B-175814, AUG 24, 1972

B-175814: Aug 24, 1972

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WHILE THE RECORD DOES NOT EXPLAIN WHY THE PROCUREMENT COULD NOT HAVE BEEN INSTITUTED AT AN EARLIER DATE AND PUBLISHED IN THE COMMERCE BUSINESS DAILY. PROTESTANT SUFFERED NO PREJUDICE THEREFROM SINCE THEY WERE ONE OF SEVEN FIRMS SOLICITED. WHILE IT IS REGRETTABLE THAT PROTESTANT WAS INFLUENCED BY THE UNAUTHORIZED COMMENTS. TO TELE SEC: THIS IS IN REPLY TO YOUR LETTERS OF APRIL 27 AND JULY 27. THE SOLICITATION WAS ISSUED TO PROVIDE FOR VARIOUS TEMPORARY SERVICES FOR THE UNITED STATES INTERNATIONAL TRANSPORTATION EXPOSITION (TRANSPO 72). BIDS WERE OPENED ON APRIL 21. YOUR PROTEST IS MADE ON SEVERAL BASES WHICH ARE CONSIDERED IN TURN. YOU HAVE RAISED A QUESTION AS TO WHETHER THE SOLICITATION WAS IMPROPERLY ISSUED TO SELECTED COMPANIES RATHER THAN OPENLY ADVERTISED.

B-175814, AUG 24, 1972

BID PROTEST - ORAL STATEMENTS BY OFFICIAL - NONBINDING NATURE DENIAL OF PROTEST BY TELE SEC AGAINST THE AWARD OF A CONTRACT TO AWARD PERSONNEL SERVICES UNDER AN IFB ISSUED BY THE FEDERAL AVIATION ADMINISTRATION, FOR TEMPORARY SERVICES FOR THE U.S. INTERNATIONAL TRANSPORTATION EXPOSITION. WHILE THE RECORD DOES NOT EXPLAIN WHY THE PROCUREMENT COULD NOT HAVE BEEN INSTITUTED AT AN EARLIER DATE AND PUBLISHED IN THE COMMERCE BUSINESS DAILY, PROTESTANT SUFFERED NO PREJUDICE THEREFROM SINCE THEY WERE ONE OF SEVEN FIRMS SOLICITED. THE ORAL STATEMENTS MADE TO PROTESTANT REGARDING THE MINIMUM WAGE TO BE PAID CANNOT BE HELD BINDING BECAUSE PARAGRAPH 3 OF THE INSTRUCTIONS AND CONDITIONS, SF 33A, SPECIFICALLY STATES THAT RULE. WHILE IT IS REGRETTABLE THAT PROTESTANT WAS INFLUENCED BY THE UNAUTHORIZED COMMENTS, THAT FACTOR DOES NOT AFFECT THE LEGALITY OF THE CONTRACT.

TO TELE SEC:

THIS IS IN REPLY TO YOUR LETTERS OF APRIL 27 AND JULY 27, 1972, PROTESTING THE AWARD OF A CONTRACT TO AWARD PERSONNEL SERVICES UNDER INVITATION FOR BIDS WA5S-2-6232B1, ISSUED ON APRIL 15, 1972, BY THE UNITED STATES DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION.

THE SOLICITATION WAS ISSUED TO PROVIDE FOR VARIOUS TEMPORARY SERVICES FOR THE UNITED STATES INTERNATIONAL TRANSPORTATION EXPOSITION (TRANSPO 72), AND BIDS WERE OPENED ON APRIL 21, 1972, AS SCHEDULED. YOUR PROTEST IS MADE ON SEVERAL BASES WHICH ARE CONSIDERED IN TURN.

YOU HAVE RAISED A QUESTION AS TO WHETHER THE SOLICITATION WAS IMPROPERLY ISSUED TO SELECTED COMPANIES RATHER THAN OPENLY ADVERTISED. IN THIS CONNECTION THE AGENCY HAS ADVISED THAT IN ACCORDANCE WITH FEDERAL PROCUREMENT REGULATIONS 1-1.1003-2(A)(4) THE INVITATION WAS NOT PUBLICIZED IN THE COMMERCE BUSINESS DAILY. THIS REGULATION PROVIDES THAT A PROCUREMENT ACTION NEED NOT BE PUBLICIZED IF IT IS OF SUCH UNUSUAL AND COMPELLING EMERGENCY THAT LESS THAN 15 DAYS CAN BE ALLOWED FOR SOLICITATION. IT IS REPORTED THAT INVITATIONS WERE EXTENDED TO NINE WELL- KNOWN AND REPUTABLE FIRMS, INCLUDING TELE SEC, AND THAT FOUR RESPONSES WERE RECEIVED.

WHILE THE RECORD BEFORE US DOES NOT EXPLAIN WHY THE PROCUREMENT ACTION COULD NOT HAVE BEEN INSTITUTED AT AN EARLIER DATE AND PUBLICIZED IN THE COMMERCE BUSINESS DAILY, WE FIND NO PREJUDICE TO YOUR FIRM ON THIS ACCOUNT SINCE YOU WERE SOLICITED AND YOUR BID WAS CONSIDERED FOR AWARD.

YOU ALSO CONTEND THAT THE INVITATION WAS DEFICIENT FOR (1) THE FAILURE TO SPECIFY ANY INSURANCE REQUIREMENTS TO PROTECT THE GOVERNMENT, (2) THE FAILURE TO CLEARLY SPECIFY THAT THE STAFF WAS REQUIRED TO RENDER CONTINUOUS SERVICE TO AVOID OVERTIME RATES AND (3) THE FAILURE TO EXPLAIN THAT THE FIRST TWO DAYS WOULD BE DEVOTED TO ORIENTATION.

REGARDING THE ABSENCE OF INSURANCE REQUIREMENTS IN THE IFB, THIS CONCERNS AN ALLEGED DEFECT IN THE SOLICITATION WHICH WAS APPARENT PRIOR TO BID OPENING. SINCE PROTESTS BASED ON SUCH MATTERS ARE REQUIRED TO BE FILED WITH THIS OFFICE BEFORE BID OPENING, FOR CONSIDERATION UNDER OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS PUBLISHED IN TITLE 4, PART 20, OF THE CODE OF FEDERAL REGULATIONS (CFR), NO ACTION MAY BE TAKEN ON THIS ASPECT OF YOUR PROTEST.

CONCERNING YOUR CONTENTION THAT THE SOLICITATION FAILED TO MENTION THAT ORIENTATION WOULD BE GIVEN DURING THE FIRST TWO DAYS, WE DO NOT CONSIDER THIS FACTOR TO BE SIGNIFICANT INASMUCH AS THE EMPLOYEES WOULD BE PAID AT THE SAME RATES WHETHER THEY WERE ATTENDING ORIENTATION OR PERFORMING OTHER SERVICES.

WITH RESPECT TO THE REQUIREMENT FOR CONTINUOUS SERVICE OF ALL EMPLOYEES, YOU HAVE DISPUTED THE POSITION OF THE AGENCY THAT YOU WERE ORALLY ADVISED THAT CONTINUOUS SERVICE WAS REQUIRED. IRRESPECTIVE OF THIS FACTUAL DISPUTE WE NOTE THAT "CLAUSE IV. TIME OF PERFORMANCE" OF THE SOLICITATION PROVIDED THAT "EACH PERSON EMPLOYED UNDER THIS CONTRACT SHALL PERFORM THE SERVICES REQUIRED DURING THE PERIOD OF TIME SPECIFIED IN CLAUSE I." CLAUSE I, PARAGRAPH A, PROVIDED, IN PART, THAT "UNLESS OTHERWISE SPECIFIED, EMPLOYMENT WILL BE FROM 24 MAY 1972 THROUGH 4 JUNE 1972, 8 A.M. TO 8 P.M. DAILY, WITH AN HOUR OFF FOR EACH OF TWO MEALS." WE BELIEVE A REQUIREMENT FOR CONTINUOUS SERVICE FOR THE SPECIFIED HOURS BY EACH PERSON EMPLOYED WAS SUFFICIENTLY CLEAR FROM THE ABOVE-QUOTED PROVISIONS. MOREOVER, ANY PROTEST CONCERNING THE CLARITY OF THE INVITATION SHOULD HAVE BEEN RAISED PRIOR TO BID OPENING. SEE 4 CFR 20.2(A).

THE CRUX OF YOUR PROTEST, HOWEVER, PERTAINS TO THE QUESTION OF WHETHER ALL BIDDERS WERE BIDDING TO THE SAME REQUIREMENT WITH RESPECT TO MINIMUM WAGE RATES. YOU ALLEGE, AND THE AGENCY ACKNOWLEDGES, THAT MR. VIGNEAULT, WHO WAS IN CHARGE OF GUEST RELATIONS AND TEMPORARY PERSONNEL FOR TRANSPO 72, CALLED THE BIDDERS AND REQUESTED THAT THEY AGREE TO PAY A MINIMUM WAGE OF $2.30 UNDER THE RESULTING CONTRACT, NOTWITHSTANDING THE ABSENCE OF ANY REQUIREMENT THEREFOR IN THE SOLICITATION. IT IS REPORTED THAT THIS MATTER CAME TO THE ATTENTION OF THE CONTRACTING OFFICER THROUGH QUESTIONS RAISED BY CERTAIN BIDDERS PRIOR TO BID OPENING. TO RECTIFY THIS SITUATION THE CONTRACTING OFFICER'S REPRESENTATIVE, MR. DAVIS, TELEPHONED EACH OF THE COMPANIES SOLICITED AND EMPHASIZED THAT THE DEPARTMENT OF LABOR HAD NOT MADE ANY SPECIFIC MINIMUM WAGE DETERMINATION APPLICABLE TO THE SPECIFIED LOCALITY AND CLASSES OF SERVICE EMPLOYEES AND THAT BIDDERS WERE TO BE GOVERNED ENTIRELY BY THE REQUIREMENTS AS STATED IN THE SOLICITATION. IS REPORTED THAT BIDDERS WERE ALSO ADVISED NOT TO CONSIDER ANY MINIMUM WAGE INDICATED BY MR. VIGNEAULT, SINCE HE DID NOT HAVE AUTHORITY TO ESTABLISH SUCH A REQUIREMENT AND A BID BASED ON A $2.30 MINIMUM HOURLY RATE WOULD BE AT THE BIDDER'S OWN RISK.

YOU HAVE NOTED, HOWEVER, THAT SUBSEQUENT TO RECEIVING THIS ADVICE FROM MR. DAVIS YOU INQUIRED WITH HIM REGARDING THE POSSIBILITY OF USING ALTERNATING CREWS SO AS TO AVOID PAYMENT OF OVERTIME WAGE RATES. IT IS YOUR CONTENTION THAT IN RESPONSE TO YOUR INQUIRY WITH MR. DAVIS, MR. VIGNEAULT CALLED YOU AND ADVISED THAT ALTERNATING CREWS WOULD NOT BE PERMITTED AND HE AGAIN INSISTED UPON A MINIMUM WAGE OF $2.30. YOU ALSO STATE THAT ON THE FOLLOWING DAY MR. VIGNEAULT CALLED AGAIN, THIS TIME TO ADVISE YOU THAT ALL BIDDERS HAD AGREED TO ABIDE BY THE $2.30 MINIMUM WAGE. YOU CLAIM THAT THESE CALLS BY MR. VIGNEAULT, WHICH OCCURRED SUBSEQUENT TO YOUR DISCUSSIONS WITH MR. DAVIS, CAUSED YOU TO REVISE YOUR ALREADY PREPARED LOWER BID AND THUS LOSE OUT TO AWARD PERSONNEL SERVICE, WHOSE BID YOU CONTEND WAS SO LOW THAT IT COULD NOT POSSIBLY HAVE BEEN BASED ON A $2.30 MINIMUM WAGE AND STILL BE RESPONSIVE TO THE INVITATION. (THE RECORD DOES NOT SHOW THE RATES WHICH WERE PAID BY AWARD.) WHILE THE AGENCY HAS NOT REPORTED ON THE STATEMENTS OF MR. VIGNEAULT WHICH YOU ALLEGE OCCURRED AFTER YOUR TALK WITH MR. DAVIS, WE DO NOT CONSIDER THE RESOLUTION OF THIS FACT TO BE NECESSARY FOR PURPOSES OF THIS DECISION. THE AGENCY HAS REPORTED, HOWEVER, THAT AT THE TIME OF YOUR CALL TO MR. DAVIS REGARDING THE REQUIREMENT FOR CONTINUOUS SERVICES, YOU WERE SPECIFICALLY ADVISED THAT CONTINUOUS SERVICE WAS A REQUIREMENT AND THAT MR. STEPHENSON, THE CONTRACTING OFFICER, WOULD EXAMINE THE IFB TO DETERMINE IF FURTHER CLARIFICATION BY TELEGRAM, AS YOU REQUESTED, WAS NECESSARY. THEREFORE, IT DOES NOT SEEM REASONABLE THAT MR. VIGNEAULT'S SUBSEQUENT CALL TO YOU SHOULD HAVE BEEN CONSIDERED AS A PRODUCT OF YOUR CONVERSATION WITH MR. DAVIS.

IT IS AN ELEMENTARY PRINCIPLE OF COMPETITIVE PROCUREMENT THAT AWARDS ARE TO BE DETERMINED ACCORDING TO THE RULES SET OUT IN THE SOLICITATION. PARAGRAPH 3 OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS, STANDARD FORM 33A, PROVIDES, IN PART, THAT ORAL EXPLANATIONS OR INSTRUCTIONS GIVEN BEFORE AWARD WILL NOT BE BINDING, AND THAT ANY INFORMATION GIVEN TO A PROSPECTIVE OFFEROR CONCERNING A SOLICITATION WILL BE FURNISHED TO ALL PROSPECTIVE OFFERORS AS AN AMENDMENT OF THE SOLICITATION, IF SUCH INFORMATION IS NECESSARY TO OFFERORS IN SUBMITTING OFFERS ON THE SOLICITATION OR IF THE LACK OF SUCH INFORMATION WOULD BE PREJUDICIAL TO UNINFORMED OFFERORS. CLEARLY, THEN, THE ORAL REPRESENTATIONS MADE BY MR. VIGNEAULT, INCLUDING THOSE WHICH YOU ALLEGE OCCURRED SUBSEQUENT TO YOUR DISCUSSION WITH MR. DAVIS, SHOULD NOT HAVE BEEN CONSIDERED BINDING. THIS IS PARTICULARLY SO, SINCE YOU HAD BEEN PREVIOUSLY ADVISED BY MR. DAVIS, WHO WAS ONE OF THE TWO PERSONS (MR. DAVIS AND MR. STEPHENSON) SPECIFIED IN THE IFB TO CALL FOR INFORMATION, NOT TO CONSIDER ANY MINIMUM WAGE INDICATED BY MR. VIGNEAULT INASMUCH AS HE DID NOT HAVE AUTHORITY TO ESTABLISH SUCH A REQUIREMENT AND THAT IF A BIDDER ELECTED TO PAY A MINIMUM RATE OF $2.30 IT WOULD BE AT THE BIDDER'S OWN RISK.

WHILE IT IS REGRETTABLE THAT YOU WERE INFLUENCED IN YOUR BIDDING BY UNAUTHORIZED ACTIONS OF AN OFFICIAL OF THE PROCURING AGENCY, THIS FACTOR DOES NOT AFFECT THE LEGALITY OF THE CONTRACT WHICH WAS AWARDED IN ACCORDANCE WITH THE TERMS OF THE IFB. IN THIS CONNECTION, HOWEVER, IT IS REPORTED THAT APPROPRIATE STEPS ARE BEING TAKEN THROUGH THE OFFICE OF THE SECRETARY OF TRANSPORTATION TO PRECLUDE FUTURE SITUATIONS OF THIS NATURE.

IN VIEW OF THE FOREGOING, YOUR PROTEST MUST BE DENIED.