Matter of: Weatherwax Electric, Inc. File: B-249609 Date: October 26, 1992
B-249609: Oct 26, 1992
Since the rates are mandated by the Davis Bacon Act and there is no evidence that the bidder otherwise was legally required to pay its employees wages of at least those amounts. Where there is no indication of any fault by the agency. The IFB was issued on June 5. Bid opening was held on July 7. 337 was the lowest of the ten opened. The second low bidder was Applied Technical Services. The Project Design Engineer advised that it was possible that the contractor would elect to use painters for incidental painting work regarding the electrical closets. Since the amendment thus was considered material so that the failure to acknowledge it could not be waived as a minor informality. Weatherwax first contends that its failure to acknowledge the amendment should have been waived because the amendment had no impact on its bid price.
Matter of: Weatherwax Electric, Inc. File: B-249609 Date: October 26, 1992
PROCUREMENT Sealed Bidding Invitations for bids Wage rates Amendments Acknowledgment Contracting agency properly rejected as nonresponsive a bid that failed to acknowledge an amendment increasing rates in the applicable Department of Labor wage determination, since the rates are mandated by the Davis Bacon Act and there is no evidence that the bidder otherwise was legally required to pay its employees wages of at least those amounts. PROCUREMENT Sealed Bidding Invitations for bids Wage rates Amendments Acknowledgment Bidder's alleged late receipt of an amendment containing a Department of Labor wage determination does not excuse the bidder's failure to acknowledge the amendment, where there is no indication of any fault by the agency.
Weatherwax Electric, Inc., protests the rejection of its bid as nonresponsive under invitation for bids (IFB) No. N62471-91-B-2407, issued by the Naval Facilities Engineering Command, Pearl Harbor, Hawaii, for electrical repairs to a building. The Navy rejected Weatherwax's bid for failure to acknowledge amendments No. 0002 to the IFB; the protester argues that the amendment did not materially affect the bid, and complains that it did not receive the amendment until bid opening day.
We deny the protest.
The IFB was issued on June 5, 1992. Amendment 0002, issued on June 26, contained a modified wage determination under the Davis Bacon Act, 40 U.S.C. Sec. 276(a) (1988), which affected the rates paid to 11 labor classes, including painters. The amendment, however, did not affect electricians and carpenters, the laborers the government anticipated being used on the project.
Bid opening was held on July 7, and Weatherwax's bid of $95,337 was the lowest of the ten opened. The second low bidder was Applied Technical Services, Inc., at $97,000.
Weatherwax did not acknowledge amendment 0002. In connection with the evaluation of the bid for responsiveness, the Project Design Engineer advised that it was possible that the contractor would elect to use painters for incidental painting work regarding the electrical closets. The Navy rejected Weatherwax's bid as nonresponsive, since the amendment thus was considered material so that the failure to acknowledge it could not be waived as a minor informality.
Weatherwax first contends that its failure to acknowledge the amendment should have been waived because the amendment had no impact on its bid price. The firm states that any incidental painting would be done by its electricians, who are paid more than painters even under the modified wage rate. Weatherwax further argues that it was aware of the modified wage rate revision (painters' wages were raised 25 cents per hour and fringe benefits were raised $1.15) because it had acknowledged similar amendments on two other solicitations issued by the same facility within the 2 weeks prior to this bid opening.
Generally, a bid that does not include acknowledgment of a material amendment must be rejected, since acceptance of the bid would not obligate the bidder to comply with the amendment's terms. LaCorte ECM, Inc., B-231448.2, Aug. 31, 1988, 88-2 CPD Para. 195. An amendment that revises wage rates is material, regardless of how minimal the revisions, because wage rates are mandated by the Davis-Bacon Act; to give the bidder the opportunity to acknowledge a wage rate amendment after bid opening would allow the firm to decide to render itself ineligible for award by choosing not to cure the defect. Grade-Way Construction v. United States, 7 Ct. Cl. 263 (l985)
An exception to the requirement to reject such a bid as nonresponsive is where the bidder already is obligated to pay wages not less than those prescribed, for example, where the bidder's employees are already covered by a collective bargaining agreement binding the firm to pay wages not less than those in the new wage determination. ABC Paving Co., 66 Comp. Gen. 47 (1986), 86-2 CPD Para. 436; LaCorte ECM, Inc., supra. Here, the Navy asked Weatherwax's president to furnish a collective bargaining agreement if one was applicable to the employees on this project, and although the bidder indicated that an agreement did exist, he refused to furnish it, despite advice that otherwise the bid would be rejected. Therefore, there was no assurance of record that Weatherwax would pay the employees at least the rates prescribed in the new wage rate revision.
Regarding Weatherwax's argument that it had acknowledged similar amendments on other recent solicitations, such other acknowledgments cannot cure the deficiency here. Every solicitation is a distinct procurement action, so that Weatherwax's actions in response to other solicitations are irrelevant to the firm's legal obligation to its employees if its bid were accepted in this procurement. U.S. General, Inc.--Reconsideration, B-242769.2, Aug. 5, 1991 91-2 CPD Para. 126.
Weatherwax also complains that it did not receive the amendment containing the wage rate revision until the date of bid opening because the agency mailed the amendment to an out-of-date address. Weatherwax states that it advised all agencies with which it normally dealt, including the Navy, of its change of address in February 1992, 4 months before the Navy issued this IFB.
It is the contracting agency's obligation to use reasonable methods, as required by the Federal Acquisition Regulation (FAR), to disseminate solicitation documents, including amendments, to prospective competitors. FAR Secs. 14.203-1, 14.205, 14.208. This, however, does not make the contracting agency a guarantor that the documents will be received in every instance. Power Engineering Contractors, Inc., B-241341, Feb. 6, 1991, 91-1 CPD Para. 123. In fact, as a general rule, the risk of nonreceipt of an amendment rests with the offeror. Western Roofing Service, 70 Comp.Gen. 323 (1991), 91-1 CPD Para. 242.
There is no evidence that the agency's dissemination process was deficient. The contracting office states that it never received Weatherwax's change of address, and therefore sent the solicitation and amendments to the address for Weatherwax on its bidders mailing list. The company obviously received the solicitation, and the Navy notes that Weatherwax did not complain before bid opening of any difficulty in that regard. The agency also notes that the letterhead on correspondence it received from Weatherwax after the amendment was issued reflected the allegedly out-of-date address. In sum, we find nothing in the record to indicate that Weatherwax's alleged failure to receive the amendment in a more timely manner was the Navy's fault.
The protest is denied.