The Lockheed Aircraft Service Co.

Citation53 Comp.Gen. 412
Decision Date06 December 1973
Docket NumberB-178773
PartiesTHE LOCKHEED AIRCRAFT SERVICE COMPANY
CourtComptroller General of the United States

Contracts - labor stipulations - service contract act of 1965 - ommission of provision although the failure to question the propriety of the absence from a solicitation for aircraft maintenance of a service contract act (SCA) clause until after the award of a contract renders the protest untimely since a significant issue has been raised because it refers to a principle of widespread interest and since a court is interested in the views of the GAO, the merits of the protest have been considered and it is concluded that the absence from the contract of a SCA clause does not render the contract illegal if after the contract award the department of labor decides that the SCA was applicable to the procurement, since the contracting officer acted in good faith and in accordance with regulations implementing the SCA in determining the walsh-healey public contracts act pertaining to supplies, and not the SCA, which affords service contract workers protection, was applicable, and furthermore, it is primarily for contracting agencies to decide what provisions should or should not be included in a particular contract.

This is in reply to your telefax message of May 30, 1973, and subsequent correspondence, protesting the award of a contract to e systems, incorporated, by the department of the air force under request for porposals (RFP) no. F34601-73-r-7150 issued by the Oklahoma city air materiel area, tinker air force base, Oklahoma.

Your protest is grounded on the air force's failure to include in the solicitation and resulting contract provisions applying the service contract act of 1965, 41 U.S.C. 351 note, to this procurement. You assert that the air force, by not including such provisions, did not comply with the requirements of that act and that the contract awarded to e-systems is therefore illegal. The air force, on the other hand, denies that it violated the service contract act in the handling of this procurement, a position in which it is supported by counsel for e systems. The department of labor (DOL), whose views we solicited in connection with this matter, agrees with you and urges us to uphold your protest. For the reasons set forth below, we are of the opinion that the protest must be denied.

Initially we must consider the assertions of the air force and e systems that the protest was untimely filed. The record shows that the solicitation, calling for offers to provide aircraft modification and programmed depot maintenance work for the special air mission (sam) fleet based at andrews air force base, was issued on December 15, 1972. The RFP contained the standard walsh-healey public contracts act (41 U.S.C. 35 note) provision, but contained no provision regarding the service contract ACT. Proposals were submitted by lockheed (which, according to the air force, had been the sole-source and only contractor for the SAM fleet maintenance requirements for more than 20 years prior to 1973) e-systems, and other offerors, and after a period of negotiation and evaluation, a contract was awarded to e-systems on May 11, 1973. By letter dated May 18, 1973, which you submitted to the air force subsequent to a debriefing conference held on May 22, 1973, you asked the contracting officer to state whether a determination had been requested from either the secretary of labor or the air force deputy chief of staff, systems and logistics, as to the applicability of the service contract act to the procurement. The air force informed you by letter dated June 15, 1973, that no such determination had been requested. In the interim, you filed a protest with this office on May 31.

Our interim bid protest procedures and standards require that protests "based upon alleged improprieties in any type of solicitation which are apparent prior to *** the closing date for receipt of proposals shall be filed prior to *** the closing date ***. In other cases, bid protests shall be filed not later than five days after the basis for protest is known or should have been known, whichever is earlier." 4 CFR 20.2. That section also states that if a protest initially is filed with the contracting agency, a subsequent protest to this office must be filed "within five days of notification of adverse agency action." Both the air force and e-systems maintain that your protest involves the absence from the RFP of service contract act provisions and therefore should have been filed prior to the closing date for receipt of proposals. Air force also contends that in any event your protest should have been filed within 5 days of your receipt of notification of the award to e-systems. You claim, however, that the absence from the solicitation of a service contract act clause did not automatically indicate a violation of law, since the omission "May have been sanctioned by the department of labor." You further claim that only after you began to suspect that this was not the case that you asked the air force if in fact DOL had been queried as to the applicability of the service contract act, and that your grounds for protest became known only after you received a negative reply from the air force.

We think your protest must be regarded as untimely filed. Although we agree that the absence of a service contract act provision from the RFP did not necessarily indicate any illegal or improper action by the air force, our rules contemplate that any questions you might have regarding a solicitation will be raised prior to the closing date for receipt of proposals. This includes questions regarding the absence of a particular provision from a solicitation. B-178206, April 4, 1973. Therefore, it was incumbent upon you to query the air force about the basis for the non- inclusion of a service contract act clause in the RFP prior to the date set for receipt of proposals, rather than after award was made to another firm, and your failure to have done so renders your protest untimely.

However, 4 CFR 20.2(b) provides that we May consider any protest which is not filed timely if the protest "raises issues significant to procurement practices or procedures, " which we have said refers "to the presence of a principle of widespread interest." 52 Comp.Gen. 20, 23 (1972). We think this protest raises such an issue. It calls into question the legality of a contract awarded without service contract act clauses when the department of labor believes the contract is subject to the ACT. That this case does not represent an isolated instance in which this question has arisen is evidenced by the fact that at least two other protests involving this issue recently were filed with this office. Furthermore, although we declined to consider the merits of one of those cases when the protester also requested substantive judicial relief, B-178463, June 29, 1973, the court in that suit stated that gao's dismissal of the protest was "a reversal of deference" in view of the desirability of having cognizant administrative agencies, including GAO, review matters prior to judicial resolution. Curtiss-wright Corp.V. Mclucas, civil action no. 807-73, d.N.J., September 14, 1973, N. 20. We gather from that statement that the court May be interested in our views with respect to the primary issue involved in both this case and the curtiss-wright matter. Therefore, in accordance with our policy of considering protest issues when a court has expressed interest in our views, see 52 Comp.Gen. 161 (1972), we think it appropriate for us to decide this case on the merits.

The service contract act of 1965, as amended, 41 U.S.C. 351 et seq., provides that every contract entered into by the United States in excess of $2, 500, subject to certain exceptions set forth in 41 U.S.C. 356, "the principle purpose of which is to furnish services in the United States through the use of service employees, " shall contain provisions specifying the minimum wages to be paid and fringe benefits to be furnished service employees "in the performance of the contract, " as determined by the secretary of labor. The act further provides that in no event shall a contractor pay his service employees under a service contract less than the minimum wage specified by the fair labor standards act 29 U.S.C. 206(a)(1). Implementing regulations, setting forth the specific provisions to be included in contracts and providing for contracting agencies to notify DOL of their intent to award service contracts, have been promulgated by the secretary of labor and adopted by the department of defense. 29 CFR 4.4-4.6; Armed Services Procurement Regulation (ASPR) 12.1004, 12.1005. These regulations require contracting officers to file with dol, at least 30 days prior to the issuance of a solicitation leading to the award of a contract "which May be subject to ...

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