B-145964, JUL. 19, 1961

B-145964, JUL. 19, 1961

TO ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION:

REFERENCE IS MADE TO YOUR LETTER OF JULY 5, 1961, WITH ENCLOSURES, CONCERNING A PROTEST MADE BY BUILDING SERVICE SYSTEMS, INC., UNDER INVITATION GS-03B-8945, ISSUED APRIL 3, 1961, SOLICITING BIDS FOR PERFORMANCE OF JANITORIAL SERVICES.

SPECIAL NOTICE NO. 3, ISSUED UNDER THE INVITATION ON MAY 11, 1961, STATED:

"PROSPECTIVE BIDDERS * * * ARE HEREBY NOTIFIED OF A CHANGE IN PARAGRAPH 31 OF THE GENERAL CONDITIONS, AS FOLLOWS:

"BIDDERS ARE ADVISED THAT AS TO EMPLOYEES COVERED BY THE FAIR LABOR STANDARDS ACT OF 1938, AS AMENDED, THE MINIMUM WAGES WHICH EMPLOYERS ARE REQUIRED TO PAY (WITH CERTAIN EXCEPTIONS NOT PERTINENT HERE) WILL BE INCREASED FROM $1.00 TO $1.15 PER HOUR EFFECTIVE 120 DAYS FROM MAY 5, 1961.'

PARAGRAPH 31 OF THE GENERAL CONDITIONS WAS AS FOLLOWS:

"FAIR LABOR STANDARDS ACT: THE CONTRACTOR'S ATTENTION IS CALLED TO THE FAIR LABOR STANDARDS ACT OF 1938 (52 STAT. 1060) AND ANY AMENDMENTS THERETO. AMONG OTHER THINGS, THE SAID ACT REQUIRES THAT EMPLOYEES SUBJECT TO THE ACT SHALL BE PAID WAGES AT NOT LESS THAN $1.00 AN HOUR; REGULATES THE COMPENSATION FOR OVERTIME WORK AND PLACES RESTRICTIONS ON THE EMPLOYMENT OF MINORS.'

SPECIAL NOTICE NO. 3 PROVIDED FURTHER THAT "ALL BIDS NOT ACCOMPANIED BY THIS SPECIAL NOTICE, PROPERLY ACKNOWLEDGED WILL BE REJECTED.' THE BID SUBMITTED BY BUILDING SERVICE SYSTEMS, INC., DID NOT CONTAIN ANY ACKNOWLEDGEMENT OF THE NOTICE. THE FIRM THOUGHT THE BID MIGHT BE CONSIDERED NONRESPONSIVE AND PROTESTED AGAINST ANY REJECTION OF IT.

IN THE REPORT OF JULY 5, IT IS STATED THAT REFERENCE TO THE FAIR LABOR STANDARDS ACT MERELY WAS FOR THE GENERAL INFORMATION OF BIDDERS SINCE THEY WOULD BE BOUND TO KNOW AND COMPLY WITH THE LAW EVEN IF IT WERE NOT MENTIONED IN THE INVITATION OR SUBSEQUENT ADDENDA. AS A RESULT, THE GENERAL SERVICES ADMINISTRATION INTENDS TO WAIVE THE ACKNOWLEDGEMENT REQUIREMENT AS A MINOR INFORMALITY AND TO AWARD THE CONTRACT TO THE BUILDING SERVICE SYSTEMS, INC.

AS A GENERAL RULE, IF AN ADDENDUM TO AN INVITATION AFFECTS PRICE, QUANTITY OR QUALITY OF A PROCUREMENT, FAILURE BY A BIDDER TO ACKNOWLEDGE RECEIPT OF IT AS REQUIRED BY THE INVITATION RENDERS THE BID NONRESPONSIVE. 37 COMP. GEN. 785. THE BASIS FOR THE RULE IS THAT GENERALLY IN SUCH A SITUATION THE BIDDER HAS AN OPTION TO DECIDE AFTER BID OPENING WHETHER TO BECOME ELIGIBLE FOR THE AWARD BY COMING FORTH WITH EVIDENCE OUTSIDE THE BID ITSELF THAT THE ADDENDUM WAS CONSIDERED OR TO AVOID AWARD BY REMAINING SILENT. HOWEVER, SINCE THE GENERAL CONDITIONS IN THE INVITATION DIRECTED EACH BIDDER'S ATTENTION NOT ONLY TO THE FAIR LABOR STANDARDS ACT BUT ALSO TO ,ANY" AMENDMENTS OF THE ACT, AND THE FAIR LABOR STANDARDS AMENDMENTS OF 1961, AS THEY AMENDED THE ACT, REQUIRE THAT "EVERY EMPLOYER SHALL PAY" THE SPECIFIED MINIMUM WAGE TO EMPLOYEES COVERED BY THE ACT, AND SINCE, IN ANY EVENT, EVERYONE IS CHARGED WITH KNOWLEDGE OF THE STATUTES OF THE UNITED STATES, FEDERAL CROP INSURANCE CORP. V. MERRILL, 332 U.S. 380, 384, WE BELIEVE THAT THERE IS A SOUND BASIS FOR CONCLUDING THAT ANY BIDDER WOULD HAVE BEEN BOUND TO PAY WAGES AT THE STATUTORY RATE, NOTWITHSTANDING THE FAILURE TO ACKNOWLEDGE THE ADDENDUM.