Skip to main content

B-174307, APR 10, 1972

B-174307 Apr 10, 1972
Jump To:
Skip to Highlights

Highlights

THE PROVISIONS OF ASPR 12-806(B)(1)(B) AND (2) FOR WAIVER OF EQUAL OPPORTUNITY AND AFFIRMATIVE ACTION PROGRAM (AAP) CERTIFICATION ARE INAPPLICABLE WHERE THE REQUIREMENT IMPOSES A LEGAL OBLIGATION ON THE CONTRACTOR AS A MATERIAL PART OF THE SOLICITATION. THE CORRECTION OF EVEN A CLERICAL ERROR IS ONLY PERMISSIBLE WHERE THE BID WAS RESPONSIVE WHEN SUBMITTED. GEN. 432 (1961) CITED IN OUR INITIAL DECISION IS CLEARLY DISTINGUISHABLE FROM THE SUBJECT SITUATION WHERE YOU ALLEGED AN OBVIOUS CLERICAL ERROR WHILE THE EARLIER DECISION SPECIFICALLY STATED THAT THE ERROR INVOLVED THEREIN WAS NOT APPARENT FROM THE FACE OF THE BID. WAS UTILIZED MERELY AS GENERAL AUTHORITY FOR THE WELL-SETTLED PROPOSITION THAT A BIDDER MAY NOT BE PERMITTED TO UTILIZE THE CORRECTION PROCEDURES TO RENDER RESPONSIVE A NONRESPONSIVE BID.

View Decision

B-174307, APR 10, 1972

BID PROTEST - CORRECTION OF CLERICAL ERRORS - AFFIRMATIVE ACTION PROGRAM COMPLIANCE DECISION AFFIRMING PRIOR DENIAL OF A PROTEST OF THE LANE COMPANY, INC., UNDER AN IFB ISSUED BY THE NAVAL FACILITIES ENGINEERING COMMAND, PHILADELPHIA, PA. THE PROVISIONS OF ASPR 12-806(B)(1)(B) AND (2) FOR WAIVER OF EQUAL OPPORTUNITY AND AFFIRMATIVE ACTION PROGRAM (AAP) CERTIFICATION ARE INAPPLICABLE WHERE THE REQUIREMENT IMPOSES A LEGAL OBLIGATION ON THE CONTRACTOR AS A MATERIAL PART OF THE SOLICITATION. A FIRM'S STATED GOALS WITH REGARD TO ITS AAP IMPLY A GOOD FAITH OBLIGATION AND THIS OBLIGATION BECOMES PART OF THE CONTRACT SPECIFICATIONS AGAINST WHICH ITS PERFORMANCE MAY BE JUDGED. 50 COMP. GEN. 844 (1971). SECONDLY, THE CORRECTION OF EVEN A CLERICAL ERROR IS ONLY PERMISSIBLE WHERE THE BID WAS RESPONSIVE WHEN SUBMITTED. TO PERMIT AN OFFEROR TO MAKE ITS BID RESPONSIVE AFTER OPENING WOULD BE TANTAMOUNT TO ALLOWING THE SUBMISSION OF A NEW BID. FOR THE FOREGOING REASONS, THE PRIOR DENIAL MUST BE SUSTAINED.

TO BARENBAUM AND BARENBAUM:

WE REFER TO YOUR LETTER DATED FEBRUARY 21, 1972, REQUESTING ON BEHALF OF THE LANE COMPANY, INCORPORATED (LANE), RECONSIDERATION OF OUR DECISION, B- 174307, DATED FEBRUARY 8, 1972, DENYING YOUR PROTEST UNDER INVITATION FOR BIDS (IFB) NO. N62472-71-B-0107, ISSUED BY THE NAVAL FACILITIES ENGINEERING COMMAND, PHILADELPHIA, PENNSYLVANIA.

FIRST, YOU ASSERT THAT 40 COMP. GEN. 432 (1961) CITED IN OUR INITIAL DECISION IS CLEARLY DISTINGUISHABLE FROM THE SUBJECT SITUATION WHERE YOU ALLEGED AN OBVIOUS CLERICAL ERROR WHILE THE EARLIER DECISION SPECIFICALLY STATED THAT THE ERROR INVOLVED THEREIN WAS NOT APPARENT FROM THE FACE OF THE BID. AT THE OUTSET IT MUST BE OBSERVED THAT 40 COMP. GEN. 432, SUPRA, WAS UTILIZED MERELY AS GENERAL AUTHORITY FOR THE WELL-SETTLED PROPOSITION THAT A BIDDER MAY NOT BE PERMITTED TO UTILIZE THE CORRECTION PROCEDURES TO RENDER RESPONSIVE A NONRESPONSIVE BID. APPARENTLY, YOU CONTEND THAT SINCE THE SUBJECT ERROR WAS OBVIOUS ON THE FACE OF THE BID, THE ABOVE-CITED PROPOSITION IS INAPPLICABLE. WE HAVE SPECIFICALLY HELD IN B-166778, JULY 9, 1969, THAT THIS GENERAL PROPOSITION IS, INDEED, APPLICABLE TO SITUATIONS SUCH AS THE INSTANT ONE WHERE AN APPARENT CLERICAL MISTAKE IS ALLEGED PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-406.2. IN ADDITION TO CITING 40 COMP. GEN. 432 (1961), THAT DECISION SET OUT THE FOLLOWING QUOTATION TAKEN FROM 46 COMP. GEN. 418 (1966) AT PAGE 422:

"FURTHER, THE FACT THAT SUCH A FAILURE IS ALLEGED TO BE ATTRIBUTABLE TO OVERSIGHT OR ERROR DOES NOT JUSTIFY CORRECTION OF THE BID TO REMEDY THE DEFECT, SINCE THE RULES UNDER WHICH CORRECTION OF CERTAIN MISTAKES IN BID IS PERMITTED ARE APPLICABLE ONLY WHEN THE BID AS SUBMITTED IS RESPONSIVE TO THE INVITATION AND IS OTHERWISE ACCEPTABLE. SUCH RULES MAY NOT BE INVOKED TO PERMIT A BIDDER TO MAKE HIS BID RESPONSIVE BY CHANGING, ADDING TO, OR DELETING A MATERIAL PROVISION AFTER THE BID OPENING, SINCE SUCH ACTION WOULD BE TANTAMOUNT TO PERMITTING THE SUBMISSION OF A NEW BID."

NEXT, YOU ASSERT THAT 50 COMP. GEN. 844, (B-172581, JUNE 7, 1971), IS ALSO DISTINGUISHABLE FROM THE INSTANT SITUATION. FIRST, YOU CONTEND THAT A SIGNIFICANT DIFFERENCE EXISTS BECAUSE THE CITED CASE DEALS WITH A PROCUREMENT SUBJECT TO THE FEDERAL PROCUREMENT REGULATIONS (FPR) WHILE THE INSTANT PROCUREMENT IS SUBJECT TO ASPR. MORE SPECIFICALLY, YOU STATE THAT A SIGNIFICANT DIFFERENCE EXISTS BETWEEN THE TWO CASES BECAUSE THERE IS NO PROVISION IN THE FPR COMPARABLE TO ASPR 2-405(VI) WHICH STATES THAT THE FAILURE TO EXECUTE THE CERTIFICATIONS WITH RESPECT TO EQUAL OPPORTUNITY AND AFFIRMATIVE ACTION PROGRAM AS SET FORTH IN ASPR 12-806(B)(1)(B) AND (2) IS A MINOR INFORMALITY WHICH MAY BE CURED OR WAIVED.

THE CERTIFICATION APPLICABLE TO CONSTRUCTION CONTRACTS REFERENCED IN THE ABOVE-CITED ASPR PROVISION IS A CLAUSE WHICH PROVIDES SPACES IN WHICH THE PROSPECTIVE CONTRACTOR IS TO INDICATE WHETHER HE HAS PARTICIPATED IN PREVIOUS PROCUREMENTS SUBJECT TO EQUAL OPPORTUNITY PROVISIONS AND WHETHER HE HAS FILED THE REQUIRED COMPLIANCE REPORTS. IT IS CLEAR THAT THIS CLAUSE IS MERELY FOR INFORMATIONAL PURPOSES AND THAT A BIDDER'S FAILURE TO COMPLETE THESE CERTIFICATIONS IN NO WAY COMPROMISES HIS OBLIGATION TO COMPLY FULLY WITH THE EQUAL OPPORTUNITY OR AFFIRMATIVE ACTION PROGRAM PROVISION CONTAINED IN THE SOLICITATION. IN THE INSTANT CASE, WE ARE DEALING WITH THE CONTRACTUAL PROVISION WHICH CREATES THE LEGAL OBLIGATION ON THE PART OF THE CONTRACTOR TO PURSUE SPECIFIC GOALS IN REGARD TO THE EMPLOYMENT OF MINORITY MANPOWER. THE CONTRACTOR'S GOALS FOR MANPOWER UTILIZATION ARE, INDEED, OPERATIVE PORTIONS OF THIS OBLIGATION. SINCE WE HAVE DETERMINED THAT THE OBLIGATION CREATED BY THE AFFIRMATIVE ACTION PLAN IS A MATERIAL PART OF THE SOLICITATION, IT IS CLEAR THAT THE ABOVE-CITED ASPR PROVISION, WHICH PERTAINS TO A NONMATERIAL, INFORMATIONAL CLAUSE, IS INAPPLICABLE TO THE PRESENT CASE.

NEXT, YOU URGE THAT 50 COMP. GEN. 844 IS NOT CONTROLLING BECAUSE OF THE FREQUENT UTILIZATION OF THE WORD "COMMITMENT" IN THAT DECISION WHILE THE SUBJECT INVITATION DOES NOT SPEAK IN TERMS OF "COMMITMENT." WE DIRECT YOUR ATTENTION TO PARAGRAPHS 1.A.25.4.2, .3, AND .4 OF THE PHILADELPHIA PLAN CLAUSE OF THE SUBJECT IFB WHERE THE EXACT SAME PHRASES, INCLUDING THE TERM "COMMITMENT" APPEAR AS IN THE INVITATION WHICH WAS THE SUBJECT OF THE CITED CASE.

FURTHER, YOU URGE THAT SINCE "SPECIFIC INDIVIDUAL GOALS" ARE REQUIRED BY 50 COMP. GEN. 844, ALL BIDS SUBMITTED WHICH SET FORTH GOALS IN TERMS OF A MINIMUM-MAXIMUM RANGE SHOULD BE CONSIDERED NONRESPONSIVE. WE CANNOT AGREE WITH YOUR CONCLUSION SINCE WE FAIL TO SEE THE RATIONALE BEHIND REJECTING SUCH A COMMITMENT STATED IN TERMS OF SUCH A RANGE AS LONG AS THE MINIMUM GOAL SPECIFIED BY THE PROSPECTIVE CONTRACTOR DOES NOT FALL BELOW THE REQUIRED MINIMUM SET FORTH IN THE SOLICITATION.

FINALLY, YOU POINT OUT THAT THIS OFFICE HAS FAILED TO SPECIFY HOW LANE'S FAILURE TO COMPLY WITH THE AFFIRMATIVE ACTION PLAN RELATES TO THE PRICE, QUALITY, QUANTITY, OR DELIVERY OF THE SERVICES INVOLVED. WE BELIEVE THIS ASPECT OF THE MATTER WAS TREATED IN 50 COMP. GEN. 844, CITED IN OUR DECISION OF FEBRUARY 8, 1972, WHICH STATES AT PAGE 846:

"IN THE EVENT THAT THE CONTRACTOR FAILS TO MEET THE SPECIFIC GOALS WHICH HE ESTABLISHES, A DETERMINATION OF WHETHER OR NOT HE EXERCISED 'GOOD FAITH' IN ATTEMPTING TO MEET SAID GOALS IS BASED AND CORRELATIVE UPON HIS SPECIFIC COMMITMENT THEREON. SANCTIONS SUCH AS CONTRACT CANCELLATION CAN BE IMPOSED IF IT IS DETERMINED THAT THE CONTRACTOR DID NOT EMPLOY THE REQUISITE 'GOOD FAITH.' IT IS OUR VIEW THAT THE SUBMISSION OF GOALS BY THE SUCCESSFUL BIDDER WOULD OPERATE TO MAKE THE REQUIREMENT FOR 'EVERY GOOD FAITH EFFORT' TO ATTAIN SUCH GOALS A MATERIAL PART OF HIS CONTRACTUAL OBLIGATION UPON AWARD OF A CONTRACT. THEREFORE, THE OBLIGATIONS IMPOSED BY APPENDIX 'A' WOULD BECOME A PART OF THE CONTRACT SPECIFICATIONS AGAINST WHICH A CONTRACTOR'S PERFORMANCE WILL BE JUDGED IN THE EVENT HE FAILS TO ATTAIN HIS STATED GOALS, JUST AS MUCH AS HIS STATED GOALS BECOME A PART OF THE CONTRACT SPECIFICATIONS AGAINST WHICH HIS PERFORMANCE WILL BE JUDGED IN THE EVENT HE DOES ATTAIN HIS STATED GOALS."

ACCORDINGLY, OUR DECISION OF FEBRUARY 8, 1972, IS REAFFIRMED.

GAO Contacts

Office of Public Affairs