B-164708, OCT. 25, 1968

B-164708, OCT. 25, 1968

TO A. B. AND W. TRANSIT COMPANY:

BY LETTER DATED JUNE 25, 1968, REPRESENTATIVE JOEL T. BROYHILL TRANSMITTED FOR OUR CONSIDERATION YOUR PROTEST AGAINST WAGE RATE DETERMINATION NO. 66-146 (REV.) ISSUED BY THE DEPARTMENT OF LABOR FOR THE DISTRICT OF COLUMBIA ON NOVEMBER 17, 1967, PURSUANT TO THE SERVICE CONTRACT ACT OF 1961, PUB.L. 89-286, 41 U.S.C. 351, ET SEQ.

THE SERVICE CONTRACT ACT REQUIRES THAT ANY CONTRACT (AND ANY BID SPECIFICATION THEREFOR) ENTERED INTO BY THE UNITED STATES OR THE DISTRICT OF COLUMBIA IN EXCESS OF $2,500, WITH CERTAIN EXCEPTIONS NOT HERE RELEVANT, THE PRINCIPAL PURPOSE OF WHICH IS TO FURNISH SERVICES IN THE UNITED STATES THROUGH THE USE OF SERVICE EMPLOYEES SHALL CONTAIN A PROVISION SPECIFYING THE MINIMUM MONETARY WAGES AND FRINGE BENEFITS TO BE PAID THE VARIOUS CLASSES OF SERVICE EMPLOYEES AS DETERMINED BY THE SECRETARY OF LABOR, OR HIS AUTHORIZED REPRESENTATIVE, IN ACCORDANCE WITH THE PREVAILING RATES AND FRINGE BENEFITS FOR SUCH EMPLOYEES IN THE LOCALITY.

PURSUANT TO THE ACT, INVITATION FOR BIDS (IFB) NO. 03-388-9-0024-GW ISSUED BY THE GOVERNMENT OF THE DISTRICT OF COLUMBIA ON JUNE 12, 1968, FOR THE RENTAL OF BUSES WITH DRIVERS WHO ARE EXPERIENCED GUIDES AND QUALIFIED LECTURERS FOR TOURS IN THE METROPOLITAN AREA WITH THE MOST DISTANT POINT BEING THE MOUNT VERNON ESTATE, MOUNT VERNON, VIRGINIA, AND PURCHASE REQUEST NO. 16608 ISSUED ON JUNE 17, 1968, BY THE GOVERNMENT PRINTING OFFICE FOR THE RENTAL OF BUSES AND DRIVERS FOR NIGHT SHUTTLE SERVICE BETWEEN THE GOVERNMENT PRINTING OFFICE AND PARKING AREAS OF THE SENATE AND HOUSE OFFICE BUILDINGS, CONTAINED THE WAGE RATE DETERMINATION IN QUESTION, WHICH BY ITS TERMS COVERS THE DISTRICT OF COLUMBIA AREA.

YOU OBJECT TO THE WAGE RATES AND FRINGE BENEFITS THEREOF, STATING THAT IT IS DISCRIMINATORY AND ELIMINATES THE COMPETITIVE PURPOSE IN BIDDING, IN THAT ONLY ONE COMPANY IN THE WASHINGTON METROPOLITAN AREA COULD MEET THE SPECIFICATIONS. IN THIS CONNECTION, THE RECORD SHOWS THAT WAGE DETERMINATION NO. 66-146 (REV.) REFLECTS THE WAGE RATES AND FRINGE BENEFITS CONTAINED IN THE CURRENT COLLECTIVE BARGAINING AGREEMENT NEGOTIATED BETWEEN THE D. C. TRANSIT COMPANY AND LOCAL DIVISION 689 OF THE AMALGAMATED TRANSIT UNION, AFL-CIO. THE CURRENT COLLECTIVE BARGAINING AGREEMENT NEGOTIATED BETWEEN YOUR COMPANY, A. B. AND W. TRANSIT COMPANY AND LOCAL DIVISION NO. 1131, AMALGAMATED TRANSIT UNION, AFL-CIO CALLS FOR MATERIALLY LOWER WAGE RATES AND LESSER FRINGE BENEFITS.

AT THE OUTSET, IT SHOULD BE NOTED THAT A LABOR DEPARTMENT DETERMINATION AS TO THE PREVAILING WAGE RATES AND FRINGE BENEFITS IN A PARTICULAR AREA UNDER SIMILAR PROVISIONS OF THE DAVIS-BACON ACT HAS BEEN HELD TO BE NOT SUBJECT TO REVIEW BY ANY OTHER AUTHORITY. UNITED STATES V BINGHAMTON CONSTRUCTION CO., 347 U.S. 171. IN THIS INSTANCE, MOREOVER, WE FIND NO BASIS FOR QUESTIONING THE PROPRIETY OF THE DETERMINATION BY THE DEPARTMENT OF LABOR.

OUR REVIEW OF THE SITUATION DISCLOSED THAT THE D. C. TRANSIT SYSTEM, WHICH INCLUDES THE WASHINGTON-VIRGINIA AND MARYLAND COACH CO., INC., (W. V. AND M.), ARLINGTON, VIRGINIA, EMPLOYS ABOUT 2,000 BUS OPERATIOR; THAT A. B. AND W. TRANSIT CO., ALEXANDRIA, VIRGINIA, EMPLOYS FROM 500 TO 600 OPERATORS; THAT THE W. M. A. TRANSIT CO., WASHINGTON, D.C., EMPLOYS AROUND 300 OPERATORS; AND THAT THE GRAY LINES SIGHTSEEING TOURS, WASHINGTON, D.C., EMPLOYS BETWEEN 40 AND 50 OPERATORS. SINCE THE 2,000 BUS OPERATORS EMPLOYED BY D. C. TRANSIT CO. AND W. V. AND M. ARE MEMBERS OF THE SAME LOCAL UNION, RECEIVE THE SAME HOURLY WAGE RATES AND FRINGE BENEFITS, AND REPRESENT THE BULK OF THE BUS OPERATORS SERVICING THE DISTRICT OF COLUMBIA AND ITS METROPOLITAN AREA, IT CANNOT BE CONTENDED THAT THEIR WAGE RATES AND FRINGE BENEFITS DO NOT REPRESENT THE PREVAILING WAGE RATES AND FRINGE BENEFITS PAID IN THE LOCALITY.

THE RECORD SHOWS THAT FIVE BIDS WERE RECEIVED IN RESPONSE TO IFB NO. 03- 388-9-0024-GW ISSUED BY THE GOVERNMENT OF THE DISTRICT OF COLUMBIA. THE BIDS WERE OPENED ON JUNE 20, 1968, AND AWARD WAS MADE TO W. M. A. TRANSIT COMPANY AS THE LOWEST RESPONSIVE BIDDER. YOUR BID WAS REJECTED BECAUSE OF AN ACCOMPANYING LETTER OF EXCEPTION DATED JUNE 17, 1968, IN WHICH YOU STATED THAT IF AWARDED THE CONTRACT YOU WOULD PAY WAGE RATES AND FRINGE BENEFITS LOWER THAN THAT SPECIFIED IN THE IFB. AS A MATTER OF INTEREST WE SHOULD LIKE TO INFORM YOU THAT AFTER ONE FIVE-DAY PERIOD OF SERVICE UNDER THE CONTRACT, THE DISTRICT OF COLUMBIA TERMINATED IT ON AUGUST 31, 1968, BECAUSE THE PROGRAM, TO WHICH THE CONTRACT APPLIED, AND WHICH WAS RELATED TO THE DISTRICT'S WORK-TRAINING AND OPPORTUNITY CENTER PROGRAMS, WAS RETURNED TO THE MANPOWER ADMINISTRATION, DEPARTMENT OF LABOR.

WITH REFERENCE TO PURCHASE REQUEST NO. 16608 ISSUED BY THE GOVERNMENT PRINTING OFFICE, NO PROPOSAL ON WHICH WAS SUBMITTED BY YOU, AWARD THEREUNDER WAS MADE TO THE LOWEST OF TWO RESPONSIVE BIDDERS, WHICH WAS THE W.M.A. TRANSIT COMPANY. THUS, IN NEITHER CASE WAS AWARD MADE TO THE D.C. TRANSIT COMPANY WHICH YOU HAD INTIMATED WAS THE ONLY COMPANY IN THE AREA WHICH COULD MEET THE SPECIFICATIONS.