B-177509, APR 13, 1973

B-177509, APR 13, 1973

DENIAL OF PROTEST AGAINST AWARD UNDER GENERAL SERVICES ADMINISTRATION IFB GS-00B-01421, WRITTEN ON BEHALF OF NASTASI-WHITE, INC., ALLEGING, INTER ALIA, MISTAKE IN BID.

TO MATZKIN & DAY:

THIS IS IN REFERENCE TO THE DECEMBER 12, 1972, TELEGRAM FROM NASTASI WHITE, INCORPORATED, AND TO YOUR SUBSEQUENT CORRESPONDENCE ON ITS BEHALF, PROTESTING AGAINST AWARD OF A CONTRACT UNDER INVITATION FOR BIDS GS-00B- 01421, ISSUED BY THE GENERAL SERVICES ADMINISTRATION, WASHINGTON, D.C.

THE SOLICITATION WAS FOR CARPENTRY, THERMAL INSULATION AND MISCELLANEOUS REPAIR WORK TO BE PERFORMED ON THE U.S. COURT HOUSE AND FEDERAL OFFICE BUILDING PROJECT, PHILADELPHIA, PENNSYLVANIA. STANDARD FORM 19B, "REPRESENTATIONS AND CERTIFICATIONS," WAS INCLUDED IN THE BID PACKAGE, AS WAS A "MODIFICATION OF REPRESENTATIONS AND CERTIFICATIONS" WHICH ADDED OPENING ON DECEMBER 12, 1972, THE BID OF WOODWORK CORPORATION OF AMERICA A NINTH CLAUSE TO THE EIGHT CONTAINED ON THE STANDARD FORM. AT BID (WCA) IN THE AMOUNT OF $1,894,767, WAS FOUND TO BE LOW. NASTASI-WHITE'S BID OF $2,550,000 WAS THE ONLY OTHER BID RECEIVED. THE LOW BIDDER DID NOT COMPLETE ITEMS 8 AND 9 OF THE "REPRESENTATIONS AND CERTIFICATIONS," HOWEVER, AND IT IS THE BASIS OF YOUR PROTEST THAT THIS RENDERED THE LOW BID NONRESPONSIVE. AWARD WAS MADE TO WCA WHILE YOUR PROTEST WAS PENDING AFTER GSA DETERMINED THAT IT WOULD NOT BE IN THE BEST INTERESTS OF THE GOVERNMENT TO DELAY AWARD UNTIL FORMAL RESOLUTION OF THE PROTEST.

ITEM 8 OF THE "REPRESENTATIONS AND CERTIFICATIONS" STATES:

THE BIDDER, ITS OFFICERS OR AGENTS, ( ) HAVE, ( ) HAVE NOT, REFUSED TO FURNISH TO ANY GOVERNMENT AGENCY OR ANY ESTABLISHMENT IN THE LEGISLATIVE OR JUDICIAL BRANCH OF THE GOVERNMENT INFORMATION OR RECORDS REASONABLY PERTINENT TO ANY GOVERNMENT CONTRACT IN CONNECTION WITH WHICH THE BIDDER HAS PERFORMED WORK OR FURNISHED MATERIALS OR SUPPLIES OR UNDERTAKEN TO DO SO.

ITEM 9 STATES:

THE BIDDER (OR OFFEROR) REPRESENTS THAT (1) HE ( ) HAS DEVELOPED AND HAS ON FILE ( ) HAS NOT DEVELOPED AND DOES NOT HAVE ON FILE AT EACH ESTABLISHMENT AFFIRMATIVE ACTION PROGRAMS AS REQUIRED BY THE RULES AND REGULATIONS OF THE SECRETARY OF LABOR (41 CFR 60-1 AND 60-2), OR (2) HE ( ) HAS NOT PREVIOUSLY HAD CONTRACTS SUBJECT TO THE WRITTEN AFFIRMATIVE ACTION PROGRAM REQUIREMENT OF THE SECRETARY OF LABOR.

IMMEDIATELY BELOW ITEM 9 THE FOLLOWING STATEMENT APPEARS:

TWO (2) COPIES OF THIS "MODIFICATION OF REPRESENTATIONS AND CERTIFICATIONS" MUST BE SUBMITTED BY EACH BIDDER WITH HIS BID. FAILURE TO DO SO WILL MAKE THE BID NONRESPONSIVE, AND THE BID WILL BE REJECTED.

IT IS WELL ESTABLISHED THAT A BID WHICH DOES NOT CONFORM TO THE MATERIAL REQUIREMENTS OF A SOLICITATION MUST BE REJECTED AS NON RESPONSIVE. COMP. GEN. 251 (1956). HOWEVER, THIS IS NOT THE CASE IF THE SOLICITATION REQUIREMENT IS MERELY INFORMATIONAL OR GOES TO THE RESPONSIBILITY OF THE BIDDER RATHER THAN TO THE COMMITMENT OF THE BIDDER TO COMPLY WITH ALL MATERIAL PROVISIONS OF A RESULTING CONTRACT. 41 COMP. GEN. 106 (1961); 43 COMP. GEN. 166 (1963). AN IFB REQUIREMENT IS NOT NECESSARILY MATERIAL SIMPLY BECAUSE IT IS ACCOMPANIED BY A WARNING THAT A FAILURE TO COMPLY WILL RESULT IN REJECTION OF THE BID. 39 COMP. GEN. 595 (1960); B-174216, DECEMBER 27, 1971. HERE IT SEEMS CLEAR THAT COMPLETION OF THE ITEMS ON STANDARD FORM 19B WOULD NOT BIND THE BIDDER TO ANYTHING, BUT WOULD SERVE ONLY TO FURNISH THE PROCURING AGENCY WITH CERTAIN INFORMATION REGARDING PAST AND PRESENT PERFORMANCE. WE HAVE PREVIOUSLY HELD THAT THE INFORMATION SOUGHT BY ITEM 9 RELATES TO THE BIDDER'S QUALIFICATIONS AS A RESPONSIBLE BIDDER AND THAT THERE IS NOTHING IN THE WORDING OF THE ITEM 9 REPRESENTATION WHICH WOULD CONSTITUTE A COMMITMENT BY A BIDDER TO A SPECIFIC AFFIRMATIVE ACTION PLAN. B-174932, MARCH 3, 1972; B-177081, JANUARY 9, 1973. ACCORDINGLY, WCA'S BID COULD NOT PROPERLY BE REJECTED AS NONRESPONSIVE BECAUSE OF ITS FAILURE TO COMPLETE THE TWO REPRESENTATIVES.

IN ITS SUPPLEMENTAL REPORT OF FEBRUARY 5, 1973, GSA POINTED OUT THAT "PHILADELPHIA PLAN" BIDDING REQUIREMENTS WERE INCLUDED IN THE APPENDIX TO STANDARD FORM 21, "AFFIRMATIVE ACTION PLAN TO ENSURE EQUAL EMPLOYMENT OPPORTUNITY." GSA NOTED THAT THE LOW BIDDER SIGNED THE APPENDIX BUT FAILED TO LIST ANY GOALS FOR MINORITY MANPOWER UTILIZATION, AND ASSERTED THAT SUCH FAILURE DID NOT RENDER THE BID NONRESPONSIVE IN VIEW OF THE DECISION IN NORTHEAST CONSTRUCTION CO. V. ROMNEY, CIVIL ACTION NO. 1163- 71, U.S. DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, JUNE 14, 1971. YOU THEN TOOK EXCEPTION TO THIS ASSERTION, AND CLAIMED THAT THE LOW BID WAS NONRESPONSIVE BECAUSE THE ABSENCE OF SPECIFIC GOALS WAS A MATERIAL OMISSION. THE CASE RELIED ON BY GSA WAS SUBSEQUENTLY REVERSED BY THE COURT OF APPEALS (NOS. 71-1891 AND 71 1893, MARCH 6, 1973), WHICH AGREED WITH OUR POSITION IN THAT CASE THAT THE FAILURE OF A BIDDER TO SUBMIT ITS OWN SPECIFIC GOALS RENDERED THE BID NONRESPONSIVE. 50 COMP. GEN. 844 (1971). IN THIS CASE, HOWEVER, THE AFFIRMATIVE ACTION PLAN REQUIREMENTS WERE MADE APPLICABLE ONLY TO CERTAIN DESIGNATED TRADES, AND WE HAVE BEEN INFORMED BY BOTH YOU AND GSA THAT NONE OF THOSE TRADES WILL BE USED IN THE PERFORMANCE OF THE WORK CALLED FOR BY THIS CONTRACT. THEREFORE, WCA'S FAILURE TO SUBMIT GOALS MAY NOT BE REGARDED AS A MATERIAL REQUIREMENT AND MAY BE WAIVED.

YOU ALSO CLAIM THAT THE SIGNIFICANT DIFFERENCE BETWEEN THE TWO BIDS SHOULD HAVE PUT THE CONTRACTING OFFICER ON NOTICE OF AN APPARENT MISTAKE, SO THAT THE AWARD OF A CONTRACT TO WCA WITHOUT A PROPER VERIFICATION OF THE BID PRICE WOULD NOT RESULT IN A BINDING CONTRACT. OUR FILE INDICATES THAT WCA DID VERIFY ITS BID IN WRITING PRIOR TO THE AWARD. WHILE YOU ASSERT THAT THE VERIFICATION REQUEST WAS INADEQUATE AND WOULD NOT BAR A CLAIM FOR RELIEF BY WCA, THAT IS A MATTER BETWEEN GSA AND WCA AND HAS NO BEARING ON YOUR PROTEST.

FOR THE FOREGOING REASONS, YOUR PROTEST IS DENIED.