B-181674, AUG 6, 1974

B-181674, AUG 6, 1974

WHERE INVITATION FOR BIDS AFFIRMATIVE ACTION REQUIREMENTS STIPULATED COMPLIANCE WITH PART I OR PART II, AS APPLICABLE, AND BIDDER SIGNED AND SUBMITTED PART I CERTIFICATION BUT SUBMITTED NO PLAN UNDER PART II, BID IS NONRESPONSIVE BECAUSE CERTIFICATION DID NOT INCLUDE TRADES OR PERTINENT LABOR ORGANIZATIONS THAT BIDDER INTENDED TO USE AND, THEREFORE, THE CERTIFICATION CANNOT BE CONSIDERED TO LEGALLY BIND BIDDER TO AFFIRMATIVE ACTION REQUIREMENTS.

JOHN E. NORTHROP CO.:

THE JOHN E NORTHROP CO. (NORTHROP) QUESTIONS THE CORRECTNESS OF THE CONTRACTING OFFICER'S DETERMINATION THAT ITS LOW BID WAS NONRESPONSIVE TO THE AFFIRMATIVE ACTION REQUIREMENTS DEALING WITH EQUAL EMPLOYMENT OPPORTUNITY CONTAINED IN THE BID CONDITIONS OF SOLICITATION NO. R5-74 183, ISSUED BY THE UNITED STATES FOREST SERVICE, AND THE AWARD OF THE CONSTRUCTION CONTRACT TO THE SECOND LOW BIDDER. THE NOTICE TO PROCEED WITH PERFORMANCE HAS NOT BEEN ISSUED PENDING OUR RESOLUTION OF THE PROTEST.

WE BELIEVE THAT THE CONTRACTING OFFICER WAS CORRECT IN MAKING THE DETERMINATION OF NONRESPONSIVENESS.

THE AFFIRMATIVE ACTION REQUIREMENTS STIPULATED THAT "ANY BIDDER, CONTRACTOR OR SUBCONTRACTOR USING ONE OR MORE TRADES OF CONSTRUCTION EMPLOYEES MUST COMPLY WITH EITHER PART I OR PART II OF THESE BID CONDITIONS AS TO EACH SUCH TRADE." NORTHROP COMPLETED PART I OF THE REQUIREMENTS WHICH CALLED FOR BIDDERS TO EXECUTE AND SUBMIT A CERTIFICATION, AS FOLLOWS:

"TO BE ELIGIBLE FOR AWARD OF A CONTRACT UNDER PART I OF THIS SOLICITATION FOR BIDS, A BIDDER MUST EXECUTE AND SUBMIT AS PART OF ITS BID THE FOLLOWING CERTIFICATION, WHICH WILL BE DEEMED A PART OF THE RESULTING CONTRACT: " JOHN E. NORTHROP CO. (BY HAND) CERTIFIES THAT:

(NAME OF BIDDER)

(A) IT INTENDS TO USE THE FOLLOWING LISTED CONSTRUCTION TRADES IN THE WORK UNDER THE CONTRACT, EITHER ITSELF OR THROUGH SUBCONTRACTORS AT ANY TIER ;

"(B) THE LABOR ORGANIZATIONS WITH WHOM IT HAS COLLECTIVE BARGAINING AGREEMENTS WHO ARE SIGNATORIES TO THE GREATER FRESNO AREA PLAN AND AS TO WHICH TRADES THERE ARE SET FORTH IN THE GREATER FRESNO AREA PLAN SPECIFIC COMMITMENTS TO GOALS OF MINORITY MANPOWER UTILIZATION ARE AS FOLLOWS:

"(C) THE LABOR ORGANIZATION WITH WHOM IT HAS COLLECTIVE BARGAINING AGREEMENTS WHO ARE NOT SIGNATORIES TO THE GREATER FRESNO AREA PLAN OR WHO ARE SIGNATORIES THERETO BUT WITH RESPECT TO TRADES FOR WHICH NO SPECIFIC COMMITMENTS TO GOALS OF MINORITY MANPOWER UTILIZATION ARE SET FORTH IN THE GREATER FRESNO AREA PLAN ARE AS FOLLOWS:

"(D) THE FOLLOWING IS A FULL LIST OF ALL PRESENT CONSTRUCTION WORK OR CONTRACTS (BOTH FEDERAL AND NON-FEDERAL) TO WHICH IT IS A PARTY IN ANY CAPACITY IN FRESNO, MADERA, KINGS AND TULARE COUNTIES, CALIFORNIA: NONE BY HAND: ;

"(E) IT WILL COMPLY, AND REQUIRE ITS SUBCONTRACTORS TO COMPLY, WITH ALL OF THE TERMS OF THE GREATER FRESNO AREA PLAN ON ALL WORK (BOTH FEDERAL AND NON-FEDERAL) IN THE COUNTIES DESCRIBED IN THE PRECEDING PARAGRAPH (D) HEREOF, IN ANY TRADE AS SET FORTH IN PARAGRAPH (B) HEREOF FOR WHICH IT OR ITS SUBCONTRACTORS ARE COMMITTED TO THE GREATER FRESNO AREA PLAN, AND WILL BE BOUND BY THE PROVISIONS OF PART II OF THESE BID CONDITIONS ON ALL WORK IN SUCH COUNTIES, FOR ALL OTHER TRADES AS SET FORTH IN PARAGRAPH (C) HEREOF, AND (F) IN THE EVENT THE BIDDER IS NO LONGER PARTICIPATING IN AN AFFIRMATIVE ACTION PLAN ACCEPTABLE TO THE DIRECTOR OF THE OFFICE OF FEDERAL CONTRACT COMPLIANCE, INCLUDING THE GREATER FRESNO AREA PLAN, OR IT OR THE UNION WITH WHOM IT MAINTAINS A COLLECTIVE BARGAINING AGREEMENT CEASES TO BE A PARTICIPATING SIGNATORY TO THE GREATER FRESNO AREA PLAN, THE BIDDER WILL COMPLY WITH PART II OF THESE BID CONDITIONS.

LOWELL E. NORTHROP (BY HAND)

(SIGNATURE OF AUTHORIZED REPRESENTATIVE OF BIDDER.)"

PART II OF THESE CONDITIONS REQUIRED, IF APPLICABLE, THE SUBMISSION OF AN AFFIRMATIVE ACTION PLAN BY THE BIDDER IN CONFORMANCE WITH PRESCRIBED REQUIREMENTS IF ONE OF THE FOLLOWING FIVE CONDITIONS WAS APPLICABLE:

"PART II: A. COVERAGE. THE PROVISIONS OF THIS PART II SHALL BE APPLICABLE TO THOSE BIDDERS, CONTRACTORS AND SUBCONTRACTORS, WHO, IN REGARD TO SUCH CONSTRUCTION TRADES:

"1. ARE NOT OR HEREAFTER CEASE TO BE SIGNATORIES TO THE GREATER FRESNO AREA PLAN REFERRED TO IN PART I HEREOF;

"2. ARE SIGNATORIES TO THE GREATER FRESNO AREA PLAN BUT ARE NOT PARTIES TO COLLECTIVE BARGAINING AGREEMENTS;

"3. ARE SIGNATORIES TO THE GREATER FRESNO AREA PLAN BUT ARE PARTIES TO COLLECTIVE BARGAINING AGREEMENTS WITH LABOR ORGANIZATIONS WHO ARE NOT OR HEREAFTER CEASE TO BE SIGNATORIES TO THE GREATER FRESNO AREA PLAN;

"4. ARE SIGNATORIES TO THE GREATER FRESNO AREA PLAN BUT AS TO WHICH NO SPECIFIC COMMITMENT TO GOALS OF MINORITY MANPOWER UTILIZATION BY LABOR ORGANIZATION HAVE BEEN EXECUTED PURSUANT TO THE GREATER FRESNO AREA PLAN; OR

"5. ARE NO LONGER PARTICIPATING IN AN AFFIRMATIVE ACTION PLAN ACCEPTABLE TO THE DIRECTOR, OFCC, INCLUDING THE GREATER FRESNO AREA PLAN."

NORTHROP FURNISHED NO INFORMATION UNDER PART II, BUT DID SUBMIT THE CERTIFICATION, ALBEIT INCOMPLETE, UNDER PART I. AS QUOTED ABOVE, NORTHROP FILLED IN ITS FIRM NAME AND NOTED IN PARAGRAPH (D) THAT IT HAD NO PRESENT CONTRACTS IN THE COUNTIES ENUMERATED. THE CERTIFICATION WAS SIGNED BY THE PRESIDENT OF NORTHROP. NORTHROP DID NOT ENUMERATE UNDER PARAGRAPH (A) THE CONSTRUCTION TRADES IT INTENDED TO USE. IN ADDITION, NORTHROP FAILED TO ENUMERATE THE PERTINENT LABOR ORGANIZATIONS CALLED FOR BY PARAGRAPHS (B) AND (C) TO ESTABLISH COMMITMENTS OR NONCOMMITMENTS TO THE GREATER FRESNO AREA PLAN. BECAUSE OF THIS, THE CONTRACTING OFFICER FOUND THAT NORTHROP HAD NOT PROPERLY CERTIFIED PART I OF THE BID CONDITIONS SO AS TO BE COMMITTED TO PART II. IN VIEW OF THIS FACT AND BECAUSE NORTHROP HAD NOT SUBMITTED ITS OWN AFFIRMATIVE ACTION PLAN UNDER PART II, THE CONTRACTING OFFICER DETERMINED THE NORTHROP BID TO BE NONRESPONSIVE. PART III OF THE BID CONDITIONS STATES THAT "FAILURE TO SUBMIT A PART I CERTIFICATION OR A PART II AFFIRMATIVE ACTION PLAN, AS APPLICABLE, WILL RENDER THE BID NONRESPONSIVE."

THE FAILURE OF A BIDDER TO COMMIT ITSELF, PRIOR TO BID OPENING, TO AFFIRMATIVE ACTION REQUIREMENTS OF A SOLICITATION, SUCH AS THOSE HERE, REQUIRES REJECTION OF THE BID. 50 COMP. GEN. 844 (1971); AND 52 COMP. GEN. 874 (1973). WHILE OUR DECISIONS INDICATE THAT A BIDDER CAN COMMIT ITSELF TO SUCH REQUIREMENTS IN A MANNER OTHER THAN THAT SPECIFIED IN THE SOLICITATION AND THAT A BIDDER'S FAILURE TO MEET THE LITERAL REQUIREMENTS OF A SOLICITATION COULD BE WAIVED SO LONG AS THE BIDDER WAS OTHERWISE FULLY BOUND TO THE MATERIAL AFFIRMATIVE ACTION PROVISIONS (51) COMP. GEN. 329 (1971) AND B-179740, JANUARY 3, 1974), THE FACTUAL CIRCUMSTANCES HERE ARE DIFFERENT. ALTHOUGH NORTHROP DID SIGN THE CERTIFICATION, THERE WAS LACKING A DEFINITIVE COMMITMENT BY THE BIDDER TO BIND ITSELF TO THE AFFIRMATIVE ACTION PLAN REQUIREMENTS. IN PARAGRAPH (E) OF THE CERTIFICATION NORTHROP PROMISED THAT IT WILL BE BOUND BY THE GREATER FRESNO AREA PLAN OR THE PROVISIONS OF PART II, WHICHEVER IS APPLICABLE, FOR THE TRADES ENUMERATED IN PARAGRAPHS (B) AND (C). HOWEVER, NORTHROP FAILED TO LIST THE UNION ORGANIZATIONS FROM WHICH THESE TRADES COULD BE IDENTIFIED. CONSEQUENTLY, THERE ARE NO TRADES COVERED BY THE CERTIFICATION WITH WHICH NORTHROP WOULD BE BOUND TO COMPLY WITH EITHER THE PART I OR PART II REQUIREMENTS. SEE B 179100(1), FEBRUARY 28, 1974; 52 COMP. GEN. SUPRA; AND B-179740, SUPRA. FOR THIS REASON, WE CONCLUDE THAT THE CERTIFICATION SUBMITTED WITH THE BID DOES NOT CONSTITUTE A LEGALLY BINDING AND EFORCEABLE COMMITMENT ON NORTHROP'S PART.

IN VIEW OF THE ABOVE, THE PROTEST IS DENIED.