B-171669(1), MAR 24, 1971, 50 COMP GEN 648

B-171669(1): Mar 24, 1971

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CONTAINED A REVISED WAGE DETERMINATION BY THE DEPARTMENT OF LABOR AND A "SUCCESSOR EMPLOYERS' COLLECTIVE BARGAIN OBLIGATIONS" CLAUSE THAT RECOGNIZED THE INCUMBENT CONTRACTORS UNION BARGAINING AGREEMENT IS NOT RESTRICTIVE OF COMPETITION AND AN AWARD MAY BE MADE TO THE LOWEST RESPONSIVE AND RESPONSIBLE BIDDER PURSUANT TO 10 U.S.C. 2305(C). THE INCLUSION IN THE IFB OF THE SERVICE CONTRACT ACT CLAUSE AND THE REVISED DETERMINATION WAS IN ACCORD WITH 29 CFR 4.6. EVEN THOUGH THE REVISION WAS NOT RECEIVED AT LEAST 10 DAYS BEFORE BID OPENING AS REQUIRED. SINCE SUFFICIENT TIME WAS PROVIDED FOR ACKNOWLEDGMENT OF THE AMENDMENT. CONTRACTS - LABOR STIPULATIONS - MINIMUM WAGE DETERMINATIONS - NOT GUARANTEE OF LABOR COSTS THE ISSUANCE OF A WAGE RATE DETERMINATION BY THE DEPARTMENT OF LABOR CONSTITUTES A FINDING THAT THE RATES SPECIFIED ARE THE RATES PREVAILING IN THE LOCALITY.

B-171669(1), MAR 24, 1971, 50 COMP GEN 648

CONTRACTS - LABOR STIPULATIONS - SERVICE CONTRACT ACT OF 1965 - MINIMUM WAGE, ETC., DETERMINATIONS - UNION AGREEMENT EFFECT A REISSUED INVITATION FOR BIDS (IFB) TO PERFORM CUSTODIAL SERVICES WHICH PROVIDED FOR THE APPLICATION OF THE SERVICE CONTRACT ACT OF 1965, AND CONTAINED A REVISED WAGE DETERMINATION BY THE DEPARTMENT OF LABOR AND A "SUCCESSOR EMPLOYERS' COLLECTIVE BARGAIN OBLIGATIONS" CLAUSE THAT RECOGNIZED THE INCUMBENT CONTRACTORS UNION BARGAINING AGREEMENT IS NOT RESTRICTIVE OF COMPETITION AND AN AWARD MAY BE MADE TO THE LOWEST RESPONSIVE AND RESPONSIBLE BIDDER PURSUANT TO 10 U.S.C. 2305(C). THE INCLUSION IN THE IFB OF THE SERVICE CONTRACT ACT CLAUSE AND THE REVISED DETERMINATION WAS IN ACCORD WITH 29 CFR 4.6, AND THE AMENDMENT TO THE IFB TO PROVIDE FOR THE REVISED WAGE DETERMINATION CONFORMED TO PARAGRAPH 2-208 OF THE ARMED SERVICES PROCUREMENT REGULATION, EVEN THOUGH THE REVISION WAS NOT RECEIVED AT LEAST 10 DAYS BEFORE BID OPENING AS REQUIRED, SINCE SUFFICIENT TIME WAS PROVIDED FOR ACKNOWLEDGMENT OF THE AMENDMENT. CONTRACTS - LABOR STIPULATIONS - MINIMUM WAGE DETERMINATIONS - NOT GUARANTEE OF LABOR COSTS THE ISSUANCE OF A WAGE RATE DETERMINATION BY THE DEPARTMENT OF LABOR CONSTITUTES A FINDING THAT THE RATES SPECIFIED ARE THE RATES PREVAILING IN THE LOCALITY, AND THE INCLUSION OF THE DETERMINATION IN AN INVITATION FOR BIDS OR A CONTRACT IS NOT A REPRESENTATION BY THE GOVERNMENT THAT LABOR MAY BE OBTAINED BY THE CONTRACTOR AT THE SPECIFIED RATES AND, THEREFORE, EACH BIDDER HAS THE BURDEN OF ASCERTAINING PROBABLE LABOR COSTS. CONTRACTS - LABOR STIPULATIONS - "SUCCESSOR EMPLOYER" DOCTRINE THE INCLUSION IN AN INVITATION FOR BIDS OF THE LANGUAGE REGARDING THE NATIONAL LABOR RELATIONS BOARD BURNS DECISION, 182 NLRB NO. 50, ON THE EFFECT OF EXISTING COLLECTIVE BARGAINING AGREEMENTS OF EMPLOYERS UPON SUCCESSOR EMPLOYERS DOES NOT REQUIRE BIDDERS TO BE BOUND BY AN EXISTING LABOR AGREEMENT AS THE GOVERNMENT MADE NO COMMITMENT REGARDING THE EFFECT OF THE DECISION BUT LEFT THE MATTER TO THE BIDDERS TO DECIDE. IT WAS NOT IMPROPER TO PLACE BIDDERS ON NOTICE OF THE BURNS DECISION AND THE INCUMBENT CONTRACTOR'S UNION BARGAINING AGREEMENT AND AS THE LANGUAGE USE WAS MERELY ADVISORY, THE INVITATION WAS NOT AMBIGUOUS. THE EXTENSION OF THE EXISTENT BARGAINING AGREEMENT BEYOND THE CONTRACT PERIOD IS NOT PROHIBITED BY THE PROCUREMENT STATUTES, AND WHETHER THE AGREEMENT IS ENFORCEABLE AGAINST A FOLLOWUP EMPLOYER IS FOR THE COURTS TO DECIDE. ANTITRUST MATTERS - LABOR ORGANIZATIONS THE JURISDICTION TO ENFORCE THE ANTITRUST STATUTES LIES WITH THE DEPARTMENT OF JUSTICE AND THE UNITED STATES GENERAL ACCOUNTING OFFICE IS WITHOUT AUTHORITY TO ISSUE A DETERMINATION RESPECTING THE APPLICABILITY OR VIOLATION OF THE STATUTES. HOWEVER, UNDER 15 U.S.C. 17, LABOR ORGANIZATIONS ENGAGED IN LAWFUL PURSUITS ARE EXEMPTED FROM THE RESTRICTIONS OF THE ANTITRUST STATUTES.

TO MILLAR & FALLIN, MARCH 24, 1971:

WE REFER TO YOUR PROTEST BY LETTER DATED JANUARY 12, 1971, ON BEHALF OF ROYAL SERVICES, INC. (ROYAL), AGAINST ANY AWARD UNDER INVITATION FOR BIDS (IFB) DAAD05-71-B-0116, ISSUED DECEMBER 11, 1970, BY ABERDEEN PROVING GROUND, DEPARTMENT OF THE ARMY. THE PROCUREMENT INVOLVES PERFORMANCE OF CUSTODIAL SERVICES FOR A PERIOD OF 1 YEAR, AND IT IS YOUR POSITION THAT THE SOLICITATION NEEDS CLARIFICATION, AS DISCUSSED BELOW.

THE REQUIREMENT WAS FIRST ADVERTISED UNDER IFB DAAD05-71-B-0068, DATED SEPTEMBER 24, 1970, WHICH INCLUDED NOTICE THAT THE SERVICE CONTRACT ACT OF 1965 (41 U.S.C. 351) APPLIED TO THE CONTRACT TOGETHER WITH THE RELATED CLAUSE PRESCRIBED BY ARMED SERVICES PROCUREMENT REGULATION (ASPR) 12-1004 MAKING MANDATORY PAYMENT OF NO LESS THAN WAGE RATES AND FRINGE BENEFITS SET FORTH IN AN ATTACHED WAGE DETERMINATION ISSUED BY THE DEPARTMENT OF LABOR PURSUANT TO THE ACT. THE DETERMINATION, IDENTIFIED AS "WAGE DETERMINATION NO. 69-20 (REV-2)" DATED JANUARY 12, 1970, SPECIFIED A MINIMUM HOURLY WAGE OF $1.96 FOR JANITORS, PORTERS AND CLEANERS AS WELL AS CERTAIN FRINGE BENEFITS.

AS AMENDED OCTOBER 2, 1970, THE IFB INCLUDED THE FOLLOWING PERTINENT LANGUAGE:

2. SUCCESSOR EMPLOYERS' COLLECTIVE BARGAINING OBLIGATIONS

A. A RECENT DECISION OF THE NATIONAL LABOR RELATIONS BOARD (NLRB) ESTABLISHES THE RESPONSIBILITY UNDER THE NATIONAL LABOR RELATIONS ACT OF A SUCCESSOR EMPLOYER TO RECOGNIZE AND BARGAIN COLLECTIVELY WITH THE UNION DESIGNATED BY THE EMPLOYEES, AND TO ABIDE BY THE COLLECTIVE BARGAINING AGREEMENT WHICH WAS NEGOTIATED BY THE UNION AND THE PREDECESSOR EMPLOYER, EVEN THOUGH THE SUCCESSOR EMPLOYER MAY NOT HAVE BEEN A PARTY TO THAT AGREEMENT OR MAY NOT HAVE AGREED TO BE BOUND BY IT. THE REQUIREMENT THAT A SUCCESSOR EMPLOYER ABIDE BY THE COLLECTIVE BARGAINING AGREEMENT IN EXISTENCE AT THE TIME HE BECOMES A SUCCESSOR EMPLOYER IS NEW.

B. THE CASES WHICH LED TO THE NLRB DECISION DEVELOPED THE FOLLOWING TEST TO ESTABLISH THE SUCCESSOR'S OBLIGATIONS TO ABIDE BY THE EXISTING COLLECTIVE BARGAINING AGREEMENT.

(1) THAT THERE BE A COLLECTIVE BARGAINING AGREEMENT;

(2) THAT THE SUCCESSOR HIRES A SUBSTANTIAL NUMBER OF HIS PREDECESSOR'S EMPLOYEES; AND

(3) THAT THE SUCCESSOR PERFORM ESSENTIALLY THE SAME WORK AS WAS PERFORMED BY THE PREDECESSOR.

E. THE NLRB DECISION MAY HAVE PERTINENCE TO MANY ARMY PROCUREMENTS; SPECIFICALLY, ONGOING SERVICE CONTRACTS SUCH AS AIRCRAFT MAINTENANCE CONTRACTS, FLIGHT INSTRUCTION CONTRACTS, FOREIGN LANGUAGE INSTRUCTION CONTRACTS AND INSTALLATION MAINTENANCE AND JANITORIAL SERVICE CONTRACTS, WHERE GENERALLY THE SUCCESSOR CONTRACTOR HIRES SUBSTANTIALLY, OR IN TOTO THE WORK FORCE OF HIS PREDECESSOR AND CONTINUES PERFORMING THE SAME SERVICE.

2. NOTICE OF COLLECTIVE BARGAINING OBLIGATION

ALL BIDDERS ARE HEREBY PUT ON NOTICE THAT THE NATIONAL LABOR RELATIONS BOARD HAS RULED THAT SUCCESSOR CONTRACTORS MAY BE BOUND, UNDER CERTAIN CIRCUMSTANCES, BY THE COLLECTIVE BARGAINING AGREEMENT BETWEEN THE EMPLOYEES' UNION AND A PREDECESSOR CONTRACTOR. NOTICE IS HEREBY GIVEN TO BIDDERS THAT THERE IS AN AGREEMENT IN EXISTENCE WHICH MAY BE SUBJECT TO THE ABOVE RULING. COPIES OF THIS AGREEMENT ARE ON HAND IN THE PROCUREMENT DIVISION, BLDG. 314, ABERDEEN PROVING GROUND, AND IF REQUIRED, WILL BE FURNISHED UPON REQUEST.

THE CONTRACTING OFFICER MAKES NO REPRESENTATIONS AS TO THE CORRECTNESS OF THE NLRB RULING OR AS TO THE VALIDITY OF THE EXISTING COLLECTIVE BARGAINING AGREEMENT. IT IS THE RESPONSIBILITY OF EACH BIDDER TO OBTAIN ALL RELEVANT INFORMATION PRIOR TO PREPARATION OF BIDS.

THE UNION BARGAINING AGREEMENT EXECUTED BY THE INCUMBENT CONTRACTOR, KAHOE SUPPLY COMPANY (KAHOE), AND AMALGAMATED MUNICIPAL EMPLOYEES LOCAL UNION 1231 AND ITS AFFILIATE, LABORERS INTERNATIONAL UNION OF NORTH AMERICA, WAS EFFECTIVE AS OF JULY 30, 1970, AND IT COVERED EMPLOYEES, OTHER THAN SUPERVISORY EMPLOYEES, ENGAGED IN PERFORMANCE OF SERVICES, SUCH AS ARE INVOLVED IN THE INSTANT PROCUREMENT, AT ABERDEEN PROVING GROUND. THE AGREEMENT COVERS PERIODS EXTENDING BEYOND THE BASIC PERIOD FOR WHICH KAHOE HOLDS THE CURRENT CONTRACT AND PROVIDES FOR PAYMENT OF WAGE RATES BY A FOLLOW-ON CONTRACTOR AT RATES WHICH WOULD BE HIGHER THAN THE RATES KAHOE WOULD BE REQUIRED TO PAY IF ITS EXISTING CONTRACT WERE TO BE EXTENDED.

ON OCTOBER 19, 1970, BIDS WERE OPENED. OF THE EIGHT BIDS RECEIVED, ROYAL'S BID WAS LOWEST. ROYAL, HOWEVER, IN A LETTER DATED NOVEMBER 9, REQUESTED WITHDRAWAL OF ITS BID ON THE BASIS OF MISUNDERSTANDING AND MISTAKES RELATING TO THE KAHOE UNION AGREEMENT, WAGES, ETC. FURTHER, IN A LETTER DATED NOVEMBER 11, ROYAL ASSERTED, AMONG OTHER THINGS, THAT KAHOE'S AGREEMENT WAS UNFAIR AND POSSIBLY ILLEGAL SINCE IT RESTRICTS THE COMPETITIVE BIDDING SYSTEM.

WHILE ROYAL'S PROTEST, AND A SEPARATE PROTEST BY KAHOE ON DIFFERENT GROUNDS, WERE PENDING, THE GOVERNMENT'S REQUIREMENTS WERE CHANGED IN THAT JANITORIAL SERVICES IN ONE OF THE MAJOR TENANT ACTIVITIES WERE DELETED ENTIRELY, AND THE FREQUENCY OF JANITORIAL TASKS IN ALL OF THE REMAINING BUILDINGS WAS REDUCED. IN THE CIRCUMSTANCES, THE PROCURING ACTIVITY DETERMINED THAT THE REQUIREMENTS SHOULD BE READVERTISED UNDER REVISED SPECIFICATIONS. ALL BIDDERS WERE SO NOTIFIED BY LETTER OF NOVEMBER 19, 1970.

IFB B-0116 INCLUDED THE REVISED PROCUREMENT REQUIREMENTS AND CARRIED THE SAME PROVISIONS AS IFB B-0068, AS AMENDED, WITH RESPECT TO APPLICABILITY OF THE SERVICE CONTRACT ACT OF 1965 AND THE JANUARY 12, 1970, WAGE DETERMINATION ATTACHED TO THE IFB, AS WELL AS NOTICE OF THE NLRB DECISION ON SUCCESSOR CONTRACTOR OBLIGATIONS UNDER INCUMBENT CONTRACTOR UNION BARGAINING AGREEMENTS AND OF THE EXISTENCE OF KAHOE'S AGREEMENT IN THIS CASE.

ON JANUARY 6, 1971, THE DATE SPECIFIED IN IFB B-0116 FOR THE OPENING OF BIDS, THE PROCURING ACTIVITY WAS NOTIFIED BY THE DEPARTMENT OF LABOR THAT A REVISION TO THE WAGE DETERMINATION INCLUDED IN THE IFB WAS BEING ISSUED EFFECTIVE AS OF JANUARY 6. THE PROCURING ACTIVITY ACCORDINGLY DEFERRED THE OPENING OF BIDS, AND ON JANUARY 8 A TELEGRAPHIC AMENDMENT WAS SENT TO ALL PROSPECTIVE BIDDERS ADVISING THAT THE JANUARY 12, 1970, WAGE DETERMINATION REVISION WAS SUPERSEDED BY THE JANUARY 6, 1971, REVISION; THAT THE ONLY CHANGE MADE BY THE LATEST REVISION WAS IN THE MINIMUM HOURLY WAGE RATE, WHICH WAS INCREASED FROM $1.96 TO $2.08; AND THAT BID OPENING WAS ACCORDINGLY EXTENDED TO JANUARY 31, 1971. ALL OF THE FIRMS WHICH SUBMITTED BIDS ACKNOWLEDGED THE AMENDMENT PRIOR TO THE EXTENDED BID OPENING TIME.

ON JANUARY 13, BIDS WERE OPENED. SPRINGFIELD BUILDING MAINTENANCE, INC. (SPRINGFIELD), WHO WAS NOT A BIDDER UNDER THE ORIGINAL IFB, WAS LOWEST WITH A BID OF $626,901.72. ROYAL WAS SECOND LOW WITH A BID OF $671,268.48, AND THE REMAINING EIGHT BIDDERS QUOTED PRICES RANGING FROM $673,204 TO $857,086.

YOU CHARGE THAT THE PROCEDURES EMPLOYED IN THIS PROCUREMENT VIOLATE THE SHERMAN AND CLAYTON ANTITRUST ACTS, 15 U.S.C. 1, AND 12; CONFUSE BIDDERS; FRUSTRATE THE BIDDING PROCEDURES; AND CIRCUMVENT THE SERVICE CONTRACT ACT OF 1965. MORE SPECIFICALLY, YOU STATE:

(A) IT IS NOT PROPER FOR THE ARMY TO INDICATE TO BIDDERS THAT THE RATE IN THE UNION CONTRACT SHOULD BE FOLLOWED.

(B) IT IS NOT PROPER FOR A LAME DUCK CONTRACTOR TO EXECUTE A CONTRACT WITH A UNION PROVIDING FOR PREFERENTIAL WAGE TREATMENT.

(C) IT IS NOT PROPER TO AMEND A CONTRACT WITHOUT 10 DAYS LEAD TIME ASPR 18-206.

(D) IF THE CONTRACTORS ARE NOT PERMITTED TO FOLLOW THE WAGE DETERMINATIONS IN THE INVITATIONS AND RELY ON SAME, THEN EITHER NO WAGE DETERMINATION SHOULD BE MADE OR AT LEAST CONTRACTORS NOT BE PUT ON NOTICE BY THE GOVERNMENT OF A CONFLICTING SET OF WAGES.

(E) IF GAO DOES NOT CONSIDER THESE MATTERS AND PLACE IN PROPER PRIORITY THE RELATIONSHIP OF A BIDDER UNDER THE NLRB'S BURNS DECISION, AS COMPARED TO HIS DUTY UNDER THE SERVICE CONTRACTS ACT, BIDDERS WILL BE SO CONFUSED THAT THE BIDS WILL BE MUCH HIGHER AND LAME DUCK CONTRACTORS WILL ENTER INTO CONTRACTS THAT WILL CAUSE BIDDERS TO CONSIDER WAGE RATES SO HIGH THAT THE BIDS WILL BE OUT OF SIGHT AND THE SERVICE CONTRACTS ACT OF NO EFFECT.

(F) ROYALS BID IN THE INSTANT CONTRACT WOULD BE A LOT LOWER IF IT WERE PERMITTED TO RELY ON THE NEW WAGE DETERMINATION AND HAD NOT BEEN PUT ON NOTICE OF THE UNION CONTRACT ATTACHED TO THE FORMER AMENDMENT TO THE FORMER SOLICITATION.

THE CONTRACTING OFFICER MAINTAINS THAT THE IFB PROPERLY INCLUDED THE SERVICE CONTRACT ACT OF 1965 CLAUSE AND THE CURRENT DEPARTMENT OF LABOR WAGE DETERMINATION; THAT THE IFB ALSO PROPERLY INCLUDED NOTICE OF THE RECENT NLRB DECISION ON THE EFFECT OF INCUMBENT CONTRACTOR COLLECTIVE BARGAINING AGREEMENTS ON SUCCESSOR CONTRACTORS; AND THAT SUFFICIENT TIME WAS ALLOWED FOR BIDDERS TO AMEND THEIR BIDS AFTER NOTICE OF APPLICABILITY OF THE SUPERSEDING WAGE DETERMINATION OF JANUARY 6, 1971.

WITH FURTHER REFERENCE TO THE TELEGRAPHIC AMENDMENT OF JANUARY 8, THE CONTRACTING OFFICER STATES THAT SUCH ACTION WAS TAKEN WITH DUE CONSIDERATION OF THE PROVISIONS OF ASPR 2-208, RELATING TO SUPPLY AND SERVICE CONTRACTS, AND WAS BASED UPON A DETERMINATION THAT EXTENSION OF BID OPENING TO JANUARY 13 WOULD PROVIDE SUFFICIENT TIME FOR BIDDERS TO RECEIVE, ACKNOWLEDGE AND AMEND THEIR BIDS. FURTHER, THE CONTRACTING OFFICER URGES, SINCE ALL BIDDERS DID TIMELY ACKNOWLEDGE RECEIPT OF THE AMENDMENT WITHOUT CLAIMING THAT INSUFFICIENT TIME HAD BEEN ALLOWED THEREFOR, SUCH PERIOD WAS ADEQUATE.

THE JURISDICTION TO ENFORCE THE PROVISIONS OF THE ANTITRUST STATUTES LIES WITH THE DEPARTMENT OF JUSTICE. 21 COMP. GEN. 56 (1941). SINCE OUR OFFICE IS WITHOUT AUTHORITY TO ISSUE A DETERMINATION RESPECTING APPLICABILITY OR VIOLATION OF SUCH STATUTES, WE WILL NOT UNDERTAKE TO EXPRESS AN OPINION THEREON IN THIS CASE. HOWEVER, WE CALL YOUR ATTENTION TO THE LANGUAGE OF 15 U.S.C. 17 CONCERNING EXEMPTION FROM THE RESTRICTIONS OF THE ANTITRUST STATUTES OF LABOR ORGANIZATIONS ENGAGED IN LAWFUL PURSUITS.

AS TO THE APPLICABILITY OF THE SERVICE CONTRACT ACT OF 1965 TO THE PROCUREMENT, THE REGULATIONS ISSUED BY THE DEPARTMENT OF LABOR IN IMPLEMENTATION OF THE ACT, PURSUANT TO 41 U.S.C. 353, ARE PUBLISHED AT 29 CFR, PART 4. CONTRACTS FOR CUSTODIAL AND JANITORIAL SERVICES ARE LISTED IN 29 CFR 4.130 WITH VARIOUS OTHER TYPES OF SERVICE CONTRACTS WHICH ARE COVERED BY THE ACT. UNDER 29 CFR 4.6, SUCH CONTRACTS (AND ANY BID SPECIFICATION THEREFOR) ARE REQUIRED TO INCLUDE APPROPRIATE CLAUSES PROVIDING, AMONG OTHER THINGS, FOR PAYMENT TO SERVICE EMPLOYEES OF NO LESS THAN THE MINIMUM WAGES AND FRINGE BENEFITS SPECIFIED IN APPLICABLE WAGE DETERMINATIONS ISSUED BY THE DEPARTMENT OF LABOR, AS PROVIDED IN THE ACT, AND MADE PART OF THE PROCUREMENT SOLICITATION AND RELATED CONTRACT. PURSUANT TO SUCH PROVISIONS, THE PROCURING ACTIVITY WAS REQUIRED TO INCLUDE IN IFB B-0116 THE SERVICE CONTRACT ACT CLAUSE AND THE CURRENTLY EFFECTIVE DEPARTMENT OF LABOR WAGE DETERMINATION, WHICH, AS OF THE DATE IFB B-0116 WAS ISSUED, WAS THE JANUARY 12, 1970, REVISION OF WAGE DETERMINATION NO. 69-20.

AS TO THE PROCEDURES WHICH WERE EMPLOYED BY THE PROCURING ACTIVITY IN CONNECTION WITH THE ISSUANCE OF THE IFB AMENDMENT TO INCORPORATE THE WAGE DETERMINATION REVISION WHICH BECAME EFFECTIVE ON THE DATE OF BID OPENING, THE GOVERNING REGULATIONS ARE ASPR 2-208, RELATING TO AMENDMENTS IN GENERAL TO IFB'S FOR SUPPLIES AND SERVICES (NOT ASPR 18 206, WHICH RELATES ONLY TO CONTRACTS FOR CONSTRUCTION), AND 29 CFR 4.5(B) AND ASPR 12- 1005.3(A)(2), RELATING TO THE USE IN SERVICE CONTRACTS OF PREAWARD REVISIONS OF WAGE DETERMINATIONS.

ASPR 2-208 READS AS FOLLOWS:

AMENDMENT OF INVITATION FOR BIDS

(A) IF AFTER ISSUANCE OF AN INVITATION FOR BIDS, BUT BEFORE THE TIME FOR BID OPENING, IT BECOMES NECESSARY TO MAKE CHANGES IN QUANTITY, SPECIFICATIONS, DELIVERY SCHEDULES, OPENING DATES, ETC., OR TO CORRECT A DEFECTIVE OR AMBIGUOUS INVITATION, SUCH CHANGES SHALL BE ACCOMPLISHED BY ISSUANCE OF AN AMENDMENT TO THE INVITATION FOR BIDS, USING STANDARD FORM 30 (SEE 16-101), WHETHER OR NOT A PRE-BID CONFERENCE IS HELD. THE AMENDMENT SHALL BE SENT TO EVERYONE TO WHOM INVITATIONS HAVE BEEN FURNISHED AND SHALL BE DISPLAYED IN THE BID ROOM.

(B)BEFORE ISSUING AN AMENDMENT TO AN INVITATION FOR BIDS, THE PERIOD OF TIME REMAINING UNTIL BID OPENING AND THE NEED FOR EXTENDING THIS PERIOD BY POSTPONING THE TIME SET FOR OPENING MUST BE CONSIDERED. WHERE ONLY A SHORT TIME REMAINS BEFORE THE TIME SET FOR BID OPENING, CONSIDERATION SHOULD BE GIVEN TO NOTIFYING BIDDERS OF AN EXTENSION OF TIME BY TELEGRAM OR TELEPHONE. SUCH NOTIFICATION SHOULD BE CONFIRMED IN THE AMENDMENT.

(C) ANY INFORMATION GIVEN TO A PROSPECTIVE BIDDER CONCERNING AN INVITATION FOR BIDS SHALL BE FURNISHED PROMPTLY TO ALL OTHER PROSPECTIVE BIDDERS, AS AN AMENDMENT TO THE INVITATION, WHETHER OR NOT A PRE-BID CONFERENCE IS HELD, IF SUCH INFORMATION IS NECESSARY TO THE BIDDERS IN SUBMITTING BIDS ON THE INVITATION OR IF THE LACK OF SUCH INFORMATION WOULD BE PREJUDICIAL TO UNINFORMED BIDDERS. NO AWARD SHALL BE MADE ON THE INVITATION UNLESS SUCH AMENDMENT HAS BEEN ISSUED IN SUFFICIENT TIME TO PERMIT ALL PROSPECTIVE BIDDERS TO CONSIDER SUCH INFORMATION IN SUBMITTING OR MODIFYING THEIR BIDS. BOTH 29 CFR 4.5(B) AND ASPR 12-1005.3(A)(2) PROVIDE FOR THE USE IN BID SOLICITATIONS OF WAGE DETERMINATION REVISIONS WHICH ARE ISSUED PRIOR TO AWARD; HOWEVER, REVISIONS RECEIVED BY THE CONTRACTING AGENCY LATER THAN 10 DAYS BEFORE THE OPENING OF BIDS SHALL NOT BE EFFECTIVE EXCEPT WHERE THE AGENCY FINDS THERE IS A REASONABLE TIME TO NOTIFY BIDDERS OF THE REVISION.

WHILE ASPR 2-208 DOES NOT FIX A MINIMUM PERIOD PRIOR TO BID OPENING WHICH MUST BE ALLOWED FOR CONSIDERATION OF AN IFB AMENDMENT, WE HAVE CONSTRUED A SIMILARLY WORDED PROVISION IN THE FEDERAL PROCUREMENT REGULATIONS (FPR 1- 2.207) AS REQUIRING THAT SUFFICIENT TIME ELAPSE BETWEEN ISSUANCE OF THE AMENDMENT AND BID OPENING TO ENABLE ALL BIDDERS TO CONSIDER AND TIMELY ACKNOWLEDGE THE AMENDMENT. 45 COMP. GEN. 651 (1966). IN THE INSTANT CASE, THE TEN BIDDERS, OF WHOM ROYAL WAS ONE, WHO RESPONDED TO THE IFB ALSO TIMELY ACKNOWLEDGED THE AMENDMENT. IN ADDITION, THE RECORD DOES NOT SHOW THAT ANY OF SUCH BIDDERS, OR ANY OF THE OTHER 25 PROSPECTIVE BIDDERS TO WHOM THE AMENDMENT WAS TRANSMITTED, COMPLAINED TO THE PROCURING ACTIVITY THAT THE 5 DAYS ALLOWED FOR ACKNOWLEDGEMENT WERE NOT SUFFICIENT FOR CONSIDERATION OF THE AMENDMENT. IN THE CIRCUMSTANCES, WE ARE UNABLE TO CONCLUDE THAT THE 5 DAYS IN QUESTION DID NOT CONSTITUTE THE REASONABLE TIME CONTEMPLATED BY ASPR 2-208.

WE ARE MINDFUL THAT UNDER 29 CFR 4.5(B) AND ASPR 12-1005.3(A)(2) THE PROCURING ACTIVITY COULD HAVE DISREGARDED THE JANUARY 6, 1971, WAGE DETERMINATION REVISION SINCE THE ACTIVITY DID NOT RECEIVE THE REVISION AT LEAST 10 DAYS BEFORE THE SCHEDULED BID OPENING. HOWEVER, SINCE ONLY ONE CHANGE WAS EFFECTED BY THE REVISION, WE DO NOT VIEW THE DECISION OF THE PROCURING ACTIVITY TO INCLUDE THE REVISION IN THE IFB BY AMENDMENT AND TO EXTEND THE TIME OF BID OPENING ACCORDINGLY AS OTHER THAN A REASONABLE EXERCISE OF THE DISCRETION ACCORDED TO THE ACTIVITY UNDER SUCH REGULATIONS.

AS TO THE ISSUE OF ENTITLEMENT OF BIDDERS TO RELY ON THE WAGE RATE DETERMINATION, YOUR ATTENTION IS DIRECTED TO THE CLEAR LANGUAGE OF THE SERVICE CONTRACT ACT CLAUSE TO THE EFFECT THAT THE SPECIFIED WAGE RATES ARE BUT MINIMUM RATES. THE ISSUANCE OF A WAGE RATE DETERMINATION CONSTITUTES A FINDING THAT THE RATES SPECIFIED THEREIN ARE THE RATES PREVAILING IN THE LOCALITY, AND THE INCLUSION THEREOF IN AN INVITATION FOR BIDS OR A CONTRACT DOES NOT CONSTITUTE A REPRESENTATION BY THE GOVERNMENT THAT LABOR MAY BE OBTAINED BY THE CONTRACTOR AT SUCH RATES. UNITED STATES V BINGHAMTON CONSTRUCTION CO., 347 U.S. 171 (1954); 48 COMP. GEN. 22 (1968). EACH BIDDER, THEREFORE, HAD THE BURDEN OF ASCERTAINING FOR ITSELF ITS PROBABLE LABOR COSTS. B-167250, NOVEMBER 23, 1969.

TURNING NOW TO THE PROPRIETY AND EFFECT OF INCLUSION IN THE IFB OF THE LANGUAGE REGARDING THE NATIONAL LABOR RELATIONS BOARD BURNS DECISION, 182 NLRB NO. 50, ON THE EFFECT OF EXISTING COLLECTIVE BARGAINING AGREEMENTS OF EMPLOYERS UPON SUCCESSOR EMPLOYERS AND OF NOTICE THAT KAHOE, THE INCUMBENT CONTRACTOR AT ABERDEEN PROVING GROUND, HAS SUCH AN AGREEMENT, WE FIND NOTHING IN SUCH LANGUAGE WHICH COULD BE CONSTRUED AS A REQUIREMENT THAT BIDDERS AGREE TO BE BOUND BY KAHOE'S AGREEMENT. ON THE CONTRARY, WE BELIEVE THAT THE SECOND PARAGRAPH OF THE NOTICE OF KAHOE'S AGREEMENT LEAVES NO DOUBT THAT THE GOVERNMENT MADE NO COMMITMENT REGARDING THE EFFECT OF THE BURNS DECISION BUT LEFT SUCH MATTER TO THE BIDDERS TO DECIDE. IT IS OUR VIEW, THEREFORE, THAT WHILE THE PROCURING ACTIVITY WAS NOT OBLIGATED TO PLACE BIDDERS ON NOTICE OF THE BURNS DECISION AND THE INCUMBENT CONTRACTOR'S UNION BARGAINING AGREEMENT, ITS ACTION IN THIS REGARD WAS NOT IMPROPER AND DID NOT RENDER THE INVITATION AMBIGUOUS, THE LANGUAGE IN QUESTION BEING MERELY ADVISORY. B-170107, SEPTEMBER 22, 1970.

WHILE IT WELL MAY BE, AS YOU HAVE STATED, THAT ROYAL'S BID WOULD HAVE BEEN LOWER HAD IT NOT BEEN ON NOTICE OF THE EXISTING UNION AGREEMENT, THERE IS NO INDICATION THAT ROYAL OR ANY OTHER BIDDER DID NOT MAKE ITS OWN DETERMINATION REGARDING THE EFFECT OF THE BURNS DECISION FREELY, OR THAT ANY RELATED MISTAKE WAS MADE IN ITS BID AS THE RESULT OF SUCH DECISION.

REGARDING THE PROPRIETY OF EXECUTION BY KAHOE OF A UNION BARGAINING AGREEMENT EXTENDING BEYOND ITS BASIC CONTRACT PERIOD, OUR OFFICE IS NOT AWARE OF ANY RESTRICTION IN THE PROCUREMENT STATUTES OR REGULATIONS WHICH WOULD PRECLUDE SUCH AGREEMENT. WHETHER THE AGREEMENT WOULD BE ENFORCEABLE AGAINST A FOLLOW-ON EMPLOYER, HOWEVER, IS A MATTER FOR THE COURTS TO DECIDE. JOHN WILEY & SONS V LIVINGSTON, 376 U.S. 543 (1964). SEE, ALSO, POTTER V EMERALD MAINTENANCE, INC., CIVIL ACTION NO. 70-L-36. UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, LAREDO DIVISION, OCTOBER 29, 1970, IN WHICH THE COURT GAVE CONSIDERATION TO THE BURNS SUCCESSOR EMPLOYER DOCTRINE IN RELATION TO A COMPETITIVELY AWARDED CONTRACT FOR SERVICES AT A GOVERNMENT INSTALLATION AND DECLINED TO ISSUE AN INJUNCTION AGAINST THE FOLLOW-ON CONTRACTOR IN KEEPING WITH SUCH DOCTRINE IN THE ABSENCE OF A DECISION BY NLRB, OR THE COURTS, EVIDENCING FULL CONSIDERATION OF THE SERVICE CONTRACT ACT OF 1965 AND THE GOVERNMENT PROCUREMENT STATUTES IN SIMILAR CIRCUMSTANCES.

IN LINE WITH THE FOREGOING, WE ARE UNABLE TO CONCLUDE THAT THE IFB IS RESTRICTIVE OF COMPETITION, AND WE THEREFORE SEE NO LEGAL OBJECTION TO THE MAKING OF AN AWARD THEREUNDER TO THE LOWEST RESPONSIVE AND RESPONSIBLE BIDDER, AS CONTEMPLATED BY 10 U.S.C. 2305(C). WHILE YOUR PROTEST IS THEREFORE DENIED, YOUR ATTENTION IS INVITED TO THE ENCLOSED COPY OF OUR DECISION OF TODAY TO THE SECRETARY OF THE ARMY RESPECTING WITHDRAWAL OF THE LOW BID OF SPRINGFIELD.