B-223049, JUL 30, 1986, 86-2 CPD 128

B-223049: Jul 30, 1986

Additional Materials:

Contact:

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

 

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

GENERAL ACCOUNTING OFFICE - JURISDICTION - LABOR STIPULATIONS - DAVIS BACON ACT DIGEST: GENERAL ACCOUNTING OFFICE (GAO) WILL NOT CONSIDER PROTEST THAT COMMERCIAL GRADE PROJECT WAS ERRONEOUSLY CLASSIFIED AS "RESIDENTIAL" FOR WAGE RATE PURPOSES. THAT MISCLASSIFICATION WILL CAUSE BIDDERS TO EITHER LOSE MONEY. THERE IS NO EVIDENCE THAT BIDDER WILL EITHER SUBMIT LOSS BID OR SUBMIT CLAIM TO COVER LOSS. THE PROTESTER CONTENDS THAT FIRMS WHICH SUBMIT THEIR BIDS ON THE BASIS THAT RESIDENTIAL WORK IS REQUIRED WILL EITHER LOSE MONEY. IT WAS ON THIS FORM THAT THE AIR FORCE CLASSIFIED THIS PROJECT AS "RESIDENTIAL. THE AIR FORCE INFORMS US THAT IT IS REFERRING THE MATTER TO THE DOL FOR EVALUATION AS TO THE PROPER CLASSIFICATION TO BE USED FOR THE PROJECT AND PROMISES TO INCORPORATE THE RESULTANT WAGE RATE INTO THE SOLICITATION.

B-223049, JUL 30, 1986, 86-2 CPD 128

GENERAL ACCOUNTING OFFICE - JURISDICTION - LABOR STIPULATIONS - DAVIS BACON ACT DIGEST: GENERAL ACCOUNTING OFFICE (GAO) WILL NOT CONSIDER PROTEST THAT COMMERCIAL GRADE PROJECT WAS ERRONEOUSLY CLASSIFIED AS "RESIDENTIAL" FOR WAGE RATE PURPOSES, AND THAT MISCLASSIFICATION WILL CAUSE BIDDERS TO EITHER LOSE MONEY, SUBMIT CLAIMS TO COVER INCREASED WAGE COSTS, OR PERFORM CONTRACT IN "SHODDY" MANNER. DEPARTMENT OF LABOR (DOL), NOT GAO, DETERMINES CORRECTNESS OF WAGE DETERMINATIONS AND MATTER HAS BEEN SUBMITTED TO DOL. MOREOVER, THERE IS NO EVIDENCE THAT BIDDER WILL EITHER SUBMIT LOSS BID OR SUBMIT CLAIM TO COVER LOSS.

R-A-L MECHANICAL INC.:

R-A-L MECHANICAL INC. COMPLAINS THAT THE AIR FORCE HAS MISCATEGORIZED THE TYPE OF WORK REQUIRED UNDER INVITATION FOR BIDS NO. F65503-86-B-0020, ISSUED BY EIELSON AIR FORCE BASE, ALASKA, FOR CONSTRUCTION WORK TO UPGRADE FAMILY HOUSING UNITS. THE PROTESTER ARGUES THAT THE AGENCY CLASSIFIED THE WORK AS RESIDENTIAL-TYPE CONSTRUCTION WHEN IN FACT AT LEAST 30 PERCENT OF THE WORK MUST BE PERFORMED BY COMMERCIAL GRADE CRAFTSMEN. CONSEQUENTLY, THE PROTESTER CONTENDS THAT FIRMS WHICH SUBMIT THEIR BIDS ON THE BASIS THAT RESIDENTIAL WORK IS REQUIRED WILL EITHER LOSE MONEY, SUBMIT CLAIMS OR PERFORM THE HIGHER GRADE COMMERCIAL-TYPE WORK IN A "SHODDY" MANNER.

THE SOLICITATION ITSELF DOES NOT CATEGORIZE THE REQUIRED WORK AS RESIDENTIAL; IT MERELY CONTAINS SPECIFICATIONS SETTING FORTH REQUIREMENTS FOR THE WORK INVOLVED. THE SOLICITATION DOES CONTAIN A DAVIS-BACON ACT, 40 U.S.C. SEC. 276A (1982), FORM ON WHICH THE AIR FORCE REQUESTED, AND THE DEPARTMENT OF LABOR (DOL) PROVIDED, A WAGE RATE DETERMINATION. IT WAS ON THIS FORM THAT THE AIR FORCE CLASSIFIED THIS PROJECT AS "RESIDENTIAL," AS OPPOSED TO "BUILDING," FOR WAGE RATE PURPOSES. IN RESPONSE TO THE PROTEST, THE AIR FORCE INFORMS US THAT IT IS REFERRING THE MATTER TO THE DOL FOR EVALUATION AS TO THE PROPER CLASSIFICATION TO BE USED FOR THE PROJECT AND PROMISES TO INCORPORATE THE RESULTANT WAGE RATE INTO THE SOLICITATION.

THE PROTESTER APPEARS TO RECOGNIZE THAT OUR OFFICE DOES NOT REVIEW THE PROPRIETY OR CORRECTNESS OF A DAVIS-BACON ACT WAGE RATE DETERMINATION, CONSOLIDATED MARKETING NETWORKS, INC., B-219387, SEPT. 3, 1985, 85-2 CPD PARA. 262, AND ACKNOWLEDGES THE FACT THAT THE MATTER WILL BE REVIEWED BY DOL. THE PROTESTER NEVERTHELESS ARGUES THAT WE SHOULD CONSIDER THE PROTEST BECAUSE IT BELIEVES THE MISCHARACTERIZATION OF THE WORK TO BE "MISLEADING" AND COULD RESULT IN UNINTENTIONAL UNDERBIDDING.

WE DO NOT UNDERSTAND HOW THE ALLEGED MISCATEGORIZATION OF THE WORK AS RESIDENTIAL IN NATURE CAN REMAIN "MISLEADING" IN VIEW OF THE AGENCY'S STATED INTENTION TO RESUBMIT THE MATTER TO DOL. THE ONLY PURPOSE OF CLASSIFYING THE WORK AS RESIDENTIAL OR "COMMERCIAL" BUILDING IS FOR THE DETERMINATION OF THE APPROPRIATE DAVIS-BACON ACT WAGE RATE AND THAT ISSUE WILL BE DECIDED BY DOL, THE AGENCY WITH JURISDICTION TO DETERMINE SUCH MATTERS.

ACCORDINGLY, THIS IS NOT A MATTER APPROPRIATE FOR OUR REVIEW, AND WE DISMISS THE PROTEST.