B-180216, APR 12, 1974

B-180216, APR 12, 1974

1. AMONG DOCUMENTS IN IFB PACKAGE WERE STANDARD FORM 21 BID FORM, APPENDIX A "AFFIRMATIVE ACTION REQUIREMENTS, EQUAL EMPLOYMENT OPPORTUNITY" AND BIDDERS' CHECKLIST WHICH URGED COMPLIANCE WITH THOSE REQUIREMENTS "APPENDED" TO THE STANDARD FORM 21. CHECKLIST DID NOT CREATE AMBIGUITY AS TO WHETHER APPENDIX A WAS STILL EFFECTIVE AFTER ISSUANCE OF REVISED STANDARD FORM 21 THROUGH IFB AMENDMENT. AMBIGUITY ONLY EXISTS IF TWO OR MORE REASONABLE INTERPRETATIONS OF GIVEN PROVISION ARE POSSIBLE. 165772, JULY 30, 1969. LANGUAGE ON CHECKLIST AND MANNER OF PRESENTING ITEMS CLEARLY INDICATED THAT FUNCTION OF FORM WAS TO AID BIDDERS IN DETERMINING COMPLIANCE; THEREFORE, IT WAS UNREASONABLE FOR BIDDER TO ASSUME THAT FORM WOULD IMPOSE OR MODIFY REQUIREMENTS STATED ELSEWHERE AND AGENCY COULD NOT ANTICIPATE THAT FORM WOULD BE CONSTRUED IN THIS MANNER. 2. LOW BIDDER WHO FAILED TO EXECUTE AND RETURN WITH BID PART III CERTIFICATION TO AFFIRMATIVE ACTION REQUIREMENTS WAS PROPERLY REJECTED AS NONRESPONSIVE BECAUSE, EVEN THOUGH PROTESTER WAS SIGNATORY TO KANSAS CITY PLAN, IT WAS NOT COMMITTED BY ITS BID TO ABIDE BY PLAN. IFB AFFIRMATIVE ACTION REQUIREMENTS MUST BE COMPLETED AND SUBMITTED WITH BID; OTHERWISE, BIDDER WILL HAVE NO LEGALLY ENFORCEABLE OBLIGATION.

TO ART PENNER CONSTRUCTION COMPANY, INC.:

ART PENNER CONSTRUCTION COMPANY, INCORPORATED (PENNER), PROTESTED AGAINST THE REJECTION OF ITS BID UNDER INVITATION FOR BIDS (IFB) NO. GS 06B-13207, ISSUED ON OCTOBER 19, 1973, BY THE GENERAL SERVICES ADMINISTRATION (GSA), PUBLIC BUILDINGS SERVICE, KANSAS CITY, MISSOURI, FOR SPACE ALTERATIONS TO THE COMPUTER ROOM IN THE FEDERAL BUILDING IN KANSAS CITY, MISSOURI. FOR THE REASONS STATED BELOW, THE PROTEST IS DENIED.

THE BID DOCUMENTS SENT TO PENNER AND THE OTHER BIDDERS WERE IN A BOOKLET ENTITLED "SPECIFICATIONS AND BID FORMS". AMONG THE BID DOCUMENTS IN THE BOOKLET WERE STANDARD FORM 21, "BID FORM (CONSTRUCTION CONTRACT)", WHICH WAS IMMEDIATELY FOLLOWED BY 13 PAGES OF AFFIRMATIVE ACTION REQUIREMENTS IDENTIFIED BY THE CAPTION:

"APPENDIX A TO STANDARD FORM 21

(JANUARY 1973)

BID CONDITIONS

AFFIRMATIVE ACTION REQUIREMENTS

EQUAL EMPLOYMENT OPPORTUNITY"

PART I OF THE AFFIRMATIVE ACTION REQUIREMENTS IN APPENDIX A PROVIDED IN PERTINENT PART:

"PART I

"THE PROVISIONS OF THIS PART I APPLY TO BIDDERS, CONTRACTORS AND SUBCONTRACTORS WITH RESPECT TO THOSE CONSTRUCTION TRADES FOR WHICH THEY ARE PARTIES TO COLLECTIVE BARGAINING AGREEMENTS WITH A LABOR ORGANIZATION OR ORGANIZATIONS AND WHO TOGETHER WITH SUCH LABOR ORGANIZATIONS HAVE AGREED TO THE KANSAS CITY AREA CONSTRUCTION PROGRAM FOR EQUAL OPPORTUNITY (BUT ONLY AS TO THOSE TRADES AS TO WHICH THERE ARE COMMITMENTS BY LABOR ORGANIZATIONS TO SPECIFIC GOALS OF MINORITY MANPOWER UTILIZATION) BETWEEN KANSAS CITY BUILDING AND CONSTRUCTION TRADES COUNCIL, GENERAL AND SPECIALTY CONTRACTORS ASSOCIATIONS, REPRESENTATIVES OF THE MINORITY COMMUNITY TOGETHER WITH ALL IMPLEMENTING AGREEMENTS THAT HAVE BEEN AND MAY HEREAFTER BE DEVELOPED PURSUANT THERETO, ALL OF WHICH DOCUMENTS ARE INCORPORATED HEREIN BY REFERENCE AND ARE HEREINAFTER CUMULATIVELY REFERRED TO AS THE KANSAS CITY, PLAN.

"TO BE ELIGIBLE FOR AWARD OF A CONTRACT UNDER PART I OF THIS INVITATION, A BIDDER OR SUBCONTRACTOR MUST EXECUTE THE CERTIFICATION REQUIRED BY PART III HEREOF."

PART II CALLED FOR AN AFFIRMATIVE ACTION PLAN WITH THE BID OF ANY BIDDER, CONTRACTOR OR SUBCONTRACTOR, NOT ELIGIBLE FOR AN AWARD UNDER PART I. THE GOALS, TIMETABLES, AND AFFIRMATIVE ACTION STEPS TO BE INCLUDED IN THE PLAN ARE SET FORTH IN PART II.

PART III, "CERTIFICATIONS" PROVIDED AS FOLLOWS:

"A. BIDDERS' CERTIFICATIONS. A BIDDER WILL NOT BE ELIGIBLE FOR AWARD OF A CONTRACT UNDER THIS INVITATION FOR BIDS UNLESS SUCH BIDDER HAS SUBMITTED AS A PART OF ITS BID THE FOLLOWING CERTIFICATION, WHICH WILL BE DEEMED A PART OF THE RESULTING CONTRACT: "BIDDERS' CERTIFICATION (NAME OF BIDDER) 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 KANSAS CITY PLAN, IT WILL COMPLY WITH THE KANSAS CITY PLAN ON ALL CONSTRUCTION WORK (BOTH FEDERAL AND NON FEDERAL) IN THE KANSAS CITY 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 KANSAS CITY 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)"

GSA FORM 1903, ALSO INCLUDED WITH THE BID DOCUMENTS, WAS A CHECKLIST WHICH STATED IN PART AS FOLLOWS:

"NOTICE TO BIDDER

(CONSTRUCTION CONTRACT)

IMPORTANT - PLEASE READ CAREFULLY

"TO INSURE THE SUBMISSION OF COMPLETE BIDS AND TO AVOID OMISSIONS THAT COULD RESULT IN YOUR BID BEING NONRESPONSIVE, PLEASE CHECK EACH OF THE FOLLOWING:

"12. HAVE YOU PROPERLY COMPLIED WITH THE APPENDIXES TO SF-21, BID FORM, INCLUDING (IF APPENDED) THE NOTICE OF REQUIREMENTS FOR SUBMISSION OF AFFIRMATIVE ACTION PLAN TO ENSURE EQUAL EMPLOYMENT OPPORTUNITY?"

AMENDMENT NO. 3 TO THE IFB SUBSTITUTED A NEW STANDARD FORM 21, BID FORM FOR THAT INITIALLY PROVIDED BIDDERS. ONE CHANGE WAS MADE IN THE NEW BID FORM: IT REQUIRED BIDDERS TO FURNISH UNIT PRICES FOR FOUNDATION PIERS (CAISSONS) IN ADDITION TO THE LUMP SUM PRICE PREVIOUSLY REQUIRED. AMENDMENT NO. 3 MADE NO MENTION OF APPENDIX A'S EQUAL EMPLOYMENT OPPORTUNITY AFFIRMATIVE ACTION REQUIREMENTS.

TEN BIDS WERE RECORDED AT THE BID OPENING HELD ON NOVEMBER 15, 1973. PENNER'S BID OF $1,110,000 WAS LOW AND THE ELLIOTT CONSTRUCTION COMPANY SUBMITTED THE SECOND LOW BID OF $1,131,704. PENNER'S BID DID NOT INCLUDE THE PART III CERTIFICATION OR AN AFFIRMATIVE ACTION PLAN, AND THE BID WAS REJECTED AS NONRESPONSIVE. A NOTICE OF AWARD WAS SENT TO ELLIOTT ON NOVEMBER 29, 1973.

COUNSEL FOR PENNER ADVISES THAT PENNER FAILED TO EXECUTE AND RETURN THE CERTIFICATION WITH ITS BID BECAUSE THE CERTIFICATION WAS NOT "APPENDED" TO THE REVISED STANDARD FORM 21 TRANSMITTED BY AMENDMENT NO. 3. IN THIS REGARD, THE PROTESTER EMPHASIZES THAT PARAGRAPH 12 OF THE GSA FORM 1903 CHECKLIST (QUOTED ABOVE), WHICH WAS IN THE ORIGINAL BID PACKAGE, URGED COMPLIANCE ONLY WITH THOSE APPENDICES WHICH WERE "APPENDED" TO THE STANDARD FORM 21. IT IS URGED THAT SINCE AMENDMENT NO. 3 WAS A GSA DOCUMENT, THERE WAS A DUTY ON GSA TO SPECIFICALLY DESIGNATE IN THE AMENDMENT ANY ADDITIONAL MATERIALS PREVIOUSLY FURNISHED (SUCH AS APPENDIX A) WHICH WERE TO BE INCORPORATED THEREIN. FURTHERMORE, PENNER ARGUES, SINCE IT HAS BEEN A SIGNATORY TO THE KANSAS CITY PLAN SINCE AUGUST 23, 1973, IT WAS IN COMPLIANCE WITH THE CERTIFICATE REQUIREMENTS, AND THE FAILURE TO EXECUTE AND RETURN THE CERTIFICATE WITH THE BID SHOULD HAVE BEEN WAIVED AS A MINOR INFORMALITY. PENNER ADMITS THAT APPENDIX A WAS INCLUDED WITH THE BID PACKAGE SENT TO IT ON OCTOBER 19, 1973.

PENNER'S ARGUMENT THAT GSA WAS UNDER A DUTY TO SPECIFICALLY DESIGNATE IN AMENDMENT NO. 3 WHICH MATERIALS WERE STILL "APPENDED" TO THE STANDARD FORM 21 ASSUMES THAT PARAGRAPH 12 OF GSA FORM 1903 CREATED SOME AMBIGUITY AS TO WHETHER THE CERTIFICATION WAS REQUIRED SINCE IT WAS NOT "APPENDED" TO THAT AMENDMENT. HOWEVER, THE GENERAL RULE IS THAT AN AMBIGUITY EXISTS ONLY IF TWO OR MORE REASONABLE INTERPRETATIONS OF A GIVEN PROVISION ARE POSSIBLE. SEE B-165772, JULY 30, 1969, AND CASES CITED THEREIN. THE LANGUAGE ON THE TOP OF GSA FORM 1903 AND THE MANNER OF PRESENTING THE ITEMS ON THAT FORM MAKE IT CLEAR THAT THE FORM WAS TO BE USED BY THE BIDDERS AS AN AID IN CHECKING WHETHER THE BID COMPLIED WITH THE REQUIREMENTS OF THE INVITATION. THERE IS NOTHING ON GSA FORM 1903 TO INDICATE THAT IT ALSO IMPOSED OR MODIFIED REQUIREMENTS THAT WERE STATED ELSEWHERE IN THE SOLICITATION.

PENNER WAS ON NOTICE AT THE TIME IT RECEIVED THE ORIGINAL BID DOCUMENTS THAT THE AFFIRMATIVE ACTION REQUIREMENTS IN APPENDIX A WERE A PART OF THE SOLICITATION. IN THESE CIRCUMSTANCES, WE DO NOT AGREE THAT IT WAS REASONABLE FOR PENNER TO ASSUME, WITHOUT FURTHER CLARIFICATION FROM GSA, THAT THE WORDS "IF APPENDED" IN AN ITEM ON A CHECKLIST COULD HAVE THE EFFECT OF OBVIATING A SPECIFIC REQUIREMENT THAT WAS STATED ELSEWHERE IN THE SOLICITATION. B-165772, SUPRA. CONSEQUENTLY, WE DO NOT FIND THAT THE SOLICITATION CAN BE CATEGORIZED AS AMBIGUOUS WITH RESPECT TO THE REQUIREMENT FOR FURNISHING THE CERTIFICATION IN PART III OF THE AFFIRMATIVE ACTION REQUIREMENTS IN APPENDIX A. MOREOVER, WE DO NOT FIND THAT GSA WAS UNDER ANY DUTY TO ANTICIPATE THAT PENNER MIGHT CONSTRUE PARAGRAPH 12 OF GSA FORM 1903, BEYOND WHAT WAS THE REASONABLE FUNCTION OF THAT FORM.

WITH RESPECT TO THE EFFECT OF PENNER'S FAILURE TO EXECUTE AND RETURN THE PART III CERTIFICATION WITH ITS BID, WE HAVE CONSTRUED THE LANGUAGE IN PART III, QUOTED ABOVE, AS IMPOSING A MATERIAL REQUIREMENT THAT THE BIDDER COMMIT ITSELF, PRIOR TO BID OPENING, TO THE AFFIRMATIVE ACTION REQUIREMENTS. SEE 51 COMP. GEN. 329 (1971); B-174259, JANUARY 5, 1972 AND B-174932, MARCH 3, 1972. WE FURTHER HELD IN THOSE CASES THAT A BIDDER WHO FAILS TO MAKE SUCH A PREBID COMMITMENT MAY NOT HAVE THE DEVIATION WAIVED NOR MAY THE BIDDER BE PERMITTED TO CORRECT THE DEVIATION AFTER BID OPENING SO AS TO RENDER THE BID ELIGIBLE FOR CONSIDERATION FOR AWARD. IT IS CLEAR, THEREFORE, THAT THE CERTIFICATION REQUIRED BY PART III WAS MATERIAL.

THE PURPOSE OF THE PART III CERTIFICATION IS TO OBTAIN A PREBID COMMITMENT TO COMPLY WITH THE AFFIRMATIVE ACTION REQUIREMENTS IN THE SOLICITATION. WHILE PENNER MAY HAVE BEEN A SIGNATORY TO THE KANSAS CITY PLAN, WE HAVE HELD THAT BEING A SIGNATORY TO A PARTICULAR PLAN DOES NOT SUFFICE TO CONSTITUTE THE COMMITMENT REQUIRED BY THE BID CONDITIONS. SEE B-178839, OCTOBER 10, 1973 AND B-174932, MARCH 3, 1972. CONSEQUENTLY, BEING A SIGNATORY TO THE KANSAS CITY PLAN DID NOT OVERCOME THE DEFECT IN FAILING TO SUBMIT THE REQUIRED CERTIFICATION.

ACCORDINGLY, WE FIND THAT PENNER'S BID DID NOT COMPLY WITH A MATERIAL REQUIREMENT OF THE SOLICITATION AND THAT THE BID WAS PROPERLY REJECTED AS NONRESPONSIVE.