "MUST BE SUBMITTED AS PART OF A BID"; (3) PART IIB) OF THE BID CONDITIONS WHICH ADVISED THAT A BIDDER WOULD NOT BE ELIGIBLE FOR AWARD UNLESS "IT CERTIFIES AS PRESCRIBED IN PARAGRAPH 2B OF THE (AFFIRMATIVE ACTION CERTIFICATE) *** THAT IT ADOPTS *** GOALS AND TIMETABLES OF MINORITY MANPOWER UTILIZATION ***; AND (4) THE DIRECTIVE PRECEDING THE "BIDDERS' CERTIFICATION" WHICH ADVISED THAT A BIDDER WILL NOT BE ELIGIBLE FOR AWARD *** UNLESS SUCH BIDDER HAS SUBMITTED AS A PART OF ITS BID THE *** (AFFIRMATIVE ACTION CERTIFICATE)." TO THIS FACTUAL RECITAL, THE CONTRACTING OFFICER ADDS HIS INTERPRETATION THAT THE "BIDDERS' CERTIFICATION *** REQUIRES THE SIGNATURE OF AUTHORIZED REPRESENTATIVE OF BIDDER" AND HIS BELIEF THAT PACIFIC WEST SUBMITTED "NO OTHER DOCUMENTATION OR CERTIFICATION RELATIVE TO AFFIRMATIVE ACTION, BID CONDITIONS, (OR) AFFIRMATIVE ACTION REQUIREMENTS. ***."

THE CONTRACTING OFFICER FURTHER STATES THAT IN ADDITION TO THE ABOVE ANALYSIS, THE REASONING CONTAINED IN SEVERAL OF OUR DECISIONS, RELATED BELOW, WHICH HAVE DECIDED THE RESPONSIVENESS OF AFFIRMATIVE ACTION RESPONSES OF CERTAIN BIDDERS, MUST BE CONSIDERED.

WHERE CERTAIN BIDDERS FAILED TO RETURN AFFIRMATIVE ACTION CERTIFICATES WITH THEIR BIDS, WE HELD THAT THE BIDS WERE NONRESPONSIVE. B-174259, JANUARY 5, 1972; MATTER OF MANN CONSTRUCTION COMPANY, B-180324, JANUARY 16, 1974; B-180216, APRIL 12, 1974. AS WE STATED IN B-180234, SUPRA:

"IN 51 COMP. GEN. 329 (1971) AND B-174259, JANUARY 5, 1972, WE CONSIDERED PROCUREMENT SOLICITATIONS WHICH INCLUDED AFFIRMATIVE ACTION REQUIREMENTS WORDED SIMILAR TO THE REQUIREMENTS WHICH ARE SET FORTH IN IFB R5-74-18. IN THE CITED CASES, WE HELD THAT SUCH REQUIREMENTS ARE MATERIAL, AND WE CONSTRUED THE LANGUAGE USED IN THE SOLICITATIONS AS REQUIRING A BIDDER TO COMMIT ITSELF, PRIOR TO BID OPENING, TO THE AFFIRMATIVE ACTION REQUIREMENTS EITHER IN THE MANNER SPECIFIED IN THE SOLICITATIONS OR BY A SEPARATE STATEMENT CONSTITUTING A DEFINITE COMMITMENT TO THE REQUIREMENTS. WE THEREFORE FURTHER HELD THAT A BIDDER WHO FAILS TO MAKE SUCH A PREBID OPENING COMMITMENT MAY NOT HAVE THE DEVIATION WAIVED, NOR MAY THE BIDDER BE PERMITTED TO CORRECT THE DEFICIENCY AFTER BID OPENING SO AS TO RENDER THE BID ELIGIBLE FOR CONSIDERATION FOR AWARD."

THE CONTRACTING OFFICER ALSO CITES 52 COMP. GEN. 874 (1973) AND 51 COMP. GEN. 329, CITED IN THE QUOTE ABOVE, WHERE WE UPHELD THE REJECTION OF BIDS ACCOMPANIED BY UNSIGNED AFFIRMATIVE ACTION CERTIFICATES. AS WE STATED IN 51 COMP. GEN., SUPRA:

"*** THE FACT THAT YOU FAILED TO SIGN THE CERTIFICATION WHICH, IN PART, WOULD EXPRESSLY HAVE COMMITTED YOU TO COMPLY WITH THE PROVISIONS OF PART II OF THE BID CONDITIONS, AS WELL AS YOUR FAILURE TO SUBMIT ANY AFFIRMATIVE ACTION PLAN CREATED, ON THE WHOLE, DOUBT AS TO WHETHER YOU INTENDED TO MEET THE BID CONDITIONS OF PART II, NOTWITHSTANDING YOUR ACKNOWLEDGMENT OF THE AMENDMENT 4 AND THE STATEMENT THAT YOUR BID WAS SUBMITTED 'ACCORDINGLY.' SINCE IN THE CIRCUMSTANCES IT COULD NOT BE DETERMINED FROM THE BID ITSELF WHETHER YOU INTENDED TO COMPLY WITH THE BID CONDITIONS IN PART II, IT WOULD HAVE BEEN IMPROPER TO AFFORD YOU AN OPPORTUNITY TO DECIDE AFTER BID OPENING WHETHER TO CORRECT THE DEFICIENCY, AND WE MUST THEREFORE CONCLUDE THAT REJECTION OF YOUR BID WAS REQUIRED."

PACIFIC WEST POINTS OUT, HOWEVER, THAT WE HAVE ALSO HELD THAT A BIDDER COULD COMMIT ITSELF TO AFFIRMATIVE ACTION REQUIREMENTS IN A MANNER OTHER THAN THAT SPECIFIED IN THE IFB SO LONG AS "OTHER EVIDENCE" IN THE SUBMITTED BID INDICATED THE BIDDER'S CLEAR INTENT TO BE BOUND TO THE REQUIREMENTS. MATTER OF BARTLEY, INCORPORATED, 53 COMP. GEN. 451 (1974) AND CASES CITED THEREIN. AND IT ARGUES THAT IS AFFIRMATIVE ACTION CERTIFICATE HERE CONTAINED ENOUGH "OTHER EVIDENCE" (NAMELY, A COMPLETE LISTING OF APPLICABLE TRADES IN PARAGRAPHS 1 AND 2(B) OF THE CERTIFICATE AND THE TYPED-IN NAME OF THE AUTHORIZED REPRESENTATIVE OF THE BIDDER AFTER THE SIGNATURE BLANK OF THE CERTIFICATE) TO DEMONSTRATE A COMMITMENT TO THE AFFIRMATIVE ACTION REQUIREMENTS OF PART II OF THE BID CONDITIONS. CONSEQUENTLY, IT URGES THAT ITS BID SHOULD BE CONSIDERED RESPONSIVE.

IN B-177846, MARCH 27, 1973, AND B-179100, FEBRUARY 28, 1974, WHICH INVOLVED "BID CONDITIONS - AFFIRMATIVE ACTION ACTION REQUIREMENTS - EQUAL EMPLOYMENT OPPORTUNITY" IDENTICAL TO THOSE IN THE SUBJECT CASE, UNLIKE THE BID CONDITIONS INVOLVED IN ALL PREVIOUSLY CITED CASES (EXCEPT B-180216, SUPRA, WHICH INVOLVED A PART I COMMITMENT), WE HELD THE BIDS IN QUESTION TO BE RESPONSIVE EVEN THOUGH THE BIDDERS HAD FAILED TO COMPLETE THE AFFIRMATIVE ACTION CERTIFICATES AS DIRECTED.

BOTH BIDDERS IN THESE CASES, LIKE PACIFIC WEST IN THE SUBJECT PROTEST, WERE NOT ELIGIBLE UNDER PART I OF THE BID CONDITIONS, AND THUS, THEIR BIDS HAD TO EVIDENCE A COMMITMENT TO COMPLY WITH PART II. TO EVIDENCE THIS COMMITMENT THE BIDDERS WERE, AS IN THE SUBJECT CASE, AND UNLIKE THE CASES RELIED UPON BY THE CONTRACTING OFFICER, DIRECTED TO "(CERTIFY) AS PRESCRIBED IN PARAGRAPH 2B OF THE AFFIRMATIVE ACTION CERTIFICATE." NOTWITHSTANDING THIS EXPRESS DIRECTIVE, NEITHER BIDDER SATISFACTORILY COMPLETED PARAGRAPH 2B OF THE CERTIFICATE BY CERTIFYING (LISTING) ALL APPLICABLE TRADES.

BUT BECAUSE THE BIDDERS SIGNED THE CERTIFICATES AND OTHERWISE EVIDENCED AN INTENT TO BE COMMITTED TO AFFIRMATIVE ACTION BY SUBMITTING A SEPARATE AFFIRMATIVE ACTION CERTIFICATE, APPLICABLE TO ALL TRADES (B 177846, SUPRA), AND BY LISTING THE ONLY APPLICABLE TRADE IN PARAGRAPH ONE OF THE CERTIFICATE (B-179100, SUPRA), WE CONCLUDED THAT THE BIDDERS HAD MADE A RESPONSIVE COMMITMENT TO AFFIRMATIVE ACTION.

HERE PACIFIC WEST COMPLIED WITH THE IFB DIRECTION TO EVIDENCE A COMMITMENT TO AFFIRMATIVE ACTION UNDER PART II OF THE CONDITIONS BY CERTIFYING (LISTING) ALL ITS COVERED TRADES IN PARAGRAPH 2B OF THE CERTIFICATE. THAT DIRECTION DOES NOT STATE THAT A COMMITMENT TO PART II IS TO BE MANIFESTED BY A SIGNATURE ON THE CERTIFICATE FORM, UNLIKE THE DIRECTION CONCERNING A COMMITMENT TO PART I. NEITHER DORES ANY OTHER IFB PROVISION CITED BY THE CONTRACTING OFFICER SPECIFICALLY REQUIRE A SIGNATURE ON THE CERTIFICATE AS A MEANS OF EVIDENCING A PART II COMMITMENT.

IT IS THEREFORE OUR VIEW THAT PACIFIC WEST'S COMPLETION OF PARAGRAPH 2 (B) OF THE CERTIFICATE GAVE RISE TO A BINDING OBLIGATION ON THE BIDDER TO FOLLOW THE REQUIREMENTS OF PART II.

ALTHOUGH WE HELD THAT A SIGNATURE IN THE BLANK PROVIDED ON A CERTIFICATE FORM IDENTICAL TO THE ONE SPECIFIED HERE, WHEN COUPLED WITH A LISTING OF APPLICABLE TRADES IN PARAGRAPH 1, GAVE RISE TO A BINDING COMMITMENT FOR A PART II BIDDER WHO FAILED TO COMPLETE PARAGRAPH 2(B) (B-179100, SUPRA), WE DID NOT INTEND TO FURTHER HOLD THAT A SIGNATURE WAS THE ONLY WAY TO EVIDENCE A PART II COMMITMENT.

CONSEQUENTLY, PACIFIC WEST'S BID MAY NOT BE EXCLUDED FROM CONSIDERATION FOR AWARD BECAUSE OF ITS FAILURE TO SIGN THE CERTIFICATE.

THE PROTEST IS SUSTAINED.