B-178839, OCT 10, 1973

B-178839, OCT 10, 1973

DENIAL OF PROTEST AGAINST THE REJECTION OF ITS BID AS NONRESPONSIVE UNDER CONSTRUCTION PROJECT NO. NA-104-73-50, ISSUED BY THE VETERANS ADMINISTRATION HOSPITAL, WEST HAVEN, CONNECTICUT.

TO PREMIER ROOFING COMPANY, INC.:

THIS IS IN REFERENCE TO THE JUNE 6, 1973, TELEGRAM FROM YOUR FIRM (PREMIER), AND SUBSEQUENT CORRESPONDENCE, PROTESTING AGAINST THE REJECTION OF YOUR BID AS NONRESPONSIVE PURSUANT TO CONSTRUCTION PROJECT NO. NA-104- 73-50, ISSUED ON MAY 7, 1973, BY THE VETERANS ADMINISTRATION (VA) HOSPITAL, WEST HAVEN, CONNECTICUT.

BIDS WERE SOLICITED FOR TWO ITEMS - ALTERNATE NO. 1 CALLED FOR LABOR, EQUIPMENT, AND MATERIAL NECESSARY FOR REPLACING APPROXIMATELY 29,200 SQ. FT. OF BUILT-UP ROOFING, AND ALTERNATE NO. 2 CALLED FOR LABOR, EQUIPMENT, AND MATERIAL NECESSARY FOR REPLACING APPROXIMATELY 4,109 SQ. FT. OF BUILT- UP ROOFING. PREMIER SUBMITTED THE LOW BID FOR BOTH ITEMS AT $65,560, BUT WAS CONSIDERED NONRESPONSIVE BY THE CONTRACTING OFFICER FOR ITS FAILURE TO FILL OUT AND RETURN WITH ITS BID THE ENCLOSED BID CONDITIONS PORTION OF THE NEW HAVEN PLAN. STANDARD BID FORM 21, (CONSTRUCTION CONTRACT), ON WHICH THE BID WAS SUBMITTED, CARRIED THE PRINTED NOTATION:

"THE ATTACHED NEW HAVEN PLAN IS MADE A PART OF THIS INVITATION AND FAILURE TO RETURN SIGNED COPIES OF NEW HAVEN PLAN WITH THE BID WILL RESULT IN THE BIDDER BEING DECLARED NON-RESPONSIVE."

THE NEW HAVEN PLAN HAS BEEN APPROVED BY THE DEPARTMENT OF LABOR'S OFFICE OF FEDERAL CONTRACT COMPLIANCE (OFCC) AS AN APPROPRIATE PROGRAM TO IMPLEMENT THE TRAINING OF MINORITIES IN THE CONSTRUCTION INDUSTRY. THE PLAN INCORPORATES A SCHEME WHEREBY SIGNATORIES THERETO PROGRESSIVELY INCREASE MINORITY REPRESENTATION IN THEIR RESPECTIVE CONSTRUCTION COMPANIES.

IT IS PREMIER'S POSITION THAT ITS FAILURE TO COMPLETE AND RETURN THE BID CONDITION-AFFIRMATIVE ACTION REQUIREMENTS PROVISION INCORPORATED IN THE IFB WAS A MERE TECHNICAL OVERSIGHT AND SHOULD NOT BE A FATAL ERROR. AS A BASIS FOR THIS POSITION, PREMIER POINTS OUT THAT IT HAS BEEN A MEMBER OF THE NEW HAVEN PLAN SINCE ITS INCEPTION AND, THEREFORE, WAS BOUND BY ALL RULES AND REQUIREMENTS OF THE PLAN AT THE TIME ITS BID WAS SUBMITTED. PREMIER ALSO STATES THAT IT HAS, IN THE PAST, SUBMITTED BIDS PURSUANT TO OTHER SOLICITATIONS BY THE VA HOSPITAL AND HAS, ON THESE OCCASIONS, SIGNED AND RETURNED THE BID CONDITION FORM AND, THEREFORE, THE VA HOSPITAL HAD KNOWLEDGE PRIOR TO THE BID OPENING IN QUESTION THAT PREMIER ADHERED TO ALL EQUAL OPPORTUNITY REQUIREMENTS IN THE NEW HAVEN PLAN.

EXECUTIVE ORDER 11246, AS AMENDED, IS THE CONTROLLING LAW WHICH EMPOWERED THE U.S. DEPARTMENT OF LABOR TO FORMULATE AND APPLY THE RULES AND REGULATIONS TO ENSURE EQUAL EMPLOYMENT OPPORTUNITY. THE SECRETARY OF LABOR DELEGATED THE IMPLEMENTATION OF THE RULES AND REGULATIONS TO THE OFCC. THE IMPLEMENTING REGULATIONS ESTABLISHED REQUIRE EACH FEDERAL AGENCY TO INCLUDE IN EACH CONSTRUCTION CONTRACT "BID CONDITIONS" SETTING FORTH AFFIRMATIVE ACTION REQUIREMENTS TO THE PARTICULAR "CITY PLAN" (IN THIS CASE, THE NEW HAVEN PLAN) WHICH HAVE THE APPROVAL OF OFCC. THE PURPOSE OF THIS REQUIREMENT IS TO OBTAIN A FIRM CONTRACTUAL COMMITMENT, BETWEEN THE AGENCY AND THE CONTRACTOR, THAT THE PROVISIONS OF THE "CITY PLAN" WILL BE ADHERED TO.

THIS OFFICE CANNOT AGREE WITH PREMIER'S ARGUMENT THAT SIMPLY BECAUSE IT WAS A SIGNATORY TO THE NEW HAVEN PLAN IT WAS CONTRACTUALLY COMMITTED, AS REQUIRED BY THE OFCC REGULATIONS AND THE IFB, TO ABIDE BY THE PROVISIONS OF THE PLAN. THERE IS NOTHING IN THE NEW HAVEN PLAN TO CONTRACTUALLY BIND A SIGNATORY TO ANY PROVISION ON ANY SPECIFIC CONTRACT. THUS, THE FACT THAT YOUR ROOFER'S UNION IS A SIGNATORY TO THE PLAN IN NO WAY LEGALLY BINDS YOUR FIRM TO THE ADVERTISED CONTRACT CONDITIONS.

IT IS THEREFORE ESSENTIAL THAT THE BID CONDITIONS PROVISION IN THE IFB BE COMPLETED AND SUBMITTED WITH THE BID. FOR UNLESS THIS IS ACCOMPLISHED, THE BIDDER WILL HAVE NO LEGALLY ENFORCEABLE OBLIGATION TO UPHOLD THE PROVISIONS OF THE NEW HAVEN PLAN. TO ASSERT THAT SIGNATORIES TO THE NEW HAVEN PLAN ARE NOT REQUIRED TO COMPLETE THE BID CONDITIONS PROVISION WOULD BE CONTRARY TO THE VERY WORDING OF PART I OF THE PROVISION WHICH STATES:

"*** 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 NEW HAVEN AREA WIDE PLAN FOR TRAINING MINORITIES IN THE CONSTRUCTION INDUSTRY DATED FEBRUARY 17, 1971 ***."

IN EFFECT, A BIDDER BY FILLING OUT PART I OF THE FORM IS AGREEING TO ABIDE BY THE PROVISIONS OF THE NEW HAVEN PLAN TO WHICH IT IS A SIGNATORY. PART III OF THIS FORM SETS OUT THE CONSEQUENCES OF NONCOMPLIANCE:

"*** FAILURE TO SUBMIT A PART I CERTIFICATION OR A PART II AFFIRMATIVE ACTION PLAN, AS APPLICABLE, WILL RENDER THE BID NONRESPONSIVE."

THE LANGUAGE USED IN THE PART III PROVISION HAS BEEN CONSTRUED IN OUR PRIOR DECISIONS, 50 COMP. GEN. 844 (1971) AND B-174932, MARCH 3, 1972, AS REQUIRING THAT WHEN AFFIRMATIVE ACTION REQUIREMENTS ARE CONTAINED IN AN IFB THEY ARE MATERIAL AND REQUIRE A BIDDER TO COMMIT ITSELF, PRIOR TO BID OPENING, TO THE REQUIREMENTS, AND IN THE MANNER SPECIFIED IN THE SOLICITATION. WE ALSO HELD THAT A BIDDER WHO FAILS TO MAKE SUCH A COMMITMENT IN ITS BID MAY NOT HAVE THE DEVIATION WAIVED, NOR MAY THE BIDDER BE ALLOWED TO CORRECT THE DEFICIENCY AFTER BID OPENING IN AN EFFORT TO RENDER THE BID ELIGIBLE FOR AWARD. B-177509, APRIL 13, 1972.

PREMIER'S SECOND ARGUMENT, THAT SINCE IT HAD PREVIOUSLY BID ON CONTRACTS SOLICITED BY THE VA HOSPITAL IN NEW HAVEN AND HAD ON THESE OCCASIONS SUBMITTED THE BID CONDITIONS AGREEMENT WITH ITS BID, THE AGENCY WAS AWARE THAT PREMIER INTENDED TO COMPLY WITH THE NEW HAVEN PLAN, IS ALSO WITHOUT MERIT. AS PREVIOUSLY STATED, THE OFCC REGULATIONS REQUIRE FEDERAL AGENCIES TO INCLUDE IN EACH SOLICITATION BID CONDITIONS SETTING FORTH AFFIRMATIVE ACTION REQUIREMENTS. THE FACT THAT PREMIER WAS CONTRACTUALLY BOUND TO THE NEW HAVEN PLAN ON PRIOR CONTRACTS WITH AN AGENCY HAS NO EFFECT ON ITS LEGAL OBLIGATIONS AS TO FUTURE CONTRACTS WITH THE SAME, OR OTHER GOVERNMENT AGENCIES. KNOWLEDGE BY THE SOLICITING AGENCY OF BIDDER COMPLIANCE WITH AFFIRMATIVE ACTION REQUIREMENTS IS NOT A SUBSTITUTE FOR THE CONTRACTUAL COMMITMENT REQUIRED OF A BIDDER BEFORE IT CAN BE CONSIDERED FOR AWARD OF A CONTRACT.

FOR THE ABOVE REASONS, PREMIER'S FAILURE TO SUBMIT WITH ITS BID THE BID CONDITIONS PROVISIONS OF THE NEW HAVEN PLAN RENDERED ITS BID NONRESPONSIVE AND, THEREFORE, ITS PROTEST MUST BE DENIED.