B-182907, MAR 10, 1975

B-182907, MAR 10, 1975

PROTEST AGAINST BOTH IFB REQUIREMENT FOR RUG CLEANING SERVICES UNDER JANITORIAL CONTRACT AND IFB AMENDMENT PROVIDING FOR ANTICIPATED INCREASE IN MINIMUM WAGE RATE BY DEPARTMENT OF LABOR IS UNTIMELY UNDER 4 C.F.R. SEC. 20.2(A) (1974) SINCE BASES FOR PROTEST WERE APPARENT PRIOR TO BID OPENING WHILE THE PROTEST WAS NOT FILED UNTIL AFTER BID OPENING.

C.G. ASHE - EASTERN SERVICE MANAGEMENT COMPANY:

INVITATION FOR BIDS (IFB) N62470-75-B-0424, ISSUED BY THE NAVAL FACILITIES ENGINEERING COMMAND, PUBLIC WORKS CENTER, NORFOLK, VIRGINIA, CALLS FOR THE PERFORMANCE OF VARIOUS JANITORIAL SERVICES AT THE NAVAL AIR STATION, NORFOLK, VIRGINIA.

THE IFB, AS ORIGINALLY ISSUED, INCLUDED DEPARTMENT OF LABOR DETERMINATION NO. 74-1025, DATED OCTOBER 15, 1974, WHICH WAS PROMULGATED PURSUANT TO THE SERVICE CONTRACT ACT. THAT DETERMINATION SPECIFIED A WAGE RATE OF $2.58 PER HOUR. BID OPENING WAS SCHEDULED FOR DECEMBER 5, 1974.

THE CONTRACTING AGENCY REPORTS THAT SUBSEQUENTLY IT WAS LEARNED THAT A MINIMUM WAGE RATE IN THE AMOUNT OF $2.85 FOR FOUR OTHER LOCAL JANITORIAL CONTRACTS, EFFECTIVE FEBRUARY 1, 1975, HAD BEEN AGREED TO IN UNION NEGOTIATIONS, BUT THAT A WRITTEN AGREEMENT INCORPORATING THAT RATE HAD NOT YET BEEN EXECUTED. THE CONTRACTING AGENCY THEN CONTACTED THE DEPARTMENT OF LABOR CONCERNING THE FOREGOING, BUT WAS ADVISED THAT A FORMAL REVISION TO WAGE DETERMINATION 74-1025 WOULD NOT BE ISSUED UNTIL RECEIPT OF THE FORMALIZED UNION AGREEMENT. IN ORDER TO APPRISE BIDDERS OF THE ANTICIPATED NEW RATE, AMENDMENTS 1 AND 2 WERE ISSUED, REFLECTING THE $2.85 FIGURE AND ADVISING THAT THE RATE WOULD BE INCORPORATED INTO THE PROSPECTIVE CONTRACT UPON RECEIPT OF THE REVISED WAGE DETERMINATION FROM THE DEPARTMENT OF LABOR. IN ADDITION, AMENDMENT 2 CONTAINED SPECIFICATION CHANGES AND EXTENDED BID OPENING FROM DECEMBER 5 TO DECEMBER 13, 1974.

BIDS WERE OPENED DECEMBER 13, 1974, REVEALING EASTERN SERVICE MANAGEMENT COMPANY (EASTERN) AS THE LOW BIDDER AT $287,786.28 FOLLOWED BY C.G. ASHE AT $293,810.75. IMMEDIATELY FOLLOWING BID OPENING, ASHE HAND-DELIVERED TO THE CONTRACTING AGENCY A LETTER DATED DECEMBER 13, 1974, PROTESTING THAT THE QUARTERLY REQUIREMENT FOR RUG SHAMPOOING IS A DUPLICATION OF SERVICES COVERED UNDER AN EXISTING MANDATORY GENERAL SERVICES ADMINISTRATION (GSA) CONTRACT. BY LETTER OF DECEMBER 16, 1974, ASHE FURTHER PROTESTED THAT THE NEW WAGE RATE REFERENCED IN THE AMENDMENTS WOULD NOT BE RECOGNIZED BY THE DEPARTMENT OF LABOR UNTIL A LABOR AGREEMENT HAD BEEN SIGNED, AND IT WAS THEREFORE POSSIBLE THAT THE BIDDERS MAY NOT HAVE BEEN BIDDING ON AN EQUAL BASIS WITH REGARD TO THE WAGE RATES. ON DECEMBER 23, 1974, THE PROTEST WAS FILED WITH OUR OFFICE.

BY LETTER OF JANUARY 9, 1975, THE NAVY REPORTED TO US THAT INASMUCH AS NO AGREEMENT INCORPORATING THE REVISED WAGE RATE HAD YET BEEN EXECUTED, AND SINCE THE DEPARTMENT OF LABOR HAD NOT YET DETERMINED THAT THE RATE WAS BONA FIDE, THE IFB SHOULD NOT HAVE SET FORTH THE ANTICIPATED WAGE RATE AND IT WAS TENTATIVELY PROPOSED TO CANCEL THE IFB AND READVERTISE THE REQUIREMENT, SETTING FORTH ONLY THE EXISTING WAGE DETERMINATION. AT THIS POINT THE LOW BIDDER, EASTERN, PROTESTED THE PROPOSED CANCELLATION.

WHILE THE PROTEST WAS PENDING WITH OUR OFFICE, THE CONTRACTING AGENCY ISSUED A SUPPLEMENTAL REPORT DATED JANUARY 27, 1975, WHICH ENCLOSED A REVISION OF JANUARY 21, 1975 TO WAGE DETERMINATION 74-1025, IN WHICH THE $2.85 FIGURE WAS MADE APPLICABLE TO NAVY CONTRACTS FOR JANITORIAL SERVICES IN THE NORFOLK AREA, EFFECTIVE FEBRUARY 1, 1975. REFERENCE TO IT SHOWS THAT THE WAGE RATE AND ALL FRINGE BENEFITS ARE IDENTICAL TO THOSE SET FORTH IN THE IFB AS AMENDED. THE ONLY DIFFERENCES INVOLVE A COLLATERAL STIPULATION THAT HOLIDAYS MAY BE FORFEITED BY AN EMPLOYEE WHO IS ABSENT ON THE WORKDAY IMMEDIATELY PRECEDING OR FOLLOWING A HOLIDAY WITHOUT AN ACCEPTABLE EXCUSE; AND A PROVISION FOR FORFEITURE OF VACATION PAY IF ONE WEEK'S WRITTEN NOTICE OF INTENTION TO RESIGN IS NOT PROVIDED. THE NAVY FEELS THAT THESE FORFEITURE PROVISIONS ARE INSIGNIFICANT IN TERMS OF BIDDING DIFFERENTIALS AND IMPOSSIBLE TO MEASURE IN ANY EVENT. SINCE THE REVISED DETERMINATION CONFORMS TO THE WAGE RATES AND FRINGE BENEFITS OF THE IFB IN ALL RESPECTS, THE CONTRACTING AGENCY NOW PROPOSES TO MAKE AN AWARD UNDER THE ORIGINAL SOLICITATION TO EASTERN SERVICE MANAGEMENT, THE LOW BIDDER.

WITH REGARD TO THE SHAMPOOING REQUIREMENT, THE CONTRACTING AGENCY ESTIMATES THE ANNUAL COST TO BE $5,500 ON THE BASIS OF THE GSA PRICE SCHEDULE, THUS MAKING THIS PORTION OF THE WORK RELATIVELY INSIGNIFICANT AS COMPARED TO THE DOLLAR VALUE OF THE REMAINING JANITORIAL WORK. UPON BEING CONTACTED BY THE CONTRACTING AGENCY, GSA, REGION 3, ADVISED THAT THE GSA PRICE SCHEDULE DID IN FACT COVER RUG SHAMPOOING. WE ARE ADVISED THAT THE SUBJECT GSA SCHEDULE EXPIRES MAY 31, 1975.

IN THIS CONNECTION, IT IS THE NAVY'S POSITION, AS WE UNDERSTAND IT, THAT THE RUG CLEANING PORTION OF THE CONTRACT WORK IS NOT SEVERABLE AND IS NOT A DUPLICATION OF REQUIREMENTS WHICH THE GSA PRICE SCHEDULE CONTAINED. APPARENTLY, THE FIRST QUARTERLY RUG CLEANING SERVICE UNDER THE INSTANT SOLICITATION MAY BE SCHEDULED AFTER THE MANDATORY GSA CONTRACT EXPIRES. FURTHERMORE, GSA ADVISED NAVY THAT IT WILL TAKE ACTION TO PROVIDE AN EXCLUSION FOR RUG CLEANING IN ITS NEXT PRICE SCHEDULE.

IN ANY EVENT, PROTESTS AGAINST ALLEGED IMPROPRIETIES IN AN IFB WHICH ARE APPARENT PRIOR TO BID OPENING MUST BE FILED PRIOR TO THAT DATE IN ORDER TO RECEIVE CONSIDERATION BY OUR OFFICE. 4 C.F.R. SEC. 20.2(A) (1974). SINCE THIS IMPROPRIETY WAS APPARENT PRIOR TO BID OPENING BUT WAS FILED SUBSEQUENT TO BID OPENING, WE CONSIDER IT UNTIMELY.

SIMILARLY, WE MUST REGARD ASHE'S PROTEST CONCERNING THE IFB WAGE RATE PROVISIONS AS UNTIMELY. AS STATED PREVIOUSLY, THE IFB WAS AMENDED TO INCORPORATE AN "ANTICIPATED" MINIMUM WAGE RATE OF $2.85 PER HOUR IN LIEU OF THE ESTABLISHED MINIMUM WAGE RATE OF $2.58 PER HOUR WHEN THE NAVY LEARNED THAT A $2.85 PER HOUR MINIMUM, EFFECTIVE FEBRUARY 1, 1975, HAD BEEN AGREED TO IN NEGOTIATIONS INVOLVING FOUR OTHER LOCAL JANITORIAL CONTRACTS. IT IS THE PROTESTER'S CONTENTION THAT AS A RESULT THE BIDS MAY NOT HAVE BEEN SUBMITTED ON AN EQUAL BASIS. SINCE THE PROTESTER WAS AWARE OF THE BASIS OF ITS PROTEST WHEN THE IFB WAS AMENDED BUT DID NOT PROTEST THE NAVY'S ACTIONS UNTIL AFTER BID OPENING, IT IS CLEAR THAT THE PROTEST IS UNTIMELY.

THEREFORE, WE MUST DECLINE TO RULE ON THE MERITS OF ASHE'S PROTEST. SINCE THE NAVY PROPOSES TO MAKE AN AWARD TO EASTERN, ITS PROTEST AGAINST CANCELLATION OF THE SOLICITATION NEED NOT BE CONSIDERED.