B-189335, JUL 26, 1978

B-189335, JUL 26, 1978

DIGEST: WHEN SOLICITATION FOR SERVICES TO BE PROVIDED THROUGHOUT FIVE-STATE REGION DIVIDES REGION INTO SERVICE AREAS AND REQUIRES PERFORMANCE WITHIN DESIGNATED SERVICE AREAS, SEPARATE SERVICE CONTRACT ACT WAGE DETERMINATIONS FOR EACH SERVICE AREA, RATHER THAN SINGLE COMPOSITE WAGE DETERMINATION FOR ENTIRE AREA, ARE MORE APPROPRIATE. HOWEVER, GAO DOES NOT OBJECT TO USE OF COMPOSITE WAGE RATES WHERE IT APPEARS DEPARTMENT OF LABOR LEARNED THAT SPECIFIC PERFORMANCE AREAS WERE DESIGNATED ONLY AFTER SOLICITATION AND WAGE DETERMINATION WERE ISSUED.

THE CAGE COMPANY OF ABILENE, INC.:

THE CAGE COMPANY OF ABILENE, INC. (CAGE) PROTESTS THE AWARD OF ANY CONTRACT UNDER INVITATION FOR BIDS (IFB) NUMBER GWS-7FWR-70007, ISSUED BY THE FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION REGION 7, FORT WORTH, TEXAS (GSA) FOR THE REPAIR AND OVERHAUL OF HEAVY CONSTRUCTION, MATERIAL HANDLING AND MISCELLANEOUS EQUIPMENT.

CAGE CONTENDS THAT THE DEPARTMENT OF LABOR (DOL) WAGE DETERMINATION INCLUDED WITH THE SOLICITATION DOES NOT COMPLY WITH THE SERVICE CONTRACT ACT OF 1965, AS AMENDED, 41 U.S.C. 351 ET SEQ. (1970 AND SUPP. V 1975) (HEREAFTER ACT), BECAUSE THE WAGE RATES THEREIN ARE COMPOSITE RATES FOR THE ENTIRE FIVE-STATE AREA COMPRISING REGION 7. CAGE'S POSITION IS THAT SUCH RATES DO NOT REFLECT THOSE PREVAILING IN THE LOCALITIES WHERE THE SERVICES WILL BE PERFORMED AS REQUIRED BY THE ACT.

THE USE OF SUCH COMPOSITE WAGE RATES WAS RECENTLY CONSIDERED IN TWO OTHER PROTESTS BY CAGE. THE CAGE COMPANY OF ABILENE, INC., B-188119, B-187665, JUNE 13, 1978, 57 COMP.GEN. , 78-1 CPD

. WE CONCLUDED THAT DOL'S USE OF A WIDE GEOGRAPHIC AREA AS THE LOCALITY BASIS FOR A WAGE DETERMINATION WAS NOT CLEARLY CONTRARY TO LAW WHEN THE PLACE OF PERFORMANCE OF THE REQUIRED SERVICES WAS NOT KNOWN. SEE ALSO MIDWEST SERVICE AND SUPPLY CO., ET AL., B-191554, JULY 13, 1978, 78-2 CPD

. HOWEVER, IN THE CAGE DECISION WE ALSO STATED:

" - DOL'S USE OF COMPOSITE PREVAILING WAGE RATES FOR AN ENTIRE GSA REGION, WHEN A SOLICITATION DIVIDES THE REGION INTO SERVICE AREAS AND REQUIRES THAT THE SERVICES BE PERFORMED WITHIN EACH AREA, WHILE NOT CLEARLY ILLEGAL, IS INAPPROPRIATE SINCE DOL IS AWARE, PRIOR TO BID SUBMISSION, OF DISTINCT LOCALITIES WITHIN THE REGION WHERE CONTRACT SERVICES WILL BE PERFORMED. IN THIS REGARD, HOWEVER, DOL HAS INFORMED US THAT IT IS NOW AWARE THAT UNDER SOLICITATION -70008 PERFORMANCE WAS RESTRICTED TO DESIGNATED SERVICE AREAS AND THAT BECAUSE A SPECIFIC LOCALITY CAN BE ASCERTAINED WHEN SUCH GEOGRAPHIC RESTRICTIONS ARE IMPOSED, IT HAS COMMENCED ISSUING SEPARATE WAGE DETERMINATIONS FOR EACH SERVICE AREA."

SIMILARLY, THE USE OF A COMPOSITE WAGE RATE HERE WAS ALSO INAPPROPRIATE SINCE THE SERVICES WERE REQUIRED TO BE PERFORMED IN DESIGNATED SERVICE AREAS. SINCE IT APPEARS THAT THE SOLICITATION AND WAGE DETERMINATION IN THIS CASE WERE ISSUED PRIOR TO DOL'S LEARNING THAT SPECIFIC SERVICE AREAS WERE DESIGNATED, HOWEVER, WE WILL NOT OBJECT TO THE USE OF THE FIVE-STATE COMPOSITE RATES. WE ARE, HOWEVER, ADVISING THE ADMINISTRATOR OF GENERAL SERVICES AND THE SECRETARY OF LABOR OF THE NEED FOR CONTRACTING OFFICERS TO CLEARLY INFORM DOL WHEN PERFORMANCE UNDER THE TYPE OF CONTRACT HERE INVOLVED WILL BE LIMITED TO SPECIFIC GEORGRAPHIC AREAS SO THAT DOL CAN ISSUE WAGE DETERMINATIONS BASED ON THESE GEOGRAPHIC LOCALITIES.

THE PROTEST IS SUMMARILY DENIED. SEE MIDWEST SERVICE AND SUPPLY CO., SUPRA.