B-194957.2, JUL 31, 1979

B-194957.2, JUL 31, 1979

DIGEST: 1. PRIOR DECISION DISMISSING PROTEST AS UNTIMELY IS AFFIRMED AND PROTEST WILL NOT BE CONSIDERED SINCE MATTER DOES NOT RAISE A "SIGNIFICANT" ISSUE WITHIN MEANING OF BID PROTEST PROCEDURES. 2. WHERE INITIAL PROTEST IS UNTIMELY, TIMELY RECEIPT OF PROTESTER'S COMMENTS ON AGENCY REPORT DOES NOT PROVIDE A BASIS TO ISSUE DECISION ON MERITS.

BUCKS COUNTY ASSOCIATION FOR THE BLIND - RECONSIDERATION:

BUCKS COUNTY ASSOCIATION FOR THE BLIND (BUCKS COUNTY) REQUESTS RECONSIDERATION OF OUR DECISION BUCKS COUNTY ASSOCIATION FOR THE BLIND, B-194957, JUNE 28, 1979, 79-1 CPD 471, DISMISSING ITS PROTEST AS UNTIMELY. FOR THE REASONS THAT FOLLOW, WE FIND NO BASIS FOR RECONSIDERATION.

IN ITS INITIAL PROTEST, BUCKS COUNTY PROTESTED ANY AWARD OF CONTRACTS BY THE DEFENSE LOGISTICS AGENCY UNDER INVITATIONS FOR BIDS DLA-13H-79B-8440 AND DLA-13H-79B-8465. BUCKS COUNTY ARGUED THAT THE DEPARTMENT OF LABOR WAGE RATE DETERMINATION PURSUANT TO THE SERVICE CONTRACT ACT OF 1965 (SCA), 41 U.S.C. 351 ET SEQ. (1976), SHOULD HAVE SPECIFIED A UNIFORM NATION-WIDE RATE RATHER THAN THE DIFFERENT RATES PREVAILING IN THE LOCALITIES WHERE THE SERVICES WOULD BE PERFORMED. IN ADDITION, BUCKS COUNTY PROTESTED THAT THE JOB CLASSIFICATIONS UTILIZED IN THE SOLICITATIONS WERE NOT UNIFORM IN NUMBER OR TITLE FOR THE DIFFERENT SECTIONS OF THE COUNTRY.

BUCKS COUNTY NOW CONTENDS THAT ITS PROTEST SHOULD HAVE BEEN CONSIDERED ON ITS MERITS BECAUSE THE PROTEST RAISES ISSUES SIGNIFICANT TO PROCUREMENT PRACTICE AND PROCEDURE AND THEREFORE SHOULD BE RECONSIDERED IN ACCORDANCE WITH SEC. 20.2(C) OF OUR BID PROTEST PROCEDURES (PROCEDURES), 4 C.F.R. PART 20 (1979).

SECTION 20.2(C) OF OUR PROCEDURES DOES PERMIT, AMONG OTHER THINGS, CONSIDERATION OF UNTIMELY PROTESTS WHERE ISSUES SIGNIFICANT TO PROCUREMENT PRACTICES ARE RAISED. THE SIGNIFICANT ISSUE EXCEPTION IS LIMITED TO MATTERS WHICH ARE OF WIDESPREAD INTEREST TO THE PROCUREMENT COMMUNITY. HAVE HELD THAT WHERE A PROTEST INVOLVES ISSUES WHICH HAVE BEEN CONSIDERED IN PRIOR DECISIONS, SUCH ISSUES ARE NOT "SIGNIFICANT." SEE JONES & GUERRERO CO., INCORPORATED, B-192328, OCTOBER 23, 1978, 78-2 CPD 296. THE USE OF LOCAL VERSUS NATIONWIDE WAGE RATE DETERMINATIONS BY THE DEPARTMENT OF LABOR HAS BEEN CONSIDERED IN PAST DECISIONS OF OUR OFFICE. SEE 53 COMP.GEN. 370 (1973); THE CAGE COMPANY OF ABILENE, INC., 57 COMP.GEN. 549 (1978), 78-1 CPD 430; THE CAGE COMPANY OF ABILENE, INC., B-189335, JULY 26, 1978, 78-2 CPD 72. THEREFORE, THE SAME ISSUE IS NOT "SIGNIFICANT" WITHIN THE MEANING OF 20.2(C) OF OUR PROCEDURES, SUPRA.

ALTHOUGH WE HAVE NOT DIRECTLY ADDRESSED THE PROPRIETY OF UTILIZING JOB CLASSIFICATIONS THAT VARY IN TITLE AND NUMBER IN SOLICITATIONS FOR THE SAME WORK IN DIFFERENT REGIONS OF THE COUNTRY, WE BELIEVE THAT THIS ISSUE DOES NOT RAISE A "SIGNIFICANT" QUESTION. THE JOB CLASSIFICATIONS INCLUDED IN THE SOLICITATIONS FOR DIFFERENT REGIONS OF THE COUNTRY APPARENTLY REFLECT THE SERVICE EMPLOYEES THAT ARE CUSTOMARILY EMPLOYED IN THE PARTICULAR REGION. IF ANY SERVICE EMPLOYEES HAVE BEEN OMITTED, DEPARTMENT OF LABOR REGULATIONS PROVIDE AN ORDERLY METHOD BY WHICH SUCH OMITTED EMPLOYEES CAN BE APPROPRIATELY CLASSIFIED AND AFFORDED SCA PROTECTION. SEE 29 C.F.R. 4.6(B)(1978); MIDWEST SERVICE AND SUPPLY CO. AND MIDWEST ENGINE INCORPORATED, B-191554, JULY 13, 1978, 78-2 CPD 34.

BUCKS COUNTY ALSO ARGUES THAT SINCE IT FILED A TIMELY RESPONSE TO THE AGENCY REPORT IN THIS CASE, THE MERITS OF THE PROTEST SHOULD HAVE BEEN CONSIDERED. WHERE THE INITIAL PROTEST IS UNTIMELY, A TIMELY RECEIPT OF COMMENTS ON AN AGENCY REPORT DOES NOT PROVIDE A BASIS FOR OUR OFFICE TO ISSUE A DECISION ON THE MERITS. BERZ AMBULANCE SERVICE, INC., B-187349, JUNE 8, 1977, 77-1 CPD 411; DEL NORTE TECHNOLOGY, INC., B-182318, JANUARY 27, 1975, 75-1 CPD 53. THEREFORE, IT WOULD BE INAPPROPRIATE FOR OUR OFFICE TO CONSIDER ON THE MERITS THE UNTIMELY PROTEST IN THIS CASE, SINCE THE EFFECT OF IGNORING THE UNTIMELINESS COULD BE TO UNDERMINE THE BID PROTEST PROCEDURES.

THEREFORE, OUR JUNE 28, 1979 DECISION IS AFFIRMED.