B-176328, NOV 8, 1972

B-176328, NOV 8, 1972

BID PROTEST - NONRESPONSIVE BID - AFFIRMATIVE ACTION PLAN - HOMETOWN PLAN DECISION DENYING THE PROTEST OF PETER KIEWIT SONS' COMPANY AGAINST REJECTION OF ITS BID UNDER AN IFB ISSUED BY THE CORPS OF ENGINEERS, WALLA WALLA, WASH., FOR CERTAIN CONSTRUCTION WORK. MERE ACKNOWLEDGEMENT OF AMENDMENTS TO AN IFB WHICH WOULD REQUIRE AN AFFIRMATIVE ACTION PLAN WILL NOT LEGALLY BIND A BIDDER TO THESE REQUIREMENTS. MOREOVER, A SIGNATORY TO A LOCAL HOMETOWN PLAN IS NOT EXCUSED FROM THESE REQUIREMENTS. THEREFORE, SINCE PROTESTANT FAILED TO INDICATE AN AFFIRMATIVE ACTION COMMITMENT IN HIS BID AND SUCH A REQUIREMENT IS MATERIAL, 50 COMP. GEN. 844 (1971), SUCH NON-COMPLIANCE IS CAUSE FOR REJECTION OF THE BID. ALSO, THE AFFIRMATIVE ACTION PROVISIONS IN THE IFB DO NOT VARY FROM THE PROVISIONS SET FORTH IN THE FEB. 3, 1972, ORDER OF THE SECRETARY OF LABOR.

TO PETER KIEWIT SONS' COMPANY:

REFERENCE IS MADE TO YOUR TELEFAX OF JUNE 24, 1972, AND SUBSEQUENT CORRESPONDENCE REGARDING YOUR PROTEST UNDER INVITATION FOR BIDS (IFB) DACW68-72-B-0041, ISSUED BY THE UNITED STATES ARMY CORPS OF ENGINEERS, WALLA WALLA, WASHINGTON.

THE SOLICITATION, FOR CERTAIN CONSTRUCTION WORK, WAS ISSUED MARCH 16, 1972. BY AMENDMENT 0001, DATED MARCH 23, 1972, A REQUIREMENT FOR SUBMISSION OF AN AFFIRMATIVE ACTION PLAN TO ENSURE EQUAL EMPLOYMENT OPPORTUNITY WAS ADDED TO THE IFB. THE AMENDMENT INCLUDED A CONTINUATION PAGE FOR STANDARD FORM 19-B, CAPTIONED "AFFIRMATIVE ACTION PLAN," WHICH STATED:

"THE BIDDER MUST SUBMIT THIS FORM WITH HIS BID, AND INDICATE HEREON EITHER (A) OR (B) BELOW IS APPLICABLE. IF (B) IS APPLICABLE, THE BIDDER MUST ALSO INSERT HIS MINORITY MANPOWER UTILIZATION GOALS."

BY CHOICE (A), THE BIDDER WOULD CERTIFY THAT IT WAS SIGNATORY TO A LOCAL HOMETOWN PLAN; BY CHOICE (B), THE BIDDER WAS TO SUBMIT MINORITY MANPOWER UTILIZATION GOALS FOR VARIOUS SPECIFIED CONSTRUCTION TRADES. IN BOTH INSTANCES, THE BIDDER AGREED TO COMPLY WITH THE "LOCAL AFFIRMATIVE ACTION PLAN" CLAUSE OF THE CONTRACT. AMENDMENT NO. 4, DATED APRIL 28, 1972, REVISED THE SECTION NUMBER OF THIS CLAUSE.

ALTHOUGH YOU ACKNOWLEDGED RECEIPT OF THESE AMENDMENTS, YOU DID NOT SUBMIT THE AFFIRMATIVE ACTION PLAN PAGE WITH YOUR BID, AND THE CONTRACTING OFFICER RULED THAT THE BID WAS NONRESPONSIVE. YOU PROTESTED TO THE CORPS OF ENGINEERS, BUT THIS PROTEST WAS DENIED ON JUNE 19, 1972, AND YOU THEN PROTESTED TO THIS OFFICE.

IT IS WELL ESTABLISHED THAT BIDS WHICH DO NOT CONFORM TO THE REQUIREMENTS OF A SOLICITATION MUST BE REJECTED AS NONRESPONSIVE, UNLESS THE DEVIATION IS IMMATERIAL OR IS A MATTER OF FORM RATHER THAN SUBSTANCE. ANY DEVIATION WHICH AFFECTS PRICE, QUANTITY OR QUALITY IS CONSIDERED MATERIAL AND IS CAUSE FOR REJECTION. 30 COMP. GEN. 179 (1950). IN THIS RESPECT, WE HAVE CONSISTENTLY HELD THAT AFFIRMATIVE ACTION PLAN REQUIREMENTS ARE MATERIAL. 50 COMP. GEN. 844 (1971); B 174932, MARCH 3, 1972; B-174307, APRIL 10, 1972.

YOU ASSERT THAT BY ACKNOWLEDGING AMENDMENTS 0001 AND 0004, YOU WOULD BE BOUND BY THE AFFIRMATIVE ACTION PROVISIONS CONTAINED THEREIN. YOU ALSO CLAIM THAT SINCE YOU ARE A SIGNATORY TO THE SPOKANE PLAN, "COMPLETION OF SHEET 19-B CONT'D. INVOLVES ONLY THE CHECKING OF A BLOCK AND DID NOT REQUIRE COMMITMENT TO SPECIFIC GOALS ***" AND YOUR FAILURE TO COMPLETE IT IS THEREFORE A MINOR DEVIATION WHICH MAY BE WAIVED. WE DO NOT AGREE.

AMENDMENTS 0001 AND 0004 ADDED THE FOLLOWING PERTINENT PROVISIONS TO THE IFB:

"READ THE FOLLOWING IN CONJUNCTION WITH INSTRUCTIONS TO BIDDERS, U.S. STANDARD FORM 22:

17. NOTICE OF REQUIREMENT FOR SUBMISSION OF AFFIRMATIVE ACTION PLAN TO ENSURE EQUAL EMPLOYMENT OPPORTUNITY. (TO BE ELIGIBLE FOR AWARD OF A CONTRACT EXCEEDING $10,000, EACH BIDDER MUST FULLY COMPLY WITH THE REQUIREMENTS, TERMS, AND CONDITIONS OF THIS NOTICE.)

17.1 THE BIDDER SHALL SUBMIT WITH HIS BID AN AFFIRMATIVE ACTION PLAN THAT COMPLIES WITH ONE OF THE FOLLOWING ALTERNATIVES:

(1) HE SHALL CERTIFY THAT HE IS SIGNATORY TO THE HOMETOWN PLAN (AS HEREINAFTER DEFINED), EITHER INDIVIDUALLY OR THROUGH AN ASSOCIATION, AND THAT HE WILL COMPLY WITH THE REQUIREMENTS OF THE CONTRACT CLAUSE: LOCAL AFFIRMATIVE ACTION PLAN IN THE PERFORMANCE OF THE CONTRACT THAT MAY BE AWARDED PURSUANT TO THIS SOLICITATION: OR

(2) HE SHALL SUBMIT PERCENTAGE GOALS FOR MINORITY MANPOWER UTILIZATION, WITHIN THE RANGES SET FORTH BELOW, FOR ALL HIS CONSTRUCTION WORK IN THE COVERED AREA (WHETHER DONE UNDER CONTRACT WITH THE FEDERAL GOVERNMENT OR OTHERWISE) DURING THE TERM OF THE CONTRACT THAT MAY BE AWARDED PURSUANT TO THIS SOLICITATION, AND HE SHALL AGREE TO PURSUE THESE GOALS IN ACCORDANCE WITH, AND TO COMPLY WITH, THE CLAUSE: LOCAL AFFIRMATIVE ACTION PLAN OF THE GENERAL PROVISIONS. EACH GOAL IS TO BE EXPRESSED AS A PERCENTAGE, REPRESENTING THE RATIO OF MANHOURS OF WORK OR TRAINING OF MINORITY PERSONS TO THE TOTAL MANHOURS TO BE WORKED ON ALL OF THE BIDDER'S CONSTRUCTION WORK IN THE COVERED AREA, INCLUDING THE PROJECT TO RESULT FROM THIS SOLICITATION.

THE ACCEPTABLE RANGES OF MINORITY MANPOWER UTILIZATION, EXPRESSED IN PERCENTAGE TERMS, ARE AS FOLLOWS:

(THERE FOLLOWED A LISTING OF SPECIFIC TRADES AND RANGES FOR VARIOUS CALENDAR PERIODS.)

17.5 IF THE BIDDER FAILS OR REFUSES TO COMPLETE AND SUBMIT AN AFFIRMATIVE ACTION PLAN WITH HIS BID, OR IF ANY PERCENTAGE GOALS FALL BELOW THE RANGES OF MINORITY MANPOWER UTILIZATION SET FORTH ABOVE, THE BID OR PROPOSAL SHALL BE CONSIDERED NONRESPONSIVE AND WILL BE REJECTED.

71. LOCAL AFFIRMATIVE ACTION PLAN

(A) AS USED IN THIS CLAUSE:

(1) 'HOMETOWN PLAN' OR 'PLAN' MEANS THE FORMAL AGREEMENT AMONG CONTRACTORS, UNIONS, AND MINORITY REPRESENTATIVES DESCRIBED IN THE SOLICITATION FROM WHICH THIS CONTRACT RESULTED;

(B) WHENEVER THE CONTRACTOR, OR ANY SUBCONTRACTOR AT ANY TIER, SUBCONTRACTS A PORTION OF THE WORK IN ANY CONSTRUCTION TRADE, HE SHALL INCLUDE IN SUCH SUBCONTRACT THE PROVISIONS OF THIS CLAUSE AND ANY APPLICABLE MINORITY MANPOWER UTILIZATION GOALS UNDER THIS CONTRACT, WHICH SHALL BE ADOPTED BY HIS SUBCONTRACTOR, WHO SHALL WITH REGARD TO HIS OWN EMPLOYEES AND SUBCONTRACTORS BE BOUND THEREBY TO THE FULL EXTENT AS IF HE WERE THE CONTRACTOR.

(C) IF THE CONTRACTOR IS SIGNATORY TO THE PLAN, EITHER INDIVIDUALLY OR THROUGH AN ASSOCIATION, AND SO CERTIFIED WITH HIS BID, HIS AFFIRMATIVE ACTION PROGRAM SHALL BE IN ACCORDANCE WITH THE PLAN. ***

(D) IF THE CONTRACTOR IS NOT SIGNATORY TO THE PLAN, OR, EVEN IF SIGNATORY, DID NOT SO CERTIFY WITH HIS BID, HIS AFFIRMATIVE ACTION PROGRAM SHALL BE IN ACCORDANCE WITH THIS CLAUSE AND HIS MINORITY MANPOWER UTILIZATION GOALS SUBMITTED WITH HIS BID. HOWEVER, IF AT ANY TIME AFTER THE OPENING OF HIS BID, THE CONTRACTOR CERTIFIES THAT HE IS SIGNATORY TO THE PLAN, HIS AFFIRMATIVE ACTION PROGRAM FROM THE TIME OF SUCH CERTIFICATION SHALL BE IN ACCORDANCE WITH THE PLAN, SUBJECT TO THE PROVISIONS OF PARAGRAPH (C) ABOVE.

(E) THE CONTRACTOR'S MINORITY MANPOWER UTILIZATION GOALS SUBMITTED WITH HIS BID EXPRESS HIS COMMITMENT OF THE MANHOURS OF EMPLOYMENT AND TRAINING OF MINORITY WORKERS HE WILL UNDERTAKE IN EACH CONSTRUCTION TRADE AS A PERCENTAGE OF THE TOTAL MANHOURS TO BE WORKED IN THAT CONSTRUCTION TRADE ON ALL OF THE CONTRACTOR'S CONSTRUCTION WORK IN THE COVERED AREA DURING THE TERM OF THIS CONTRACT. ***

(H) THE CONTRACTOR SHALL TAKE AFFIRMATIVE ACTION TO INCREASE HIS MINORITY MANPOWER UTILIZATION, INCLUDING BUT NOT LIMITED TO THE FOLLOWING STEPS:

(THERE FOLLOWED 16 AFFIRMATIVE ACTIONS TO BE TAKEN.)

(K) IN THE EVENT THAT A CONSTRUCTION TRADE IS USED IN THE PERFORMANCE OF THIS CONTRACT FOR WHICH NO GOAL WAS SUBMITTED IN THE CONTRACTOR'S AFFIRMATIVE ACTION PLAN, OR THAT ANY WORK OR ACTIVITY UNDER THIS CONTRACT TAKES PLACE IN A YEAR FOR WHICH NO GOALS WERE SUBMITTED, THE CONTRACTOR WILL BE CONSIDERED TO HAVE SUBMITTED AS GOALS THE MINIMUM PERCENTAGE FROM THE ACCEPTABLE RANGE FOR THE PARTICULAR TRADE FOR THE PERTINENT YEAR.

(1) IN THE EVENT THAT ANY WORK OR ACTIVITY UNDER THIS CONTRACT TAKES PLACE IN A YEAR LATER THAN THE LATEST YEAR FOR WHICH AN ACCEPTABLE RANGE OF MINORITY MANPOWER UTILIZATION WAS PROVIDED IN THE SOLICITATION FROM WHICH THIS CONTRACT RESULTED, THE GOALS FOR SAID LATEST YEAR SHALL APPLY."

WE DO NOT BELIEVE THAT ACKNOWLEDGMENT OF THE AMENDMENTS ALONE WOULD LEGALLY BIND A BIDDER TO THE AFFIRMATIVE ACTION REQUIREMENTS OF THE IFB. IN 51 COMP. GEN. 329, 332 (1971), WE STATED THAT A BIDDER'S COMMITMENT TO COMPLY WITH THE LOCAL AFFIRMATIVE ACTION PLAN "WAS SUFFICIENTLY EVIDENCED BY YOUR ACKNOWLEDGMENT OF AMENDMENT 4, BY THE STATEMENT THAT YOUR BID WAS SUBMITTED ACCORDINGLY, AND BY THE EVIDENCE OF RECORD THAT AT THE TIME OF BID OPENING YOU WERE A SIGNATORY" OF THE PLAN. HOWEVER, WE UPHELD REJECTION OF THE BID BECAUSE THERE WAS NO DEFINITE COMMITMENT TO COMPLY WITH THE AFFIRMATIVE ACTION PLAN REQUIREMENTS OF THE SOLICITATION WITH RESPECT TO TRADES NOT COVERED BY THE LOCAL PLAN. IN THIS CASE, A BIDDER COULD EITHER CERTIFY THAT HE WAS SIGNATORY TO THE SPOKANE PLAN AND AGREED TO COMPLY WITH THE "LOCAL AFFIRMATIVE ACTION PLAN" CLAUSE OF THE SOLICITATION OR, WHETHER OR NOT SIGNATORY, SET FORTH MINIMUM GOALS FOR MINORITY MANPOWER UTILIZATION WHICH WOULD REPRESENT THE AFFIRMATIVE ACTION COMMITMENT. YOU HAD THE OPTION TO SELECT ONE CHOICE OR THE OTHER. CANNOT SEE HOW A BINDING CONTRACTUAL COMMITMENT COULD RESULT WHEN YOU FAILED TO SELECT EITHER OR EVEN TO RETAIN THE AFFIRMATIVE ACTION PLAN PAGE ON WHICH THE CHOICE WAS TO BE MADE. THE FACT THAT YOU WERE SIGNATORY TO THE SPOKANE PLAN DOES NOT BY ITSELF CONSTITUTE A COMMITMENT TO THE GOVERNMENT, WITH ALL OF THE CONSEQUENCES OF FAILURE TO COMPLY, TO MEET THE STANDARDS OF THE LOCAL PLAN UNDER ANY RESULTING CONTRACT. SEE B-175099, APRIL 13, 1972.

WE HAVE CONSISTENTLY DENIED PROTESTS OF BIDDERS WHO FAILED TO COMMIT THEMSELVES TO AFFIRMATIVE ACTION PLAN REQUIREMENTS SIMILAR TO THOSE CONTAINED IN THIS IFB. 50 COMP. GEN. 844 (1971); B-174932, MARCH 3, 1972; B-175099, APRIL 13, 1972. UNDER THE AFFIRMATIVE ACTION PLAN PROGRAM A BIDDER MUST COMMIT ITSELF, PRIOR TO BID OPENING, TO THE AFFIRMATIVE ACTION REQUIREMENTS "EITHER IN THE MANNER SPECIFIED IN THE SOLICITATIONS OR BY A SEPARATE STATEMENT CONSTITUTING A DEFINITE COMMITMENT" TO THE REQUIREMENTS. B-174932, SUPRA. THAT DEFINITE COMMITMENT IS LACKING HERE.

WE DO NOT AGREE WITH YOUR ARGUMENT THAT SIGNATORIES TO THE LOCAL PLAN NEED NOT HAVE CHECKED THE BLOCK BECAUSE COMMITMENT TO SPECIFIC GOALS WERE NOT REQUIRED. IT IS CLEAR THAT A BIDDER CHECKING CHOICE (A) IS CERTIFYING NOT ONLY THAT IT IS A MEMBER OF THE LOCAL PLAN, BUT ALSO THAT IT WILL COMPLY WITH AFFIRMATIVE ACTION REQUIREMENTS OF THE IFB FOR TRADES NOT COVERED BY THE PLAN, EITHER CURRENTLY OR DURING FUTURE PERFORMANCE OF THE LOCAL PLAN. THEREFORE, WE ARE OF THE VIEW THAT FAILURE TO COMPLETE THE AFFIRMATIVE ACTION PLAN PAGE IS A MATERIAL DEVIATION. IN B-175243, WHICH YOU CITE, BIDDERS WERE REQUIRED TO INDICATE ON THEIR BIDS THE NUMBER OF FEET PER POUND OF JUTE TWINE THEY PROPOSED TO FURNISH. WE HELD THAT A BIDDER'S FAILURE TO INDICATE THE FOOTAGE PER POUND WAS NOT A MATERIAL DEVIATION BECAUSE IT WAS "CLEAR FROM THE TERMS OF THE IFB THAT THE SUCCESSFUL BIDDER WOULD BE OBLIGATED TO FURNISH NOT LESS THAN THE STATED MINIMUM FEET PER POUND *** WITH OR WITHOUT COMPLETING THE BLANK PROVIDED." HERE, HOWEVER, AS WE HAVE INDICATED ABOVE, WE DO NOT BELIEVE THAT YOU WERE BOUND TO COMPLY WITH THE AFFIRMATIVE ACTION PROVISIONS OF THE IFB WITHOUT A DEFINITE EXPRESSION IN YOUR BID OF YOUR COMMITMENT TO DO SO.

YOU ALSO CLAIM THAT FORM 19-B CONTINUED WAS INAPPROPRIATELY PLACED IN THE GENERAL PROVISIONS SECTION OF AMENDMENT 0001 RATHER THAN IN THE BID DOCUMENTS SECTION, AND THAT THIS INDUCED YOU AND CERTAIN OTHER BIDDERS TO OMIT THE FORM FROM THE BIDS. WE DO NOT THINK THE PLACEMENT OF THE PAGE CAN EXCUSE A BIDDER'S FAILURE TO COMPLY WITH SOLICITATION REQUIREMENTS. THE IFB REQUIRED SUBMISSION OF AN AFFIRMATIVE ACTION PLAN, EITHER IN THE MANNER SPECIFIED OR EQUIVALENT MEANS. YOU FAILED TO COMPLY WITH THIS MATERIAL REQUIREMENT OF THE SOLICITATION.

FINALLY, YOU CLAIM THAT THE AFFIRMATIVE ACTION PROVISIONS USED IN THE IFB WERE ILLEGAL AND INVALID BECAUSE THEY VARIED FROM THE PROVISIONS SET FORTH IN THE FEBRUARY 3, 1972 ORDER OF THE SECRETARY OF LABOR, WHICH WAS APPLICABLE TO ALL FEDERAL AGENCIES AND DEALT WITH THE BID CONDITIONS TO BE USED IN SOLICITATIONS FOR CONSTRUCTION WORK IN THE SPOKANE, WASHINGTON AREA. YOU ALSO STATE THAT YOUR BID WAS RESPONSIVE TO THE PROVISIONS THAT SHOULD HAVE BEEN USED IN THE IFB. WE HAVE BEEN INFORMALLY ADVISED BY THE DEPARTMENT OF LABOR THAT WHILE THE SECRETARY'S ORDER IS BINDING ON ALL FEDERAL AGENCIES, THE DEPARTMENT DOES NOT OBJECT TO THE USE OF BID SOLICITATION PROVISIONS WHICH DIFFER FROM THOSE SET FORTH IN THE ORDER, SO LONG AS THE SUBSTITUTE PROVISIONS COMPLY WITH THE THRUST AND GENERAL INTENT OF THE ORDER. THE LABOR DEPARTMENT BELIEVES THAT THE PROVISIONS USED IN THIS IFB SATISFY THE REQUIREMENTS OF THE ORDER, AND WE CANNOT FIND ANY BASIS TO DISAGREE. FURTHERMORE, WE DO NOT UNDERSTAND HOW YOUR BID COULD BE CONSIDERED RESPONSIVE TO PROVISIONS IN THE ORDER, SINCE THEY REQUIRED THAT ALL BIDS INCLUDE A SIGNED CERTIFICATION OF COMPLIANCE WITH THE SPOKANE PLAN AND WITH THE AFFIRMATIVE ACTION PROVISIONS OF THE BID CONDITIONS SET FORTH THEREIN. YOUR BID, OF COURSE, CONTAINED NO SUCH CERTIFICATION.

FOR THE FOREGOING REASON, WE MUST DENY YOUR PROTEST.