B-174259, JAN 5, 1972

B-174259, JAN 5, 1972

BID PROTEST - NONRESPONSIVE BID - AFFIRMATIVE ACTION REQUIREMENTS DECISION DENYING PROTEST OF BETHLEHEM WIRE AND FENCE CO., LOW BIDDER, AGAINST AN AWARD TO ANOTHER FIRM UNDER AN IFB ISSUED BY THE BUREAU OF MINES, PITTSBURGH, PA., FOR THE FURNISHING AND INSTALLATION OF CYCLONE FENCE. PROTESTANT'S BID WAS REJECTED AS NONRESPONSIVE SINCE IT FAILED TO CONTAIN A PORTION OF THE INVITATION WHICH INCLUDED REQUIRED CERTIFICATION. WHILE A FACTUAL DISPUTE EXISTS AS TO WHETHER THE AFFIRMATIVE ACTIONS REQUIREMENTS WERE EVER RECEIVED, THIS ISSUE IS IMMATERIAL. WHERE INTERESTED BIDDERS HAVE FAILED TO RECEIVE REQUIRED IFB AMENDMENTS, THE COMP. GEN. HAS HELD THAT NO MATERIAL MODIFICATION OF THE BID AFTER THE TIME FIXED FOR OPENING IS WARRANTED. ACCORDINGLY, THE PROTEST IS DENIED.

TO BETHLEHEM WIRE AND FENCE COMPANY:

THIS IS IN REPLY TO YOUR LETTER OF OCTOBER 1, 1971, WITH ENCLOSURE, PROTESTING ON BEHALF OF BETHLEHEM WIRE AND FENCE COMPANY (BETHLEHEM), AGAINST THE CONTRACT AWARD TO ANOTHER FIRM UNDER INVITATION FOR BIDS NO. PGH-35, ISSUED BY THE BUREAU OF MINES, PITTSBURGH, PENNSYLVANIA.

THE INVITATION WAS FOR FURNISHING AND INSTALLATION OF CYCLONE FENCE AS SPECIFIED. A CONTINUATION SHEET OF THE INVITATION ADVISED THAT BIDDERS WERE REQUIRED TO SUBMIT THE CERTIFICATION WHICH WAS INCORPORATED IN THE ATTACHMENT TO THE INVITATION ENTITLED "BID CONDITIONS, AFFIRMATIVE ACTION REQUIREMENTS, EQUAL EMPLOYMENT OPPORTUNITY." THE INVITATION ALSO STATED THAT FAILURE TO COMPLY WITH THIS REQUIREMENT WOULD RENDER THE BID NONRESPONSIVE. UPON OPENING AND EVALUATION OF BIDS IT WAS DISCOVERED THAT BETHLEHEM SUBMITTED THE LOW BID PRICE, BUT HAD FAILED TO SUBMIT THAT PORTION OF THE INVITATION WHICH INCLUDED THE REQUIRED CERTIFICATION. FOR THAT REASON ITS BID WAS REJECTED AS NONRESPONSIVE.

IT IS YOUR POSITION THAT THE PROPER FORM WAS NOT RECEIVED BY BETHLEHEM AND, IF IT HAD BEEN RECEIVED, IT WOULD HAVE BEEN SIGNED. IN THESE CIRCUMSTANCES YOU BELIEVE IT WOULD BE IN THE GOVERNMENT'S BEST INTEREST TO ACCEPT BETHLEHEM'S LOW BID.

BRIEFLY STATED, THESE BID CONDITIONS DEFINED THE BIDDER'S OBLIGATION FOR PERFORMANCE OF FEDERALLY-FUNDED CONSTRUCTION, IN THAT EACH TRADE TO BE UTILIZED WAS REQUIRED TO BE COVERED EITHER BY THE REQUIREMENTS OF THE "PITTSBURGH PLAN" (AN AFFIRMATIVE ACTION PROGRAM FOR MINORITY MANPOWER UTILIZATION IN THE CONSTRUCTION INDUSTRY IN ALLEGHENY COUNTY, PENNSYLVANIA, AGREED TO BETWEEN THE BLACK CONSTRUCTION COALITION AND CERTAIN PITTSBURGH BUILDING TRADE UNIONS AND CONTRACTORS), OR BY THE MINIMUM REQUIREMENTS OF A DETAILED AFFIRMATIVE ACTION PLAN AS DESCRIBED IN THE BID CONDITIONS.

THIS OFFICE HAS RECENTLY HAD OCCASION TO CONSIDER THE EFFECT OF EQUAL OPPORTUNITY REQUIREMENTS SUCH AS WERE INCORPORATED INTO THE SUBJECT INVITATION. IT WAS CONCLUDED THAT BID CONDITIONS RELATING TO AFFIRMATIVE ACTION REQUIREMENTS WHICH DEFINE THE LIMITS OF THE BIDDER'S EQUAL EMPLOYMENT OPPORTUNITY OBLIGATIONS FORMED A MATERIAL PART OF THE BID TO WHICH ASSENT WAS PROPERLY REQUIRED OF ALL BIDDERS AT THE TIME OF BID OPENING. SEE 51 COMP. GEN. , B-172819, DECEMBER 1, 1971.

THE CONTRACTING OFFICER, IN HER REPORT TO THIS OFFICE, HAS ADVISED THAT RECEIPT OF THESE BID CONDITIONS BY BETHLEHEM WAS CONFIRMED IN A TELEPHONIC CONVERSATION ON SEPTEMBER 16, 1971, BETWEEN BETHLEHEM'S DISTRICT MANAGER, MR. ANDREW A. LANG, AND THE GOVERNMENT'S PURCHASING AGENT, MISS C. GRUBER.

WHILE WE ARE NOT EQUIPPED TO RESOLVE ANY FACTUAL DISPUTE WHICH MAY EXIST ON THIS POINT, OUR CONCLUSION ON YOUR PROTEST NEED NOT DEPEND ON WHETHER THE BID CONDITIONS WERE IN FACT RECEIVED. IN CASES WHERE THERE HAS BEEN A FAILURE BY INTERESTED BIDDERS TO RECEIVE TIMELY COPIES OF INVITATIONS FOR BIDS AND AMENDMENTS THERETO, IT HAS BEEN OUR POSITION THAT THIS FACT DOES NOT WARRANT A MATERIAL MODIFICATION OF THE BID AFTER THE TIME FIXED FOR OPENING. SEE 40 COMP. GEN. 126 (1960). SINCE THE AFFIRMATIVE ACTION REQUIREMENTS ARE MATERIAL REQUIREMENTS, WE MUST CONCLUDE THAT BETHLEHEM'S FAILURE TO COMMIT ITSELF PRIOR TO BID OPENING CANNOT NOW BE WAIVED OR CORRECTED, IRRESPECTIVE OF WHETHER THE AFFIRMATIVE ACTION REQUIREMENTS WERE INCLUDED IN THE INVITATION RECEIVED BY BETHLEHEM.

FOR THE REASONS STATED YOUR PROTEST IS DENIED.