B-157832, NOV. 9, 1965

B-157832, NOV. 9, 1965

TO TIMMONS, BUTT AND HEAD, INC.:

YOUR LETTER OF OCTOBER 7, 1965, ADDRESSED TO THE GENERAL SERVICES ADMINISTRATION (GSA), PROTESTS AWARD OF A CONTRACT TO ANY BIDDER OTHER THAN YOU UNDER INVITATION FOR BIDS (IFB), PROJECT NO. GS-05BC-5494, DATED AUGUST 18, 1965.

THE IFB SOLICITED BIDS TO PERFORM CERTAIN MISCELLANEOUS REPAIRS AT THE DMS DEPOT, DAYTON, OHIO. THE PROCUREMENT WAS RESTRICTED TO SMALL BUSINESS CONCERNS, AND BID OPENING WAS SCHEDULED FOR SEPTEMBER 13.

SECTION 3 OF THE SPECIAL CONDITIONS OF THE IFB STIPULATED THAT MINIMUM WAGE RATES SPECIFIED IN AN ATTACHED WAGE DETERMINATION DECISION OF THE SECRETARY OF LABOR WERE REQUIRED TO BE PAID UNDER THE CONTRACT. HOWEVER, SINCE THE SECRETARY'S DECISION WAS NOT AVAILABLE AT THE TIME THE IFB WAS ISSUED, THERE WAS INSERTED IN THE IFB AFTER SECTION 3 A PAGE BEARING THE FOLLOWING NOTATIONS:

"THE WAGE DETERMINATION DECISION OF THE SECRETARY OF LABOR MENTIONED IN PARAGRAPHS 3-1, 3-2 AND 3-3 WAS NOT AVAILABLE AT THE TIME THIS SPECIFICATION WAS PLACED ON THE MARKET.

"ANY CONTRACT ENTERED INTO PURSUANT TO THIS REQUEST FOR BIDS WILL BE SUBJECT TO THE PAYMENT OF THE PREVAILING WAGE RATE FOR THE AREA AND TYPE OF WORK INVOLVED, AS MAY BE DETERMINED AND ISSUED BY THE U.S. DEPARTMENT OF LABOR. A COPY OF THE WAGE RATE DECISION WILL BE FURNISHED BY AMENDMENT TO THE SPECIFICATIONS AS SOON AS IT IS ISSUED.'

THE IFB ALSO INCLUDED A NOTICE TO BIDDERS LISTING VARIOUS REQUIREMENTS TO BE CHECKED BEFORE BID SUBMISSION, INCLUDING THE FOLLOWING:

"3. HAVE YOU ACKNOWLEDGED, ON THE SF-21, BID FORM, RECEIPT OF ALL AMENDMENTS (IF ANY) ISSUED TO THE SPECIFICATIONS?

ON SEPTEMBER 2, GSA ISSUED AMENDMENT NO. 1 TO THE IFB FURNISHING TO BIDDERS THE WAGE RATES APPLICABLE TO THE PROJECT, IN ACCORDANCE WITH DECISION OF THE SECRETARY OF LABOR NO. AE-529, DATED SEPTEMBER 7, TO BE INCLUDED AS A PART OF SECTION 3 OF THE SPECIFICATIONS. THE AMENDMENT CARRIED A NOTATION READING AS FOLLOWS:

"IMPORTANT - BIDDER MUST ACKNOWLEDGE THE RECEIPT OF THIS AMENDMENT ON THE BID FORM, GIVING THE NUMBER AND DATE. FAILURE TO DO SO MAY BE GROUNDS FOR REJECTION OF THE BID.'

SEVEN BIDS WERE RECEIVED AND OPENED ON SEPTEMBER 13. YOUR BID OF $41,313, DATED SEPTEMBER 13, WAS LOWEST. HOWEVER, SINCE YOU HAD NOT ACKNOWLEDGED THE AMENDMENT, YOUR BID WAS DETERMINED TO BE NONRESPONSIVE.

SUBSEQUENT TO BID OPENING, GSA ASCERTAINED THAT YOUR NAME HAD NOT BEEN SHOWN ON THE BIDDER'S MAILING LIST FOR THE PROJECT; THAT YOU HAD OBTAINED AT THE DAYTON BUILDERS EXCHANGE, PRIOR TO BID OPENING, COPIES OF THE BID DOCUMENTS BUT NOT OF THE AMENDMENT; AND THAT YOU FIRST LEARNED OF THE AMENDMENT AFTER BID OPENING.

YOU URGE THAT AWARD SHOULD BE MADE TO YOU IN VIEW OF YOUR LOW BID. YOU CONTEND THAT SINCE BY THE TERMS OF SECTION 3 OF THE SPECIAL CONDITIONS YOUR BID OBLIGATED YOU TO ABIDE BY THE WAGE RATES PRESCRIBED BY THE SECRETARY OF LABOR, YOUR FAILURE TO ACKNOWLEDGE THE IFB AMENDMENT DOES NOT RELIEVE YOU OF SUCH OBLIGATION AND CONSTITUTES A MERE TECHNICALITY THAT SHOULD BE WAIVED. YOU FURTHER CONTEND THAT SINCE ONLY ONE WAGE RATE DETERMINATION WAS ISSUED THERE CAN BE NO CONFUSION AS CONTRASTED WITH A SITUATION IN WHICH A PREVAILING WAGE RATE DETERMINATION IS CHANGED BY AN IFB AMENDMENT. YOU HAVE ALSO STATED IN DISCUSSIONS WITH GSA THAT THE AMENDMENT WOULD HAVE NO EFFECT ON YOUR BID SINCE YOU HAVE BEEN PAYING THE GOING WAGE IN THE COMMUNITY, WHICH, YOU CLAIM, IS EQUIVALENT TO THE MINIMUM SET FORTH IN THE WAGE RATE DECISION IN QUESTION.

SECTION 1 OF THE DAVIS BACON ACT, 40 U.S.C. 276A, DIRECTS THAT EVERY CONTRACT FOR CONSTRUCTION, ALTERATION AND/OR REPAIRS, INCLUDING PAINTING AND DECORATING, SHALL CONTAIN CERTAIN MINIMUM WAGE REPRESENTATIONS AND STIPULATIONS. WE HAVE HELD THAT A BLANKET PROVISION IN SPECIFICATIONS THAT CONTRACTORS SHALL PAY MINIMUM WAGE RATES, REGARDLESS OF WHETHER THE WAGE RATE DETERMINATIONS ARE RECEIVED BEFORE OR AFTER BID OPENING, DOES NOT MEET THE STATUTORY REQUIREMENT. 40 COMP. GEN. 48. IN THE INSTANT CASE, HOWEVER, THE LANGUAGE USED IN THE SHEET ATTACHED TO SECTION 3 OF THE SPECIAL CONDITIONS OF THE IFB, EXPLAINING THAT THE WAGE RATE DETERMINATION WOULD BE FURNISHED BY AMENDMENT TO THE IFB SPECIFICATIONS, LEFT NO DOUBT THAT SUCH WAGE RATES WERE TO BE CONSIDERED IN SUBMITTING BIDS UNDER THE IFB. IT WAS OBVIOUS, THEREFORE, THAT THE WAGE RATE DETERMINATION WAS INTENDED TO BE MADE AVAILABLE BEFORE BID OPENING. ACCORDINGLY, IT IS OUR VIEW THAT THE REQUIREMENT OF THE DAVIS-BACON ACT WAS MET WHEN THE AMENDMENT WAS ISSUED FURNISHING THE WAGE SCHEDULE.

TURNING NOW TO THE EFFECT OF YOUR FAILURE TO ACKNOWLEDGE THE AMENDMENT, IT IS THE GENERAL RULE THAT IF AN ADDENDUM TO AN INVITATION AFFECTS THE PRICE, QUANTITY OR QUALITY OF THE PROCUREMENT, THE FAILURE OF THE BIDDER TO ACKNOWLEDGE ITS RECEIPT IN THE MANNER REQUIRED BY THE INVITATION RENDERS THE BID NONRESPONSIVE AND CANNOT BE WAIVED. 37 COMP. GEN. 785. THE BASIS FOR SUCH RULE IS THAT GENERALLY THE BIDDER WOULD HAVE AN OPTION TO DECIDE AFTER BID OPENING TO BECOME ELIGIBLE FOR AWARD BY FURNISHING EXTRANEOUS EVIDENCE THAT THE ADDENDUM HAD BEEN CONSIDERED OR TO AVOID AWARD BY REMAINING SILENT. 41 COMP. GEN. 550 AND DECISIONS THEREIN CITED.

THE PROCUREMENT REGULATION WHICH GOVERNS WAIVER OF MINOR INFORMALITIES OR IRREGULARITIES IN BIDS SUBMITTED UNDER GSA INVITATIONS TO BID IS FEDERAL PROCUREMENT REGULATION 1-2.405, WHICH READS, IN PART, AS FOLLOWS:

"A MINOR INFORMALITY OR IRREGULARITY IS ONE WHICH IS MERELY A MATTER OF FORM AND NOT OF SUBSTANCE OR PERTAINS TO SOME IMMATERIAL OR INCONSEQUENTIAL DEFECT OR VARIATION OF A BID FROM THE EXACT REQUIREMENT OF THE INVITATION FOR BIDS, THE CORRECTION OR WAIVER OF WHICH WOULD NOT BE PREJUDICIAL TO OTHER BIDDERS. THE DEFECT OR VARIATION IN THE BID IS IMMATERIAL AND INCONSEQUENTIAL WHEN ITS SIGNIFICANCE AS TO PRICE, QUANTITY, QUALITY, OR DELIVERY IS TRIVIAL OR NEGLIGIBLE WHEN CONTRASTED WITH THE TOTAL COST OR SCOPE OF THE SUPPLIES OR SERVICES BEING PROCURED. THE CONTRACTING OFFICER SHALL EITHER GIVE THE BIDDER AN OPPORTUNITY TO CURE ANY DEFICIENCY RESULTING FROM A MINOR INFORMALITY OR IRREGULARITY IN A BID OR WAIVE SUCH DEFICIENCY, WHICHEVER IS TO THE ADVANTAGE OF THE GOVERNMENT. EXAMPLES OF MINOR INFORMALITIES OR IRREGULARITIES INCLUDE:

"/D) FAILURE OF A BIDDER TO ACKNOWLEDGE RECEIPT OF AN AMENDMENT TO AN INVITATION FOR BIDS BUT ONLY IF:

"/1) THE BID RECEIVED CLEARLY INDICATES THAT THE BIDDER RECEIVED THE AMENDMENT, SUCH AS WHERE THE AMENDMENT ADDED ANOTHER ITEM TO THE INVITATION FOR BIDS AND THE BIDDER SUBMITTED A BID HEREON; OR

"/2) THE AMENDMENT INVOLVES ONLY A MATTER OF FORM OR IS ONE WHICH HAS EITHER NO EFFECT OR MERELY A TRIVIAL OR NEGLIGIBLE EFFECT ON PRICE, QUANTITY, QUALITY, OR DELIVERY OF THE ITEM BID UPON.'

SINCE THE WAGE RATES PAYABLE UNDER A CONTRACT DIRECTLY AFFECT THE CONTRACT PRICE, THERE CAN BE NO QUESTION THAT THE IFB PROVISION REQUIRING THE PAYMENT OF MINIMUM WAGES TO BE PRESCRIBED BY THE SECRETARY OF LABOR WAS A MATERIAL REQUIREMENT OF THE IFB AS AMENDED. 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. 17 COMP. GEN. 471, 473. IN SUCH CIRCUMSTANCES, 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 WAGE RATES WHICH WERE PRESCRIBED THEREIN BUT WHICH WERE NOT SPECIFIED IN THE ORIGINAL IFB, NOTWITHSTANDING THAT HE MIGHT ALREADY BE PAYING THE SAME OR HIGHER WAGE RATES TO HIS EMPLOYEES UNDER AGREEMENTS WITH LABOR UNIONS OR OTHER ARRANGEMENTS. ACCORDINGLY, IN OUR OPINION, THE DEVIATION WAS MATERIAL AND NOT SUBJECT TO WAIVER UNDER THE PROCUREMENT REGULATION. B 138242, JANUARY 2, 1959. FURTHERMORE, TO AFFORD YOU AN OPPORTUNITY AFTER BID OPENING TO BECOME ELIGIBLE FOR AWARD BY AGREEING TO ABIDE BY THE WAGE SCHEDULE WOULD BE UNFAIR TO THE OTHER BIDDERS WHOSE BIDS CONFORMED TO THE REQUIREMENTS OF THE AMENDED IFB AND WOULD BE CONTRARY TO THE PURPOSE OF THE PUBLIC PROCUREMENT STATUTES. B-149315, AUGUST 28, 1962; B-146354, NOVEMBER 27, 1961.

IN THE CIRCUMSTANCES, WE MUST CONCUR WITH THE ADMINISTRATIVE DETERMINATION THAT YOUR BID IS NONRESPONSIVE AND THEREFORE NOT ELIGIBLE FOR CONSIDERATION FOR AWARD. ACCORDINGLY, YOUR PROTEST IS DENIED.