B-175764(2), JUL 14, 1972

B-175764(2): Jul 14, 1972

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WHILE THE ALLEGATIONS MADE BY MURCOLE OF IMPROPER ACTION ON THE PART OF THE INCUMBENT CONTRACTOR HAVE NOT BEEN ESTABLISHED. SECRETARY: REFERENCE IS MADE TO THE MAY 26. WE ARE ENCLOSING A COPY OF OUR LETTER OF TODAY TO MURCOLE. WHILE WE HAVE DENIED THE PROTEST. THE RFP POINTED OUT THAT IT WAS THE RESPONSIBILITY OF THE SUCCESSOR CONTRACTOR TO OBTAIN THE TENURE OF EMPLOYEES OF THE INCUMBENT CONTRACTOR. THE RFP STATED THAT IF THE INCUMBENT CONTRACTOR (WHO WAS INELIGIBLE TO COMPETE FOR THIS SMALL BUSINESS SET-ASIDE) ELECTED TO PROVIDE EMPLOYEE INFORMATION RELATED TO THE SERVICE CONTRACT ACT. SUCH INFORMATION "WILL BE PROVIDED TO ALL CONTRACTORS SUBMITTING QUOTATIONS ON AN EQUAL BASIS AND WILL BE PROVIDED BY THE OFFICE ISSUING THIS RFQ AND THE RESULTING CONTRACT.".

B-175764(2), JUL 14, 1972

BID PROCEDURES - SERVICE CONTRACT ACT VIOLATIONS LETTER REGARDING THE PROTEST OF MURCOLE, INC., AGAINST THE AWARD OF A CONTRACT UNDER AN RFP ISSUED BY THE LOS ANGELES AIR FORCE STATION, CALIF. WHILE THE ALLEGATIONS MADE BY MURCOLE OF IMPROPER ACTION ON THE PART OF THE INCUMBENT CONTRACTOR HAVE NOT BEEN ESTABLISHED, GAO BELIEVES THAT THESE PRACTICES, IF TRUE, SHOULD BE OF SOME CONCERN TO THE GOVERNMENT SINCE THEY TEND TO ELIMINATE COMPETITION. THIS MATTER SHOULD BE STUDIED FURTHER TO DECIDE IF REMEDIAL ACTION SHOULD BE TAKEN IN FUTURE CASES.

TO MR. SECRETARY:

REFERENCE IS MADE TO THE MAY 26, 1972, LETTER OF THE CHIEF, CONTRACT MANAGEMENT DIVISION, DIR/PROCUREMENT POLICY, DCS/S&L, REGARDING THE PROTEST OF MURCOLE, INCORPORATED, AGAINST AWARD OF A CONTRACT UNDER REQUEST FOR PROPOSALS NO. F04693-72-Q-0011, ISSUED BY LOS ANGELES AIR FORCE STATION, CALIFORNIA.

WE ARE ENCLOSING A COPY OF OUR LETTER OF TODAY TO MURCOLE. WHILE WE HAVE DENIED THE PROTEST, THE ALLEGATIONS MADE IN THIS CASE CONCERN US.

THE PROCUREMENT CALLED FOR SERVICES FOR THE OPERATION OF SUPPLY, TRANSPORTATION, AND MAINTENANCE FUNCTIONS AT AN AIR FORCE INSTALLATION. THE RFP POINTED OUT THAT IT WAS THE RESPONSIBILITY OF THE SUCCESSOR CONTRACTOR TO OBTAIN THE TENURE OF EMPLOYEES OF THE INCUMBENT CONTRACTOR, IF DESIRED, BEFORE OR AFTER AWARD OF THE CONTRACT, SINCE THE INCUMBENT HAD NO OBLIGATION TO PROVIDE THIS INFORMATION. HOWEVER, THE RFP STATED THAT IF THE INCUMBENT CONTRACTOR (WHO WAS INELIGIBLE TO COMPETE FOR THIS SMALL BUSINESS SET-ASIDE) ELECTED TO PROVIDE EMPLOYEE INFORMATION RELATED TO THE SERVICE CONTRACT ACT, SUCH INFORMATION "WILL BE PROVIDED TO ALL CONTRACTORS SUBMITTING QUOTATIONS ON AN EQUAL BASIS AND WILL BE PROVIDED BY THE OFFICE ISSUING THIS RFQ AND THE RESULTING CONTRACT."

IT IS ALLEGED IN THIS CASE BY THE PROTESTING PARTY (MURCOLE) THAT IN FACT THE INCUMBENT CONTRACTOR'S MANAGER "REQUIRED ALL OF THE PRESENT PERSONNEL TO PREPARE AND SUBMIT RESUMES FOR A SPECIFIC COMPANY." IT IS FURTHER ALLEGED THAT THESE PERSONNEL WERE REQUIRED TO ATTEND A MEETING AND SIGN A LETTER STATING THAT THEY WOULD NOT GIVE RESUMES TO OTHER PROSPECTIVE CONTRACTORS; AND THAT THE INCUMBENT'S MANAGER FURNISHED INFORMATION ON SALARIES TO THE PROSPECTIVE CONTRACTOR WHO ATTENDED THIS MEETING, TO THE DISADVANTAGE OF THE OTHER COMPETING CONTRACTORS AND IN CONTRADICTION TO THE RFP PROVISION. MURCOLE STATES THAT IN THE CIRCUMSTANCES IT ELECTED NOT TO SUBMIT A PROPOSAL.

THE CONTRACTING OFFICER STATED THAT THE INFORMATION CONCERNING THE INCUMBENT'S PERSONNEL ALLEGEDLY REVEALED AT THE MEETING IN QUESTION DID NOT TO HIS KNOWLEDGE RELATE TO THE SERVICE CONTRACT ACT, BUT RATHER TO THE EMPLOYEES QUALIFICATIONS. WE DO NOT DISPUTE THIS FINDING NOR DO WE DIFFER WITH THE VIEW EXPRESSED BY THE CONTRACTING OFFICER THAT THE GOVERNMENT CANNOT AND SHOULD NOT CONTROL THE ACTIONS OF PRIVATE INDIVIDUALS EXCEPT AS REQUIRED BY LAW. NEVERTHELESS, WE ARE CONCERNED THAT THE PROCEDURES FOLLOWED IN THIS CASE ARE INCONSISTENT WITH PRESERVING THE INTEGRITY OF THE COMPETITIVE SYSTEM.

IT IS ALLEGED THAT THE INCUMBENT EMPLOYEES WERE REQUIRED TO SUBMIT RESUMES FOR A SPECIFIC COMPANY AND SIGN A STATEMENT THAT THEY WOULD NOT GIVE RESUMES TO OTHER PROSPECTIVE CONTRACTORS. ALTHOUGH THESE ALLEGATIONS HAVE NOT BEEN ESTABLISHED, IT SEEMS TO BE YOUR DEPARTMENT'S POSITION THAT THE MATTER DOES NOT CONCERN THE GOVERNMENT. IN OUR VIEW, HOWEVER, THE ALLEGED PRACTICES TEND TO ELIMINATE COMPETITION AND SHOULD BE A MATTER OF SOME CONCERN TO THE GOVERNMENT. WHILE WE DO NOT PROPOSE ANY SPECIFIC ACTION IN THIS CASE, WE SUGGEST THAT YOUR DEPARTMENT MAY WISH TO STUDY THE MATTER FURTHER IN ORDER TO DETERMINE WHETHER NONCOMPETITIVE PRACTICES OCCURED AND WHETHER REMEDIAL ACTION SHOULD BE INSTITUTED FOR FUTURE CASES. SEE ASPR 1-111.2.