B-176372, NOV 8, 1972

B-176372, NOV 8, 1972

BID PROTEST - AFFIRMATIVE ACTION PLAN - MATERIAL DEVIATION DECISION DENYING THE PROTEST OF BUILDING MAINTENANCE CORPORATION, AGAINST AWARD OF A CONTRACT TO THE WESTERN WATERPROOFING COMPANY UNDER AN IFB ISSUED BY VETERANS ADMINISTRATION HOSPITAL, LITTLE ROCK, ARK. AN AFFIRMATIVE ACTION PLAN REQUIREMENT IS MATERIAL AND IS TO BE CONSTRUED TO REQUIRE A BIDDER TO COMMIT ITSELF PRIOR TO BID OPENING TO SUCH A PLAN, WITHER IN THE MANNER SPECIFIED IN THE SOLICITATION OR BY A SEPARATE STATEMENT CONSTITUTING A DEFINITE COMMITMENT TO THE REQUIREMENTS. ACCORDINGLY, A BIDDER WHO HAS NOT SO COMMITTED HIMSELF MAY NOT HAVE HIS DEVIATION WAIVED OR CORRECTED AFTER BID OPENING, B 174932, MAR. 3, 1972.

TO BUILDING MAINTENANCE CORPORATION:

WE REFER TO YOUR LETTER DATED JULY 5, 1972, AND PRIOR CORRESPONDENCE, PROTESTING AGAINST THE AWARD OF A CONTRACT TO THE WESTERN WATERPROOFING COMPANY, ON JUNE 27, 1972, UNDER INVITATION FOR BIDS NO. 598-104-72, ISSUED BY THE SUPPLY DIVISION, VETERANS ADMINISTRATION HOSPITAL, LITTLE ROCK, ARKANSAS.

YOUR LOW BID WAS REJECTED AS NONRESPONSIVE SINCE YOU FAILED TO COMPLETE THE AFFIRMATIVE ACTION PLAN REQUIREMENTS OF THE IFB BID CONDITIONS. THE AFFIRMATIVE ACTION PLAN REQUIREMENTS, WHICH YOU FAILED TO COMPLETE, READS AS FOLLOWS:

"(D) BID CONDITIONS - 'LITTLE ROCK PLAN': YOUR ATTENTION IS CALLED TO THE ATTACHED BID CONDITIONS, WHICH ARE MADE A PART OF THIS BID, SETTING FORTH AFFIRMATIVE ACTION REQUIREMENTS FOR ALL NONEXEMPT FEDERAL AND FEDERALLY ASSISTED CONSTRUCTION CONTRACTS TO BE AWARDED IN PULASKI COUNTY, ARKANSAS.

"THE BID CONDITIONS FOR THE LITTLE ROCK PLAN SET FORTH THE AFFIRMATIVE ACTION EQUAL OPPORTUNITY REQUIREMENT ACCEPTABLE TO THE OFFICE OF FEDERAL CONTRACTS COMPLIANCE (OFCC), DEPARTMENT OF LABOR, AND IS APPLICABLE TO CONTRACTS EXCEEDING $10,000.00.

"ALL BIDDERS MUST COMPLY WITH PART I AND/OR PART II OF THESE BID CONDITIONS. A BIDDER WHO IS SIGNATORY TO THE LITTLE ROCK PLAN CAN BE DEEMED TO BE RESPONSIVE BY SUBMITTING AS PART OF HIS BID THE CERTIFICATION REQUIRED BY PART I. A BIDDER WHO IS NOT SIGNATORY TO THE LITTLE ROCK PLAN CAN BE DEEMED TO BE RESPONSIVE BY SUBMITTING WITH HIS BID, A WRITTEN AFFIRMATIVE ACTION PLAN WHICH EMBODYS BOTH (1) THE GOALS AND TIMETABLES AS SHOWN ON PAGE 6 OF ATTACHMENT 'A', AND (2) SPECIFIC AFFIRMATIVE ACTION STEPS, WHICH MUST BE AT LEAST AS EXTENSIVE AND AS SPECIFIC AS THE SIXTEEN STEPS LISTED PAR. 2(A) THRU (P), PAGES 9, 10 AND 11 OF ATTACHMENT 'A'.

"A BIDDER WHO COMPLIES WITH PART II MAY SUBMIT PART II WITH HIS BID, ALONG WITH HIS CERTIFICATION SHOWN ON ATTACHMENT 'B' IN LIEU OF SUBMITTING HIS SEPARATE WRITTEN PLAN.

"THE PROVISIONS OF PART I OR PART II MUST BE MET, OR THE BID WILL BE CONSIDERED AS NON-RESPONSIVE."

YOUR CORRESPONDENCE ADMITS TO THE FACT THAT YOU ARE NOT A SIGNATORY TO THE LITTLE ROCK PLAN, THE AFFIRMATIVE ACTION PLAN APPLICABLE TO THE CONTRACT TO THE AWARD UNDER THE IFB. YOU POINT OUT THAT BUILDING MAINTENANCE CORPORATION HAS ANNOUNCED ITS WILLINGNESS TO ADHERE TO ALL REQUIREMENTS OF THE SOLICITATION. FURTHER, YOU STATE THAT EIGHTY PERCENT OF YOUR EMPLOYEES ARE MINORITY MEMBERS, WHICH FAR EXCEEDS THE GOALS REQUIRED UNDER THE APPLICABLE AFFIRMATIVE ACTION REQUIREMENTS. HOWEVER, YOUR PRESENT MINORITY UTILIZATION CAN NOT BE ACCEPTED AS A SUBSTITUTE FOR COMPLIANCE WITH THE ABOVE REQUIREMENTS SINCE PAST PERFORMANCE DOES NOT IN AND OF ITSELF CONSTITUTE THE NECESSARY COMMITMENT TO FUTURE AFFIRMATIVE ACTION. IN THIS REGARD THE VETERANS ADMINISTRATION HAS INFORMED OUR OFFICE THAT IT IS NOT UNCOMMON FOR CONTRACTORS TO BID FOR AWARDS IN VARIOUS PARTS OF THE COUNTRY WITH NO INTENTION OF TRANSPORTING THEIR MINORITY WORK FORCE TO THE LOCALE WHERE THE WORK IS TO BE PERFORMED. INSTEAD, THE CONTRACTOR WILL HIRE AT THE JOB SITE THEREBY NEGATING THE UTILITY OF USING PRIOR LOCAL HIRING PRACTICES AS A MEANINGFUL GUIDE FOR FUTURE PRACTICE.

WE QUOTE FROM OUR DECISION B-174932, MARCH 3, 1972, AS ILLUSTRATIVE OF THE RATIONALE TO BE EMPLOYED IN CASES OF THIS TYPE.

"IN B-172819, DECEMBER 1, 1971 (51 COMP. GEN. ), AND B-174259, JANUARY 5, 1972, WE CONSIDERED PROCUREMENT SOLICITATIONS WHICH INCLUDED AFFIRMATIVE ACTION REQUIREMENTS WORDED SIMILAR TO THE REQUIREMENTS WHICH ARE SET FORTH IN IFB 528-32-72. WE HELD THAT SUCH REQUIREMENTS ARE MATERIAL, AND WE CONSTRUED THE LANGUAGE USED IN THE SOLICITATIONS AS REQUIRING A BIDDER TO 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. WE THEREFORE FURTHER HELD THAT A BIDDER WHO FAILS TO MAKE SUCH A PREBID OPENING COMMITMENT MAY NOT HAVE THE DEVIATION WAIVED, NOR MAY THE BIDDER BE PERMITTED TO CORRECT THE DEFICIENCY AFTER BID OPENING SO AS TO RENDER THE BID ELIGIBLE FOR CONSIDERATION FOR AWARD."

IN VIEW OF THE FOREGOING, WE MUST CONCLUDE THAT THE CONTRACTING AGENCY PROPERLY REJECTED YOUR BID AS NONRESPONSIVE SINCE NEITHER YOUR BID NOR YOUR PROFFERED INTENTION OF COMPLIANCE WITH THE GOALS APPLICABLE TO THE IFB CONSTITUTES A COMMITMENT TO THE SPECIFIC AFFIRMATIVE ACTION PLAN REQUIREMENTS OF THE IFB.