B-170705, NOV. 23, 1970

B-170705: Nov 23, 1970

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THE OMISSION OF AN ATTACHMENT SETTING FORTH MINIMUM WAGE REQUIREMENTS TO THE INVITATION FOR BIDS WAS A FATAL DEFECT JUSTIFYING CANCELLATION. THE OMISSION OF THE SERVICE CONTRACT ACT DETERMINATION WAS NOTED. SINCE IT WAS DETERMINED THAT SUCH OMISSION WAS A FATAL DEFECT IN THE INVITATION. THE INVITATION WAS CANCELED ON JUNE 11. NA-71-57 WAS ISSUED WHICH CONTAINED A CURRENT LABOR DEPARTMENT WAGE. THREE BIDS WERE RECEIVED UNDER THIS INVITATION AND ON OR ABOUT AUGUST 12. AWARD WAS MADE TO THE CHOICE MESSENGER COMPANY AS THE LOWEST. ENTERED INTO BY THE UNITED STATES OR THE DISTRICT OF COLUMBIA THE PRINCIPAL PURPOSE OF WHICH IS TO FURNISH SERVICES THROUGH THE USE OF SERVICE EMPLOYEES SHALL CONTAIN "A PROVISION SPECIFYING THE MINIMUM MONETARY WAGES TO BE PAID THE VARIOUS CLASSES OF SERVICE EMPLOYEES *** AS DETERMINED BY THE SECRETARY (OF LABOR) *** IN ACCORDANCE WITH PREVAILING RATES FOR SUCH EMPLOYEES IN THE LOCALITY.".

B-170705, NOV. 23, 1970

BID PROTEST - DEFECTIVE INVITATION - CANCELLATION DENIAL OF PROTEST OF MACCARRIERS, INC., AGAINST CANCELLATION OF INVITATION FOR BIDS ISSUED BY THE INTERNAL REVENUE SERVICE FOR A CONTRACT TO DELIVER PACKAGES OF SUPPLIES AND TAX FORMS. THE OMISSION OF AN ATTACHMENT SETTING FORTH MINIMUM WAGE REQUIREMENTS TO THE INVITATION FOR BIDS WAS A FATAL DEFECT JUSTIFYING CANCELLATION. FAILURE OF THE CONTRACTING OFFICER TO COMPLY WITH FPR SEC. 1-2.404-1(B) AND SEC. 1-2.404-3 THAT REQUIRE A WRITTEN NOTICE OF CANCELLATION BE SENT TO ALL BIDDERS, DOES NOT PROVIDE A BASIS FOR THE RELIEF ASKED FOR BY PROTESTANT.

TO MACCARRIERS, INC.:

WE REFER TO YOUR PROTEST AGAINST THE CANCELLATION OF INVITATION FOR BIDS NO. NA-71-52, ISSUED BY THE INTERNAL REVENUE SERVICE (IRS), NEW YORK, NEW YORK, AND THE RESOLICITATION OF THE PROCUREMENT BY INVITATION NO. NA-71- 57.

THE INVITATION DATED MAY 6, 1970, REQUESTED BIDS FOR FURNISHING SERVICES INCIDENT TO THE DELIVERY OF PACKAGES AND CARTONS OF SUPPLIES AND TAX FORMS TO OR FROM DELIVERY POINTS WITHIN MANHATTAN, THE BRONX, BROOKLYN, QUEENS AND FIVE IRS OFFICES IN THE NEW YORK CITY AREA. THE INVITATION SPECIAL CONDITIONS CONTAIN ADVICE AS TO THE APPLICABILITY OF THE SERVICE CONTRACT ACT OF 1965 BUT DID NOT CONTAIN AN ATTACHMENT SETTING FORTH THE MINIMUM WAGES AND FRINGE BENEFITS SPECIFIED IN ANY APPLICABLE, CURRENTLY EFFECTIVE, DETERMINATION BY THE WAGE AND HOUR AND PUBLIC CONTRACTS DIVISIONS, DEPARTMENT OF LABOR. SUBSEQUENT TO BID OPENING, BUT BEFORE ANY AWARD ACTION, THE OMISSION OF THE SERVICE CONTRACT ACT DETERMINATION WAS NOTED. SINCE IT WAS DETERMINED THAT SUCH OMISSION WAS A FATAL DEFECT IN THE INVITATION, THE INVITATION WAS CANCELED ON JUNE 11, 1970. ON JUNE 25, 1970, INVITATION NO. NA-71-57 WAS ISSUED WHICH CONTAINED A CURRENT LABOR DEPARTMENT WAGE, ETC., DETERMINATION, NO. 68-258 (REV. 3) DATED OCTOBER 15, 1969. THREE BIDS WERE RECEIVED UNDER THIS INVITATION AND ON OR ABOUT AUGUST 12, 1970, AWARD WAS MADE TO THE CHOICE MESSENGER COMPANY AS THE LOWEST, RESPONSIVE BIDDER THEREUNDER.

SECTION 2(A)(1) OF THE SERVICE CONTRACT ACT OF 1965, 41 U.S.C. 351(A)(1), PROVIDES THAT "EVERY CONTRACT (AND ANY BID SPECIFICATION THEREFOR)," WITH CERTAIN EXCEPTIONS, ENTERED INTO BY THE UNITED STATES OR THE DISTRICT OF COLUMBIA THE PRINCIPAL PURPOSE OF WHICH IS TO FURNISH SERVICES THROUGH THE USE OF SERVICE EMPLOYEES SHALL CONTAIN "A PROVISION SPECIFYING THE MINIMUM MONETARY WAGES TO BE PAID THE VARIOUS CLASSES OF SERVICE EMPLOYEES *** AS DETERMINED BY THE SECRETARY (OF LABOR) *** IN ACCORDANCE WITH PREVAILING RATES FOR SUCH EMPLOYEES IN THE LOCALITY."

SECTION 1-12.905-1(A) OF THE FEDERAL PROCUREMENT REGULATIONS (FPR) IMPLEMENTS THE ABOVE PROVISION OF LAW AND MAKES IT MANDATORY THAT WAGE RATE AND FRINGE BENEFIT DETERMINATIONS OF THE LABOR DEPARTMENT BE INCLUDED IN INVITATIONS SUCH AS THE ONE HERE INVOLVED.

CONSIDERING THAT THE INVITATION RESERVED TO THE GOVERNMENT THE RIGHT TO REJECT ANY OR ALL BIDS, AND SINCE FPR SEC. 1-2.404-1(B)(1) AUTHORIZES THE CANCALLATION OF AN INVITATION FOR BIDS WHEN, AS HERE, INADEQUATE OR DEFICIENT SPECIFICATIONS ARE INCLUDED IN THE INVITATION, WE FIND NO LEGAL BASIS TO OBJECT TO THE CANCELLATION OF THE INVITATION OR THE READVERTISEMENT OF THE PROCUREMENT UNDER THE CIRCUMSTANCES HERE PRESENT. CF. 45 COMP. GEN. 325 (1965).

HOWEVER, WE NOTE THAT THE CONTRACTING OFFICER FAILED TO COMPLY WITH THE FPR WHEN HE CANCELED THE INVITATION. ALTHOUGH THESE DEFICIENCIES ARE PROTESTED, THEY DO NOT RELATE TO THE LEGALITY OF THE ACTIONS TAKEN. SPECIFICALLY, THE CONTRACTING OFFICER FAILED TO REDUCE HIS DETERMINATION TO CANCEL THE INVITATION TO WRITING AS REQUIRED BY FPR SEC. 1-2.404-1(B). ALSO, HE FAILED TO COMPLY WITH FPR SEC. 1-2.404-3 WHICH REQUIRES THAT WHEN A CONTRACTING OFFICER DETERMINES TO REJECT ALL BIDS, EACH BIDDER SHALL BE NOTIFIED OF HIS DETERMINATION AND THE REASONS THEREFOR. WE ARE RECOMMENDING TO THE COMMISSIONER OF THE INTERNAL REVENUE SERVICE THAT APPROPRIATE STEPS BE TAKEN TO ASSURE COMPLIANCE WITH THE ABOVE-CITED REGULATIONS.

ACCORDINGLY, YOUR PROTEST IS DENIED.