[Protest of Army Corps of Engineers Contract Award for Prefabricated Buildings]

B-221183: Feb 24, 1986

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A firm protested an Army Corps of Engineers contract award for the supply of six prefabricated buildings contending that: (1) the Walsh-Healey Act was inapplicable to the contract work and should cover only the portion of the contract relating to manufacturing; (2) even if the act is applicable to the entire contract to ensure payment of minimum wages, its compliance with the Davis-Bacon Act should satisfy the purpose of the Walsh-Healey Act; and (3) the awardee's bid package should have been found nonresponsive because the cover letter submitted with its bid clearly showed that the bid was made on a conditional basis. GAO noted that: (1) the solicitation provided for bidding on the basis of three alternatives; and (2) the protester's and another firm's joint offer was the apparent low total bid on all three alternatives, but the Corps eliminated the joint bid from consideration because the protester was not a regular dealer or manufacturer under the Walsh-Healey Act. GAO found that: (1) the protest against the applicability of the Walsh-Healey Act was untimely filed; (2) it is the contracting agency's responsibility to determine whether a bidder meets the requirements of the Walsh-Healey Act; (3) federal regulations do not require that the Small Business Administration review a rejected offer where the offerer's representation indicated that it was not a manufacturer or dealer; (4) the payment of benefits in accordance with the Davis-Bacon Act would not satisfy the purpose of the Walsh-Healey Act with regard to ensuring that the actual manufacturer had fair and safe labor conditions; (5) the solicitation contained no prohibition against a bidder limiting its award to certain line item combinations; and (6) the awardee's total bid resulted in the lowest overall cost to the government. Accordingly, the protest was dismissed in part and denied in part.