B-177846, MAR 27, 1973

B-177846, MAR 27, 1973

BID PROTEST - AFFIRMATIVE ACTION PROGRAM REQUIREMENTS - RESPONSIVENESS - BIDDER'S CLEAR INTENT TO BE BOUND CONCERNING THE PROTEST OF GEO-CONSTRUCTORS AGAINST DISQUALIFICATION OF ITS BID UNDER A SOLICITATION ISSUED BY THE COUNTY SANITATION DISTRICT NO. 2 OF LOS ANGELES COUNTY, CALIF., PURSUANT TO AN ENVIRONMENTAL PROTECTION AGENCY GRANT UNDER THE FEDERAL WATER POLLUTION CONTROL ACT FOR CERTAIN CONSTRUCTION WORK TO IMPROVE A SEWAGE TREATMENT PLANT. GAO BELIEVES GEO-CONSTRUCTOR'S BID UNDER THIS SOLICITATION WAS RESPONSIVE EVEN THOUGH IT DID NOT SIGN THE AFFIRMATIVE ACTION PROGRAM DOCUMENT, IN VIEW OF OTHER DOCUMENTARY EVIDENCE SUBMITTED BY GEO CONSTRUCTORS WITH ITS BID WHICH CLEARLY INDICATED THAT IT INTENDED TO BE BOUND BY ALL OF THE SOLICITATION'S AFFIRMATIVE ACTION REQUIREMENTS. 48 COMP. GEN. 648 (1969).

TO MR. WILLIAM D. RUCKELSHAUS:

THIS IS IN REPLY TO THE MARCH 2, 1973, LETTER FROM THE ASSISTANT ADMINISTRATOR FOR PLANNING AND MANAGEMENT, CONCERNING THE PROTEST OF GEO- STRUCTORS AGAINST DISQUALIFICATION OF ITS BID UNDER A SOLICITATION ISSUED BY THE COUNTY SANITATION DISTRICT NO. 2 OF LOS ANGELES COUNTY, CALIFORNIA, PURSUANT TO AN ENVIRONMENTAL PROTECTION AGENCY (EPA) GRANT UNDER THE FEDERAL WATER POLLUTION CONTROL ACT.

THE SOLICITATION WAS FOR CERTAIN CONSTRUCTION WORK TO IMPROVE A SEWAGE TREATMENT PLANT. AT BID OPENING ON DECEMBER 12, 1972, GEO STRUCTORS' BID OF $1,015,000 WAS FOUND TO BE LOW. HOWEVER, EPA ADVISED THE GRANTEE AGENCY THAT THIS BID WAS NONRESPONSIVE TO THE EQUAL EMPLOYMENT OPPORTUNITY PROVISIONS OF THE SOLICITATION AND THAT THE PROJECT WOULD NOT BE ELIGIBLE FOR A FEDERAL GRANT IF THE CONTRACT WERE AWARDED TO GEO-STRUCTORS. EPA FURTHER ADVISED THAT IT WOULD NOT OBJECT TO AN AWARD TO MARGATE CONSTRUCTION, INCORPORATED, WHICH SUBMITTED THE SECOND LOW BID OF $1,015,500. AWARD HAS NOT YET BEEN MADE.

THE SOLICITATION, AS AMENDED BY ADDENDUM NO. 1, CONTAINED A SECTION CAPTIONED "BID CONDITIONS - AFFIRMATIVE ACTION REQUIREMENTS - EQUAL EMPLOYMENT OPPORTUNITY." IT REQUIRED A BIDDER TO BE IN COMPLIANCE WITH EITHER PART I OR PART II OF THE BID CONDITIONS FOR EACH CONSTRUCTION TRADE TO BE USED ON THE PROJECT. PART I INVOLVED A COMMITMENT TO THE LOCAL AFFIRMATIVE ACTION PLAN KNOWN AS THE GREATER LOS ANGELES PLAN. PART II INVOLVED A COMMITMENT TO CERTAIN GOALS AND SPECIFIC AFFIRMATIVE ACTION STEPS FOR TRADES NOT COVERED BY PART I. PART III OF THE BID CONDITIONS REQUIRED COMPLETION OF THE FOLLOWING BIDDERS' CERTIFICATION:

BIDDERS' CERTIFICATION

CERTIFIES THAT: 1. IT INTENDS TO USE THE FOLLOWING LISTED CONSTRUCTION TRADES IN THE WORK UNDER THE CONTRACT ; AND

2. (A) AS TO THOSE TRADES SET FORTH IN THE PRECEDING PARAGRAPH ONE HEREOF FOR WHICH IT IS ELIGIBLE UNDER PART I OF THESE BID CONDITIONS FOR PARTICIPATION IN THE GREATER LOS ANGELES PLAN, IT WILL COMPLY WITH THE GREATER LOS ANGELES PLAN ON ALL CONSTRUCTION WORK (BOTH FEDERAL AND NON- FEDERAL) IN THE GREATER LOS ANGELES AREA WITHIN THE SCOPE OF COVERAGE OF THAT PLAN, THOSE TRADES BEING: AND/OR (B) AS TO THOSE TRADES FOR WHICH IT IS REQUIRED BY THESE BID CONDITIONS TO COMPLY WITH PART II OF THESE BID CONDITIONS, IT ADOPTS THE MINIMUM MINORITY MANPOWER UTILIZATION GOALS AND THE SPECIFIC AFFIRMATIVE ACTION STEPS CONTAINED IN SAID PART II, FOR ALL CONSTRUCTION WORK (BOTH FEDERAL AND NON-FEDERAL) IN THE GREATER LOS ANGELES AREA SUBJECT TO THESE BID CONDITIONS, THOSE TRADES BEING: ; AND

3. IT WILL OBTAIN FROM EACH OF ITS SUBCONTRACTORS AND SUBMIT TO THE CONTRACTING OR ADMINISTERING AGENCY PRIOR TO THE AWARD OF ANY SUBCONTRACT UNDER THIS CONTRACT THE SUBCONTRACTOR CERTIFICATION REQUIRED BY THESE BID CONDITIONS

(SIGNATURE OF AUTHORIZED REPRESENTATIVE OF BIDDER)

GEO-STRUCTORS' BID CONTAINED A SIGNED CERTIFICATION, COMPLETED AS FOLLOWS:

PARAGRAPH 1: "ALL APPROPRIATE TRADES WHICH ARE MEMBERS OF THE SOUTHERN CALIFORNIA BUILDING TRADES COUNCIL"

PARAGRAPH 2(A): "BASIC TRADES (CARPENTERS, MASONS, ETC.) SIGNATORY TO MASTER LABOR AGREEMENT."

PARAGRAPH 2(B): "LABORERS, WHO ALREADY EXCEED MINORITY EMPLOYMENT GOALS."

GEO-STRUCTORS ALSO SUBMITTED WITH ITS BID ITS OWN "AFFIRMATIVE ACTION PROGRAM" DATED DECEMBER 12, 1972. THIS DOCUMENT WAS UNSIGNED. ATTACHED TO IT, HOWEVER, WAS A SIGNED "BIDDERS CERTIFICATION" THAT CONTAINED THE IDENTICAL PRINTED LANGUAGE INCLUDED IN THE CERTIFICATION QUOTED ABOVE. WRITTEN UNDER PARAGRAPH 1 OF THIS DOCUMENT WERE THE WORDS "CARPENTERS", "PLUMBERS" AND "LABORERS." PARAGRAPHS 2(A) AND 2(B) WERE LEFT BLANK.

YOUR AGENCY TAKES THE POSITION THAT ALL TRADES TO BE USED ON THE PROJECT ARE SUBJECT TO PART II OF THE BID CONDITIONS AND THAT GEO STRUCTORS' BID WAS NONRESPONSIVE BECAUSE IT FAILED TO LIST ALL SUCH TRADES IN PARAGRAPH 2(B) OF THE SOLICITATION AFFIRMATIVE ACTION PROVISIONS. YOUR AGENCY ALSO NOTES THAT "A PROBLEM IS PRESENTED" BY THE SECOND BIDDERS' CERTIFICATION SINCE ONE "COULD FAIRLY PRESUME THAT GEO-STRUCTORS DOES NOT INTEND TO COMPLY" WITH THE REQUIREMENTS OF PARAGRAPH 2 OF THE CERTIFICATION. THE PROTESTOR ASSERTS, HOWEVER, THAT BY SIGNING THE CERTIFICATION AND SUBMITTING AN AFFIRMATIVE ACTION PLAN IT IS RESPONSIVE TO AND BOUND BY THE SOLICITATION PROVISIONS.

WE HAVE BEEN ADVISED BY THE DEPARTMENT OF LABOR THAT THE GREATER LOS ANGELES PLAN DOES NOT CONTAIN SPECIFIC HIRING GOALS FOR INDIVIDUAL TRADES, SO THAT A BIDDER'S COMMITMENT TO COMPLY WITH THAT PLAN FOR ANY TRADE WOULD BE MEANINGLESS. THE SOLICITATION, IN WHICH THE ENTIRE PLAN WAS INCORPORATED BY REFERENCE, PROVIDED THAT PART I WAS APPLICABLE "ONLY AS TO THOSE TRADES AS TO WHICH THERE ARE COMMITMENTS BY LABOR ORGANIZATIONS TO SPECIFIC GOALS OF MINORITY MANPOWER UTILIZATION." SINCE IT APPEARS THAT THE LOS ANGELES PLAN DOES NOT CONTAIN ANY HIRING GOALS FOR INDIVIDUAL TRADES, WE AGREE THAT PART II OF THE BID CONDITIONS WAS APPLICABLE TO ALL TRADES TO BE USED ON THE PROJECT AND THAT A COMMITMENT TO ONLY PART I FOR A SPECIFIC TRADE WOULD NOT SATISFY THE REQUIREMENTS OF THE SOLICITATION.

WE DO NOT AGREE, HOWEVER, THAT THE GEO-STRUCTORS BID IS NON RESPONSIVE. WHILE WE HAVE CONSISTENTLY HELD THAT THE FAILURE OF A BIDDER TO COMMIT ITSELF, PRIOR TO BID OPENING, TO AFFIRMATIVE ACTION REQUIREMENTS OF A SOLICITATION REQUIRES REJECTION OF THE BID, WE HAVE RECOGNIZED THAT A BIDDER COULD COMMIT ITSELF TO SUCH REQUIREMENTS IN A MANNER OTHER THAN THAT SPECIFIED IN THE SOLICITATION. 50 COMP. GEN. 844 (1971); B-174932, MARCH 3, 1972; B-176328, NOVEMBER 8, 1972; B 176771, JANUARY 4, 1973. THUS, IN 51 COMP. GEN. 329 (1971), WE NOTED THAT A BIDDER HAD COMMITTED ITSELF TO COMPLY WITH A LOCAL AFFIRMATIVE ACTION PLAN EVEN THOUGH THE BIDDER HAD FAILED TO EXECUTE A CERTIFICATION AS REQUIRED BY THE INVITATION, AND IN B-176260, AUGUST 2, 1972, WE HELD THAT A BIDDER'S FAILURE TO MEET THE LITERAL REQUIREMENTS OF THE INVITATION COULD BE WAIVED BECAUSE IT WAS OTHERWISE FULLY BOUND TO THE AFFIRMATIVE ACTION PROVISIONS. THEREFORE, IF GEO-STRUCTORS' BID BINDS IT TO THE PART II REQUIREMENTS OF THE BID CONDITIONS FOR ALL TRADES IT WOULD USE ON THE PROJECT, ITS FAILURE TO LIST ALL SUCH TRADES IN PARAGRAPH 2(B) OF THE CERTIFICATION WOULD NOT BE A MATERIAL DEVIATION.

IN DETERMINING THE INTENT OF A BIDDER, THE ENTIRE CONTENTS OF THE BID, INCLUDING DOCUMENTATION SUBMITTED WITH IT, MUST BE TAKEN INTO ACCOUNT. 176260, SUPRA; 49 COMP. GEN. 851 (1970). GEO-STRUCTORS SUBMITTED WITH ITS BID ITS OWN "AFFIRMATIVE ACTION PROGRAM." THIS DOCUMENT STATED THAT ITS PURPOSE WAS "TO ASSURE COMPLIANCE WITH 'EXECUTIVE ORDER 11246' AND TO REAFFIRM *** CONTINUED SUPPORT TO A PROGRAM OF EQUAL EMPLOYMENT OPPORTUNITY AND MERIT EMPLOYMENT POLICIES." IT FURTHER STATED THAT GEO- STRUCTORS WOULD UNDERTAKE AFFIRMATIVE ACTION IN THIS REGARD AND WOULD RECRUIT AND HIRE SUBCONTRACTORS WITHOUT DISCRIMINATION AND TREAT "ALL EMPLOYEES EQUALLY IN RESPECT TO COMPENSATION AND OPPORTUNITIES FOR ADVANCEMENT, INCLUDING UPGRADING, PROMOTION AND TRANSFER." THERE FOLLOWED A LISTING OF VARIOUS STEPS GEO-STRUCTORS WOULD TAKE IN SUPPORT OF THE PROGRAM. THE DOCUMENT ALSO INCLUDED GOALS AND TIMETABLES "TO ASSURE THE FULL UTILIZATION OF MINORITY MANPOWER IN ALL CLASSIFICATIONS ON THE FIRM'S CONSTRUCTION PROJECT." IN OUR OPINION, THIS "AFFIRMATIVE ACTION PROGRAM" SATISFIES THE REQUIREMENTS OF PART II OF THE BID CONDITIONS. ALTHOUGH WORDED DIFFERENTLY, THE AFFIRMATIVE ACTION STEPS SPELLED OUT BY GEO- STRUCTORS ARE SUBSTANTIALLY SIMILAR (AND IN SOME CASES IDENTICAL) TO THE STEPS SPECIFIED IN PART II AND THE GOALS AND TIMETABLES IN THE GEO- STRUCTORS PROGRAM ARE IDENTICAL TO THOSE LISTED IN THE SOLICITATION. THINK THIS DOCUMENT CLEARLY APPLIES TO ALL CONSTRUCTION TRADES TO BE USED AND THAT, BY ITS SUBMISSION, GEO STRUCTORS BOUND ITSELF TO COMPLY WITH ITS PROVISIONS. THE FACT THAT THE AFFIRMATIVE ACTION PROGRAM DOCUMENT ITSELF WAS NOT SIGNED IS OF NO CONSEQUENCE IN VIEW OF THE OTHER DOCUMENTARY EVIDENCE (THE SIGNED BID, THE TWO SIGNED CERTIFICATIONS, THE SIGNED ACKNOWLEDGMENT OF ADDENDUM NO. 1 TO THE SOLICITATION) INDICATING A CLEAR INTENT TO BE BOUND BY THE SUBMISSION. 48 COMP. GEN. 648 (1969).

FOR THE FOREGOING REASONS, WE BELIEVE THAT ACCEPTANCE OF THE GEO STRUCTORS BID WOULD RESULT IN A BINDING CONTRACT UNDER WHICH THE CONTRACTOR WOULD BE COMMITTED TO ALL THE MATERIAL AFFIRMATIVE ACTION PROGRAM PROVISIONS OF THE SOLICITATION.