B-161064, MAY 2, 1967

B-161064: May 2, 1967

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INC.: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED MARCH 14. THERE WAS INSUFFICIENT TIME PROVIDED FOR THE HIRING. YOU CONTEND THAT THE CITY AND COUNTY LICENSING AND/OR REGISTRATION OF ARMED GUARDS AND THE APPOINTMENT OR DESIGNATION OF THE NUMBER OF REQUIRED SPECIAL POLICE OR CONSERVATORS OF THE PEACE COULD NOT HAVE BEEN ACCOMPLISHED BY OTHER THAN THE CURRENT CONTRACTOR WITHIN THE TIME PROVIDED BY THE INVITATION. THE INVITATION WAS ISSUED BY THE PROCUREMENT SECTION. BIDS WERE REQUESTED FOR THE FURNISHING OF PROTECTION AND PATROL SERVICES AT THE CUBAN REFUGEE CENTER. THE THEN CURRENT CONTRACT FOR THE PROVIDING OF SUCH SERVICES WAS DUE TO EXPIRE ON MARCH 31. YOUR ATTENTION IS DIRECTED TO FEDERAL PROCUREMENT REGULATIONS (FPR) 1-2.202-1 (C) WHICH PROVIDES IN PART: "/C) MINIMUM BIDDING TIME.

B-161064, MAY 2, 1967

TO METROPOLITAN SECURITY SERVICES, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED MARCH 14, 1967, PROTESTING AGAINST THE ISSUANCE OF DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (HEW) INVITATION FOR BIDS NO. HEW-IFB-7-67 BECAUSE OF THE TIME INTERVAL BETWEEN ITS BID OPENING AND PERFORMANCE DATES. YOU STATE THAT THE DATE OF THE BID OPENING, MARCH 27, 1967, AND THE SPECIFIED DATE FOR COMMENCEMENT OF PERFORMANCE, APRIL 1, 1967, EFFECTIVELY LIMITS THE CAPACITY OF RESPONSIBLE BIDDERS TO PERFORM ANY RESULTING CONTRACT SINCE, FOR OTHER THAN THE CURRENT CONTRACTOR, THERE WAS INSUFFICIENT TIME PROVIDED FOR THE HIRING, SCREENING, TRAINING, AND EQUIPPING OF THE PERSONNEL REQUIRED. FURTHER, YOU CONTEND THAT THE CITY AND COUNTY LICENSING AND/OR REGISTRATION OF ARMED GUARDS AND THE APPOINTMENT OR DESIGNATION OF THE NUMBER OF REQUIRED SPECIAL POLICE OR CONSERVATORS OF THE PEACE COULD NOT HAVE BEEN ACCOMPLISHED BY OTHER THAN THE CURRENT CONTRACTOR WITHIN THE TIME PROVIDED BY THE INVITATION. YOU STATE ALSO THAT THE INVITATION LACKED A REQUIRED WAGE DETERMINATION UNDER THE SERVICE CONTRACT ACT OF 1965. HENCE, YOU REQUESTED THAT THE DATE OF COMMENCEMENT OF WORK BE POSTPONED TO APRIL 15, 1967, AND THAT THE DEPARTMENT OF LABOR WAGE AND HOUR DIVISION BE INSTRUCTED TO ISSUE A WAGE DETERMINATION FOR THE WORK ADVERTISED. SUCH RELIEF CANNOT BE EXTENDED SINCE AWARD HAS BEEN MADE UNDER THE INVITATION.

THE INVITATION WAS ISSUED BY THE PROCUREMENT SECTION, SUPPLY OPERATIONS BRANCH, OFFICE OF THE SECRETARY, HEW, ON MARCH 9, 1967, WITH A BID OPENING DATE OF MARCH 27, 1967. BIDS WERE REQUESTED FOR THE FURNISHING OF PROTECTION AND PATROL SERVICES AT THE CUBAN REFUGEE CENTER, MIAMI INTERNATIONAL AIRPORT, MIAMI, FLORIDA. THE THEN CURRENT CONTRACT FOR THE PROVIDING OF SUCH SERVICES WAS DUE TO EXPIRE ON MARCH 31, 1967. AS THE SERVICES HAD TO BE PROVIDED ON A CONTINUING BASIS TO THE REFUGEE CENTER, AN AWARD OF A CONTRACT HAD TO BE MADE ON OR BEFORE APRIL 1, 1967.

REGARDING YOUR ALLEGATION THAT THE INVITATION DID NOT PROVIDE FOR SUFFICIENT TIME TO PREPARE FOR PERFORMANCE IN CASE OF AN AWARD UNDER THE INVITATION, YOUR ATTENTION IS DIRECTED TO FEDERAL PROCUREMENT REGULATIONS (FPR) 1-2.202-1 (C) WHICH PROVIDES IN PART:

"/C) MINIMUM BIDDING TIME. AS A GENERAL RULE, BIDDING TIME SHALL BE NOT LESS THAN 15 CALENDAR DAYS WHEN PROCURING STANDARD COMMERCIAL ARTICLES AND SERVICES AND NOT LESS THAN 30 CALENDAR DAYS WHEN PROCURING OTHER THAN STANDARD COMMERCIAL ARTICLES OR SERVICES. THIS RULE NEED NOT BE OBSERVED IN SPECIAL CIRCUMSTANCES, OR WHERE THE URGENCY FOR THE SUPPLIES OR SERVICES DOES NOT PERMIT SUCH DELAY.' SINCE 18 DAYS BETWEEN THE DATE OF ISSUANCE OF THE INVITATION AND OPENING OF BIDS WAS PROVIDED, WE BELIEVE THAT SUFFICIENT BID PREPARATION TIME WAS AFFORDED TO INTERESTED BIDDERS.

MOREOVER, THE REQUIREMENTS OF THE INVITATION CONCERNING PERSONNEL STAFFING AND EQUIPMENT, INCLUDING STATE OR LOCAL LICENSING, WERE MATTERS OF RESPONSIBILITY WHICH COULD HAVE BEEN SATISFIED UP TO THE DATE OF AWARD. SEE, IN THIS REGARD, B-160538, B-160540 DATED MARCH 24, 1967. ALSO, WE ARE ADVISED THAT NO OTHER BIDDER INDICATED THAT THERE WOULD BE ANY PROBLEM IN COMPLYING WITH ALL THE CONTRACT REQUIREMENTS. AWARD WAS MADE ON MARCH 30, 1967, TO THE LOW RESPONSIVE, RESPONSIBLE BIDDER, NATIONAL INDUSTRIAL SECURITY CORPORATION, MIAMI, FLORIDA, WHICH WAS NOT THE CONTRACTOR WHO PROVIDED THE SERVICES UNDER THE PREVIOUS CONTRACT WHICH EXPIRED ON MARCH 31, 1967. THE PREVIOUS CONTRACTOR WAS PLANT SECURITY, INCORPORATED, PHILADELPHIA, PA., WHICH SUBMITTED A HIGHER BID ON THIS INVITATION. WE ARE ADVISED THAT NATIONAL INDUSTRIAL SECURITY HAS COMMENCED PERFORMANCE ON THE REQUIRED DATE IN ACCORDANCE WITH THE ADVERTISED TERMS AND CONDITIONS.

WITH REGARD TO THAT PART OF YOUR PROTEST CONCERNING THE LACK OF AN INVITATION WAGE DETERMINATION UNDER THE SERVICE CONTRACT ACT OF 1965, P.L. 89-286, 41 U.S.C. 351 ET SEQ., AS IMPLEMENTED BY FPR, THE RECORD DISCLOSES THAT THE NOTICE OF INTENTION TO MAKE A SERVICE CONTRACT, AS REQUIRED BY FPR 1-12.905-3, WAS SENT TO THE ADMINISTRATOR OF THE WAGE AND HOUR AND PUBLIC CONTRACTS DIVISION OF THE DEPARTMENT OF LABOR ON FEBRUARY 8, 1967. SINCE NO DETERMINATION OF AN APPLICABLE WAGE SCALE AND FRINGE BENEFITS STATEMENT WAS MADE UNTIL MARCH 31, 1967, THE INVITATION WAS ISSUED WITHOUT THE WAGE AND FRINGE BENEFIT ATTACHMENT CONTEMPLATED BY THE ACT. HOWEVER, ALL BIDDERS WERE ADVISED AS FOLLOWS BY PARAGRAPH 7C OF THE INVITATION SPECIAL TERMS AND CONDITIONS:

"C. MINIMUM WAGE

IN THE ABSENCE OF A MINIMUM WAGE ATTACHMENT FOR THIS CONTRACT, NEITHER THE CONTRACTOR NOR ANY SUBCONTRACTOR UNDER THIS CONTRACT SHALL PAY ANY OF HIS EMPLOYEES PERFORMING WORK UNDER THE CONTRACT (REGARDLESS OF WHETHER THEY ARE SERVICE EMPLOYEES) LESS THAN THE MINIMUM WAGE SPECIFIED BY SECTION 6 (A) (1) OF THE FAIR LABOR STANDARDS ACT OF 1938 ($1.40 PER HOUR AS OF FEBRUARY 1, 1967). NOTHING IN THIS PROVISION SHALL RELIEVE THE CONTRACTOR OR ANY SUBCONTRACTOR OF ANY OTHER OBLIGATION UNDER LAW OR CONTRACT FOR THE PAYMENT OF A HIGHER WAGE TO ANY EMPLOYEE.'

ALSO, SEE FPR 1-12.905-4, WHICH PROVIDES THAT THE MINIMUM WAGE SPECIFIED UNDER THE FAIR LABOR STANDARDS ACT OF 1938 SHALL APPLY WHEN MINIMUM MONETARY WAGES UNDER THE SERVICES CONTRACT ACT OF 1965, HAVE NOT BEEN DETERMINED PRIOR TO THE ISSUANCE OF THE INVITATION FOR BIDS.

ACCORDINGLY, FOR THE REASONS STATED ABOVE, YOUR PROTEST MUST BE DENIED.