B-176469, NOV 17, 1972

B-176469, NOV 17, 1972

BID PROTEST - FAILURE TO ACKNOWLEDGE AMENDMENT - PREVAILING WAGE RATE DECISION CONCERNING THE DENIAL OF PROTEST BY FOREST BUILDER, AGAINST THE REJECTION OF ITS LOW BID UNDER AN IFB ISSUED BY THE ARMY ENGINEER DISTRICT, PITTSBURGH, PA. THE FAILURE OF A BIDDER TO ACKNOWLEDGE, PRIOR TO BID OPENING, RECEIPT OF AN AMENDMENT WHICH WOULD EFFECT THE PRICE, QUALITY OR QUANTITY OF THE PROCUREMENT RENDERS THE BID NON-RESPONSIVE. SINCE THE FOREST BUILDER'S BID DID NOT ACKNOWLEDGE AMENDMENT 0001, WHICH IMPOSED MATERIAL WAGE RATE OBLIGATIONS UPON THE PROSPECTIVE CONTRACTOR, THE COMP. GEN. CONCURS WITH THE REJECTION OF THE BID. ACCORDINGLY, THE PROTEST IS DENIED.

TO COOPER, SCHWARTZ, DIAMOND & REICH:

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 22, 1972, AND PRIOR CORRESPONDENCE, PROTESTING, ON BEHALF OF FOREST BUILDERS, AGAINST THE REJECTION OF ITS LOW BID UNDER INVITATION FOR BIDS (IFB) NO. DACW59-72 B- 0074, ISSUED BY THE ARMY ENGINEER DISTRICT, PITTSBURGH, PENNSYLVANIA.

THE BASIS FOR THE REJECTION OF THE FOREST BUILDERS BID WAS THE FIRM'S ADMITTED FAILURE TO ACKNOWLEDGE, IN ITS BID, OR AT ANY TIME PRIOR TO BID OPENING, AMENDMENT 0001 DATED 11 DAYS BEFORE BID OPENING. THAT AMENDMENT CONTAINED A WAGE RATE MODIFICATION ADDING THREE CRAFTS OF WORK, TOGETHER WITH APPLICABLE MINIMUM WAGE RATES PRESCRIBED BY THE SECRETARY OF LABOR TO BE PAID BY THE CONTRACTOR DURING THE PERFORMANCE OF THE CONTRACT. BIDDERS WERE WARNED BY A NOTICE IN THE IFB THAT "FAILURE TO ACKNOWLEDGE ALL AMENDMENTS MAY CAUSE THE REJECTION OF THE BID." ALSO, AMENDMENT 0001 WARNED BIDDERS THAT THE FAILURE TO ACKNOWLEDGE RECEIPT OF THE AMENDMENT PRIOR TO BID OPENING "MAY RESULT IN REJECTION OF YOUR OFFER." THE PROCURING ACTIVITY ESTIMATED THE COST IMPACT OF AMENDMENT 0001 TO BE $9,928.

FIRST, YOU CONTEND THAT THE FAILURE TO ACKNOWLEDGE THE AMENDMENT SHOULD BE WAIVED SINCE THE FIRM IS FAMILIAR WITH THE FACTORS CREATED BY WAGES IN A CONSTRUCTION JOB, AS HERE, AND, PRACTICALLY SPEAKING, IN MOST CASES, WAGES IN EXCESS OF THOSE CONTAINED IN WAGE RATE DETERMINATIONS WILL BE PAID. SECOND, YOU CONTEND THAT THE AMENDMENT HAD NO ADVERSE EFFECT ON THE GOVERNMENT SINCE ALL CONTRACTS ARE SUBJECT TO THE DAVIS-BACON ACT AND REQUIRE THE CONTRACTOR TO PAY THE PREVAILING WAGE RATES IN THE AREA WHERE THE WORK IS BEING ACCOMPLISHED. THIRD, YOU CONTEND THAT AMENDMENT 0001 WAS NEITHER RECEIVED BY THE FIRM NOR WAS THE FIRM CONTACTED AND GIVEN AN OPPORTUNITY TO RESPOND TO THE PROVISIONS OF THE AMENDMENT.

THE FOLLOWING QUOTATION FROM OUR DECISION B-175936, JUNE 20, 1972, INVOLVING A SIMILAR FACTUAL SITUATION IS DISPOSITIVE OF YOUR FIRST AND SECOND CONTENTIONS:

"THE FAILURE OF A BIDDER TO ACKNOWLEDGE, PRIOR TO BID OPENING, RECEIPT OF AN AMENDMENT WHICH COULD AFFECT THE PRICE, QUALITY OR QUANTITY OF THE PROCUREMENT RENDERS THE BID NONRESPONSIVE. THE BASIS FOR THIS RULE IS THAT GENERALLY THE BIDDER WOULD HAVE AN OPTION TO DECIDE SUBSEQUENT TO BID OPENING TO BECOME ELIGIBLE FOR AWARD BY FURNISHING EXTRANEOUS EVIDENCE THAT THE ADDENDUM HAD BEEN CONSIDERED OR TO AVOID AWARD BY REMAINING SILENT. IN VIEW OF THE FACT THAT AMENDMENT 5 INCREASED THE WAGE RATES PAYABLE UNDER ANY RESULTING CONTRACT WHICH DIRECTLY AFFECTS THE PRICE OF THE CONTRACT, WE FIND THAT THE IFB PROVISION REQUIRING THE PAYMENT OF MINIMUM WAGE RATES PRESCRIBED BY THE SECRETARY OF LABOR WAS A MATERIAL REQUIREMENT. AS WE HAVE STATED BEFORE -

"'IT IS OUR VIEW THAT A BIDDER WHO FAILED TO INDICATE BY ACKNOWLEDGMENT OF THE AMENDMENT OR OTHERWISE THAT HE HAD CONSIDERED THE WAGE SCHEDULE COULD NOT, WITHOUT HIS CONSENT, BE REQUIRED TO PAY THE WAGE RATES WHICH WERE PRESCRIBED THEREIN BUT WHICH WERE NOT SPECIFIED IN THE ORIGINAL IFB, NOTWITHSTANDING THAT IT IS ALLEGED THAT HE ALREADY IS PAYING THE SAME OR HIGHER WAGE RATES UNDER AGREEMENTS WITH LABOR UNIONS OR OTHER ARRANGEMENTS. SEE B-160257, DECEMBER 15, 1966.' B 171062, DECEMBER 17, 1970.

SEE, ALSO, 51 COMP. GEN. 500 (B-174647, FEBRUARY 10, 1972) AND B 169581, MAY 8, 1970. CONTINUING IN THIS VEIN, SEE OUR DECISION B 171062, SUPRA, WHEREIN WE QUOTED WITH APPROVAL THE FOLLOWING LANGUAGE OF OUR DECISION IN B-160257, DECEMBER 15, 1966, AS FOLLOWS:

"'*** THE CONTROLLING CONSIDERATION IN CASES OF THIS TYPE IS WHETHER, UNDER THE CIRCUMSTANCES PRESENTED, IT CAN BE CONCLUDED THAT THE BIDDER HAS, AT THE TIME OF BID OPENING, LEGALLY BOUND ITSELF TO THE TERMS AND CONDITIONS SET FORTH IN THE ADDENDUM. IT IS NOT ENOUGH THAT THE BIDDER MAY BE AWARE OF THE PREVAILING WAGE RATES OR WHATEVER OTHER TERMS MAY BE SET FORTH IN THE ADDENDUM. THE QUESTION, RATHER, IS WHETHER THE BIDDER HAS MANIFESTED HIS ASSENT TO THE TERMS OF THE ADDENDUM PRIOR TO BID OPENING OR, UNDER THE CIRCUMSTANCES, CAN LEGALLY BE HELD BOUND TO THE TERMS IN THE ADDENDUM ON THE BASIS OF HIS BID AS SUBMITTED. ***'"

SEE, ALSO, 51 COMP. GEN., SUPRA, WHEREIN WE QUOTED WITH APPROVAL FROM OUR DECISION OF NOVEMBER 9, 1965, B-157832, AS FOLLOWS:

"'*** AS STATED PREVIOUSLY, THE REQUIREMENTS OF THE DAVIS-BACON ACT WERE MET WHEN THE AMENDMENT FURNISHING THE MINIMUM WAGE SCHEDULE WAS ISSUED, THE PURPOSE OF THE ACT BEING TO MAKE DEFINITE AND CERTAIN AT THE TIME OF THE CONTRACT AWARD THE CONTRACT PRICE AND THE MINIMUM WAGES TO BE PAID THEREUNDER. ***'"

AS TO YOUR THIRD CONTENTION, THE PROCURING ACTIVITY ADVISED THAT THE FIRM WAS MAILED AN ADVANCE NOTICE TO BIDDERS - REQUEST CARD ADVISING IT OF THE IMPENDING INVITATION AND REQUESTING ADVICE AS TO WHETHER OR NOT IT INTENDED TO SUBMIT A BID. FOREST BUILDERS RESPONDED BY INSERTING AN APPROPRIATE MARK ON THE CARD ADJACENT TO THE STATEMENT: "WE DO NOT EXPECT TO SUBMIT A BID ON THIS WORK." WE BELIEVE THIS CONSTITUTES AN ADEQUATE JUSTIFICATION FOR THE FAILURE OF THE PROCUREMENT ACTIVITY TO SUPPLY THE FIRM WITH THE PROCUREMENT DOCUMENTS. APPARENTLY, THE FIRM UTILIZED FOR BIDDING PURPOSES A COPY OF THE IFB OBTAINED FROM ANOTHER PROSPECTIVE BIDDER.

THEREFORE, AS HERE, ABSENT A CONSCIOUS OR DELIBERATE ATTEMPT TO PRECLUDE THE FIRM FROM PARTICIPATING IN THE PROCUREMENT, THERE IS NO LEGAL JUSTIFICATION TO TAKE CORRECTIVE ACTION IN THIS INSTANCE. MOREOVER, IT WOULD NOT BE PERMISSIBLE TO PERMIT A BIDDER TO CORRECT A MATERIAL DEFICIENCY AFTER BID OPENING AND AWARD TO ANOTHER BIDDER EVEN THOUGH IT HAD NOT RECEIVED A MATERIAL AMENDMENT. SEE B-175837, SEPTEMBER 28, 1972. SINCE THE FOREST BUILDERS BID DID NOT ACKNOWLEDGE AMENDMENT 0001, WHICH IMPOSED MATERIAL WAGE RATE OBLIGATIONS UPON THE PROSPECTIVE CONTRACTOR, WE CONCUR WITH THE REJECTION OF THE BID AS NONRESPONSIVE.