B-172418, AUG 30, 1971

B-172418: Aug 30, 1971

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PROTESTANT RAISES THE FOLLOWING CONTENTIONS: (1) THE CONTRACT IS IN VIOLATION OF 5 U.S.C. 3310. (2) GOVERNMENT PERSONNEL HAVE EXERCISED SUPERVISION OVER YOH'S EMPLOYEES IN CONTRAVENTION OF PERSONNEL REGULATIONS. (4) YOH HAS REQUIRED PERSONNEL TO WORK WITHOUT COMPENSATION FOR SEVERAL DAYS UNTIL THEY HAVE BEEN QUALIFIED. THE TOUCHSTONE OF LEGALITY OF A SUPPORT SERVICES CONTRACT UNDER THE PERSONNEL LAWS IS WHETHER THE CONTRACT CREATES AN EMPLOYER-EMPLOYEE RELATIONSHIP. IT IS IMPOSSIBLE TO CONCLUDE THAT SUCH A RELATIONSHIP HAS BEEN CREATED. AS REGARDS PROTESTANT'S CONTENTIONS THAT GOVERNMENT PERSONNEL HAVE SUPERVISED YOH'S EMPLOYEES. THAT CORRECTIVE ACTION WAS TAKEN IN EVERY INSTANCE. THE PROBLEMS WERE SUCH AS WERE TO BE EXPECTED OF ANY CONTRACTOR BEGINNING OPERATIONS AT A NEW SITE.

B-172418, AUG 30, 1971

BID PROTEST - ILLEGAL CONTRACT - SUPERVISION OF CONTRACTOR PERSONNEL - COMPLIANCE WITH SPECIFICATIONS - WORK WITHOUT PAY DENIAL OF PROTEST AGAINST THE AWARD TO H. L. YOH CO. (YOH) OF A CONTRACT TO FURNISH GUARD SERVICES AT MICHELSON LABORATORY, NAVAL WEAPONS CENTER, CHINA LAKE, CALIFORNIA. PROTESTANT RAISES THE FOLLOWING CONTENTIONS: (1) THE CONTRACT IS IN VIOLATION OF 5 U.S.C. 3310; (2) GOVERNMENT PERSONNEL HAVE EXERCISED SUPERVISION OVER YOH'S EMPLOYEES IN CONTRAVENTION OF PERSONNEL REGULATIONS; (3) YOH'S OVERALL PERFORMANCE HAS NOT COMPLIED WITH THE CONTRACT SPECIFICATIONS; (4) YOH HAS REQUIRED PERSONNEL TO WORK WITHOUT COMPENSATION FOR SEVERAL DAYS UNTIL THEY HAVE BEEN QUALIFIED. THE TOUCHSTONE OF LEGALITY OF A SUPPORT SERVICES CONTRACT UNDER THE PERSONNEL LAWS IS WHETHER THE CONTRACT CREATES AN EMPLOYER-EMPLOYEE RELATIONSHIP, AS DEFINED IN 5 U.S.C. 2105(A), BETWEEN THE GOVERNMENT AND THE EMPLOYEES OF THE CONTRACTOR. FROM THESE CIRCUMSTANCES, IT IS IMPOSSIBLE TO CONCLUDE THAT SUCH A RELATIONSHIP HAS BEEN CREATED. AS REGARDS PROTESTANT'S CONTENTIONS THAT GOVERNMENT PERSONNEL HAVE SUPERVISED YOH'S EMPLOYEES, AND THAT YOH'S PERFORMANCE DOES NOT MEET CONTRACT SPECIFICATIONS, THE RECORD INDICATES THAT ALL OF THE CITED INCIDENTS OCCURRED DURING THE FIRST 12 DAYS OF CONTRACT PERFORMANCE, AND THAT CORRECTIVE ACTION WAS TAKEN IN EVERY INSTANCE. FURTHER, THE PROBLEMS WERE SUCH AS WERE TO BE EXPECTED OF ANY CONTRACTOR BEGINNING OPERATIONS AT A NEW SITE. IF THERE HAVE BEEN INSTANCES OF YOH ORDERING WORK WITHOUT PAY IN VIOLATION OF THE SERVICE CONTRACT ACT OF 1965, 41 U.S.C. 251, AS INCLUDED BY SECTION L-7 OF THE SPECIFICATIONS, SUCH COMPLAINTS SHOULD BE FILED WITH AN OFFICE OF THE WAGE AND HOUR AND PUBLIC CONTRACT DIVISIONS OF THE DEPARTMENT OF LABOR, AS PROVIDED IN 29 CFR 4-191. SANCTIONS CANNOT BE IMPOSED AGAINST A CONTRACTOR WITHOUT AN OFFICIAL DETERMINATION THAT THERE HAS BEEN A VIOLATION OF THE ACT.

TO AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES:

WE REFER TO YOUR LETTER OF MARCH 21, 1971, AND SUBSEQUENT CORRESPONDENCE, CONCERNING CONTRACT N00123-71-C-0728, WHICH WAS AWARDED TO H. L. YOH CO. (YOH), PURSUANT TO INVITATION FOR BIDS (IFB) N00123-71 B-0728, ISSUED NOVEMBER 9, 1970, BY THE NAVAL REGIONAL PROCUREMENT OFFICE, LOS ANGELES, CALIFORNIA. THE CONTRACT COVERS THE FURNISHING OF GUARD SERVICES AT MICHELSON LABORATORY, NAVAL WEAPONS CENTER, CHINA LAKE, CALIFORNIA, FOR A MINIMUM PERIOD OF 12 MONTHS COMMENCING MARCH 1, 1971.

YOU MAINTAIN THAT THE AWARD OF THE CONTRACT WAS IN VIOLATION OF THE PROVISIONS OF 5 U.S.C. 3310, WHICH RESTRICTS COMPETITION FOR THE POSITIONS OF GUARDS, ELEVATOR OPERATORS, MESSENGERS, AND CUSTODIANS TO PREFERENCE ELIGIBLES (AS DEFINED IN 5 U.S.C. 2108) AS LONG AS PREFERENCE ELIGIBLES ARE AVAILABLE, AND THAT GOVERNMENT PERSONNEL HAVE EXERCISED SUPERVISION OVER YOH'S GUARDS IN CONTRAVENTION OF FEDERAL PERSONNEL RULES. ADDITION, YOU CITE VARIOUS CIRCUMSTANCES WHICH YOU CLAIM EVIDENCE THAT YOH'S PERFORMANCE IS NOT IN COMPLIANCE WITH THE CONTRACT REQUIREMENTS. YOU ACCORDINGLY REQUEST THAT THE CONTRACT BE CANCELLED AND THAT CIVIL SERVICE PREFERENCE ELIGIBLES BE USED TO PERFORM THE SERVICES IN QUESTION.

IN SUPPORT OF YOUR POSITION REGARDING A VIOLATION OF 5 U.S.C. 3310, YOU REFER TO THE FOLLOWING LANGUAGE ON PAGE 11 OF AN ATTACHMENT TO FEDERAL PERSONNEL MANUAL (FPM) LETTER NO. 300-8, DATED DECEMBER 12, 1967:

"LASTLY, THE FURTHERANCE OF NATIONAL POLICIES THROUGH THE CIVIL SERVICE SYSTEM MAY BE COMPROMISED BY UNAUTHORIZED CONTRACTS FOR PERSONAL SERVICES. FOR EXAMPLE, IN THE VETERANS PREFERENCE ACT, NOW CODIFIED IN TITLE 5, U.S.C. CONGRESS HAS PROVIDED AN ABSOLUTE PREFERENCE TO VETERANS FOR POSITIONS OF GUARDS, ELEVATOR OPERATORS AND CUSTODIANS IN THE COMPETITIVE SERVICE AS LONG AS PREFERENCE ELIGIBLES ARE AVAILABLE. AND WHAT OF THE POLICY OBJECTIVES SERVED BY THE STATUTORY RESTRICTIONS ON PARTISAN POLITICAL ACTIVITY BY FEDERAL EMPLOYEES AND THE PROHIBITIONS AGAINST THE RIGHT TO STRIKE? BY WHAT AUTHORITY DOES AN ADMINISTRATIVE OFFICER, PERHAPS EVEN A MINOR ONE, DECIDE IN THE COURSE OF CONTRACTING FOR PERSONAL SERVICES THAT VETERANS SHALL NOT BE ACCORDED PREFERENCE FOR CUSTODIAL JOBS; OR THAT WHAT IS TANTAMOUNT TO FEDERAL EMPLOYEE STATUS CAN BE CONFERRED WITHOUT THE CONCURRENT OBLIGATIONS TO REFRAIN FROM EXERCISING THE RIGHT TO STRIKE, OR TO AVOID PERNICIOUS POLITICAL ACTIVITY?"

FPM LETTER NO. 300-8 WAS ISSUED BY THE UNITED STATES CIVIL SERVICE COMMISSION ON DECEMBER 12, 1967, IN IMPLEMENTATION OF AN OCTOBER 1967 OPINION BY THE GENERAL COUNSEL OF THE COMMISSION RELATING TO CERTAIN SUPPORT SERVICES CONTRACTS AT GODDARD SPACE FLIGHT CENTER, NONE OF WHICH INVOLVED THE PERFORMANCE OF GUARD SERVICES. AS IS STATED IN THE LETTER, THE LEGAL OPINION WAS TO THE EFFECT THAT THE SUPPORT SERVICE CONTRACTS CREATED "WHAT IS TANTAMOUNT TO AN EMPLOYER-EMPLOYEE RELATIONSHIP BETWEEN THE GOVERNMENT AND THE CONTRACTOR PERSONNEL AND WERE IN VIOLATION OF THE PERSONNEL LAWS."

THE STATEMENTS QUOTED ABOVE FROM PAGE 11 OF THE ATTACHMENT TO FPM LETTER NO. 300-8 WERE NOT TAKEN FROM THE LEGAL OPINION OF OCTOBER 1967. RATHER, AS THE LETTER INDICATES, SUCH STATEMENTS FORM PART OF THE DISCUSSION IN THE ATTACHMENT OF THE PERSONNEL LAWS AS AN EXPRESSION OF NATIONAL POLICY.

IN A SUPPLEMENT TO THE OCTOBER 1967 OPINION THE COMMISSION CLARIFIED ITS POSITION ON SUPPORT SERVICE CONTRACTS. THE SUPPLEMENT, WHICH WAS ATTACHED TO FPM LETTER NO. 300-12, AUGUST 20, 1968, STATES, AMONG OTHER THINGS, THAT SUPPORT SERVICE CONTRACTS ARE NOT PER SE PROSCRIBED BY THE FEDERAL PERSONNEL LAWS; THAT EVALUATION OF THE LEGALITY OF A SUPPORT SERVICE CONTRACT MUST BE BASED ON A REALISTIC VIEW OF THE PROVISIONS OF THE ENTIRE CONTRACT AND THE MANNER IN WHICH IT IS ADMINISTERED AND PERFORMED; AND THAT THE TOUCHSTONE OF LEGALITY UNDER THE PERSONNEL LAWS IS WHETHER THE CONTRACT CREATES WHAT IS TANTAMOUNT TO AN EMPLOYER EMPLOYEE RELATIONSHIP BETWEEN THE GOVERNMENT AND THE EMPLOYEES OF THE CONTRACTOR UPON APPLICATION OF THE CRITERIA SET FORTH IN 5 U.S.C. 2105(A).

IN ADDITION, OUR RECORDS PERTAINING TO THE PROCUREMENT OF GUARD SERVICES BY CONTRACT INCLUDE A COPY OF A LETTER DATED MAY 16, 1969, ADDRESSED TO THE NATIONAL PRESIDENT OF YOUR UNION, IN WHICH THE CHAIRMAN OF THE CIVIL SERVICE COMMISSION STATED THAT CONTRACTING FOR SERVICES, SUCH AS GUARD SERVICES, IS ONE OF THE LEGALLY PERMISSIBLE OPTIONS AGENCIES HAVE FOR ARRANGING TO GET THEIR WORK DONE SO LONG AS THE CONTRACT, OR OPERATIONS UNDER IT, DO NOT VIOLATE THE PERSONNEL LAWS IN THE MANNER DESCRIBED IN FPM LETTER NO. 300-12 OF AUGUST 20, 1968. THE COMMISSION STATED ITS POSITION, HOWEVER, THAT CONTRACTING OUT OF GUARD SERVICES TO PRIVATE BUSINESS FIRMS WHICH HAVE NO OBLIGATION TO GIVE A VETERAN ANY TYPE OF PREFERENCE IN APPOINTMENT WOULD LIMIT THE AREA IN WHICH 5 U.S.C. 3310 COULD OPERATE, WOULD DEFEAT THE SPIRIT (THOUGH NOT THE LITERAL LETTER) OF THE LAW, AND WOULD EFFECTIVELY NEGATE THE PREFERENCE GRANTED BY THE STATUTE.

IN LINE WITH THE FOREGOING, WE DO NOT CONCUR WITH YOUR VIEW THAT THE AWARD OF CONTRACT N00123-71-C-0728 IS VOID AS IN VIOLATION OF 5 U.S.C. 3310.

CONCERNING THE SUPERVISION OF CONTRACT PERSONNEL, UNDER 5 U.S.C. 2105(A) ONE OF THE CRITERIA FOR DETERMINING WHETHER AN INDIVIDUAL IS AN EMPLOYEE WITHIN THE PURVIEW OF THE CIVIL SERVICE LAWS IS WHETHER THE INDIVIDUAL IS SUBJECT TO THE SUPERVISION OF A FEDERAL OFFICER OR EMPLOYEE WHILE ENGAGED IN THE PERFORMANCE OF THE DUTIES OF HIS POSITION. IN THE DISCUSSION OF THIS FACTOR IN THE SUPPLEMENTAL LEGAL OPINION ATTACHED TO FPM LETTER NO. 300-12, THE CIVIL SERVICE COMMISSION OBSERVED THAT WHILE SPORADIC, UNAUTHORIZED SUPERVISION OVER AN OCCASIONAL ONE OF A MUCH GREATER NUMBER OF CONTRACTOR EMPLOYEES MIGHT REASONABLY BE IGNORED, RELATIVELY CONTINUOUS SUPERVISION OF A SUBSTANTIAL NUMBER OF CONTRACTOR EMPLOYEES BY GOVERNMENT EMPLOYEES WOULD HAVE TO BE TAKEN INTO ACCOUNT.

IN SUPPORT OF YOUR CONTENTION THAT YOH EMPLOYEES HAVE BEEN IMPROPERLY SUPERVISED BY GOVERNMENT PERSONNEL, YOU CITE SEVERAL INSTANCES DURING THE PERIOD MARCH 3 TO 5, 1971, IN WHICH YOU CLAIM THAT YOH'S EMPLOYEES WERE NOT SUPERVISED BY YOH PERSONNEL AND WERE COMPELLED TO SEEK ADVICE FROM THE CENTER'S POLICE DIVISION. SUCH CIRCUMSTANCES, YOU STATE, VIOLATE NOT ONLY THE PERSONNEL STATUTES BUT ARE CONTRARY TO THE PROVISIONS OF PARAGRAPH 11, STANDARD FORM 33A, SOLICITATION INSTRUCTIONS AND CONDITIONS, INCLUDED IN THE PROCUREMENT SOLICITATION (INVITATION FOR BIDS (IFB) N00123-71-B-0728), WHICH READS AS FOLLOWS:

"GOVERNMENT-FURNISHED PROPERTY. NO MATERIAL, LABOR, OR FACILITIES WILL BE FURNISHED BY THE GOVERNMENT UNLESS OTHERWISE PROVIDED FOR IN THE SOLICITATION."

THE NAVAL WEAPONS CENTER, CHINA LAKE, STATES THAT ONE OF THE DUTIES OF ITS POLICE DIVISION IS TO PATROL THE CENTER, CHECKING DIFFERENT POSTS, ONE OF WHICH IS MICHELSON LABORATORY, ALONG THE PATROL. ANY IRREGULARITIES NOTED BY THE PATROL FORCE, THE CENTER STATES, ARE REPORTED TO THE FORCE SUPERVISOR, AND SUCH MATTERS AS INVOLVE THE LABORATORY ARE BROUGHT TO THE ATTENTION OF THE YOH SUPERVISORS BY THE CENTER'S SECURITY OFFICER. SUPERVISION, THE CENTER STATES, IS EXERCISED BY THE POLICE OFFICERS OVER YOH GUARDS. WITH SPECIFIC REFERENCE TO THE VARIOUS INSTANCES OCCURRING FROM MARCH 3 TO 5, IN WHICH YOU CLAIM YOH GUARDS CALLED ON GOVERNMENT PERSONNEL FOR ASSISTANCE, THE CENTER NOTES THAT SUCH EVENTS OCCURRED DURING THE FIRST WEEK OF YOH'S OPERATION AND EXPRESSES THE VIEW THAT THE REACTION OF THE GUARDS IN SEEKING ADVICE FROM GOVERNMENT GUARDS WAS NORMAL IN THE ABSENCE OF PREVIOUS INSTRUCTIONS IN SUCH MATTERS.

THE IFB, THE CENTER POINTS OUT, HAS A REQUIREMENT FOR SUPERVISION BY YOH OF ITS OWN GUARDS. FURTHER, THE CONTRACTING OFFICER STATES THAT PRIOR TO ISSUANCE OF THE IFB THE CENTER'S SECURITY OFFICER WAS CLEARLY ADVISED THAT SUPERVISION OF THE CONTRACT GUARDS BY BASE POLICE OR BY OTHER GOVERNMENT PERSONNEL WAS NOT PERMISSIBLE. IN THE CIRCUMSTANCES, WE DO NOT BELIEVE THAT THE RECORD SUPPORTS YOUR CONTENTION THAT THERE HAS BEEN CREATED AN EMPLOYER-EMPLOYEE RELATIONSHIP BETWEEN THE YOH GUARDS AND THE GOVERNMENT IN CONTRAVENTION OF FEDERAL PERSONNEL RULES AS APPLIED BY THE CIVIL SERVICE COMMISSION.

THE AREAS IN WHICH YOU ASSERT THAT YOH'S PERFORMANCE HAS BEEN DEFICIENT AND NOT IN COMPLIANCE WITH THE CONTRACT REQUIREMENTS INCLUDE LACK OF SUPERVISION (THIS RELATES TO THE NUMBER OF SUPERVISORS AND THE EVENTS DURING THE FIRST WEEK OF THE CONTRACT DISCUSSED ABOVE), FAILURE OF A GUARD TO HAVE HIS OFFICIAL PASS ON HIS PERSON, AN UNLOCKED GATE, FAILURE OF A GUARD TO ESCORT A VISITOR AROUND THE LABORATORY, AND OCCASIONS ON WHICH YOU STATE GUARDS HAVE CONSUMED ALCOHOLIC BEVERAGES IN PUBLIC WHILE IN UNIFORM.

YOU FURTHER STATE THAT THE CONTRACTOR HAS REQUIRED NEW PERSONNEL TO WORK FROM 3 TO 10 DAYS WITHOUT COMPENSATION UNTIL SUCH PERSONNEL HAVE BEEN DETERMINED TO BE QUALIFIED, IN VIOLATION OF SECTION L-7 OF THE CONTRACT; THAT ITS PERSONNEL HAVE NOT BEEN QUALIFIED IN THE USE OF ARMS IN ACCORDANCE WITH THE NAVY PHYSICAL SECURITY MANUAL; AND THAT SECURITY CLEARANCES HAVE NOT BEEN OBTAINED FOR ALL CONTRACTOR PERSONNEL AS REQUIRED BY THE CONTRACT PROVISIONS.

IN ADDITION TO THE FOREGOING YOU STATE THAT FOR SPECIAL MEETINGS AT MICHELSON LABORATORY CIVIL SERVICE PERSONNEL (MEMBERS OF THE POLICE DIVISION OF THE NAVAL WEAPONS CENTER) ARE USED TO CONDUCT RIGID SECURITY. YOU MAINTAIN THAT SUCH SERVICE SHOULD BE PROVIDED BY YOH SINCE ITS CONTRACT DOES NOT LIMIT THE GUARD SERVICES TO BE PERFORMED THEREUNDER TO THE SPECIFIC TASKS SET FORTH IN THE CONTRACT SPECIFICATIONS. YOU ALSO MAINTAIN THAT THE USE OF CIVIL SERVICE PERSONNEL FOR SUCH PURPOSE IS IN VIOLATION OF PARAGRAPH 11, STANDARD FORM 33A.

FINALLY, YOU ASSERT THAT WHILE THE NAVY ATTRIBUTES A SAVING OF $25,000 A YEAR TO THE USE OF CONTRACTOR PERSONNEL, IT WILL COST THE NAVY THREE TIMES THAT AMOUNT TO OBTAIN FROM SUCH PERSONNEL THE KIND OF SERVICES PROVIDED BY CIVIL SERVICE PERSONNEL IN THE SAME POSITIONS AT A HIGHER RATE OF PAY.

THE SCOPE OF THE CONTRACT, AS DESCRIBED IN SECTION E OF THE IFB SPECIFICATIONS, IS THE FURNISHING OF SECURITY GUARD SERVICES FOR THE PROTECTION OF CLASSIFIED MATERIAL AND PROPERTY. SECTION F-3, ENTITLED "SERVICES TO BE PERFORMED" READS AS FOLLOWS:

"F-3.1 THE CONTRACTOR SHALL FURNISH SERVICES TO INCLUDE BUT NOT NECESSARILY LIMITED TO THE FOLLOWING:

"F-3.2 SAFEGUARDING OF CLASSIFIED MATERIALS, EQUIPMENT AND DOCUMENTS AGAINST THEFT, ESPIONAGE, SABOTAGE, DESTRUCTION, COMPROMISE OR POSSIBILITY OF COMPROMISE.

"F-3.3 APPREHEND PERSONS GAINING OR ATTEMPTING TO GAIN UNAUTHORIZED ACCESS TO CLASSIFIED SPACES.

"F-3.4 MAINTAIN A LOG OF GUARD PATROLS AND OF ALL PERSONNEL AUTHORIZED TO ENTER CLASSIFIED SPACES AFTER NORMAL WORKING HOURS.

"F-3.5 GENERAL SURVEILLANCE OF JANITORIAL AND/OR MAINTENANCE HELP THAT REQUIRE ACCESS TO THE BUILDING DURING NON-WORKING HOURS.

"F-3.6 FURNISH THE FOLLOWING REPORTS AND ANY OTHER SPECIAL REPORTS THAT MAY BE REQUIRED FROM TIME TO TIME BY THE TECHNICAL COORDINATOR:

"F-3.6.1 LOG OF PATROLS DAILY EXCEPT WEEKEND LOGS WILL BE TURNED IN ON MONDAY.

"F-3.6.2 REGISTER OF AUTHORIZED PERSONS ENTERING AND LEAVING CLASSIFIED AREAS DURING NON-WORKING HOURS DAILY EXCEPT WEEKEND REGISTERS WILL BE TURNED IN MONDAY.

"F-3.6.3 REPORTS OF OPENED STORAGE CONTAINERS OR CLASSIFIED INFORMATION LEFT ASTRAY.

"F-3.6.4 REPORTS OF ACTUAL, POSSIBLE, OR SUSPECTED ESPIONAGE OR SABOTAGE.

"FORMS TO MAINTAIN THE LOGS AND REGISTERS AND FOR RENDERING THE AFOREMENTIONED REPORTS WILL BE SUPPLIED BY THE TECHNICAL COORDINATOR AT NO CHARGE TO THE CONTRACTOR."

MANNING REQUIREMENTS IN SECTION F-1 OF THE SPECIFICATIONS CALL FOR ONE ARMED SECURITY GUARD AT EACH OF FOUR STATIONARY POSTS AND TWO ROVING GUARDS. THE SERVICE FOR THE STATIONARY POSTS VARIES FOR EACH POST AND RANGES FROM 11.5 HOURS DAILY, MONDAY THROUGH FRIDAY, FOR THE NORTH ENTRANCE TO 24 HOURS DAILY, 7 DAYS WEEKLY, FOR THE MAIN SOUTH ENTRANCE. THE ROVING GUARD SERVICE IS REQUIRED 24 HOURS DAILY, 7 DAYS WEEKLY.

SUPERVISION REQUIREMENTS IN SECTION F-2 OF THE SPECIFICATIONS ARE AS FOLLOWS:

"ON-SITE SUPERVISION OF THE GUARD FORCE FURNISHED HEREUNDER SHALL BE PROVIDED BY THE CONTRACTOR CONTINUOUSLY AROUND-THE-CLOCK, AND SHALL BE ADEQUATE TO PROVIDE SATISFACTORY SERVICE. THE NUMBER OF SUPERVISORY PERSONNEL REQUIRED TO PERFORM SUCH SUPERVISION SHALL BE AT THE DISCRETION OF THE CONTRACTOR.

"AS A MINIMUM THE CONTRACTOR SHALL FURNISH SUPERVISION BY PERSONNEL OTHER THAN THOSE PERFORMING DUTIES ON POSTS DESIGNATED IN F-1 DURING THE NORMAL WORKING HOURS (MONDAY THRU FRIDAY - 7:30-4:30) OF THE MICHELSON LABORATORY. AT OTHER TIMES THE CONTRACTOR MAY DESIGNATE PERSONNEL PERFORMING DUTIES ON SUCH POSTS AS SUPERVISORY."

QUALIFICATION REQUIREMENTS IN SECTION F-4 OF THE SPECIFICATIONS INCLUDE SECURITY CLEARANCE AND QUALIFICATION IN THE USE OF FIREARMS IN ACCORDANCE WITH STANDARDS PRESCRIBED IN OPNAVINST P5510.45A, DATED JULY 31, 1961, PLATES 9-1, 9-2 AND 9-3. AT A PREBID CONFERENCE ON NOVEMBER 18, 1970, SECURITY CLEARANCE AND EMPLOYEE QUALIFICATION IN THE USE OF FIREARMS WERE DISCUSSED ALONG WITH OTHER REQUIREMENTS OF THE IFB. GOVERNMENT REPRESENTATIVES ACKNOWLEDGED THAT DIFFICULTY WAS INVOLVED IN PROCESSING SECURITY CLEARANCES DUE TO THE REMOTE LOCATION OF THE NAVAL WEAPONS CENTER AND THAT A PROBLEM EXISTED WITH RESPECT TO SECURING QUALIFIED LABOR. THE GOVERNMENT STATED, HOWEVER, THAT IT WOULD ASSIST IN THIS REGARD AS DEEMED NECESSARY AND WOULD RECOGNIZE INTERIM SECURITY CLEARANCES BY THE DEFENSE INDUSTRIAL SECURITY CLEARANCE OFFICE (DISCO) PENDING FINAL CLEARANCE.

REFERENCE TO OPNAVINST P5510.45A INDICATES THAT THE SECURITY OFFICER, WHO IS A MEMBER OF THE MILITARY SERVICES, HEADS THE SECURITY ORGANIZATION OF HIS PARTICULAR NAVAL ACTIVITY. A CIVILIAN GUARD FORCE MAY BE COMPOSED OF CIVIL SERVICE PERSONNEL, CONTRACT PERSONNEL, OR BOTH (PARAGRAPH 0440). TO SUPERVISORY STRENGTH PARAGRAPH 0453.1 SETS FORTH THREE EXAMPLES OF REASONABLE SUPERVISORY STRENGTH IN GUARD FORCES OF VARYING SIZE AND STATES THAT EACH SHIFT OF GUARDS SHOULD NORMALLY HAVE A CIVILIAN GUARD SUPERVISOR. THE PARAGRAPH FURTHER STATES, HOWEVER, THAT THE RATIO OF SUPERVISORS TO GUARDS VARIES WITH THE OVERALL SIZE OF THE GUARD FORCE, THE EXTENT OF ITS OPERATIONS, AND THE TYPE AND FREQUENCY OF SUPERVISION DESIRED.

AS TO THE NUMBER OF SUPERVISORY GUARDS REQUIRED FOR MICHELSON LABORATORY, THE CENTER CALLS ATTENTION TO THE FACT THAT THE EXAMPLES GIVEN IN OPNAVINST P5510.45A ARE BUT GUIDELINES AND DO NOT CONSTITUTE A REQUIREMENT. FURTHER, THE CENTER REPORTS THAT WHEN CIVIL SERVICE EMPLOYEES WERE USED FOR GUARD SERVICE AT THE LABORATORY, THEIR SUPERVISORY PERSONNEL WERE PHYSICALLY LOCATED AT ANOTHER SITE AND THERE WAS NO CONTINUING ON-SITE SUPERVISION AS IS BEING FURNISHED BY YOH SUPERVISORY PERSONNEL, WHO ARE LOCATED AT THE LABORATORY.

WITH RESPECT TO THE OTHER AREAS OF YOH'S PERFORMANCE OF WHICH YOU COMPLAIN, ALL OF WHICH INVOLVE EVENTS OCCURRING WITHIN THE FIRST 12 DAYS OF OPERATION BY YOH, THE CENTER STATES THAT THE PROBLEMS WERE SUCH AS TO BE EXPECTED BY ANY CONTRACTOR BEGINNING OPERATIONS AT A NEW SITE. THE UNLOCKED GATE ON THE SECOND DAY OF OPERATION, IT IS REPORTED, WAS CALLED TO THE ATTENTION OF THE YOH SUPERVISOR, WHO PROMPTLY REMEDIED THE SITUATION, AND NO OTHER SIMILAR LAPSES HAVE BEEN REPORTED SINCE THAT DATE. THE CONSUMPTION OF ALCOHOLIC BEVERAGES IN PUBLIC BY GUARDS IN UNIFORM, THE CENTER STATES, IS CONSIDERED TO BE AN INTERNAL PERSONNEL MATTER, WHICH, IT IS UNDERSTOOD, THE YOH COMPANY HAS CORRECTED.

AS TO SECURITY CLEARANCE, THE CENTER REPORTS THAT ONLY TWO OF THE YOH GUARDS HAVE NOT YET BEEN GIVEN THE FINAL DISCO CLEARANCE, PENDING WHICH THEY ARE ASSIGNED INTERIM-SECURITY CLEARANCE AS PER CONTRACT AGREEMENT.

ON THE ISSUE OF QUALIFICATION OF THE YOH GUARDS, THE CENTER REPORTS THAT IT HAS RECEIVED QUALIFICATION STATEMENTS ON ALL BUT THREE GUARDS. IT IS FURTHER REPORTED THAT YOH IS CHECKING ON THE THREE GUARDS AND WILL ADVISE THE CENTER FURTHER WHEN THE ADDITIONAL INFORMATION IS OBTAINED.

SECTION L-7 OF THE SPECIFICATIONS IS THE SERVICE CONTRACT ACT OF 1965, 41 U.S.C. 251 ET SEQ., CLAUSE SET FORTH IN ARMED SERVICES PROCUREMENT REGULATION (ASPR) 12-1004(A). UNDER ITS TERMS THE CONTRACT IS SUBJECT TO THE PROVISIONS OF THE ACT AND IMPLEMENTING REGULATIONS ISSUED BY THE SECRETARY OF LABOR (29 CFR PARTS 4 AND 1516), AND THE CONTRACTOR IS OBLIGATED TO PAY TO ITS EMPLOYEES NO LESS THAN THE MINIMUM WAGE RATE AND FRINGE BENEFITS SPECIFIED IN WAGE DETERMINATION NO. 67-440 (REV-1), ISSUED BY THE DEPARTMENT OF LABOR AND INCORPORATED IN THE IFB AND THE CONTRACT.

CONCERNING YOUR STATEMENTS ABOUT NEW YOH EMPLOYEES WHO HAVE COMPLAINED ABOUT NONPAYMENT OF COMPENSATION UNTIL AFTER QUALIFICATION, YOU ARE ADVISED THAT COMPLAINTS OF A VIOLATION, OR APPARENT VIOLATION, OR APPARENT VIOLATION, OF THE SERVICE CONTRACT ACT OF 1965, OR OF ANY RULES OR REGULATIONS PRESCRIBED THEREUNDER, MAY BE FILED WITH ANY OFFICE OF THE WAGE AND HOUR AND PUBLIC CONTRACTS DIVISIONS OF THE DEPARTMENT OF LABOR, 29 CFR 4.191. PROCEDURES TO BE FOLLOWED IN THE ENFORCEMENT OF THE ACT AND RELATED CONTRACT STIPULATIONS ARE SET FORTH IN 29 CFR 4.187-4.190. IT IS TO BE NOTED THAT UNDER SUCH REGULATIONS SANCTIONS ARE NOT IMPOSED AGAINST A CONTRACTOR WITHOUT AN OFFICIAL DETERMINATION THAT IT HAS, IN FACT, VIOLATED THE ACT AND THE IMPLEMENTING REGULATIONS. THERE IS NO INDICATION OF RECORD THAT SUCH ACTION HAS BEEN TAKEN IN THIS CASE.

THE PRACTICE OF UTILIZING CIVIL SERVICE PERSONNEL AS SECURITY GUARDS FOR GOVERNMENT SPONSORED CLASSIFIED CONFERENCES AND MEETINGS AT MICHELSON LABORATORY, THE NAVAL WEAPONS CENTER REPORTS, IS CONSIDERED TO BE AN ECONOMICAL NECESSITY. IN THIS REGARD, THE CENTER STATES THAT TO REQUIRE YOH TO HAVE GUARD PERSONNEL AVAILABLE TO COVER SUCH MEETINGS, MOST OF WHICH ARE UNSCHEDULED, WOULD REQUIRE ADDITIONAL FUNDS TO PAY FOR THE ADDITIONAL COVERAGE. IN THE ABSENCE OF ANY REQUIREMENT IN THE CONTRACT THAT YOH PROVIDE SECURITY SERVICES FOR SUCH SPECIAL MEETINGS IN ADDITION TO THE MANNING OF THE FOUR STATIONARY POSTS AND THE ROVING GUARDS, WE CONCUR WITH THE POSITION OF THE CENTER THAT ADDITIONAL FUNDS WOULD BE NECESSARY TO COMPENSATE YOH FOR GUARD SERVICES PROVIDED FOR SUCH SPECIAL MEETINGS. IN THE CIRCUMSTANCES, THE DECISION BY THE CENTER TO USE CIVIL SERVICE PERSONNEL FOR SUCH PURPOSE MUST BE REGARDED AS A PROPER EXERCISE OF THE DISCRETION ACCORDED TO THE CENTER IN THE MANAGEMENT OF ITS FUNCTIONS.

AS TO YOUR ASSERTION THAT IT WOULD COST THE GOVERNMENT MORE THAN IT SAVES UNDER THE YOH CONTRACT TO OBTAIN THE SAME QUALITY OF SERVICES AS WOULD BE RENDERED BY CIVIL SERVICE PERSONNEL, THE PROCURING ACTIVITY EMPHASIZES THAT THE CONTRACT WAS AWARDED PURSUANT TO FORMAL ADVERTISING PROCEDURES AND THAT ITS FIXED PRICE IS NOT NEGOTIABLE. AS TO THE QUALITY OF THE SERVICES RENDERED BY YOH, THE CENTER STATES THAT NO COMPLAINTS HAVE BEEN RECEIVED SINCE THE CONTRACT COMMENCED AND CENTER MANAGEMENT IS PLEASED WITH YOH'S PERFORMANCE AND EXPECTS THAT IT WILL CONTINUE TO BE SATISFACTORY. WHILE IT MAY BE THAT CIVIL SERVICE PERSONNEL MIGHT PERFORM GUARD SERVICES IN A MANNER SUPERIOR TO PERFORMANCE BY THE YOH GUARDS, AS YOU CLAIM, IT APPEARS THAT THE GOVERNMENT'S REQUIREMENTS AT MICHELSON LABORATORY ARE BEING MET SATISFACTORILY UNDER THE CONTRACT WITH YOH AND AT THE FIXED PRICE. THE POSSIBILITY OF A SUPERIOR PERFORMANCE BY CIVIL SERVICE PERSONNEL DOES NOT, IN OUR OPINION, NEGATE THE SAVINGS ATTRIBUTABLE TO THE CONTRACT WITH YOH OR THE PROPRIETY OF THE AGENCY'S DECISION TO CONTRACT FOR THE SERVICES.

IN SUMMATION, THE RECORD INDICATES THAT THE PROBLEMS ENCOUNTERED BY YOH IN THE EARLY DAYS OF ITS OPERATION UNDER THE CONTRACT WERE MINOR IN NATURE AND THAT ACTION HAS BEEN TAKEN EITHER TO CORRECT THE DEFICIENCIES OR TO PRECLUDE THEIR RECURRENCE. FURTHER, WHILE DELAYS HAVE BEEN INVOLVED IN OBTAINING SECURITY CLEARANCES AND EVIDENCE OF QUALIFICATION OF SOME OF YOH'S EMPLOYEES, THERE IS NO EVIDENCE THAT THESE OR ANY OTHER REQUIREMENTS OF THE CONTRACT HAVE BEEN WAIVED BY THE GOVERNMENT. NOR IS THERE ANY EVIDENCE THAT CIVIL SERVICE PERSONNEL HAVE BEEN USED TO SUPERVISE YOH EMPLOYEES OR TO PERFORM ANY OF THEIR FUNCTIONS IN VIOLATION OF THE PERSONNEL LAWS, AS APPLIED BY THE CIVIL SERVICE COMMISSION, OR OF THE CONTRACT PROVISIONS.

FOR THE REASONS STATED, WE ARE UNABLE TO CONCLUDE THAT THE EXISTING RECORD SUPPORTS YOUR POSITION THAT THE CONTRACT SHOULD BE CANCELLED OR TERMINATED FOR DEFAULT. YOUR PROTEST IS THEREFORE DENIED.