B-183271, APR 3, 1975

B-183271: Apr 3, 1975

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ISSUES RAISED REGARDING ASPECTS OF RESPONSIBILITY OF AWARDEE ARE NOT FOR CONSIDERATION. EXCEPT FOR ACTIONS BY PROCURING OFFICIALS WHICH ARE TANTAMOUNT TO FRAUD. 2. FAILURE OF CONTRACT TO CONTAIN DAVIS-BACON WAGE RATES IS OF NO CONSEQUENCE WHERE IFB CONTAINED APPROPRIATE DAVIS-BACON PROVISIONS AND SCHEDULES. AS DAVIS- BACON WAGE RATES ARE INCORPORATED BY REFERENCE INTO CONTRACT. 4. GAO'S PROTEST PROCEDURES HAVE BEEN PUBLISHED IN FEDERAL REGISTER WHICH LEGALLY PUTS PROTESTER ON CONSTRUCTIVE NOTICE OF CONTENTS. AWARD WAS MADE BY THE DEPARTMENT OF HEALTH. THIS CONTRACTOR (ICG ELECTRIC COMPANY) DOES NOT HAVE A BONAFIDE APPROVED APPRENTICESHIP PROGRAM BY THE STATE APPRENTICESHIP COUNCIL. 2. ICG DOES NOT HAVE AN APPROVED AFFIRMATIVE ACTION PROGRAM. 5.

B-183271, APR 3, 1975

1. ISSUES RAISED REGARDING ASPECTS OF RESPONSIBILITY OF AWARDEE ARE NOT FOR CONSIDERATION, SINCE GAO HAS DISCONTINUED PRACTICE OF REVIEWING BID PROTESTS OF CONTRACTING OFFICER'S AFFIRMATIVE RESPONSIBILITY DETERMINATION, EXCEPT FOR ACTIONS BY PROCURING OFFICIALS WHICH ARE TANTAMOUNT TO FRAUD. 2. PROTEST AGAINST ALLEGED IMPROPRIETIES IN IFB MUST BE RAISED PRIOR TO BID OPENING AND FAILURE TO DO SO CAUSES PROTESTED ISSUES TO BE UNTIMELY FILED AND NOT FOR CONSIDERATION PURSUANT TO 4 C.F.R. SEC. 20.2(A). 3. FAILURE OF CONTRACT TO CONTAIN DAVIS-BACON WAGE RATES IS OF NO CONSEQUENCE WHERE IFB CONTAINED APPROPRIATE DAVIS-BACON PROVISIONS AND SCHEDULES, AND CONTRACTOR SIGNED BID INCLUDING THESE PROVISIONS, AS DAVIS- BACON WAGE RATES ARE INCORPORATED BY REFERENCE INTO CONTRACT. 4. WHILE IFB AND CONTRACT DOCUMENT DID NOT REFERENCE ANY SPECIFIC TIME LIMITATION FOR FILING OF PROTEST, GAO'S PROTEST PROCEDURES HAVE BEEN PUBLISHED IN FEDERAL REGISTER WHICH LEGALLY PUTS PROTESTER ON CONSTRUCTIVE NOTICE OF CONTENTS.

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS:

BY LETTER DATED FEBRUARY 17, 1975, THE INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS (IBEW), LOCAL UNION NO. 113, PROTESTED THE AWARDING OF CONTRACT 74-C-206-825 TO THE ICG ELECTRIC COMPANY (ICG). AWARD WAS MADE BY THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (HEW), FOR THE CONSTRUCTION OF TWO ELEMENTARY SCHOOLS FOR SCHOOL DISTRICT NO. 8, EL PASO COUNTY, COLORADO.

IBEW HAS PRESENTED THE FOLLOWING REASONS WHY THE AWARD TO ICG SHOULD BE DECLARED INVALID, SET ASIDE, AND AWARDED TO THE NEXT RESPONSIVE BIDDER:

1. THIS CONTRACTOR (ICG ELECTRIC COMPANY) DOES NOT HAVE A BONAFIDE APPROVED APPRENTICESHIP PROGRAM BY THE STATE APPRENTICESHIP COUNCIL.

2. THIS CONTRACTOR DOES NOT MEET THE CRITERIA FOR COMPLIANCE TO C.F.R. TITLE 29, PARTS 5 AND 5A.

3. THIS CONTRACTOR DOES NOT COMPLY WITH ALL PROVISIONS OF EXECUTIVE ORDER #11246 OF SEPTEMBER 24, 1965.

4. TO THE BEST OF PROTESTER'S KNOWLEDGE, ICG DOES NOT HAVE AN APPROVED AFFIRMATIVE ACTION PROGRAM.

5. THIS CONTRACTOR IS PRESENTLY BEING INVESTIGATED FOR DAVIS-BACON WAGE VIOLATIONS ON TWO (2) GOVERNMENT INSTALLATIONS (PETERSON FIELD AND THE AIR FORCE ACADEMY, BOTH IN COLORADO SPRINGS, COLORADO) BY THE DEPARTMENT OF LABOR (EMPLOYMENT STANDARDS - DENVER).

6. THE INVITATION FOR BIDS DID NOT INCLUDE THE CRITERIA FOR C.F.R. TITLE 29, PARTS 5 AND 5A.

7. THE INVITATION FOR BIDS DID NOT INCLUDE THE CRITERIA FOR EXECUTIVE ORDER #11246.

8. THE INVITATION FOR BIDS DID NOT INCLUDE THE CRITERIA FOR AN AFFIRMATIVE ACTION PLAN.

9. THE SIGNED CONTRACT DOCUMENT DID NOT HAVE THE DAVIS-BACON WAGE RATES ATTACHED AS PROVIDED FOR IN PROCUREMENT REGULATIONS.

10. THERE IS NO REFERENCE TO A PROTEST PERIOD IN EITHER THE INFORMATION FOR BIDS OR THE CONTRACT DOCUMENT.

CONTENTIONS 1-5 ALL DEAL IN ONE FORM OR ANOTHER WITH THE RESPONSIBILITY OF ICG AS A CONTRACTOR. HOWEVER, OUR OFFICE HAS DISCONTINUED ITS PRIOR PRACTICE OF REVIEWING BID PROTESTS INVOLVING A CONTRACTING OFFICER'S AFFIRMATIVE DETERMINATION OF RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR SINCE SUCH DETERMINATIONS ARE LARGELY WITHIN THE DISCRETION OF THE PROCURING OFFICIALS WHO MUST SUFFER ANY DIFFICULTIES EXPERIENCED BY REASON OF THE CONTRACTOR'S NONRESPONSIBILITY. IF, PURSUANT TO THE APPLICABLE REGULATIONS, THE CONTRACTING OFFICER FINDS THE PROPOSED CONTRACTOR RESPONSIBLE, WE DO NOT BELIEVE THE FINDING SHOULD BE DISTURBED EXCEPT FOR ACTIONS BY PROCURING OFFICIALS WHICH ARE TANTAMOUNT TO FRAUD. (SEE KECO INDUSTRIES, INC. V. UNITED STATES, DECIDED FEBRUARY 20, 1974, UNITED STATES COURT OF CLAIMS NO. 173-69, WHEREIN THE COURT, IN REVIEWING A DISAPPOINTED BIDDER'S CLAIM FOR BID PREPARATION EXPENSES, OBSERVED THAT CRITERIA FOR DETERMINING BIDDER RESPONSIBILITY "ARE NOT READILY SUSCEPTIBLE TO REASONED JUDICIAL REVIEW.") MATTER OF UNITED HATTERS, CAP AND MILLINERY WORKERS INTERNATIONAL UNION, 53 COMP. GEN. 931 (1974).

CONTENTIONS 6-8 CONCERN DEFICIENCIES IN THE INVITATION FOR BIDS (IFB). IBEW CONTENDS THAT THE IFB FAILED TO INCLUDE CERTAIN CRITERIA WHICH WERE ESSENTIAL FOR THIS PROCUREMENT. IBEW FIRST PROTESTED THESE, AND OTHER ISSUES TO THE CONTRACTING OFFICER BY LETTER DATED JANUARY 17, 1975, 7 DAYS AFTER THE DATE SET FOR BID OPENING. UNDER OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS, PUBLISHED AT 4 C.F.R. PART 20 ET SEQ. SEC. 20.2(A) (1974) REQUIRES THAT PROTESTS BASED UPON ALLEGED IMPROPRIETIES WHICH ARE APPARENT PRIOR TO BID OPENING MUST BE FILED PRIOR TO BID OPENING. SINCE THE ISSUES RAISED IN CONTENTIONS 6-8 WERE NOT RAISED PRIOR TO BID OPENING, THEY ARE UNTIMELY AND WILL NOT BE CONSIDERED ON THEIR MERITS.

THE NINTH CONTENTION PRESENTED BY IBEW IS THAT THE SIGNED CONTRACT "*** DID NOT HAVE THE DAVIS-BACON WAGE RATES ATTACHED AS PROVIDED FOR IN PROCUREMENT REGULATIONS." OUR OFFICE HAS BEEN INFORMALLY ADVISED BY PROCUREMENT OFFICIALS AT HEW THAT THE IFB FOR THIS PROCUREMENT CONTAINED BOTH THE AMERICAN INSTITUTE OF ARCHITECTS FORM 201-SC WHICH AT SEC. 16.6- SEC. 16.13 DETAILED THE APPLICABILITY OF THE PREVAILING WAGE RATES AND LABOR STANDARDS AND THE COMPLETE DAVIS-BACON WAGE SCHEDULES APPLICABLE FOR THE CONSTRUCTION PROJECT. IN OUR OPINION, THE FACT THAT THE CONTRACT DID NOT CONTAIN THE DAVIS-BACON WAGE RATES IS OF NO CONSEQUENCE, AS ICG HAS AGREED TO BE BOUND BY SUCH RATES BY THE SIGNING OF ITS BID CONTAINING THE ABOVE REFERENCES TO THE DAVIS-BACON REGULATIONS, THE PROVISIONS PERTAINING TO DAVIS-BACON BEING INCORPORATED BY REFERENCE INTO ICG'S CONTRACT.

THE FINAL ARGUMENT ASSERTED BY IBEW IS THAT THERE IS NO REFERENCE TO A PROTEST PERIOD IN EITHER THE IFB OR CONTRACT DOCUMENT.

WHILE THIS IS A TRUE STATEMENT OF FACT, THE PROTEST PROCEDURES OF OUR OFFICE HAVE BEEN PUBLISHED IN THE FEDERAL REGISTER AT 36 FED. REG. 24791 (1971), AND NOW CAN BE FOUND AT 4 C.F.R. PART 20 ET SEQ. ALTHOUGH IBEW MAY NOT HAVE HAD ACTUAL KNOWLEDGE OF OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS, THEY WERE ON CONSTRUCTIVE NOTICE OF ITS CONTENTS. SEE WINSTON BROS. COMPANY V. UNITED STATES, 458 F. 2D 49, 53 (CT. CL. 1972).

ACCORDINGLY, THE PROTEST OF IBEW IS DENIED.