B-195403, NOV 14, 1979

B-195403: Nov 14, 1979

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HOUSE OF REPRESENTATIVES: THIS IS IN RESPONSE TO YOUR LETTER FORWARDING CORRESPONDENCE FROM MR. YOUR CONSTITUENT POINTS OUT THAT MANY GOVERNMENT CONTRACTS INCORPORATE BY REFERENCE VARIOUS REGULATIONS AND THAT IT IS UNFAIR THAT A CONTRACTOR MUST EXPEND TIME AND MONEY RESEARCHING THE CONTENT OF THESE REGULATIONS. PROVIDES THAT THE FULL TEXT OF ALL CLAUSES THAT ARE INCORPORATED BY REFERENCE SHOULD BE MADE AVAILABLE UPON REQUEST TO THE CONTRACTOR. YOUR CONSTITUENT IS ENTITLED TO SEE COPIES OF THE REGULATIONS WHICH ARE INCORPORATED INTO THE CONTRACT AND SHOULD INFORM THE CONTRACTING OFFICER INVOLVED IN THE PROCUREMENT OF THIS RIGHT. ARE SUPERFLUOUS AND SHOULD BE ELIMINATED. THE COMMISSION RECOMMENDED THAT THE MINIMUM LEVEL AT WHICH ALL SOCIAL AND ECONOMIC PROGRAMS ARE APPLIED TO THE PROCUREMENT PROCESS SHOULD BE RAISED TO $10.

B-195403, NOV 14, 1979

OFFICE OF GENERAL COUNSEL

CHARLES W. STENHOLM, HOUSE OF REPRESENTATIVES:

THIS IS IN RESPONSE TO YOUR LETTER FORWARDING CORRESPONDENCE FROM MR. ALLEN WRIGHT, ABILENE LINEN SUPPLY COMPANY, ABILENE, TEXAS. YOU REQUEST THAT WE REVIEW MR. WRIGHT'S COMMENTS CONCERNING THE COMPLEXITY AND LENGTH OF BIDS REQUIRED BY GOVERNMENT AGENCIES FOR SERVICE CONTRACTS OF RELATIVELY SMALL DOLLAR VOLUME.

YOUR CONSTITUENT POINTS OUT THAT MANY GOVERNMENT CONTRACTS INCORPORATE BY REFERENCE VARIOUS REGULATIONS AND THAT IT IS UNFAIR THAT A CONTRACTOR MUST EXPEND TIME AND MONEY RESEARCHING THE CONTENT OF THESE REGULATIONS. NOTE THAT DEFENSE ACQUISITION REGULATION (DAR) SEC. 7-001 (1976 ED.) PROVIDES THAT THE FULL TEXT OF ALL CLAUSES THAT ARE INCORPORATED BY REFERENCE SHOULD BE MADE AVAILABLE UPON REQUEST TO THE CONTRACTOR. LIGHT OF THIS PROVISION, YOUR CONSTITUENT IS ENTITLED TO SEE COPIES OF THE REGULATIONS WHICH ARE INCORPORATED INTO THE CONTRACT AND SHOULD INFORM THE CONTRACTING OFFICER INVOLVED IN THE PROCUREMENT OF THIS RIGHT.

IN HIS LETTER, MR. WRIGHT ALSO OBJECTS TO THE LENGTH OF BID FORMS, ARGUING THAT ALL THE PAGES RELATING TO SUCH MATTERS AS EEOC REQUIREMENTS, THE CLEAN AIR CERTIFICATION REQUIREMENTS, DEPARTMENT OF LABOR WAGE AND BENEFIT STANDARDS, ETC. ARE SUPERFLUOUS AND SHOULD BE ELIMINATED. CANNOT AGREE WITH THIS CONTENTION. THE EXAMPLES GIVEN RELATE TO REQUIREMENTS IMPOSED BY STATUTE UPON THE FEDERAL GOVERNMENT'S CONTRACTORS AND RESULT FROM THE CONGRESS'S DETERMINATION THAT THE PROCUREMENT PROCESS SHOULD BE USED TO FOSTER ECONOMIC AND SOCIAL PROGRAMS. WE NOTE THAT IN THE REPORT OF THE COMMISSION ON GOVERNMENT PROCUREMENT, VOLUME 1, CHAPTER 11, THE COMMISSION RECOMMENDED THAT THE MINIMUM LEVEL AT WHICH ALL SOCIAL AND ECONOMIC PROGRAMS ARE APPLIED TO THE PROCUREMENT PROCESS SHOULD BE RAISED TO $10,000. HOWEVER, TO DATE, THE RECOMMENDATION HAS NOT BEEN UNIFORMLY APPLIED TO ALL PROGRAMS. THE OTHER SOLICITATION PROVISIONS ARE GENERALLY REQUIRED BY REGULATORY PROVISIONS FOR A VARIETY OF ADMINISTRATIVE REASONS.

YOUR CONSTITUENT ALSO BELIEVES THAT THE DEPARTMENT OF LABOR'S STANDARD OF NINE PAID HOLIDAYS PER YEAR FOR CONTRACTS SUBJECT TO THE SERVICE CONTRACT ACT OF 1965, AS AMENDED, 41 U.S.C. SEC. 351 ET SEQ. (1976), IS UNDULY BURDENSOME TO SERVICE CONTRACTORS, SUCH AS ABILENE LINEN SUPPLY COMPANY, WHICH OPERATE SEVEN DAYS PER WEEK. IN ADDITION, MR. WRIGHT ARGUES THAT NON-UNION CONTRACTORS SHOULD NOT BE EXPECTED TO MEET THE WAGE AND BENEFIT SCHEDULES OF UNION CONTRACTORS.

THE SERVICE CONTRACT ACT PROVIDES THAT EVERY SERVICE CONTRACT ENTERED INTO BY THE UNITED STATES IN EXCESS OF $2,500, SHALL CONTAIN A PROVISION SPECIFYING THE WAGE AND FRINGE BENEFITS FOR SERVICE EMPLOYEES, AS DETERMINED BY THE SECRETARY OF LABOR TO BE PREVAILING IN THE LOCALITY. THE PURPOSE OF THE SERVICE CONTRACT ACT IS TO PROVIDE LABOR STANDARDS FOR THE PROTECTION OF EMPLOYEES OF CONTRACTORS FURNISHING SERVICES FOR FEDERAL AGENCIES. WHERE THE SECRETARY OF LABOR DETERMINES THAT THE PREVAILING WAGE AND FRINGE BENEFIT SCHEDULE FOR A CERTAIN LOCALITY IS THE UNION RATE, THE FACT THAT NON-UNION CONTRACTORS PAY LOWER WAGES AND BENEFITS DOES NOT AFFECT THE VALIDITY OF THE SECRETARY'S DETERMINATION. THE INTENT OF THE ACT WAS TO ENSURE THAT THE GOVERNMENT DOES NOT CONTRACT WITH A SERVICE CONTRACTOR WITH LOW WAGE STANDARDS FOR AN AREA. MOREOVER, THE ACT DOES NOT PROVIDE FOR A REVIEW OF WAGE AND BENEFIT DETERMINATIONS BY THE GAO, AND IN THE ABSENCE OF SUCH A STATUTORY PROVISION, THE SECRETARY'S DETERMINATIONS ARE NOT SUBJECT TO QUESTION BY THIS OFFICE.

ALTHOUGH WE UNDERSTAND THAT HOLIDAYS PLACE A BURDEN UPON COMPANIES WHICH OPERATE SEVEN DAYS PER WEEK, WE NOTE THAT THE COSTS OF OVERTIME, TEMPORARY PERSONNEL AND EXTRA EQUIPMENT NEEDED TO MEET CONTRACT SPECIFICATIONS MAY PROPERLY BE INCLUDED IN THE BID.

WE TRUST THIS RESPONSE SATISFIES YOUR INQUIRY.