B-173505, OCT 29, 1971

B-173505: Oct 29, 1971

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SINCE ASPR 2-404.1(B)(2) PROVIDES FOR INVITATION CANCELLATION AFTER BID OPENING WHERE IT IS DETERMINED THAT THE SPECIFICATIONS ARE INADEQUATE OR AMBIGUOUS. NOR CAN IT BE SHOWN THAT THE REVISED SOLICITATION WAS AMBIGUOUS. IT DOES NOT APPEAR THAT FRUGAL WOULD VIOLATE EITHER EXECUTIVE ORDER 11615 OR THE MINIMUM WAGE PROVISIONS IN THAT THEY HAVE BEEN PAYING WAGES EQUAL TO OR HIGHER THAN THOSE IN THE WAGE RATE DETERMINATION SINCE JULY 1970. SHRIVER & KAMPELMAN: REFERENCE IS MADE TO YOUR LETTER OF JULY 7. WAS FOR JANITORIAL SERVICES AT THE NORFOLK NAVAL SHIPYARD. BID OPENING WAS ORIGINALLY SCHEDULED FOR JUNE 15. 2A.15 AND 2A.26(C) WAS NOT CONTAINED UNDER ANY OF THE WORK ITEMS IN THE DETAIL WORK SCHEDULE.

B-173505, OCT 29, 1971

BID PROTEST - AMBIGUOUS SPECIFICATIONS - EXECUTIVE ORDER 11615 DENIAL OF PROTEST AGAINST THE CANCELLATION OF AN IFB ISSUED BY THE NAVAL FACILITIES ENGINEERING COMMAND, NORFOLK, VA., FOR JANITORIAL SERVICES AT THE NORFOLK NAVAL SHIPYARD, AND AGAINST AWARD OF A CONTRACT TO THE FRUGAL COMPANY UNDER A REVISED IFB. THE RECORD INDICATES THAT FRUGAL DID QUESTION THE AMBIGUITIES IN THE ORIGINAL SPECIFICATIONS PRIOR TO BID OPENING AND, THEREFORE, IT CANNOT BE CONCLUDED THAT THEY DID NOT RAISE THE QUESTION IN A TIMELY MANNER. SINCE ASPR 2-404.1(B)(2) PROVIDES FOR INVITATION CANCELLATION AFTER BID OPENING WHERE IT IS DETERMINED THAT THE SPECIFICATIONS ARE INADEQUATE OR AMBIGUOUS, GAO CANNOT CONCLUDE THAT CANCELLATION HEREIN CONSTITUTED AN ABUSE OF ADMINISTRATIVE DISCRETION, NOR CAN IT BE SHOWN THAT THE REVISED SOLICITATION WAS AMBIGUOUS. FURTHER, IT DOES NOT APPEAR THAT FRUGAL WOULD VIOLATE EITHER EXECUTIVE ORDER 11615 OR THE MINIMUM WAGE PROVISIONS IN THAT THEY HAVE BEEN PAYING WAGES EQUAL TO OR HIGHER THAN THOSE IN THE WAGE RATE DETERMINATION SINCE JULY 1970.

TO FRIED, FRANK, HARRIS, SHRIVER & KAMPELMAN:

REFERENCE IS MADE TO YOUR LETTER OF JULY 7, 1971, AND SUBSEQUENT CORRESPONDENCE PROTESTING ON BEHALF OF ADVANCE BUILDING MAINTENANCE CO. (ADVANCE) AND ATLANTIC MAINTENANCE, INC. OF MARYLAND (ATLANTIC), AGAINST THE CANCELLATION OF INVITATION FOR BIDS (IFB) N62470-71-B-0374 (HEREAFTER- 0374), ISSUED BY THE NAVAL FACILITIES ENGINEERING COMMAND, NORFOLK, VIRGINIA.

IFB-0374, ISSUED ON MAY 26, 1971, WAS FOR JANITORIAL SERVICES AT THE NORFOLK NAVAL SHIPYARD, PORTSMOUTH, VIRGINIA. BID OPENING WAS ORIGINALLY SCHEDULED FOR JUNE 15, 1971. ACCORDING TO THE RECORD ON JUNE 11, 1971, THE OFFICE OF THE OFFICER IN CHARGE OF CONSTRUCTION (OICC) RECEIVED A TELEPHONE CALL FROM THE INCUMBENT CONTRACTOR, THE FRUGAL COMPANY, INC. (FRUGAL), IN REGARD TO CERTAIN AMBIGUITIES IN THE SPECIFICATIONS. ADDITION TO CERTAIN MATTERS NOT RELEVANT TO THE PRESENT CASE, FRUGAL INDICATED THAT THE WORK REQUIRED BY PARAGRAPHS 2A.9, 2A.10, 2A.12, 2A.15 AND 2A.26(C) WAS NOT CONTAINED UNDER ANY OF THE WORK ITEMS IN THE DETAIL WORK SCHEDULE. (SECTION 2A OF THE SPECIFICATIONS, ENTITLED "DETAIL REQUIREMENTS", SET OUT THE NATURE AND EXTENT OF JANITORIAL SERVICES REQUIRED, WHILE THE DETAIL WORK SCHEDULE SET OUT THE TYPE AND FREQUENCY OF JANITORIAL SERVICES REQUIRED AT SPECIFIC LOCATIONS.) AS A RESULT OF FRUGAL'S CALL, ADDENDUM NO. 2 TO THE IFB WAS ISSUED COVERING ALL OF THE MATTERS RAISED BY FRUGAL, EXCEPT FOR QUESTIONS RELATIVE TO THE REQUIREMENTS COVERED BY THE ABOVE MENTIONED PARAGRAPHS. THESE QUESTIONS WERE NOT COVERED BY ADDENDUM NO. 2 BECAUSE IT WAS CONSIDERED AT THE TIME THAT THE REQUIREMENTS WERE SUFFICIENTLY DEFINITE.

UPON OPENING THE BIDS (THERE IS SOME CONFLICT IN THE EVIDENCE AS TO WHETHER BID OPENING WAS ON JUNE 15 OR ON JUNE 17) IT WAS DETERMINED THAT ATLANTIC WAS THE LOW BIDDER. HOWEVER, SINCE THE GOVERNMENT ESTIMATE WAS $700,000, WHEREAS THE BID PRICES REFLECTED A SPREAD OF $336,400, A CAREFUL REEXAMINATION OF THE SPECIFICATIONS WAS CONDUCTED BY OICC PERSONNEL, AND IT WAS DETERMINED THAT REFERENCE TO THE DETAIL WORK SCHEDULE DID NOT RESOLVE ADEQUATELY THE QUESTION OF FREQUENCY OF WORK CALLED FOR UNDER THE PROVISIONS CITED BY FRUGAL. THE RECORD DOES NOT INDICATE WHETHER THE REEXAMINATION OF THE SPECIFICATIONS BY OICC PERSONNEL WAS CONDUCTED PRIOR TO, OR SUBSEQUENT TO, FRUGAL'S LETTER OF JUNE 21, 1971, WHICH REQUESTED CLARIFICATION OF PARAGRAPHS 2A.9, 2A.10, 2A.12, 2A.15 AND 2A.26(C). BUT IN ANY EVENT ALL BIDS WERE REJECTED PURSUANT TO SECTION 2-404.1(B)(2) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), WHICH AUTHORIZES CANCELLATION OF THE INVITATION WHEN THE SPECIFICATIONS ARE INADEQUATE OR AMBIGUOUS.

THE INVITATION WAS SUBSEQUENTLY REVISED, WITH ALL ITEMS OF WORK CALLED FOR IN THE DETAIL REQUIREMENTS OF THE SPECIFICATIONS KEYED TO ALL ITEMS IN THE DETAIL WORK SCHEDULE. THE PROCUREMENT WAS THEN READVERTISED, CALLING FOR A BID OPENING DATE OF AUGUST 17, 1971. BIDS WERE OPENED ON SCHEDULE AT WHICH TIME IT WAS DETERMINED THAT FRUGAL WAS THE LOW BIDDER.

YOU CONTEND THAT FRUGAL'S POST-BID OPENING ALLEGATIONS OF AMBIGUITIES SHOULD HAVE BEEN SUMMARILY REJECTED, SINCE OUR OFFICE HAS HELD THAT THE PROPER TIME TO RAISE QUESTIONS CONCERNING SPECIFICATION AMBIGUITIES IS PRIOR TO BID OPENING. B-170398, FEBRUARY 17, 1971. HOWEVER, THERE IS EVIDENCE IN THE PRESENT CASE THAT FRUGAL BROUGHT THE AMBIGUITIES IN THE SPECIFICATIONS TO THE ATTENTION OF THE PROCURING ACTIVITY ON JUNE 11, 1971, WHICH WAS PRIOR TO BID OPENING. IN VIEW THEREOF, WE SEE NO BASIS FOR CONCLUDING THAT FRUGAL DID NOT RAISE THE QUESTION OF AMBIGUITY IN A TIMELY MANNER.

YOU TAKE ISSUE WITH NAVY'S POSITION THAT CANCELLATION OF THE ORIGINAL SOLICITATION, ISSUED ON MAY 26, 1971, WAS WARRANTED ON THE BASIS THAT THE WORK REQUIRED IN PARAGRAPHS 2A.9, 2A.10, 2A.12, 2A.15 AND 2A.26(C) WAS NOT CONTAINED UNDER ANY OF THE WORK ITEMS IN THE DETAIL WORK SCHEDULE, AND THUS, THE SOLICITATION WAS AMBIGUOUS. YOU CONTEND THAT THE WORK REQUIREMENTS IN THE ORIGINAL SOLICITATION WERE CLEAR, AND NAVY'S POSITION IS THEREFORE WHOLLY WITHOUT MERIT.

BOTH THIS OFFICE AND THE COURTS HAVE HELD THAT AN AMBIGUITY EXISTS ONLY IF TWO OR MORE REASONABLE INTERPRETATIONS ARE POSSIBLE. 48 COMP. GEN. 757, 760 (1969). KEEPING THIS IN MIND, WE WILL CONSIDER EACH OF THE ABOVE MENTIONED PARAGRAPHS INDIVIDUALLY IN CONNECTION WITH APPLICABLE PROVISIONS OF THE DETAIL WORK SCHEDULE.

YOU STATE THAT 2A.9 OF THE ORIGINAL SPECIFICATIONS COVERED WASHING OF WALLS, CEILINGS, AND EXPOSED PIPING IN REST ROOMS, AND THAT ATLANTIC PREMISED ITS BID ON PERFORMING THIS WORK IN ACCORDANCE WITH PARAGRAPH C OF THE ORIGINAL DETAIL WORK SCHEDULE, WHICH PROVIDED:

"CLEAN ALL FIXTURES AND ACCESSORIES IN TOILET ROOMS, LOCKER ROOMS. CLEAN MIRRORS AND DRINKING FOUNTAINS, SUPPLY ALL DISPENSERS, CLEAN BLACKBOARDS."

YOU POINT OUT THAT PARAGRAPH C WORK WAS TO BE PERFORMED DAILY, AND YOU STATE THAT ATLANTIC ASSUMED THAT "CLEAN ALL FIXTURES AND ACCESSORIES IN TOILET ROOMS" INCLUDED CLEANING ALL EXPOSED SURFACES IN THE REST ROOM THAT WERE IN NEED OF CLEANING SUCH AS WALLS, CEILINGS AND EXPOSED PIPES.

THERE DOES NOT APPEAR TO BE ANY QUESTION THAT THE LANGUAGE OF PARAGRAPH C DID NOT SPECIFICALLY PROVIDE FOR THE CLEANING OF THE TOILET WALLS, CEILINGS AND EXPOSED PIPES. THE QUESTION THEREFORE IS WHETHER THE LANGUAGE OF PARAGRAPH C IS SUCH THAT EACH AND EVERY BIDDER COULD REASONABLY BE EXPECTED TO CONCLUDE THAT "CLEAN ALL FIXTURES AND ACCESSORIES IN TOILET ROOMS" INCLUDED THE CLEANING OF WALLS, CEILINGS, AND EXPOSED PIPES AND THAT NO OTHER CONCLUSION COULD REASONABLY BE REACHED. WE THINK NOT, AND WE MUST THEREFORE CONCLUDE THAT THERE WAS AN AMBIGUITY IN REGARD TO PARAGRAPH 2A.9 IN THAT THERE WAS NO WAY OF DETERMINING HOW OFTEN THE WALLS, CEILINGS AND EXPOSED PIPES WERE TO BE CLEANED.

IN REGARD TO PARAGRAPH 2A.10 OF THE ORIGINAL SPECIFICATIONS (CONCERNING THE VACUUM CLEANING OF INTERIOR WALLS, PARTITIONS, AND CEILINGS TO REMOVE DUST), YOU STATE THAT THIS WORK WAS COVERED IN PARAGRAPHS E AND J OF THE ORIGINAL DETAIL WORK SCHEDULE, WHICH PROVIDE AS FOLLOWS:

"E. MISCELLANEOUS CLEANING: CLEAN OFFICE FURNITURE, SPOT CLEAN DOORS AND OFFICE PARTITIONS, WALLS AND HAND RAILS.

"J. HIGH DUSTING ABOVE 72"."

ACCORDING TO THE DETAIL WORK SCHEDULE THE WORK UNDER PARAGRAPH E WAS TO BE PERFORMED ON A DAILY BASIS, WHILE THE WORK UNDER J WAS TO BE PERFORMED ON A BI-MONTHLY BASIS. ACCORDING TO THE PROCURING ACTIVITY PARAGRAPH 2A.10 COVERED THE INTERIOR WALLS AND PARTITIONS, WHILE THE DETAIL WORK SCHEDULE COVERED THE CLEANING OF "OFFICE PARTITIONS, WALLS AND HANDRAILS", LEAVING THE IMPRESSION THAT HALLWAY WALLS, FOR EXAMPLE, WERE NOT COVERED IN THE FREQUENCY SCHEDULE. WE ARE OF THE VIEW THAT THIS IS A DISTINCTION WITHOUT MERIT AND THAT THE TERM "WALLS" COVERS INTERIOR, AS WELL AS OTHER WALLS. WE AGREE WITH YOUR CONCLUSION THAT THERE WAS NO AMBIGUITY IN THE ORIGINAL SPECIFICATIONS AS TO HOW OFTEN THE INTERIOR WALLS AND PARTITIONS WERE TO BE CLEANED. THEY WERE TO BE CLEANED ON A DAILY BASIS, AND THE FACT THAT PARAGRAPH J WOULD ALSO INCLUDE CLEANING OF THE CEILING IS NOT DISPUTED IN THE PRESENT CASE.

CONCERNING PARAGRAPH 2A.12 OF THE ORIGINAL SPECIFICATIONS, COVERING THE CLEANING OF HARDWARE, WE DO NOT AGREE WITH YOUR CONCLUSION THAT THERE WAS NO AMBIGUITY IN THE ORIGINAL SOLICITATION AS TO THE FREQUENCY OF CLEANING. WHILE ADMITTEDLY THE CLEANING OF HARDWARE WAS NOT COVERED IN THE ORIGINAL DETAIL WORK SCHEDULE AND THE PROCURING ACTIVITY OMITTED CLEANING OF HARDWARE IN BOTH THE REVISED DETAIL REQUIREMENTS OF SPECIFICATION NO. 05-71-0374 (REVISED), WHICH WAS PART OF THE SECOND INVITATION FOR BIDS, AND DETAIL WORK SCHEDULE, THE FACT REMAINS THE PARAGRAPH 2A.12 DID COVER CLEANING OF HARDWARE. PARAGRAPH 2A.12 STATES, IN PERTINENT PART, THAT "LACQUER-COATED HARDWARE SHALL BE DAMP WIPED. UNLACQUERED BRASS HARDWARE SHALL BE POLISHED. *** " WE ARE OF THE VIEW THAT SINCE IT WOULD APPEAR THAT PARAGRAPH 2A.12 DID REQUIRE CLEANING OF THE HARDWARE AND IN VIEW OF THE FACT THAT THE DETAIL WORK SCHEDULE DID NOT COVER IT, AN AMBIGUITY EXISTED AS TO THE FREQUENCY OF THE CLEANING.

CONCERNING PARAGRAPH 2A.15 OF THE ORIGINAL SPECIFICATIONS, WHICH COVERED CLEANING OF VENETIAN BLINDS, WE AGREE WITH YOUR CONTENTION THAT THE PERFORMANCE FREQUENCY FOR THIS WORK WAS CLEARLY SPELLED OUT IN PARAGRAPH I OF THE DETAIL WORK SCHEDULE, WHICH PROVIDES IN PERTINENT PART:

"DUSTING UP TO 72", DUST RADIATORS, LOCKERS, DRAFT DEFLECTORS, WINDOW SILLS, VENETIAN BLINDS, *** "

THE WORK COVERED BY PARAGRAPH I WAS TO BE PERFORMED ON A WEEKLY BASIS.

AS TO WHETHER PARAGRAPH 2A.26(C) OF THE ORIGINAL SPECIFICATIONS CREATED AN AMBIGUITY, THAT PARAGRAPH STATED:

"CONTINUOUS SERVICE BETWEEN THE HOURS OF 0800 AND 1630, MONDAY THROUGH FRIDAY SHALL BE ACCOMPLISHED IN THE AREAS INDICATED IN THE DETAIL WORK SCHEDULE IN BUILDINGS 163, 171, 234, 260 AND 277."

THE DETAIL WORK SCHEDULE FOR BUILDINGS 260 AND 277 MADE NO MENTION OF CONTINUOUS SERVICE. THE DETAIL WORK SCHEDULE FOR BUILDINGS 163, 171 AND 260 MERELY STATED THAT "THE CONTRACTOR SHALL FURNISH EIGHT (8) HOURS PER DAY CONTINUOUS SERVICE FIVE (5) DAYS PER WEEK, MONDAY THROUGH FRIDAY, IN THE AREAS LISTED IN BLDG. (BUILDING NUMBER) BETWEEN THE HOURS OF 0800 AND 1630." HOWEVER, THE NATURE OF THE CONTINUOUS SERVICE WAS NOT SPELLED OUT. YOU STATE THAT ATLANTIC INTERPRETED PARAGRAPH 2A.26(C) TO MEAN THAT THE TYPES OF SERVICE ORDINARILY REQUIRED ON A "DAILY" BASIS MUST BE PROVIDED ON A CONTINUOUS BASIS IN THE DESIGNATED BUILDINGS, AND ATLANTIC PLANNED TO STATION AN EMPLOYEE AT EACH OF THE DESIGNATED LOCATIONS ON A FULL-TIME BASIS. YOU FURTHER STATE THAT THE PROCURING ACTIVITY MERELY CONFIRMED ATLANTIC'S INTERPRETATION OF "CONTINUOUS CLEANING" IN ITS REVISED SPECIFICATIONS AND THAT "CONTINUOUS SERVICE" COULD HAVE NO OTHER REASONABLE MEANING IN THE CONTEXT OF A CUSTODIAL SERVICES CONTRACT.

WHILE WE DO NOT QUESTION THE REASONABLENESS OF ATLANTIC'S INTERPRETATION OF PARAGRAPH 2A.26(C), WE DO NOT AGREE WITH YOUR STATEMENT THAT IT IS THE ONLY REASONABLE INTERPRETATION. WE ARE OF THE VIEW THAT THE TERM "CONTINUOUS SERVICE" DOES NOT HAVE A GENERALLY ACCEPTED MEANING AND WHAT CONSTITUTES "CONTINUOUS SERVICES" UNDER A CUSTODIAL SERVICES CONTRACT WOULD VARY FROM CONTRACTOR TO CONTRACTOR. THEREFORE, WE MUST CONCLUDE THAT THERE WAS AN AMBIGUITY IN REGARD TO THE NATURE AND EXTETD OF THE "CONTINUOUS SERVICES" REQUIRED.

OUR OFFICE RECOGNIZES THE DAMAGE RESULTING FROM CANCELLATION AND READVERTISING AFTER BIDS HAVE BEEN OPENED AND ACCORDINGLY HAS ENUNCIATED THE RULE THAT INVITATIONS SHOULD BE CANCELLED ONLY FOR COGENT AND COMPELLING REASONS. HOWEVER, WE ALSO RECOGNIZE THE WIDE RANGE OF DISCRETION VESTED IN THE CONTRACTING AGENCIES IN THIS AREA, AND WE THEREFORE WILL NOT QUESTION AGENCY DETERMINATIONS TO CANCEL INVITATIONS UNLESS SUCH DETERMINATIONS ARE CLEARLY ERRONEOUS. 41 COMP. GEN. 709, 711- 712 (1962); B-168176, DECEMBER 1, 1969. IN THE PRESENT CASE WE BELIEVE THERE WERE AT LEAST THREE AMBIGUITIES IN THE ORIGINAL SPECIFICATIONS. INASMUCH AS ASPR 2-404.1(B)(I) PROVIDES FOR INVITATION CANCELLATION AFTER OPENING WHERE IT IS DETERMINED THAT SPECIFICATIONS ARE INADEQUATE OR AMBIGUOUS, WE CANNOT CONCLUDE THAT THE CANCELLATION IN THE INSTANT CASE CONSTITUTED AN ABUSE OF ADMINISTRATIVE DISCRETION. B-167149, AUGUST 25, 1969; B-170590, OCTOBER 1, 1970.

ALSO, YOU CONTEND THAT FRUGAL CANNOT RECEIVE THE AWARD UNDER THE REVISED SOLICITATION SINCE FRUGAL'S COMPLIANCE WITH THE REQUIREMENTS OF THE SOLICITATION WOULD BE ILLEGAL. THE BASIS FOR THIS CONTENTION IS THAT EXECUTIVE ORDER NO. 11615, DATED AUGUST 15, 1971, AND ISSUED PURSUANT TO THE ECONOMIC STABILIZATION ACT OF 1970, AS AMENDED, STABILIZED WAGES AND SALARIES FOR 90 DAYS. EXECUTIVE ORDER NO. 11615, WHICH WAS ISSUED TWO DAYS BEFORE BID OPENING ON THE RESOLICITATION, PROVIDES:

"NO PERSON SHALL, DIRECTLY OR INDIRECTLY, PAY OR AGREE TO PAY IN ANY TRANSACTION WAGES OR SALARIES IN ANY FORM *** HIGHER THAN THOSE PERMITTED HEREUNDER, WHETHER BY RETROACTIVE INCREASE OR OTHERWISE."

IT IS YOUR POSITION THAT FRUGAL CANNOT PAY ITS EMPLOYEES AT A HIGHER WAGE RATE UNDER ANY NEW CONTRACT THAN IT HAS BEEN PAYING UNDER THE CURRENT EXTENSION OF ITS OLD CONTRACT, AND IT IS YOUR BELIEF THAT THE WAGE RATE DETERMINATION WHICH IS PART OF THE REVISED SOLICITATION REQUIRES PAYMENT OF WAGES IN EXCESS OF THOSE CURRENTLY BEING PAID BY FRUGAL. ACCORDINGLY, IT IS YOUR VIEW THAT FRUGAL IS PRECLUDED BY LAW FROM COMPLYING WITH THE SOLICITATION REQUIREMENTS AND, THEREFORE, ITS BID MUST BE REJECTED AS NONRESPONSIVE. YOU POINT OUT THAT ATLANTIC IS, AND HAS BEEN, PAYING ITS EMPLOYEES AT A RATE IN EXCESS OF THE RATES SET OUT IN THE WAGE DETERMINATION.

THE RECORD INDICATES, HOWEVER, THAT FRUGAL HAS BEEN PAYING WAGES EQUAL TO/OR IN EXCESS OF, THOSE SET OUT IN THE WAGE RATE DETERMINATION SINCE JULY 1970, AND THAT FRUGAL THEREFORE WOULD NOT HAVE TO RAISE ITS WAGES SHOULD IT RECEIVE THE AWARD. THUS, IT DOES NOT APPEAR THAT FRUGAL WILL BE REQUIRED TO VIOLATE EITHER EXECUTIVE ORDER NO. 11615 OR THE MINIMUM WAGE PROVISIONS IN PERFORMING THE CONTRACT. ADDITIONALLY, YOU RAISE THE POINT THAT WHILE FRUGAL MAY NOT VIOLATE EXECUTIVE ORDER NO. 11615 BY PAYING ITS EMPLOYEES THE WAGES SET FORTH IN THE WAGE RATE DETERMINATION CONTAINED IN THE REVISED SOLICITATION, IT IS ENTIRELY POSSIBLE THAT OTHER BIDDERS, IF SUCCESSFUL, WOULD HAVE BEEN IN VIOLATION OF EXECUTIVE ORDER NO. 11615 FOR THE ABOVE REASONS. THERE IS NO EVIDENCE OF RECORD THAT ANY OF THE OTHER BIDDERS, IF SUCCESSFUL, WOULD HAVE BEEN IN VIOLATION OF EXECUTIVE ORDER NO. 11615. HOWEVER, WE DO KNOW THAT NEITHER FRUGAL NOR ATLANTIC WOULD HAVE BEEN IN VIOLATION OF EXECUTIVE ORDER NO. 11615 AND SINCE THE BID PRICES OF THE OTHER SIX BIDDERS EXCEEDED THE BID PRICES OF FRUGAL AND ATLANTIC, THERE APPEARS TO BE LITTLE LIKELIHOOD OF ANY OF THEM BEING IN VIOLATION OF EXECUTIVE ORDER NO. 11615. HOWEVER, WE ARE ENCLOSING A COPY OF MEMORANDUM NO. 100, ISSUED BY THE WORKPLACE STANDARDS ADMINISTRATION, DEPARTMENT OF LABOR, WHEREIN IT STATES IN PERTINENT PART:

"EXISTING WAGE DETERMINATIONS ISSUED UNDER THESE ACTS PRIOR TO AUGUST 15, 1971, WILL BE APPLIED AS BEFORE AND THE DEPARTMENT OF LABOR WILL CONTINUE TO ISSUE WAGE DETERMINATIONS. HOWEVER, IN DETERMINING PREVAILING WAGES FOR PURPOSES OF THE DAVIS-BACON ACT AND RELATED ACTS AND THE SERVICE CONTRACT ACT DURING THE PERIOD COVERED BY SECTION 1 OF THE ORDER THE DEPARTMENT OF LABOR WILL CONSIDER ONLY THOSE WAGE RATES AND ECONOMIC BENEFITS WHICH MEET THE SPECIFIC REQUIREMENTS OF THE ORDER OR ARE OTHERWISE APPROVED BY THOSE AUTHORIZED TO CARRY OUT THE ORDER. THUS, ALL WAGE DETERMINATIONS ISSUED UNDER THE DAVIS-BACON ACT AND RELATED ACTS OR THE SERVICE CONTRACT ACT TAKE THE ORDER INTO ACCOUNT AND SHALL BE ACCEPTED AND APPLIED BY CONTRACTING AGENCIES ACCORDINGLY."

THIS PRINCIPLE IS ILLUSTRATED BY THE QUESTION AND ANSWER APPROVED BY THE OFFICE OF EMERGENCY PREPAREDNESS AND QUOTED BELOW:

"Q. A. CONSTRUCTION WORKER IS EMPLOYED ON A NON-FEDERAL PROJECT AT X NUMBER OF DOLLARS PER HOUR. THE CONTRACTOR SHIFTS THE WORKER FROM THAT PROJECT TO A FEDERAL PROJECT, BUT HE CONTINUES DOING EXACTLY THE SAME WORK WITH EXACTLY THE SAME RESPONSIBILITIES. THE DAVIS-BACON ACT REQUIRES A HIGHER RATE OF PAY FOR THAT JOB ON FEDERAL CONTRACTS THAN HE HAD BEEN RECEIVING. MAY THE WORKER'S PAY BE INCREASED?

"A. YES, THE RATE ATTACHES TO THE JOB IN THAT LOCALITY. THE WAGES APPLIED TO FEDERAL CONTRACT ACTIVITIES ARE THOSE WAGES ESTABLISHED BY DETERMINATIONS IN THE BASE PERIOD. IF NO RATES HAD BEEN ESTABLISHED IN THE BASE PERIOD FOR THAT LOCALITY, A DETERMINATION CAN BE MADE BUT IT MUST BE CALCULATED ON THE STATUTORY BASE PERIOD ENDING AUGUST 14."

THUS, IT WOULD APPEAR FROM THE ABOVE LANGUAGE THAT, SINCE THE WAGE DETERMINATION APPLICABLE TO THE PRESENT CONTRACT WAS ISSUED ON APRIL 28, 1971, WHICH IS PRIOR TO AUGUST 15, 1971, WAGE DETERMINATION RATES WOULD ATTACH TO THE JOBS FOR THAT LOCALITY, AND EVEN THOUGH A CONTRACTOR MIGHT HAVE BEEN PAYING LESS THAN THE WAGE DETERMINATION RATE, HE WOULD NOT BE PRECLUDED FROM INCREASING THE RATE OF PAY OF THE EMPLOYEES USED IN PERFORMING THE INSTANT CONTRACT TO THE LEVEL OF THE WAGE DETERMINATION RATES. ALSO, IN THE PRESENT CASE THERE WERE AT LEAST TWO BIDDERS, ATLANTIC AND FRUGAL, WHO COULD PAY THE WAGE DETERMINATION RATES WITHOUT BEING IN VIOLATION OF EXECUTIVE ORDER NO. 11615. THIS FACT WOULD ALSO APPEAR TO NEGATE THE ARGUMENT THAT THIS PARTICULAR PROCUREMENT WAS UNDULY RESTRICTIVE.

YOUR FINAL CONTENTION IS THAT THE REVISED SOLICITATION IS AMBIGUOUS AND/OR DOES NOT REQUEST BIDS ON THE NAVY'S ACTUAL REQUIREMENTS. YOU STATE THAT FOR NUMEROUS BUILDINGS AND/OR AREAS OF BUILDINGS, THE REVISED DETAIL WORK SCHEDULE SPECIFIES DAMP MOPPING OF FLOORS BUT NOT SWEEPING OR DUST MOPPING, WHICH MUST BE ACCOMPLISHED IF DAMP MOPPING IS TO BE PERFORMED PROPERLY. DAMP MOPPING IS ALLUDED TO IN THE DETAIL WORK SCHEDULE IN CONNECTION WITH PARAGRAPHS 2A.10, 2A.11 AND 2A.12 OF THE DETAIL REQUIREMENTS. PARAGRAPH 2A.10 STATES, IN PERTINENT PART, AS FOLLOWS:

"DAMP MOPPING. A SOLUTION OF CLEAR WATER SHALL BE USED FOR DAMP MOPPING. *** SWEEPING AND/OR DUST MOPPING PRIOR TO DAMP MOPPING WILL BE AT THE CONTRACTOR'S OPTION."

PARAGRAPH 2A.11 ENTITLED "DAMP MOPPING AND BUFFING" STATES, IN PERTINENT PART:

"AFTER DAMP MOPPING AS DESCRIBED IN 2A.10 *** ."

ALSO, PARAGRAPH 2A.12 ENTITLED "DAMP MOPPING AND WAXING" STATES, IN THE FIRST SENTENCE, THAT:

"DAMP MOPPING SHALL BE ACCOMPLISHED AS PER PARAGRAPH 2A.10."

WE ARE OF THE VIEW THAT THERE IS NO AMBIGUITY IN REGARD TO THE QUESTION OF DUST MOPPING OR SWEEPING PRIOR TO DAMP MOPPING. WE BELIEVE IT IS CLEAR THAT WHETHER THERE IS, OR IS NOT, SWEEPING OR DUST MOPPING PRIOR TO DAMP MOPPING IS OPTIONAL WITH THE CONTRACTOR. THUS, IF A BIDDER IS OF THE OPINION THAT HE CAN SKIP SWEEPING OR DUST MOPPING AND STILL HAVE THE DAMP MOPPING PASS INSPECTION, HE IS FREE TO DO SO, OR IF HE IS OF THE VIEW THAT SWEEPING OR DUST MOPPING IS NECESSARY HE CAN PERFORM THAT OPERATION. THE PROCURING ACTIVITY'S ONLY REQUIREMENT IS THAT THE DAMP MOPPING PASS INSPECTION SHOULD THE GOVERNMENT DECIDE TO INSPECT THE CONTRACTOR'S SERVICES PURSUANT TO PARAGRAPH 1A.17 OF THE GENERAL PARAGRAPHS. WHETHER THIS IS ACCOMPLISHED BY DUST MOPPING OR SWEEPING PRIOR TO DAMP MOPPING IS OPTIONAL WITH THE CONTRACTOR.

IT IS YOUR CONTENTION THAT THE ENORMOUS PRICE REDUCTIONS BETWEEN THE ORIGINAL AND REVISED SOLICITATION RESPONSES OF THE OTHER BIDDERS COULD, PERHAPS, BE ATTRIBUTED TO THE FACT THAT NO DUST MOPPING WAS REQUIRED IN THE REVISED SOLICITATION AND SHOULD THE NAVY WANT THE DUST MOPPING PERFORMED IT WOULD HAVE TO PAY EXTRA. WE HAVE NO WAY OF ASCERTAINING THE EXTENT OF ANY PRICE REVISIONS RESULTING FROM THIS REVISION. HOWEVER, IN VIEW OF OUR CONCLUSION ABOVE THAT THE CONTRACTOR MUST DO SUCH WORK AS MAY BE NECESSARY TO PASS INSPECTION, WE SEE NO VALID BASIS FOR YOUR CONTENTION THAT THE GOVERNMENT MAY BE REQUIRED TO PAY EXTRA FOR DUST MOPPING.

FOR THE FOREGOING REASONS WE ARE OF THE VIEW THAT THOSE PORTIONS OF THE SPECIFICATIONS FOR THE REVISED SOLICITATION TO WHICH YOUR PROTEST IS DIRECTED WERE NOT, CONSIDERED AS A WHOLE, AMBIGUOUS. ACCORDINGLY, YOUR PROTEST MUST BE DENIED.