B-170101, SEP. 22, 1970

B-170101: Sep 22, 1970

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SINCE A TELEGRAPHIC COMMUNICATION CONCERNING A NLRB DECISION WAS ADVISING ONLY AND NOT IN NATURE OF AN AMENDMENT FACT THAT LOW BIDDER DID NOT TAKE IT INTO CONSIDERATION DOES NOT AFFECT AWARD. THE SUBJECT SOLICITATION WAS ISSUED ON MAY 7. BIDS WERE INITIALLY SCHEDULED TO BE OPENED ON MAY 28. FOUR AMENDMENTS TO THE SOLICITATION WERE ISSUED. PROSPECTIVE BIDDERS ARE INFORMED THAT THE FIRM POSSESSING THE CURRENT CONTRACT FOR THESE SERVICES HAS A COLLECTIVE BARGAINING AGREEMENT WITH A LABOR UNION AND THAT ANY SUBSEQUENT CONTRACTOR PROPOSING TO USE THE SAME LABOR FORCE. WE ARE ADVISED THAT THE PURPOSE OF THE MESSAGE WAS TO APPRISE PROSPECTIVE BIDDERS OF THE COLLECTIVE BARGAINING AGREEMENT. BIDS WERE OPENED ON JUNE 1.

B-170101, SEP. 22, 1970

BID PROTEST - UNION AGREEMENT DENIAL OF PROTEST AGAINST AWARD OF CONTRACT TO DYNAMIC INTERNATIONAL, INC., LOW BIDDER, FOR FURNISHING MESS SERVICES FOR FORT BENNING MESS HALLS, ON THE BASIS THE SUCCESSFUL CONTRACTOR DID NOT ADHERE TO UNION AGREEMENT. SINCE A TELEGRAPHIC COMMUNICATION CONCERNING A NLRB DECISION WAS ADVISING ONLY AND NOT IN NATURE OF AN AMENDMENT FACT THAT LOW BIDDER DID NOT TAKE IT INTO CONSIDERATION DOES NOT AFFECT AWARD.

TO MILITARY BASE MANAGEMENT, INC.:

WE AGAIN REFER TO YOUR LETTER OF JUNE 17, 1970, PROTESTING THE AWARD OF A CONTRACT TO DYNAMIC INTERNATIONAL, INC. (DYNAMIC), UNDER INVITATION FOR BIDS NO. DABC09-70-B-0147, ISSUED BY THE PURCHASING AND CONTRACTING OFFICE, FORT BENNING, GEORGIA.

THE SUBJECT SOLICITATION WAS ISSUED ON MAY 7, 1970, AND INVOLVED NONPERSONAL KITCHEN POLICE SERVICES TO BE PERFORMED IN VARIOUS MESS HALLS AT FORT BENNING DURING THE PERIOD FROM JULY 1, 1970, THROUGH JUNE 30, 1971. BIDS WERE INITIALLY SCHEDULED TO BE OPENED ON MAY 28, 1970; HOWEVER, FOUR AMENDMENTS TO THE SOLICITATION WERE ISSUED, THE LAST OF WHICH EXTENDED THE BID OPENING DATE TO JUNE 1, 1970.

ON MAY 26, 1970, PRIOR TO THE RECEIPT AND OPENING OF BIDS, THE PURCHASING OFFICE SENT THE FOLLOWING TELEGRAPHIC MESSAGE TO ALL PROSPECTIVE BIDDERS:

"REFERENCE SOLICITATION NO. DABC09-70-B-0147, FOR NON-PERSONAL KITCHEN POLICE SERVICES. PROSPECTIVE BIDDERS ARE INFORMED THAT THE FIRM POSSESSING THE CURRENT CONTRACT FOR THESE SERVICES HAS A COLLECTIVE BARGAINING AGREEMENT WITH A LABOR UNION AND THAT ANY SUBSEQUENT CONTRACTOR PROPOSING TO USE THE SAME LABOR FORCE, OR SUBSTANTIALLY THE SAME FORCE, MAY BE OBLIGATED UNDER RECENT NATIONAL LABOR RELATIONS BOARD DECISION TO ADHERE TO THE TERMS OF THE PRESENT AGREEMENT."

WE ARE ADVISED THAT THE PURPOSE OF THE MESSAGE WAS TO APPRISE PROSPECTIVE BIDDERS OF THE COLLECTIVE BARGAINING AGREEMENT.

BIDS WERE OPENED ON JUNE 1, 1970, AND THE LOW BID WAS SUBMITTED BY DYNAMIC. THE BID OF YOUR FIRM WAS FOURTH LOWEST OF THE EIGHT RECEIVED. ALL OF THE BIDDERS TIMELY ACKNOWLEDGED RECEIPT OF THE FOUR AMENDMENTS. THE CONTRACTING OFFICER DETERMINED THAT DYNAMIC WAS A RESPONSIBLE BIDDER AND THAT ITS PRICES WERE FAIR AND REASONABLE. THEREAFTER, AWARD OF CONTRACT NO. DABC09-71-D-1261 WAS MADE TO DYNAMIC ON JUNE 16, 1970.

IN YOUR LETTER OF JUNE 17, 1970, YOU CONTEND THAT ADHERENCE TO THE UNION AGREEMENT BETWEEN THE PREDECESSOR CONTRACTOR AND THE LABOR UNION WAS MADE MANDATORY BY THE NATIONAL LABOR RELATIONS BOARD DECISION AND THE ABOVE- QUOTED TELEGRAM OF MAY 26, 1970, AND THAT THE AMOUNT OF DYNAMIC'S LOW BID IS INDICATIVE OF THE FACT THAT IT FAILED TO TAKE INTO CONSIDERATION THE WAGE RATE AND FRINGE BENEFIT REQUIREMENTS OF THE UNION AGREEMENT. YOU CONCLUDE, THEREFORE, THAT THE AWARD WAS UNFAIR TO THE OTHER BIDDERS WHO ADHERED TO THE UNION AGREEMENT IN PREPARING THEIR BIDS.

THE TELEGRAPHIC ADVICE OF MAY 26, 1970, QUOTED ABOVE, DID NOT CONSTITUTE A CHANGE TO THE INVITATION REQUIREMENTS OR THE CORRECTION OF ANY OF ITS PROVISIONS. IN SHORT, WE DO NOT REGARD THE TELEGRAM AS AN AMENDMENT TO THE INVITATION WHICH CONSTITUTED A DIRECTION TO CONSIDER ITS IMPACT ON BIDS TO BE SUBMITTED. RATHER, THE TELEGRAM WAS ADVISORY IN NATURE AS TO THE EXISTENCE OF A UNION AGREEMENT WITH THE THEN CURRENT CONTRACTOR. THIS VIEW IS CONFIRMED BY THE FACT THAT NONE OF THE EIGHT BIDDERS ACKNOWLEDGED RECEIPT OF THE TELEGRAM AND THUS DID NOT CONSIDER IT AS AN AMENDMENT TO THE INVITATION.

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