Protest Against Lack of Wage Determination

B-200523.2: Jun 5, 1981

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A firm protested the lack of a Service Contract Act wage determination in a solicitation. The firm originally raised this issue in a protest filed with GAO which was dismissed without obtaining an agency report. In that case, it was specified that less than five service employees would be employed under the contract. Under those circumstances, the decision to issue a wage determination is within the Department of Labor's discretion, and there was no allegation that Labor's failure to issue such a determination was due to improper action on the agency's part. Therefore, GAO found no matter appropriate for its consideration. Later, the firm filed this protest and alleged that Labor's failure to issue a wage determination was due to the agency's representation that less than five service employees would be employed. The protester contended that this representation was arbitrary and devoid of supporting data. As a consequence, GAO reopened its file on the matter and requested a report from the agency. Both the agency and the awardee argued that the protest was untimely as the Service Contract Act requirements were incorporated into a solicitation amendment and must be protested no later than the next closing date for receipt of proposals. The protester contended that the requirements were not received until the agency sent them a response to a Freedom of Information Act request. Thus, they contended that this protest, filed within 10 working days of receipt of that information, was timely. GAO found that the basis of the the protest was clearly apparent on the face of the solicitation as amended and, consequently, any protest on that basis had to be received by the next closing date for receipt of proposals. Since the protester did not file its protest until nearly 2 months after that date, it was clearly untimely. Since the protest concerning the absence of a wage determination was untimely filed, any supporting contentions filed at any time thereafter could only be considered untimely too. The protest was dismissed.