B-175996, OCT 27, 1972

B-175996, OCT 27, 1972

BID PROTEST - AFFIRMATIVE ACTION PROGRAMS - COMPLIANCE - RESPONSIVENESS DENIAL OF PROTEST BY THE OSBERG CONSTRUCTION COMPANY, AGAINST THE REJECTION OF ITS BID UNDER AN IFB ISSUED BY THE DEPARTMENT OF INTERIOR FOR CONSTRUCTION OF CERTAIN STRUCTURES AT COLUMBIA BASIN PROJECT, WASH. SINCE THE IFB SPECIFICALLY REQUIRED BIDDERS TO INDICATE THEIR ASSENT TO THE MINORITY UTILIZATION REQUIREMENTS OF THE "SOUTHEASTERN WASHINGTON PLAN" BY SUBMITTING AN EXECUTED PART I CERTIFICATE AND SINCE PROTESTANT WAS NOT A SIGNATORY OF THE PLAN AT THE TIME OF BID OPENING, THE COMP. GEN. BELIEVES THE FAILURE TO SUBMIT A PART I CERTIFICATE CREATED DOUBT THAT PROTESTANT INTENDED TO MEET THE MINORITY HIRING GOALS. FURTHER, THIS DEFECT COULD NOT BE RESOLVED AT THE COMPLIANCE REVIEW UNDER THE PREAWARD EQUAL OPPORTUNITY COMPLIANCE REVIEW CLAUSE OF THE IFB BECAUSE THAT REVIEW IS FOR THE PURPOSE OF DETERMINING RESPONSIBILITY AND IS NOT PERTINENT TO THE ISSUE. ACCORDINGLY, THE PROTEST MUST BE DENIED.

TO OSBERG CONSTRUCTION COMPANY:

FURTHER REFERENCE IS MADE TO YOUR TELEFAX OF MAY 18, 1972, AND SUBSEQUENT CORRESPONDENCE, CONCERNING YOUR PROTEST UNDER AN INVITATION FOR BIDS (IFB) ON SPECIFICATIONS NO. DC-6940, ISSUED BY THE DEPARTMENT OF THE INTERIOR FOR CONSTRUCTION OF CERTAIN STRUCTURES AT COLUMBIA BASIN PROJECT, WASHINGTON. SUPPLEMENTAL NOTICE NO. 2 OF THE INVITATION ATTACHED THE DEPARTMENT'S BID CONDITIONS FOR EQUAL EMPLOYMENT OPPORTUNITY ON THE PROJECT. PART I OF THESE BID CONDITIONS PROVIDED THAT A BIDDER, CONTRACTOR OR SUBCONTRACTOR MIGHT BE IN COMPLIANCE WITH THE REQUIREMENTS FOR EQUAL OPPORTUNITY BY ITS INCLUSION, WITH ITS UNION, IN THE "SOUTHEASTERN WASHINGTON PLAN" (AN AFFIRMATIVE ACTION PLAN FOR MINORITY MANPOWER UTILIZATION IN THE CONSTRUCTION INDUSTRY IN THE SOUTHEASTERN PART OF THE STATE OF WASHINGTON) AS TO EACH TRADE FOR WHICH THERE WAS A COMMITMENT BY THAT UNION TO A GOAL OF MINORITY MANPOWER UTILIZATION. THOSE BIDDERS, CONTRACTORS, AND SUBCONTRACTORS WHO DID NOT QUALIFY UNDER PART I WERE REQUIRED BY PART II OF THE BID CONDITIONS TO SUBMIT A WRITTEN AFFIRMATIVE ACTION PLAN, EMBODYING BOTH GOALS OF MINORITY MANPOWER UTILIZATION AND OTHER SPECIFIC AFFIRMATIVE ACTION STEPS FOR THOSE TRADES NOT OTHERWISE COVERED UNDER PART I. THE NOTICE ALSO STATED THAT THE SOUTHEASTERN WASHINGTON PLAN WAS MADE A PART OF THE SPECIFICATIONS. THE FOLLOWING PROVISIONS OF THE BID CONDITIONS IN THE NOTICE ARE PERTINENT:

"ANY BIDDER, CONTRACTOR OR SUBCONTRACTOR USING ONE OR MORE TRADES OF CONSTRUCTION EMPLOYEES MUST COMPLY WITH EITHER PART I OR PART II OF THESE BID CONDITIONS AS TO EACH SUCH TRADE. THUS, A BIDDER, CONTRACTOR OR SUBCONTRACTOR MAY BE IN COMPLIANCE WITH THESE CONDITIONS BY ITS INCLUSION, WITH ITS UNION, IN THE SOUTHEASTERN WASHINGTON PLAN AS TO TRADE A, PROVIDED THERE IS SET FORTH IN THE SOUTHEASTERN WASHINGTON PLAN A SPECIFIC COMMITMENT BY THAT UNION TO A GOAL OF MINORITY MANPOWER UTILIZATION FOR SUCH TRADE 'A', THEREBY MEETING THE PROVISIONS OF THIS PART I, AND BY ITS COMMITMENT TO PART II IN REGARD TO TRADE 'B' IN THE INSTANCE IN WHICH IT IS NOT INCLUDED IN THE SOUTHEASTERN WASHINGTON PLAN AND, THEREFORE, CANNOT MEET THE PROVISIONS OF THIS PART I.

"TO BE ELIGIBLE FOR AWARD OF A CONTRACT UNDER PART I OF THIS INVITATION FOR BIDS, A BIDDER MUST EXECUTE AND SUBMIT AS PART OF ITS BID THE FOLLOWING CERTIFICATION, WHICH WILL BE DEEMED A PART OF THE RESULTING CONTRACT:

CERTIFIES THAT:

(NAME OF BIDDER)

(A) IT INTENDS TO USE THE FOLLOWING LISTED CONSTRUCTION TRADES IN THE WORK UNDER THE CONTRACT, EITHER ITSELF OR THROUGH SUBCONTRACTORS AT ANY TIER ;

(B) THE LABOR ORGANIZATIONS WITH WHOM IT HAS COLLECTIVE BARGAINING AGREEMENTS WHO ARE SIGNATORIES TO THE SOUTHEASTERN WASHINGTON PLAN AND AS TO WHICH TRADES THERE ARE SET FORTH IN THE SOUTHEASTERN WASHINGTON PLAN SPECIFIC COMMITMENTS TO GOALS OF MINORITY MANPOWER UTILIZATION ARE AS FOLLOWS:

(C)THE LABOR ORGANIZATIONS WITH WHOM IT HAS COLLECTIVE BARGAINING AGREEMENTS WHO ARE NOT SIGNATORIES TO THE SOUTHEASTERN WASHINGTON PLAN OR WHO ARE SIGNATORIES THERETO BUT WITH RESPECT TO TRADES FOR WHICH NO SPECIFIC COMMITMENTS TO GOALS OF MINORITY MANPOWER UTILIZATION ARE SET FORTH IN THE SOUTHEASTERN WASHINGTON PLAN ARE AS FOLLOWS:

(SIGNATURE OF AUTHORIZED REPRESENTATIVE OF BIDDER.)

"PART II: A. COVERAGE. THE PROVISIONS OF THIS PART II SHALL BE APPLICABLE TO THOSE BIDDERS, CONTRACTORS AND SUBCONTRACTORS, WHO, IN REGARD TO SUCH CONSTRUCTION TRADES:

1. ARE NOT OR HEREAFTER CEASE TO BE SIGNATORIES TO THE SOUTHEASTERN WASHINGTON PLAN REFERRED TO IN PART I HEREOF,

"B. REQUIREMENT - AN AFFIRMATIVE ACTION PLAN. THE BIDDERS, CONTRACTORS AND SUBCONTRACTORS DESCRIBED IN PARAGRAPHS 1 THROUGH 5 ABOVE WILL NOT BE ELIGIBLE FOR AWARD OF A CONTRACT UNDER THIS INVITATION FOR BIDS, UNLESS IT HAS SUBMITTED AS PART OF ITS BID, AND HAS HAD APPROVED BY THE (AGENCY) A WRITTEN AFFIRMATIVE ACTION PLAN, EMBODYING BOTH (1) GOALS AND TIMETABLES OF MINORITY MANPOWER UTILIZATION, 1/ AND (2) SPECIFIC AFFIRMATIVE ACTION STEPS DIRECTED AT INCREASING MINORITY MANPOWER UTILIZATION BY MEANS OF APPLYING GOOD FAITH EFFORTS TO CARRYING OUT SUCH STEPS OR IS DEEMED TO HAVE SUBMITTED SUCH A PROGRAM PURSUANT TO SECTION 3 OF THIS PART II."

STANDARD FORM (SF) 23-A, GENERAL PROVISIONS, OF THE SOLICITATION ALSO CONTAINED THE FOLLOWING PERTINENT PROVISION:

"21. EQUAL OPPORTUNITY

"(D) THE CONTRACTOR WILL COMPLY WITH ALL PROVISIONS OF EXECUTIVE ORDER NO. 11246 OF SEPTEMBER 24, 1965, AND OF THE RULES, REGULATIONS, AND RELEVANT ORDERS OF THE SECRETARY OF LABOR."

WHEN BIDS WERE OPENED ON APRIL 27, 1972, THE CONTRACTING OFFICER NOTED THAT YOUR COMPANY HAD SUBMITTED THE LOWEST BID COVERING ALL THE SPECIFIED WORK AT $2,652,572, AND A JOINT VENTURE SUBMITTED THE SECOND LOWEST BID AT $2,655,477. WHILE YOU ACKNOWLEDGED RECEIPT OF THE NOTICE ON THE BID FORM, YOU FAILED TO EXECUTE THE CERTIFICATE SET OUT IN PART I OF THE BID CONDITIONS, AND YOU DID NOT FURNISH AN AFFIRMATIVE ACTION PLAN UNDER PART II, AT THE TIME YOU SUBMITTED YOUR BID.

SUBSEQUENTLY, YOU SENT A LETTER DATED APRIL 27, 1972, TO THE PROCURING ACTIVITY IN AN ATTEMPT TO CURE THIS BIDDING DEFECT. THAT LETTER ALSO FORWARDED AN EXECUTED PART I CERTIFICATE WHICH STATED THAT YOU INTENDED TO USE THE CONSTRUCTION TRADES OF OPERATING ENGINEERS, TEAMSTERS, LABORERS, CARPENTERS, IRONWORKERS, CEMENT MASONS, AND ELECTRICIANS IN THE WORK UNDER THE CONTRACT. YOU FURTHER CERTIFIED UNDER PARAGRAPH (B) OF THE CERTIFICATE THAT ALL OF THE ABOVE TRADES (EXCEPT TEAMSTERS) WERE REPRESENTED BY LABOR ORGANIZATIONS WITH WHOM YOU (OR YOUR SUBCONTRACTOR) HAD COLLECTIVE BARGAINING AGREEMENTS, AND WHO WERE SIGNATORIES TO THE PLAN, AND AS TO WHICH TRADES THERE WERE SET FORTH IN THE PLAN SPECIFIC COMMITMENTS TO GOALS OF MINORITY MANPOWER UTILIZATION.

NOTWITHSTANDING YOUR APRIL 27 LETTER, THE DEPARTMENT CONSIDERED YOUR BID NONRESPONSIVE TO THE EQUAL OPPORTUNITY REQUIREMENTS SET FORTH IN THE BID CONDITIONS. IN VIEW THEREOF, AND AS THE DEPARTMENT DETERMINED THAT AWARD COULD NOT BE DELAYED PENDING RESOLUTION OF YOUR PROTEST BECAUSE THE STRUCTURES WERE URGENTLY REQUIRED, IT MADE AN AWARD TO THE SECOND-LOWEST BIDDER ON JUNE 16.

YOU MAINTAIN THAT THE FAILURE OF YOUR CONCERN TO EXECUTE THE ABOVE CERTIFICATE OR SUBMIT AN AFFIRMATIVE ACTION PLAN AT THE TIME OF BIDDING SHOULD HAVE BEEN WAIVED AS A MINOR IRREGULARITY. IN THIS REGARD, YOU STATE THAT YOUR CONCERN IS A PARTY TO THE PLAN THROUGH YOUR COLLECTIVE BARGAINING AGENT; THAT ALL OF THE LABOR TO BE USED BY YOU ON THE PROJECT WOULD BE FROM TRADES COVERED BY AGREEMENTS WITH UNIONS WHICH ARE SIGNATORY TO THE PLAN; THAT THE NOTICE EXPRESSLY PROVIDED THAT THE ATTACHED PLAN WAS MADE A PART OF THE SPECIFICATIONS; AND THAT YOUR ACKNOWLEDGMENT OF THE NOTICE CLEARLY INDICATED YOUR INTENTION TO COMPLY WITH THE BID CONDITIONS RELATING TO AFFIRMATIVE ACTION REQUIREMENTS.

IN THIS REGARD, YOU CITE 51 COMP. GEN. 329 (1971), WHERE WE CONSIDERED AFFIRMATIVE ACTION PROVISIONS WHICH WERE SIMILAR TO THE EQUAL EMPLOYMENT OPPORTUNITY PROVISIONS IN THE BID CONDITIONS OF THE SUBJECT SOLICITATION. WE HELD THAT THE PROVISIONS DEFINED THE LIMITS OF BIDDERS' OBLIGATIONS REGARDING EQUAL EMPLOYMENT OPPORTUNITY AND AS SUCH THEY FORMED A MATERIAL PART OF THE BID TO WHICH ASSENT WAS PROPERLY REQUIRED OF ALL BIDDERS AT THE TIME OF BID OPENING.

IN THE CITED CASE THE LOW BIDDER FAILED TO EXECUTE THE CERTIFICATE IN PART I, AND IT ALSO FAILED TO SUBMIT AN AFFIRMATIVE ACTION PLAN AS REQUIRED BY PART II. THE CONCERN ARGUED THAT ITS ACKNOWLEDGMENT OF THE IFB AMENDMENT CONTAINING THE AFFIRMATIVE ACTION PROVISIONS, TOGETHER WITH THE EVIDENCE THAT AT THE TIME OF BID OPENING IT WAS A SIGNATORY OF THE PITTSBURGH PLAN, SHOWED THAT IT WOULD HAVE BEEN BOUND BY THE REQUIREMENTS OF THE PROVISIONS IF ITS BID WAS ACCEPTED. IT THEREFORE REQUESTED WAIVER OF ITS FAILURE TO RETURN AN EXECUTED CERTIFICATE OF THE TYPE REQUIRED BY PART I IN THE SUBJECT IFB. WE AGREED THAT THE BIDDER WOULD HAVE BEEN OBLIGATED TO COMPLY WITH THE PLAN BECAUSE OF THE ABOVE FACTORS WITH RESPECT TO THOSE TRADES WHICH HAD PREVIOUSLY BEEN COMMITTED TO THE PLAN. HOWEVER, WE FELT THAT IT WAS NOT CLEAR THAT THE CONCERN HAD SUBMITTED AN OFFER TO COMPLY WITH AN ACCEPTABLE AFFIRMATIVE ACTION PLAN FOR ANY TRADE WHICH MAY NOT HAVE BEEN COMMITTED TO THE PITTSBURGH PLAN, AND WE CONCLUDED THAT REJECTION OF THE BID WAS REQUIRED.

IN THIS CONNECTION, THE DEPARTMENT REPORTS THAT IT CONTACTED YOUR COLLECTIVE BARGAINING AGENT, THE INLAND CHAPTER OF THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, INC., CONCERNING YOUR STATEMENT THAT YOU WERE AUTOMATICALLY BOUND TO THE PLAN BY VIRTUE OF YOUR MEMBERSHIP IN THE CHAPTER. THE EXECUTIVE VICE PRESIDENT OF THE CHAPTER TOLD THE DEPARTMENT THAT THE PLAN HAS A FORMAL APPLICATION AND REPORTING FORM; THAT IT WAS NECESSARY FOR EACH MEMBER OF THE CHAPTER TO SIGN THESE DOCUMENTS BEFORE THAT CONTRACTOR WAS CONSIDERED TO BE COVERED UNDER THE PLAN; AND THAT A MEMBER WAS NOT AUTOMATICALLY BOUND TO THE PLAN BY VIRTUE OF ITS COLLECTIVE BARGAINING AGREEMENT WITH THE CHAPTER. IN VIEW OF THIS ADVICE, WE CANNOT AGREE THAT YOU WERE AUTOMATICALLY BOUND TO THE PLAN BY VIRTUE OF YOUR MEMBERSHIP IN THE CHAPTER, OR BY YOUR AGREEMENTS WITH THE TRADE UNIONS IN QUESTION, AND WE ARE THEREFORE UNABLE TO CONCLUDE THAT THE RATIONALE OF THE CITED CASE WOULD REQUIRE OR JUSTIFY A CONCLUSION THAT YOUR FAILURE TO EXECUTE THE EQUAL EMPLOYMENT OPPORTUNITY CERTIFICATE SET FORTH IN PART I OF THE SUBJECT IFB WAS A MINOR INFORMALITY.

WITH RESPECT TO YOUR ARGUMENT THAT THE NOTICE EXPRESSLY MADE THE PLAN A PART OF THE IFB AND OBVIATED THE NECESSITY FOR YOU TO EXECUTE PART I OF THE BID CONDITIONS, WE NOTE THAT THE IFB SPECIFICALLY REQUIRED BIDDERS TO INDICATE THEIR ASSENT TO THE MINORITY UTILIZATION REQUIREMENTS OF THE PLAN BY SUBMITTING AN EXECUTED PART I CERTIFICATE. IN VIEW THEREOF, AND INASMUCH AS YOU WERE NOT A SIGNATORY TO THE PLAN AT THE TIME OF BID OPENING, WE BELIEVE YOUR FAILURE TO SUBMIT A PART I CERTIFICATE CREATED DOUBT THAT YOU INTENDED TO MEET THE MINORITY HIRING GOALS, NOTWITHSTANDING THE STATEMENT IN THE NOTICE THAT THE PLAN WAS MADE A PART OF THE SPECIFICATIONS. ACCORDINGLY, WE CANNOT CONCLUDE THAT SUCH STATEMENT OBVIATED THE NEED FOR YOUR CONCERN TO SUBMIT A PART I CERTIFICATE.

YOU ALSO ALLEGE THAT YOU WOULD BE FULLY BOUND TO FOLLOW THE RULES AND REGULATIONS OF THE SECRETARY OF LABOR, INCLUDING THE SUBJECT PLAN, BY THE PROVISIONS OF THE EQUAL OPPORTUNITY CLAUSE OF STANDARD FORM (SF) 23 A, QUOTED ABOVE, AND THAT ANY IRREGULARITY REGARDING THESE REQUIREMENTS COULD HAVE BEEN CORRECTED DURING THE SUBSEQUENT PREAWARD EQUAL OPPORTUNITY COMPLIANCE REVIEW.

EVEN IF WE ASSUME, FOR THE PURPOSE OF DISCUSSION, THAT THE PLAN AND THE BID CONDITIONS IN QUESTION SHOULD BE CONSIDERED TO BE "RULES" OF THE SECRETARY OF LABOR IT IS CLEAR FROM THE ABOVE DISCUSSION THAT SUCH "RULES" REQUIRED THE EXECUTION OF CERTAIN DOCUMENTS BY BIDDERS AT THE TIME OF BID OPENING TO ENSURE THEIR COMPLIANCE WITH THESE REQUIREMENTS. CONSEQUENTLY, SINCE YOU WERE NOT A SIGNATORY OF THE PLAN, AND YOU DID NOT SUBMIT WITH YOUR BID EXECUTED AFFIRMATIVE ACTION DOCUMENTS OF THE TYPE REQUIRED BY THE SUBJECT BID CONDITIONS, YOU DID NOT COMPLY WITH THESE "RULES". IN VIEW THEREOF, WE CANNOT CONCLUDE THE DEFECT IN YOUR BID WAS CURED BY THE INCLUSION OF THE EQUAL OPPORTUNITY CLAUSE OF SF 23-A.

CONCERNING YOUR COLLATERAL ALLEGATION THAT ANY DEFECT REGARDING THE EQUAL EMPLOYMENT OPPORTUNITY PROVISIONS OF YOUR BID COULD BE RESOLVED AT THE PREAWARD EQUAL OPPORTUNITY COMPLIANCE REVIEW, THE PREAWARD EQUAL OPPORTUNITY COMPLIANCE REVIEW CLAUSE OF THE IFB PROVIDES THAT SUCH REVIEW IS MADE TO DETERMINE WHETHER THE PROSPECTIVE CONTRACTOR AND HIS SUBCONTRACTORS ARE ABLE TO COMPLY WITH THE REQUIREMENTS OF THE EQUAL OPPORTUNITY CLAUSE. IT IS THEREFORE CLEAR THAT THE REVIEW IS FOR PURPOSE OF DETERMINING THE RESPONSIBILITY OF THE PROSPECTIVE CONTRACTOR. LIMITED, MATERIAL DEVELOPED IN SUCH REVIEW MAY NOT BE USED FOR THE PURPOSE OF DETERMINING THE QUESTION AT HAND, WHICH IS THE RESPONSIVENESS OF A PROSPECTIVE CONTRACTOR'S BID. IN THIS REGARD IT HAS BEEN THE CONSISTENT POSITION OF THIS OFFICE THAT THE RESPONSIVENESS OF A BID, THAT IS, THE BIDDER'S INTENT TO COMPLY WITH ALL IFB PROVISIONS, MUST BE DETERMINED FROM THE BIDDING DOCUMENTS SUBMITTED WITHOUT RESORT TO EXTRINSIC EVIDENCE. COMP. GEN. 221 (1965). UNDER THIS VIEW, THE PREAWARD EQUAL OPPORTUNITY COMPLIANCE REVIEW IS NOT PERTINENT TO THE ISSUE, AND YOUR BID MUST BE CONSIDERED NONRESPONSIVE FOR FAILURE TO CLEARLY DEMONSTRATE YOUR INTENT TO COMPLY WITH THE REQUIREMENTS OF PART I OR PART II OF THE BID CONDITIONS IN QUESTION.

IN VIEW OF THE FOREGOING, YOUR PROTEST MUST BE DENIE ..END :