B-181746, DEC 13, 1974

B-181746: Dec 13, 1974

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WAS PROPER AS BIDDER NEITHER SIGNED CERTIFICATION IN PART I NOR SUBMITTED ITS ITS OWN AFFIRMATIVE ACTION PLAN AS REQUIRED BY PART II. 2. AWARD TO SECOND LOW BIDDER WHO SIGNED PART I CERTIFICATE WAS PROPER EVEN THOUGH BIDDER ERRONEOUSLY INDICATED IN ITS BID THAT ONE TRADE UNION WAS SIGNATORY TO THE NASSAU-SUFFOLK PLAN SINCE THE BID EVIDENCED INTENT TO BE BOUND TO PART II PROVISION FOR ANY TRADE NOT COVERED BY NASSAU-SUFFOLK PLAN. THE PROTEST IS DENIED. " WHICH SPECIFIED THAT ITS PROVISIONS WERE APPLICABLE TO FEDERAL AND FEDERALLY ASSISTED CONTRACTS IN NASSAU AND SUFFOLK COUNTIES. BIDDERS WERE ADVISED THAT TO BE ELIGIBLE FOR AWARD OF A CONTRACT RESULTING FROM THIS SOLICITATION. THE LOCASCIO BID WAS FOUND TO BE LOW.

B-181746, DEC 13, 1974

1. REJECTION OF LOW BID UNDER INVITATION FOR BIDS WHICH PROVIDED IN PART I FOR CERTIFICATION OF COVERAGE UNDER NASSAU-SUFFOLK PLAN OR, ALTERNATIVELY, IN PART II FOR SUBMISSION OF BIDDER'S AFFIRMATIVE ACTION PLAN EMBODYING GOALS AND TIMETABLES OF MINORITY UTILIZATION AS SET FORTH THEREIN, WAS PROPER AS BIDDER NEITHER SIGNED CERTIFICATION IN PART I NOR SUBMITTED ITS ITS OWN AFFIRMATIVE ACTION PLAN AS REQUIRED BY PART II. 2. AWARD TO SECOND LOW BIDDER WHO SIGNED PART I CERTIFICATE WAS PROPER EVEN THOUGH BIDDER ERRONEOUSLY INDICATED IN ITS BID THAT ONE TRADE UNION WAS SIGNATORY TO THE NASSAU-SUFFOLK PLAN SINCE THE BID EVIDENCED INTENT TO BE BOUND TO PART II PROVISION FOR ANY TRADE NOT COVERED BY NASSAU-SUFFOLK PLAN. LOCASCIO ELECTRIC COMPANY, INCORPORATED (LOCASCIO), PROTESTS AGAINST THE REJECTION OF ITS BID UNDER INVITATION FOR BIDS (IFB) 4-37101, ISSUED ON MAY

9, 1974, BY THE DEPARTMENT OF COMMERCE, PROCUREMENT DIVISION, MATERIALS AND SERVICES BRANCH, WASHINGTON, D.C., FOR MODIFICATION OF THE ELECTRICAL DISTRIBUTION SYSTEM AT THE MERCHANT MARINE ACADEMY, KINGS POINT, NEW YORK. FOR THE REASONS STATED BELOW, THE PROTEST IS DENIED.

THE SOLICITATION CONTAINED A 17-PAGE SECTION ENTITLED "BID CONDITIONS - AFFIRMATIVE ACTION REQUIREMENTS - EQUAL EMPLOYMENT OPPORTUNITY," WHICH SPECIFIED THAT ITS PROVISIONS WERE APPLICABLE TO FEDERAL AND FEDERALLY ASSISTED CONTRACTS IN NASSAU AND SUFFOLK COUNTIES, NEW YORK. THIS SECTION REQUIRED BIDDERS TO COMMIT THEMSELVES TO EITHER PART I OR PART II OF THE BID CONDITIONS FOR EACH TRADE TO BE USED ON THE PROJECT. PART I INVOLVED A COMMITMENT TO THE LOCAL AFFIRMATIVE ACTION PLAN KNOWN AS THE NASSAU- SUFFOLK PLAN. PART II REQUIRED A WRITTEN AFFIRMATIVE ACTION PLAN EMBODYING VARIOUS GOALS AND SPECIFIC AFFIRMATIVE ACTION STEPS SET FORTH THEREIN. BIDDERS WERE ADVISED THAT TO BE ELIGIBLE FOR AWARD OF A CONTRACT RESULTING FROM THIS SOLICITATION, A BIDDER MUST EITHER (1) COMPLETE AND SUBMIT AS PART OF HIS BID A CERTIFICATION OF PART I OF THE AFOREMENTIONED BID CONDITIONS OR (2) SUBMIT AS PART OF HIS BID A WRITTEN AFFIRMATIVE ACTION PLAN AS INSTRUCTED IN PART II OF THE AFOREMENTIONED BID CONDITIONS.

AT BID OPENING ON JUNE 21, 1974, THE LOCASCIO BID WAS FOUND TO BE LOW. THE BUDIN CONTRACTING CORPORATION (BUDIN) SUBMITTED THE SECOND LOWEST BID. HOWEVER, LOCASCIO FAILED TO EXECUTE THE CERTIFICATION IN PART I, AND ALSO FAILED TO SUBMIT AN AFFIRMATIVE ACTION PLAN AS REQUIRED BY PART II B. IT IS THE POSITION OF THE DEPARTMENT OF COMMERCE THAT THE FAILURE TO COMPLY WITH EITHER REQUIREMENT CREATED A SITUATION IN WHICH, IF AWARDED THE CONTRACT, LOCASCIO WOULD NOT HAVE BEEN BOUND TO PERFORM IN ACCORDANCE WITH THE AFFIRMATIVE ACTION REQUIREMENTS OF THE SOLICITATION.

ON THE OTHER HAND, LOCASCIO CONTENDS THAT IT BOUND ITSELF TO THE REQUIREMENTS OF THE BID CONDITIONS OF THE SOLICITATION WHEN IT SIGNED THE BID, AND THAT "THE EXECUTION OF THE CONTRACT DOCUMENTS ALONE THEREFORE CONSTITUTES A DEFINITE COMMITMENT." LOCASCIO FURTHER ASSERTS THAT PARAGRAPHS 21 AND 66 OF FORM 23A, "GENERAL PROVISIONS," "ABSOLUTELY BIND THE CONTRACTOR TO THE AFFIRMATIVE ACTION PLAN AND NONDISCRIMINATION IN EMPLOYMENT." PARAGRAPH 21 DEALS WITH EQUAL EMPLOYMENT OPPORTUNITY REQUIREMENTS, AND PARAGRAPH 66 CONCERNS THE LISTING OF EMPLOYMENT OPENINGS FOR WAR VETERANS.

WE HAVE CONSISTENTLY HELD THAT THE FAILURE OF A BIDDER TO COMMIT ITSELF, PRIOR TO BID OPENING, TO AFFIRMATIVE ACTION REQUIREMENTS OF A SOLICITATION REQUIRES REJECTION OF THE BID. 50 COMP. GEN. 844 (1971); B-176487, SEPTEMBER 28, 1972; B-176328, NOVEMBER 8, 1972. WE HAVE ALSO RECOGNIZED THAT A BIDDER COULD 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 AN IFB COULD BE WAIVED SO LONG AS IT WAS OTHERWISE FULLY BOUND TO THE MATERIAL AFFIRMATIVE ACTION PROVISIONS. 176260, AUGUST 2, 1972; 51 COMP. GEN. 329 (1971). HOWEVER, WE HAVE NOT HELD THAT A BIDDER COMMITS ITSELF TO AFFIRMATIVE ACTION REQUIREMENTS OF A SOLICITATION MERELY BY SIGNING THE BID WHEN THE IFB REQUIRES SOMETHING MORE. SEE B-176328, SUPRA; NORTHEAST CONSTRUCTION COMPANY V. ROMNEY 485 F.2D 752 (1973).

HERE WE ARE UNABLE TO SEE HOW LOCASCIO WAS COMMITTED TO ANY OF THE SOLICITATION'S AFFIRMATIVE ACTION REQUIREMENTS, AS SET FORTH IN THE BID CONDITIONS REFERRED TO ABOVE. THE PART I CERTIFICATION WAS NOT SIGNED, WHICH WAS REQUIRED TO COMMIT LOCASCIO TO COMPLY WITH THE NASSAU-SUFFOLK PLAN FOR COVERED TRADES AND THE PROVISIONS OF PART II OF THE BID CONDITIONS FOR TRADES NOT INCLUDED IN THE NASSAU-SUFFOLK PLAN. FURTHER, A SEPARATE AFFIRMATIVE ACTION PLAN CONFORMING TO THE PART II CRITERIA WAS NOT SUBMITTED, AND THERE WAS NO OTHER STATEMENT OR DOCUMENT SUBMITTED WITH THE BID WHICH COMMITTED LOCASCIO TO THE PART II PROVISIONS. THUS, THIS CASE IS DISTINGUISHABLE FROM THOSE CITED BY LOCASCIO IN WHICH WE FOUND SUFFICIENT COMMITMENTS FROM BIDDERS WHO DID NOT STRICTLY ADHERE TO SOLICITATION REQUIREMENTS. FOR EXAMPLE, IN B 176260, SUPRA, WE HELD THAT A BIDDER'S FAILURE TO RETURN WITH ITS BID THE AFFIRMATIVE ACTION PLAN PAGE OF THE IFB WAS NOT MATERIAL SINCE IT SUBMITTED A PROPERLY EXECUTED BIDDER'S AGREEMENT BY WHICH IT AGREED TO COMPLY WITH THE PLAN PROVISIONS. SEE ALSO B-177846, MARCH 27, 1973, IN WHICH WE HELD THAT THE BIDDER'S FAILURE TO PROPERLY COMPLETE AN AFFIRMATIVE ACTION PROVISION WAS CURED BY THE SUBMISSION OF THE BIDDER'S OWN AFFIRMATIVE ACTION PLAN WHICH MET THE REQUIREMENTS OF THE SOLICITATION.

REGARDING OUR DECISION IN 48 COMP. GEN. 648, WHICH LOCASCIO'S COUNSEL CITES, THE FACTS ARE CLEARLY DISTINGUISHABLE FROM THOSE IN THE PRESENT INSTANCE. IN THAT CASE AN UNSIGNED BID WAS CONSIDERED FOR AWARD BECAUSE IT WAS ACCOMPANIED BY DOCUMENTARY EVIDENCE SHOWING A CLEAR INTENT TO SUBMIT A BINDING BID AND SECTION 2-405(III)(B) OF THE ARMED SERVICES PROCUREMENT REGULATION PERMITS A BIDDER TO CORRECT ITS FAILURE TO SIGN A BID IN SUCH CIRCUMSTANCE. IT WAS THEREFORE CONCLUDED THE EVIDENCE WAS ADEQUATE TO PRECLUDE THE POSSIBILITY OF BID REPUDIATION OR AVOIDANCE OF LIABILITY ON A CONTRACT. HOWEVER, IN THE INSTANT SITUATION, IT IS NOT BID REPUDIATION THAT CAUSED CONCERN BUT THE BIDDER'S FAILURE TO COMMIT ITSELF TO THE AFFIRMATIVE ACTION PROVISION BY THE MEANS STATED IN THE IFB OR IN ANY OTHER MANNER. AS EXPLAINED ABOVE, THE GOVERNMENT WAS NOT PROVIDED WITH ANY PROTECTION AGAINST FAILURE TO HONOR THE AFFIRMATIVE ACTION REQUIREMENTS BY LOCASCIO MERELY SIGNING THE BID.

OUR DECISION IN 53 COMP. GEN. 431 (1973) (CITED BY COUNSEL AS B 179684, DECEMBER 26, 1973), CAN ALSO BE DISTINGUISHED FROM THE PRESENT SITUATION. IN THAT CASE, THE BIDDER FAILED TO INCLUDE AN EXECUTED CERTIFICATE OF COMPLIANCE WITH THE AFFIRMATIVE ACTION PLAN SET FORTH IN THE IFB OR, IN THE ALTERNATIVE, SUBMIT ITS OWN PLAN. NEVERTHELESS, WE CONCLUDED THAT COMPLETION OF THE CERTIFICATION WAS NOT NECESSARY TO ESTABLISH THE BIDDER'S OBLIGATION TO COMPLY WITH CERTAIN ENUMERATED AFFIRMATIVE ACTION REQUIREMENTS BECAUSE THE BIDDER SIGNED ANOTHER CERTIFICATE INCLUDED IN THE IFB WHICH CONTAINED A PROVISION THAT STATED TO THE EFFECT THAT THE BIDDER WOULD COMPLY WITH ALL THE TERMS AND CONDITIONS OF THE DESIGNATED PLAN FOR ALL COVERED TRADES AND THAT THE BIDDER WOULD SUBMIT AN AFFIRMATIVE ACTION PLAN IN ACCORDANCE WITH THE GOALS AND SPECIFIC STEPS SET FORTH IN THE IFB FOR ALL OTHER TRADES. HERE LOCASCIO FAILED TO COMMIT ITSELF TO THE AFFIRMATIVE ACTION REQUIREMENTS IN ANY MANNER.

WE DO NOT AGREE THAT BECAUSE THE IFB INCLUDED PARAGRAPHS 21 AND 66 RELATIVE TO CERTAIN EQUAL EMPLOYMENT OPPORTUNITY REQUIREMENTS, SIGNING OF THE BID OBLIGATED THE BIDDER TO COMPLY WITH THE PART I AND II AFFIRMATIVE ACTION REQUIREMENTS. IT IS WELL ESTABLISHED THAT A BIDDER IS NOT BOUND TO THE GOALS, TIMETABLES AND AFFIRMATIVE ACTION STEPS FOR TRADES UNLESS THERE IS A SPECIFIC, INDEPENDENT COMMITMENT TO SUCH REQUIREMENTS. 50 COMP. GEN. 844, SUPRA; NORTHEAST CONSTRUCTION COMPANY V. ROMNEY, SUPRA.

LOCASCIO HAS ALSO QUESTIONED WHETHER THE SECOND LOW BID SUBMITTED BY BUDIN WAS RESPONSIVE SINCE "THE ELECTRICAL UNION, WHICH WILL SUPPLY THE EMPLOYEES TO BE UTILIZED ON THIS ELECTRICAL MODIFICATION JOB, IS NOT A SIGNATORY TO THE NASSAU-SUFFOLK PLAN AND HAS NOT ADOPTED ANY MINORITY UTILIZATION GOALS ***. BUDIN IS NOT MORE RESPONSIVE THAN LOCASCIO MERELY BECAUSE IT SIGNED THE CERTIFICATION WHEN ITS CERTIFICATION IS MEANINGLESS."

A REVIEW OF BUDIN'S BID SHOWS THAT BUDIN SIGNED THE PART I CERTIFICATION, AND INDICATED IN PARAGRAPH (B) THEREOF THAT THE TRADES IT INTENDED TO USE - ELECTRICAL WORKERS, LABORERS, CARPENTERS, AND LATHERS - WERE COVERED BY THE NASSAU-SUFFOLK PLAN. PARAGRAPH (C) OF THE CERTIFICATION, DEALING WITH TRADE UNIONS NOT SIGNATORY TO THE PLAN, WAS LEFT BLANK. HOWEVER, WE UNDERSTAND FROM THE DEPARTMENT OF COMMERCE THAT LOCASCIO IS CORRECT IN ASSERTING THAT THE ELECTRICAL WORKERS UNION IS NOT SIGNATORY TO THE PLAN. NEVERTHELESS, WE BELIEVE BUDIN'S BID SHOULD BE REGARDED AS RESPONSIVE. PARAGRAPH (E) OF THE PART I CERTIFICATION PROVIDES THAT THE BIDDER WILL COMPLY WITH THE NASSAU SUFFOLK PLAN "IN ANY TRADE AS SET FORTH IN PARAGRAPH (B) HEREOF FOR WHICH IT OR ITS SUBCONTRACTORS ARE COMMITTED TO THE NASSAU-SUFFOLK PLAN AND WILL BE BOUND BY THE PROVISIONS OF PART II OF THESE BID CONDITIONS *** FOR ALL OTHER TRADES AS SET FORTH IN PARAGRAPH (C) ***." WE HAVE HELD THAT A BIDDER SUBMITTING A SUBSTANTIALLY SIMILAR CERTIFICATION IS BOUND TO THE MATERIAL PROVISIONS OF PART II NOTWITHSTANDING THE BIDDER'S FAILURE TO SUBMIT A PART II PLAN WITH ITS BID. 51 COMP. GEN. 329 (1971); MATTER OF BARTLEY, INC., 53 ID. 451 (1974). THUS, WITH RESPECT TO ELECTRICAL WORKERS, BUDIN'S BID WOULD BE CONSIDERED RESPONSIVE UNLESS THE LISTING OF THAT TRADE IN PARAGRAPH (B) RATHER THAN PARAGRAPH (C) CREATES DOUBT AS TO BUDIN'S INTENTION TO BE BOUND TO THE REQUIRED AFFIRMATIVE ACTION PROVISION FOR THAT TRADE. IN OUR OPINION, IT IS CLEAR FROM THE BID ITSELF THAT BUDIN INTENDED TO BE BOUND TO EITHER THE NASSAU-SUFFOLK PLAN OR TO THE PART II CONDITIONS, AS MIGHT BE APPLICABLE, TO EACH TRADE IT WOULD USE IN PERFORMING THE CONTRACT. THIS IS INDICATED BY PARAGRAPH (F) OF THE SIGNED CERTIFICATION BY WHICH BUDIN AGREED TO COMPLY WITH THE PART II PROVISIONS IN THE EVENT IT OR ITS UNION "CEASES TO BE A PARTICIPATING SIGNATORY TO THE NASSAU-SUFFOLK PLAN." SINCE BUDIN COMMITTED ITSELF TO PART II IN THE EVENT OF SUBSEQUENT NONPARTICIPATION IN THE PLAN BY ONE OF ITS TRADE UNIONS, AND SINCE BUDIN'S COMPLETED CERTIFICATION ITSELF REFLECTS AN INTENT TO BE BOUND TO THE SOLICITATION'S AFFIRMATIVE ACTION REQUIREMENTS, WE THINK IT IS CLEAR THAT BUDIN IS BOUND TO BE AFFIRMATIVE ACTION REQUIREMENTS OF THE SOLICITATION.

FOR THE FOREGOING REASONS, THE PROTEST IS DENIED.