B-172006(2), MAY 13, 1971

B-172006(2): May 13, 1971

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41 U.S.C. 40 AUTHORIZES THE SECRETARY OF LABOR TO MAKE EXCEPTIONS TO THE WALSH-HEALEY MANUFACTURER OR REGULAR DEALER STIPULATIONS IN A SOLICITATION UPON A WRITTEN FINDING BY THE HEAD OF THE CONTRACTING AGENCY THAT THE INCLUSION OF SUCH STIPULATIONS WILL SERIOUSLY IMPAIR THE CONDUCT OF GOVERNMENT BUSINESS. SPENCE: REFERENCE IS MADE TO YOUR LETTER OF APRIL 1. ENCLOSED IS A COPY OF OUR DECISION OF TODAY TO KENNEDY IN WHICH WE HOLD THAT THE PROCUREMENT SHOULD BE READVERTISED. WE ALSO WISH TO POINT OUT THAT 41 U.S.C. 40 AUTHORIZES THE SECRETARY OF LABOR TO MAKE EXCEPTIONS TO THE WALSH-HEALEY MANUFACTURER OR REGULAR DEALER STIPULATIONS IN A SOLICITATION AND RESULTING CONTRACT UPON A WRITTEN FINDING BY THE HEAD OF THE CONTRACTING AGENCY THAT THE INCLUSION OF SUCH STIPULATIONS WILL SERIOUSLY IMPAIR THE CONDUCT OF GOVERNMENT BUSINESS.

B-172006(2), MAY 13, 1971

BID PROTEST - DAVIS BACON ACT - WALSH HEALEY ACT WITH REFERENCE TO THE PROTEST OF KENNEDY ELECTRIC COMPANY AGAINST THE AWARD OF A CONTRACT FOR INSTALLATION OF ELECTRICAL WIRING, THE COMP. GEN. ADVISES THAT SINCE IT APPEARS THAT THE PROCUREMENT MAY REQUIRE A SUBSTANTIAL AMOUNT OF ALTERATION OR REPAIR WORK, A DETERMINATION SHOULD BE MADE OF THE EXTENT, IF ANY, THE DAVIS-BACON PROVISIONS SHOULD BE APPLIED TO THE CONTRACT, USING AS A GUIDELINE SECTION 1-12.402-2 OF THE FEDERAL PROCUREMENT REGULATIONS. IN ADDITION, 41 U.S.C. 40 AUTHORIZES THE SECRETARY OF LABOR TO MAKE EXCEPTIONS TO THE WALSH-HEALEY MANUFACTURER OR REGULAR DEALER STIPULATIONS IN A SOLICITATION UPON A WRITTEN FINDING BY THE HEAD OF THE CONTRACTING AGENCY THAT THE INCLUSION OF SUCH STIPULATIONS WILL SERIOUSLY IMPAIR THE CONDUCT OF GOVERNMENT BUSINESS.

TO MR. SPENCE:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 1, 1971, FURNISHING US A REPORT IN CONNECTION WITH THE SECOND PROTEST BY KENNEDY ELECTRIC COMPANY, INC. (KENNEDY), AGAINST AWARD OF A CONTRACT UNDER PURCHASE REQUEST NO. 12770 FOR THE FURNISHING OF LABOR AND MATERIAL TO INCREASE THE ELECTRICAL CAPACITY AT THE GOVERNMENT PRINTING OFFICE (GPO).

ENCLOSED IS A COPY OF OUR DECISION OF TODAY TO KENNEDY IN WHICH WE HOLD THAT THE PROCUREMENT SHOULD BE READVERTISED.

AS INDICATED IN THE DECISION, SINCE IT APPEARS THAT THE PROCUREMENT MAY REQUIRE A SUBSTANTIAL AMOUNT OF ALTERATION OR REPAIR WORK, WE BELIEVE A DETERMINATION SHOULD BE MADE OF THE EXTENT, IF ANY, THE DAVIS BACON ACT PROVISIONS SHOULD BE APPLIED TO THE CONTRACT, USING AS A GUIDELINE SECTION 1-12.402-2 OF THE FEDERAL PROCUREMENT REGULATIONS. WE ALSO WISH TO POINT OUT THAT 41 U.S.C. 40 AUTHORIZES THE SECRETARY OF LABOR TO MAKE EXCEPTIONS TO THE WALSH-HEALEY MANUFACTURER OR REGULAR DEALER STIPULATIONS IN A SOLICITATION AND RESULTING CONTRACT UPON A WRITTEN FINDING BY THE HEAD OF THE CONTRACTING AGENCY THAT THE INCLUSION OF SUCH STIPULATIONS WILL SERIOUSLY IMPAIR THE CONDUCT OF GOVERNMENT BUSINESS.

IT IS ALSO NOTED THAT PARAGRAPH 6.01 OF THE PURCHASE REQUEST STATES THAT ALL PROVISIONS OF GPO CONTRACT TERMS NO. 1 WILL APPLY UNLESS OTHERWISE PROVIDED TO THE CONTRARY. THE CONTRACT TERMS INCLUDE BOTH WALSH-HEALEY ACT PROVISIONS (ARTICLE 30) AND DAVIS-BACON ACT PROVISIONS (ARTICLE 42), AND WHILE THERE WAS NO INTENTION TO INCLUDE THE DAVIS BACON ACT PROVISIONS THE PURCHASE REQUEST DID NOT SO STATE. ALTHOUGH WE RECOGNIZE CERTAIN MERIT IN THE CONTENTION THAT ARTICLE 30 AND ARTICLE 42 ARE SELF-DELETING, DEPENDING ON THE TYPE OF CONTRACT INVOLVED, THIS CASE ILLUSTRATES THE LIKELIHOOD OF CONFUSION WHEN THE TYPE OF CONTRACT ANTICIPATED IS NEITHER SPECIFIED NOR CLEARLY EVIDENT. IT IS THEREFORE RECOMMENDED THAT FUTURE PROCUREMENTS, IN WHICH CONTRACT TERMS NO. 1 IS INCORPORATED BY PROVISIONS SUCH AS PARAGRAPH 6.01, SPECIFICALLY DELETE INAPPLICABLE ARTICLES AND IDENTIFY THE TYPE OF CONTRACT CONCERNED.

THE FILE TRANSMITTED WITH YOUR LETTER OF APRIL 1, 1971, IS RETURNED.