B-183033, MAR 14, 1975

B-183033: Mar 14, 1975

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BID OF PROTESTER MUST BE CONSIDERED AS NONRESPONSIVE WHERE PORTION OF INVITATION CONTAINING AFFIRMATIVE ACTION REQUIREMENTS AND CERTIFICATION WAS NOT SUBMITTED WITH BID AT BID OPENING. 2. WEAVER CONSTRUCTION COMPANY: INVITATION FOR BIDS NO. 292-75-2 WAS ISSUED BY THE FORMER ATOMIC ENERGY COMMISSION FOR VARIOUS CONSTRUCTION WORK AT ITS PLUTONIUM RECOVERY AND WASTE TREATMENT FACILITY IN GOLDEN. BIDS WERE OPENED ON DECEMBER 19. BIDDERS WERE INSTRUCTED THAT: "ALL BIDDERS MUST COMPLY WITH THE PROVISIONS OF THE DENVER PLAN INCORPORATED IN PART I OF THE BID CONDITIONS OR THE AFFIRMATIVE ACTION PROGRAM SET FORTH IN PART II OF THE BID CONDITIONS TO BE CONSIDERED RESPONSIVE BIDDERS ELIGIBLE FOR THE AWARD OF THIS CONTRACT.

B-183033, MAR 14, 1975

1. WHERE INVITATION FOR BIDS CONDITIONS MADE MANDATORY AS PREREQUISITE FOR AWARD THE SUBMISSION OF EXECUTED DOCUMENT SHOWING INTENT TO BE BOUND BY AFFIRMATIVE ACTION REQUIREMENTS, BID OF PROTESTER MUST BE CONSIDERED AS NONRESPONSIVE WHERE PORTION OF INVITATION CONTAINING AFFIRMATIVE ACTION REQUIREMENTS AND CERTIFICATION WAS NOT SUBMITTED WITH BID AT BID OPENING. 2. RESPONSIVENESS OF BID MUST BE DETERMINED AT BID OPENING, AND INFORMATION NOT WITH BID MAY NOT BE SUBMITTED AFTER BID OPENING FOR PURPOSE OF MAKING NONRESPONSIVE BID RESPONSIVE.

WEAVER CONSTRUCTION COMPANY:

INVITATION FOR BIDS NO. 292-75-2 WAS ISSUED BY THE FORMER ATOMIC ENERGY COMMISSION FOR VARIOUS CONSTRUCTION WORK AT ITS PLUTONIUM RECOVERY AND WASTE TREATMENT FACILITY IN GOLDEN, COLORADO. BIDS WERE OPENED ON DECEMBER 19, 1974. THE WEAVER CONSTRUCTION COMPANY (WEAVER) QUESTIONS THE REJECTION OF ITS BIDS AS NONRESPONSIVE.

THE INVITATION CONTAINED AFFIRMATIVE ACTION REQUIREMENTS, AS SET FORTH IN FORM DP-1 OF THE BID CONDITIONS. BIDDERS WERE INSTRUCTED THAT:

"ALL BIDDERS MUST COMPLY WITH THE PROVISIONS OF THE DENVER PLAN INCORPORATED IN PART I OF THE BID CONDITIONS OR THE AFFIRMATIVE ACTION PROGRAM SET FORTH IN PART II OF THE BID CONDITIONS TO BE CONSIDERED RESPONSIVE BIDDERS ELIGIBLE FOR THE AWARD OF THIS CONTRACT. IT IS EMPHASIZED THAT FAILURE TO SUBMIT A PROPERLY EXECUTED PART III BIDDER'S CERTIFICATION AS TO AFFIRMATIVE ACTION REQUIREMENTS UNDER PART I OR PART II OF THE BID CONDITIONS SHALL BE THE BASIS FOR THE REJECTION OF THE BID AS NONRESPONSIVE."

WEAVER, A SIGNATORY TO THE DENVER PLAN, INADVERTENTLY NEGLECTED TO ENCLOSE FORM DP-1 WITH ITS BID. IT DID, HOWEVER, COMPLETE AND DELIVER THAT FORM TO THE CONTRACTING ACTIVITY THE DAY AFTER BID OPENING. IT IS THE POSITION OF WEAVER THAT ITS FAILURE TO DELIVER FORM DP-1 WITH ITS BID WAS A MINOR OVERSIGHT, ESPECIALLY INASMUCH AS IT HAS MET THESE SAME REQUIREMENTS ON PRIOR CONTRACTS WITH THE CONTRACTING ACTIVITY. CONSEQUENTLY, IT IS FELT THAT THIS OVERSIGHT SHOULD BE WAIVED AND AWARD SHOULD BE MADE TO WEAVER AS THE LOW, RESPONSIVE, RESPONSIBLE BIDDER. AWARD HAS NOT BEEN MADE PENDING OUR RESOLUTION OF THE PROTEST.

ALTHOUGH THE RESULT OF WEAVER'S UNINTENTIONAL FAILURE TO ENCLOSE FORM DP- 1 WITH ITS BID IS UNFORTUNATE, OUR OFFICE HAS HELD THAT THE FAILURE OF A BIDDER TO COMMIT ITSELF, PRIOR TO BID OPENING, TO AFFIRMATIVE ACTION REQUIREMENTS OF AN INVITATION, SUCH AS THESE, REQUIRES REJECTION OF THE BID. 50 COMP. GEN. 844 (1971); 52 COMP. GEN. 874 (1973); AND MATTER OF JOHN E. NORTHROP CO., B-181674, AUGUST 6, 1974.

OUR DECISION, 53 COMP. GEN. 487 (1974), CITED BY WEAVER, IS, AS IS NOTED IN THAT DECISION, INAPPLICABLE TO CASES DEALING WITH COMPLIANCE WITH AFFIRMATIVE ACTION REQUIREMENTS. THAT DECISION DEALT ONLY WITH THE EQUAL OPPORTUNITY CLAUSE, WHICH REQUESTED ONLY CERTAIN INFORMATION OF THE BIDDER AND DID NOT BIND THE BIDDER TO ANY OBLIGATIONS. FAILURE TO COMPLETE THAT CLAUSE WAS FURTHER FOUND TO CONSTITUTE MERELY A MINOR INFORMALITY IN VIEW OF THE PROVISION OF PARAGRAPH 2-405 (VI) OF THE ARMED SERVICES PROCUREMENT REGULATION (1974 ED.).

WEAVER HAS ALSO CITED CENTRIC CORPORATION V. BARBAROSSA & SONS, INC., WYO., 521 P.2D 874 (1974) IN SUPPORT OF ITS BELIEF THAT THE FAILURE TO SUBMIT FORM DP-1 AT BID OPENING MAY BE WAIVED AS A MINOR INFORMALITY. ESSENCE, THE BASIS OF THE CONCLUSION REACHED IN THAT CASE WAS THE ADVICE GIVEN IN THE INVITATION TO THE EFFECT THAT:

"BIDDERS ON THIS WORK WILL BE REQUIRED TO COMPLY WITH THE PRESIDENT'S EXECUTIVE ORDER NO. 11246, AS AMENDED. THE REQUIREMENTS FOR BIDDERS ARE EXPLAINED IN THE SPECIFICATIONS."

IN VIEW OF THIS ADVICE, THE COURT FOUND THE FAILURE OF THE BIDDER TO SUBMIT A PLAN TO BE A WAIVABLE INFORMALITY, STATING AT PAGE 877 THAT:

"IT IS CLEAR THAT COMPLIANCE WITH THE EXECUTIVE ORDER WAS PART OF THE SPECIFICATIONS, AND WHETHER OR NOT AN AFFIRMATIVE ACTION PLAN WAS SUBMITTED WITH THE BID, THE AWARD CONTRACTOR WOULD HAVE TO COMPLY WITH THE EPA REQUIREMENTS."

IT IS UNCLEAR FROM THIS DECISION WHETHER THE INVITATION INFORMED BIDDERS THAT BIDS RECEIVED WITH NO SUBMISSIONS SHOWING THE BIDDER'S INTENTION TO COMPLY WITH THE AFFIRMATIVE ACTION REQUIREMENTS WOULD BE DETERMINED TO BE NONRESPONSIVE. IN ANY EVENT, THE REFERENCED DECISIONS OF OUR OFFICE AND OF COURTS OTHER THAN THE SUPREME COURT OF WYOMING HAVE CONSISTENTLY HELD THAT WHERE AN INVITATION, AS HERE, HAS MADE COMPLIANCE WITH AFFIRMATIVE ACTION REQUIREMENTS A MATTER OF BID RESPONSIVENESS ANY FAILURE TO COMPLY THEREWITH MAY NOT BE WAIVED AS A MINOR INFORMALITY. SEE NORTHEAST CONSTRUCTION CO. V. ROMNEY, 485 F.2D 752 (D.C. CIR. 1973) AND ROSETTI CONTRACTING COMPANY, INC. V. BRENNAN, NOS. 74-1850, -1851, -1853 (7TH CIR. 1975). AS WE FIND THAT THE FEDERAL LAW MUST GOVERN IN THIS MATTER, WE AGREE WITH THE RATIONALE OF THESE DECISIONS, AND FIND THE CENTRIC CASE TO BE INAPPLICABLE TO THE PRESENT CASE AND, THEREFORE, NOT CONTROLLING.

INASMUCH AS THE RESPONSIVENESS OF A BID IS TO BE ESTABLISHED AT BID OPENING, B-177081(1), JANUARY 9, 1973, WEAVER'S FAILURE TO PROPERLY EXECUTE AND SUBMIT FORM DP-1 WITH ITS BID RENDERED THE BID NONRESPONSIVE AND NOT FOR ACCEPTANCE.

ACCORDINGLY, THE PROTEST IS DENIED.