B-157721, DEC. 28, 1965

B-157721, DEC. 28, 1965

TO THE EMPIRE WINDOW AND CLEANING AND MAINTENANCE COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 17, 1965, PROTESTING AGAINST AN AWARD OF A CONTRACT TO ACME OF COLORADO (ACME) FOR CUSTODIAL SERVICES AT THE SPACE SYSTEMS DEVELOPMENT COMPLEX, LOS, ANGELES, CALIFORNIA, UNDER INVITATION FOR BIDS NO. 04-693-65-15.

THE ABOVE REFERENCED INVITATION PROVIDED THAT THE CONTRACT WAS A TOTAL SET-ASIDE FOR SMALL BUSINESS CONCERNS, AND ON PAGE ONE OF ITS BID ACME REPRESENTED THAT IT WAS A SMALL BUSINESS CONCERN. BIDS WERE OPENED AS SCHEDULED ON JUNE 11, 1965, AND AWARD WAS MADE TO ACME, AS THE LOWEST RESPONSIVE AND RESPONSIBLE BIDDER, ON SEPTEMBER 22, 1965. HOWEVER, BY LETTER DATED SEPTEMBER 17, WHICH WAS RECEIVED IN THIS OFFICE ON SEPTEMBER 23, YOU PROTESTED AGAINST AN AWARD TO ACME BECAUSE IT WAS NOT A SMALL BUSINESS CONCERN, AND BECAUSE "THEY ARE DOING WORK FOR THE GOVERNMENT ALL OVER THE UNITED STATES AND PAYING SUB-MINIMUM WAGE STANDARDS.'

BY LETTER DATED SEPTEMBER 17, WHICH WAS RECEIVED BY THE PROCUREMENT OFFICE ON SEPTEMBER 21, YOU ALSO PROTESTED TO THE PROCURING AGENCY THAT ACME WAS NOT A SMALL BUSINESS CONCERN. IN REGARD TO THIS PORTION OF YOUR PROTEST, YOU ARE INFORMED THAT THE METHOD FOR DETERMINING SUCH MATTERS IS PRESCRIBED IN THE ARMED SERVICES PROCUREMENT REGULATION, SECTION 1-703, WHICH PROVIDES IN SUBSECTION (B) (1) AS FOLLOWS:

"ANY BIDDER OR OFFEROR MAY, PRIOR TO AWARD OF A CONTRACT INVOLVING SMALL BUSINESS SET-ASIDES, QUESTION THE SMALL BUSINESS STATUS OF ANY APPARENTLY SUCCESSFUL BIDDER OR OFFEROR BY SENDING A WRITTEN PROTEST TO THE CONTRACTING OFFICER RESPONSIBLE FOR THE PARTICULAR PROCUREMENT. THE PROTEST SHALL CONTAIN THE BASIS FOR THE PROTEST TOGETHER WITH SPECIFIC DETAILED EVIDENCE SUPPORTING THE PROTESTANT'S CLAIM THAT SUCH BIDDER OR OFFEROR IS NOT A SMALL BUSINESS. SUCH PROTEST MUST BE RECEIVED BY THE CONTRACTING OFFICER PRIOR TO THE CLOSE OF BUSINESS ON THE 5TH WORKING DAY AFTER BID OPENING DATE OR CLOSING DATE FOR THE RECEIPT OF PROPOSALS.'

INASMUCH AS YOUR PROTEST WAS DATED SEPTEMBER 17, 1965, AND WAS RECEIVED BY THE CONTRACTING OFFICER ON SEPTEMBER 21, 1965, HE DETERMINED THAT IT WAS NOT A VALID PROTEST IN ACCORDANCE WITH THE ABOVE REGULATION. HOWEVER, SINCE THE CONTRACTING OFFICER HAD ACTUAL NOTICE OF YOUR PROTEST BEFORE AWARD HAD BEEN MADE, HE CONTACTED THE SAN FRANCISCO CONTRACT MANAGEMENT DISTRICT WHICH ORALLY REFERRED THE MATTER TO THE SAN FRANCISCO OFFICE OF THE SMALL BUSINESS ADMINISTRATION. ON SEPTEMBER 28, 1965, SBA ORALLY CONFIRMED THAT ACME OF COLORADO WAS A SMALL BUSINESS CONCERN. IN VIEW OF THE ABOVE FACTS, AND SINCE YOU HAVE PRESENTED NO EVIDENCE TO SUPPORT YOUR ASSERTION THAT ACME IS NOT A SMALL BUSINESS CONCERN, IT IS OUR OPINION THAT THE CONTRACTING OFFICER ACTED PROPERLY IN DENYING THIS PART OF YOUR PROTEST.

WITH RESPECT TO YOUR CONTENTION THAT AWARD SHOULD NOT HAVE BEEN MADE TO ACME BECAUSE "THEY ARE DOING WORK FOR THE GOVERNMENT ALL OVER THE UNITED STATES AND PAYING SUB-MINIMUM WAGES," IT IS NOT CLEAR FROM THIS STATEMENT WHETHER YOU ARE ASSERTING THAT ACME IS PAYING LESS THAN UNION WAGES, OR LESS THAN MINIMUM WAGES ESTABLISHED BY STATE AND FEDERAL LAWS. IN THE EVENT YOU ARE CLAIMING THE FORMER, WE INVITE YOUR ATTENTION TO OUR DECISION B-109270, MAY 2, 1952, IN WHICH WE HELD:

"NO STATUTE REQUIRES THE EMPLOYMENT OF UNION LABOR BY GOVERNMENT CONTRACTORS, AND GENERALLY THERE WOULD BE NO LEGAL JUSTIFICATION FOR THE REJECTION OF THE LOWEST BID RECEIVED SOLELY BECAUSE OF THE FACT THAT THE LOW BIDDER MAY NOT EMPLOY UNION LABOR.'

IT FOLLOWS THEREFORE, THAT AN OTHERWISE SUCCESSFUL BIDDER SHOULD NOT BE REJECTED MERELY BECAUSE HE PAYS LESS THAN UNION WAGES.

FINALLY, THE STATUTORY MINIMUM WAGE RATE IN THE STATE OF CALIFORNIA IS $1.30 PER HOUR, AND THE STATUTORY MINIMUM WAGE RATE UNDER FEDERAL LAW IS $1.25 PER HOUR. IN THE INSTANT CASE THE CONTRACTOR HAS STATED THAT HE WILL PAY AN AVERAGE OF $1.70 PER HOUR. WHETHER SUCH PAYMENT WILL MEET THE REQUIREMENTS OF APPLICABLE STATE AND FEDERAL LAWS WOULD APPEAR TO BE A MATTER FOR CONSIDERATION BY THE CONTRACTING AGENCY IN ITS ADMINISTRATION OF THE CONTRACT. HOWEVER, INVESTIGATIONS CONDUCTED BY THE CONTRACTING OFFICER AND THE SAN FRANCISCO CONTRACT MANAGEMENT DISTRICT INTO THE PERFORMANCE OF ACME'S OTHER GOVERNMENT CONTRACTS HAVE SHOWN SATISFACTORY PERFORMANCE IN ALL RESPECTS, AND THERE IS NO EVIDENCE TO SUPPORT A CLAIM THAT THE CONTRACTOR IS IN VIOLATION OF ANY STATUTORY REQUIREMENTS IMPOSED UPON GOVERNMENT CONTRACTORS. IN THE ABSENCE OF SUCH EVIDENCE, WE SEE NO VALID BASIS FOR QUESTIONING THE VALIDITY OF THE CONTRACT AWARDED TO ACME, AND YOUR PROTEST MUST THEREFORE BE DENIED.