B-246292, Feb 27, 1992, 71 Comp.Gen. 274

B-246292, Feb 27, 1992, 71 Comp.Gen. 274

PROCUREMENT - Sealed Bidding - Invitations for bids - Post-bid opening cancellation - Resolicitation PROCUREMENT - Socio-Economic Policies - Labor standards - Service contracts - Wage rates - Omission Where hybrid procurement procedures are utilized by Department of Energy management contractor, and bids are not publicly opened, contractor reasonably canceled a solicitation after receipt of bids under the standard applicable to negotiated procurements. In these circumstances, the failure to incorporate current DavisBacon Act wage rate determination in solicitation provided a reasonable basis for cancellation and resolicitation of the same requirement. PROCUREMENT - Socio-Economic Policies - Labor standards - Service contracts - Wage rates - GAO review Protest of higher wage rates, that management contractor and union allegedly would require potential subcontractor to pay its employees, is a matter for consideration by the Department of Labor which has the exclusive authority to determine new wage rates.

Attorneys

OMNE of New Jersey, Inc.:

OMNE of New Jersey, Inc., the apparent low bidder, protests the cancellation of solicitation No. 482508, issued as a small business set aside by Associated Universities Inc./Brookhaven National Laboratory (AUI) for electrician labor/hour services and a truck for a 1-year period beginning October 1, 1991. AUI, a government prime contractor, manages, operates, and maintains by and for the Department of Energy (DOE) the agency's Brookhaven National Laboratory in Suffolk County, New York. OMNE contends that AUI should have awarded the contract to its firm under the canceled solicitation. In addition, OMNE protests that the DOE and the International Brotherhood of Electrical Workers (IBEW) improperly control the wage rates and the personnel required to perform the work called for by the solicitation.

The protest is denied.

Initially, we point out that federal procurement statutes and regulations do not apply per se to a management contractor operating by and for the government; such a prime contractor must conduct procurements according to the terms of its contract with the agency and its own agency approved procedures. Our review is limited to determining whether the procurement conforms to the "federal norm," i.e., the policy objectives in the federal statutes and regulations. BECO Corp., B-219651, Nov. 26, 1985, 85-2 CPD Para. 601. The solicitation, issued on August 19, 1991, specifically stated that it was a "sealed bid invitation" but it did not provide for the public opening of bids. Rather, the solicitation stated that bids would be "privately opened."

The solicitation incorporated Department of Labor (DOL) General Wage Decision No. NY91-13, modification No. 5 dated July 19, 1991, and required bidders to pay their workers not less than the wage rates specified in modification No. 5. The solicitation advised that bids would be evaluated on the straight time hourly billing rates for the labor classifications of Electrician Journeyman and Electrician Foreman I, each weighted 50 percent, and that the bidder with the lowest total points for the two classifications would be awarded the contract.

Seven bids were received in response to the solicitation by the September 3 bid opening date. The bids were opened privately and prices were not disclosed. OMNE was informed by AUI that it was the apparent low bidder. AUI and OMNE held pre-award "conversations" over the next several weeks during which AUI informed OMNE that prior contractors providing electrical labor/hour services were affiliated with Local #25 of the IBEW, and referred OMNE to an official of Local #25. AUI also requested that OMNE provide additional information regarding its past performance and the identification and qualifications of its proposed workers. OMNE provided the requested information on September 30.

On October 2, AUI received DOL's modification No. 6 to General Wage Decision 91-13, which was effective on October 11, 1991. Modification No. 6 increased the hourly wage rates for the two categories of