B-181068, AUG 13, 1974

B-181068: Aug 13, 1974

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

FACT THAT A FIRM'S COLLECTIVE BARGAINING AGREEMENTS MAY NOT COMPLY WITH THE PREVAILING WAGES AND CONDITIONS REQUIRED FOR USE IN GOVERNMENT PROCUREMENTS PURSUANT TO SERVICE CONTRACT ACT DOES NOT NECESSARILY REFLECT NEGATIVELY ON FIRM'S RESPONSIBILITY OR ELIGIBILITY FOR CONTRACT AWARD SINCE SUCH AGREEMENTS ARE PROPERLY FOR APPLICATION TO FIRM'S COMMERCIAL WORK AND BIDDERS ARE REQUIRED TO AGREE TO STANDARD GOVERNMENT SOLICITATION PROVISIONS REQUIRING USE OF APPLICABLE PREVAILING RATES FOR THE PARTICULAR CONTRACT. 2. VIOLATIONS OF SERVICE CONTRACT ACT ARE PROPERLY FOR DETERMINATION BY DEPARTMENT OF LABOR. 3. GAO HAS DISCONTINUED PRACTICE OF REVIEWING BID PROTESTS OF CONTRACTING OFFICER'S AFFIRMATIVE RESPONSIBILITY DETERMINATION EXCEPT FOR ACTIONS BY PROCURING OFFICIALS WHICH ARE TANTAMOUNT TO FRAUD.

B-181068, AUG 13, 1974

1. FACT THAT A FIRM'S COLLECTIVE BARGAINING AGREEMENTS MAY NOT COMPLY WITH THE PREVAILING WAGES AND CONDITIONS REQUIRED FOR USE IN GOVERNMENT PROCUREMENTS PURSUANT TO SERVICE CONTRACT ACT DOES NOT NECESSARILY REFLECT NEGATIVELY ON FIRM'S RESPONSIBILITY OR ELIGIBILITY FOR CONTRACT AWARD SINCE SUCH AGREEMENTS ARE PROPERLY FOR APPLICATION TO FIRM'S COMMERCIAL WORK AND BIDDERS ARE REQUIRED TO AGREE TO STANDARD GOVERNMENT SOLICITATION PROVISIONS REQUIRING USE OF APPLICABLE PREVAILING RATES FOR THE PARTICULAR CONTRACT. 2. VIOLATIONS OF SERVICE CONTRACT ACT ARE PROPERLY FOR DETERMINATION BY DEPARTMENT OF LABOR. 3. GAO HAS DISCONTINUED PRACTICE OF REVIEWING BID PROTESTS OF CONTRACTING OFFICER'S AFFIRMATIVE RESPONSIBILITY DETERMINATION EXCEPT FOR ACTIONS BY PROCURING OFFICIALS WHICH ARE TANTAMOUNT TO FRAUD.

INTERNATIONAL BROTHERHOOD OF TEAMSTERS (LOCAL 814):

THIS CASE INVOLVES A PROTEST OF THE AWARD OF CONTRACT NO. GS-02S-8212 TO RED BALL VAN LINES (RED BALL) BY THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS LOCAL 814. SPECIFICALLY, LOCAL 814 HAS PROTESTED THE AWARD MADE ON APRIL 10, 1974, BECAUSE OF RED BALL'S FAILURE TO "ABIDE BY THE PREVAILING WAGES AND CONDITIONS APPLICABLE TO PUBLIC CONTRACTS" PURSUANT TO THE SERVICE CONTRACT ACT OF 1965, 79 STAT. 1034, 41 U.S.C. SEC. 351. LOCAL 814 HAS SUBMITTED A COPY OF A LETTER TO THE SECRETARY OF LABOR IN WHICH IT ENUMERATES THE ACTUAL TERMS OF RED BALL'S COLLECTIVE BARGAINING AGREEMENTS AND CONCLUDES THAT THEY ARE NOT IN ACCORD WITH THE PREVAILING WAGES AND CONDITIONS APPLICABLE TO PUBLIC CONTRACTS.

THE PROVISIONS OF THE SERVICE CONTRACT ACT ARE FOR APPLICATION ONLY IN CONNECTION WITH GOVERNMENT PROCEDURES. COLLECTIVE BARGARNING AGREEMENTS CONTAINING TERMS WHICH ARE BELOW THE PREVAILING WAGES AND CONDITIONS APPLICABLE TO GOVERNMENT CONTRACTS WOULD, HOWEVER, PROPERLY BE FOR APPLICATION TO A FIRM'S COMMERCIAL CONTRACTS. MOREOVER, IN ORDER TO SUBMIT A RESPONSIVE BID ON A GOVERNMENT PROCUREMENT A BIDDER WOULD BE REQUIRED TO AGREE, PURSUANT TO STANDARD SOLICITATION PROVISIONS, TO COMPLY WITH THE APPLICABLE PREVAILING RATES FOR PURPOSES OF THE PARTICULAR CONTRACT INVOLVED. THEREFORE, WE DO NOT THINK THE FAFT THAT A FIRM'S COLLECTIVE BARGAINING AGREEMENTS MAY NOT COMPLY WITH THE PREVAILING WAGES AND CONDITIONS NECESSARILY REFLECTS NEGATIVELY ON A FIRM'S RESPONSIBILITY OR ELIGIBILITY FOR AWARD OF A GOVERNMENT CONTRACT.

MOREOVER, UNDER THE SERVICE CONTRACT ACT VIOLATIONS OF THE ACT ARE PROPERLY FOR DETERMINATION BY THE DEPARTMENT OF LABOR. OUR DEVELOPMENT OF THIS MATTER ESTABLISHES THAT BY LETTER OF MAY 14, 1974, THE DEPARTMENT ADVISED THE CONTRACTING OFFICER THAT A RECENT INVESTIGATION FOUND THAT RED BALL OWED 29 EMPLOYEES A TOTAL OF $731 IN BACK WAGES UNDER A PRIOR GOVERNMENT CONTRACT BUT THAT IT WAS IN A COMPLIANCE STATUS WITH REGARD TO THE INSTANT CONTRACT. IN ADDITION WE HAVE BEEN INFORMALLY ADVISED BY THE DEPARTMENT OF LABOR THAT IT PLANS TO TAKE NO ACTION LEADING TO DEBARMENT UNDER THE SERVICE CONTRACT ACT BASED ON THE FACTS DEVELOPED IN THE INVESTIGATION.

ACCORDINGLY, NO BASIS HAS BEEN PRESENTED FOR OBJECTING TO THE AWARD TO RED BALL.

IN ADDITION, IT SHOULD BE NOTED THAT SUGSEQUENT TO THE FILING OF THIS PROTEST THIS OFFICE HAS DISCONTINUED ITS PRACTICE OF REVIEWING BID PROTESTS CONCERNING A CONTRACTING OFFICER'S AFFIRMATIVE DETERMINATION OF RESPONSIBILITY EXCEPT FOR ACTIONS BY PROCURING OFFICIALS WHICH ARE TANTAMOUNT TO FRAUD. 54 COMP. GEN. (1974), B-181724, JULY 26 1974.