B-235006, Jun 21, 1989

B-235006: Jun 21, 1989

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Such certification is a condition of award relating to bidder's responsibility which can be satisfied prior to award. Whose bid was rejected as nonresponsive for another reason. Contends that the agency should have rejected as nonresponsive all of the bids submitted in response to the IFB for failure to timely acknowledge the second amendment issued to the solicitation. The protester seeks cancellation and resolicitation of the IFB based upon its contention that the bidders were improperly allowed to acknowledge receipt of the amendment after bid opening. /1/ Award of a contract under the IFB is being delayed pending our decision. The IFB was issued on February 2. Was issued on February 17 to all the bidders who were sent a copy of the solicitation.

B-235006, Jun 21, 1989

PROCUREMENT - Sealed Bidding - Invitations for bids - Amendments - Acknowledgment - Responsiveness PROCUREMENT - Contractor Qualification - Responsibility/responsiveness distinctions DIGEST: Bidders' failure to acknowledge, until after bid opening, receipt of solicitation amendment requiring certification of compliance with the Drug -Free Workplace Act of 1988, Pub.L. No. 100-690, 5152(a)(1), 102 Stat. 4304 (1988), did not render their bids nonresponsive since by the express terms of the statute and implementing regulations, such certification is a condition of award relating to bidder's responsibility which can be satisfied prior to award.

Universal Hydraulics, Inc.:

Universal Hydraulics, Inc., protests the award of any contract under invitation for bids (IFB) No. DAAEOZ-89-B-D025, issued by the Army for hydraulic cylinders for use in armored vehicle launch bridges. Universal, whose bid was rejected as nonresponsive for another reason, contends that the agency should have rejected as nonresponsive all of the bids submitted in response to the IFB for failure to timely acknowledge the second amendment issued to the solicitation. The protester seeks cancellation and resolicitation of the IFB based upon its contention that the bidders were improperly allowed to acknowledge receipt of the amendment after bid opening. /1/ Award of a contract under the IFB is being delayed pending our decision.

We deny the protest.

The IFB was issued on February 2, 1989. Amendment 1 to the solicitation, increasing the quantity of the requirement, was issued on February 17 to all the bidders who were sent a copy of the solicitation. Amendment 2 incorporated into the IFB the Drug-Free Workplace certification and compliance clauses of Federal Acquisition Regulation (FAR) Sec. 52.223-5, -6 (FAC 84-43). These clauses implement the Drug-Free Workplace Act of 1988 (Act), Pub.L. No. 100 690, Sec. 5152(a)(1), 102 Stat. 4304 (1988), and require each contractor to certify compliance with the statute's requirements regarding a drug-free work environment. FAR Sec. 23.500 (FAC 84-43). To be considered a responsible source, a contractor must comply with the act and its implementing regulations, which basically require a contractor to notify its employees of its drug-free policy, the dangers of drug abuse, any available treatment programs and the penalties that may be imposed upon an employee for drug abuse violations in the workplace.

According to the contracting officer, amendment 2 was mailed to potential bidders on February 28, 1 week prior to the March 6 bid opening. On that date, seven bids were received. The agency reports that two bidders, including Universal, failed to acknowledge either of the amendments. These bidders were consequently rejected as nonresponsive for failing to acknowledge amendment 1, a material amendment that increased the quantity of the requirement. The agency reports that although none of the bidders acknowledged amendment 2 by bid opening, it was not a material amendment and, thus, the agency acted properly in accepting the acknowledgments of amendment 2 which were received shortly after bid opening from the five bidders that timely acknowledged amendment 1.

The protester essentially contends that since amendment 2 changes the legal relationship of the parties and imposes additional obligations on the contractor, it is material. In this regard, Universal concludes that a bidder's failure to submit an acknowledgment of amendment 2 with its bid by bid opening rendered that bid nonresponsive. The protester specifically relies upon our decision in Mak's Cuisine, B-227017, June 11, 1987, 87-1 CPD Para. 586, in which we upheld an agency's rejection of a bid as nonresponsive for failing to acknowledge an amendment that incorporated into an IFB the Anti Kickback Procedures clause, FAR Sec. 52.203-7 (FAC 84-24), which implements the Anti-Kickback Act of 1986, 41 U.S.C.A Sec. 51-58 (Supp. IV 1986). Universal further states that such omission cannot be waived as a minor informality or irregularity and that the Army therefore improperly allowed the bidders to acknowledge amendment 2 after bid opening.

The Army responds that the bidders' failure to acknowledge amendment 2 prior to bid opening did not render the bids nonresponsive, because compliance with the act relates to bidder responsibility, not to the responsiveness of their bids. In this regard, the agency argues that the act and its implementing regulations permit certification after bid opening. As a responsibility matter, the agency points out that although the certification requirement could have been met by acknowledging amendment 2 at bid opening, it may also be satisfied by a contractor any time prior to award.

Here, unlike the Anti-kickback provisions, the act specifically states that a contractor shall not be considered a "responsible source" unless it certifies that it will provide a drug-free workplace. Thus, the act, and the FAR provisions cited in amendment 2, clearly provide that certifying compliance with the act (for a contract that equals or exceeds $25,000) is a contractor responsibility requirement, and that certification is a condition for award. See FAR Sec. 23.504(a)-(c). Moreover, the regulations specifically provide that if an applicable contract "results from procedures that do not involve a solicitation containing the Drug- Free Workplace certification ..., the contracting officer shall obtain that certification prior to award." FAR Sec. 23.505(d). Therefore, the act and implementing regulations, by their own terms, permit a contracting officer to accept a contractor's certification up until the time of award.

The protest is denied.

/1/ In its protest letter, Universal also challenged the agency's rejection of its bid as nonresponsive for failure to acknowledge the solicitation's first amendment that increased the quantity of the requirement. Since Universal failed to rebut the agency's response to that protest issue, we deem it abandoned and not for our consideration. See The Big Picture Co., Inc., B-220859.2, Mar. 4, 1986, 86-1 CPD Para. 218.