Ameriko, Inc.

B-266034.2 Mar 18, 1996 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Where vast majority of painting work was to be performed in conjunction with change of occupancy maintenance services for military housing. Protest challenging rejection of proposal for failure to comply with Service Contract Act (SCA) wage rate is denied where. Even if protester were correct that agency should have held discussions rather than reject the proposal. Because solicitation was confusing as to whether SCA or Davis-Bacon Act wages applied. Protester's late best and final offer based on SCA wages shows that protester's price would not have been low. That protester therefore would not have been in line for award in any case. Offers were to provide a fixed. There were two indefinite quantity painting line items: major interior painting of more than 200 square feet and exterior painting of any square footage. [1] Also included as indefinite quantity work was various repair work. View Decision Matter of: Ameriko, Inc. File: B-266034.2 Date: March 18, 1996 Agency reasonably classified painting work as covered by the Service Contract Act rather than the Davis-Bacon Act, where vast majority of painting work was to be performed in conjunction with change of occupancy maintenance services for military housing, rather than as part of construction projects. Protest challenging rejection of proposal for failure to comply with Service Contract Act (SCA) wage rate is denied where, even if protester were correct that agency should have held discussions rather than reject the proposal--because solicitation was confusing as to whether SCA or Davis-Bacon Act wages applied--protester's late best and final offer based on SCA wages shows that protester's price would not have been low, and that protester therefore would not have been in line for award in any case. Attorneys DECISION Ameriko, Inc. protests the award of a contract to Patriot Maintenance, Inc. under request for proposals (RFP) No. F25600-94-R-0111, issued by the Department of the Air Force for military family housing maintenance at Offutt Air Force Base, Nebraska. Ameriko contends that the agency improperly rejected the firm's best and final offer (BAFO) based on noncompliance with the Service Contract Act (SCA), while accepting the awardee's BAFO, which included cost data showing a wage rate below the applicable SCA rate. We deny the protest. The RFP contemplated award of a contract for a base year with 4 option years. Offers were to provide a fixed, lump-sum price for definite quantity basic maintenance work and fixed-unit prices (but not labor rates) for indefinite quantity change of occupancy maintenance (COM) work, such as major painting, and other work not included in basic maintenance. There were two indefinite quantity painting line items: major interior painting of more than 200 square feet and exterior painting of any square footage. [1] Also included as indefinite quantity work was various repair work, e.g., major roof repair. Award was to be made on "a technically acceptable, realistically low price basis." Price proposals were to be evaluated for reasonableness, completeness, and realism, and all necessary data was to be furnished for this analysis. For realism, proposed costs were to be evaluated only to determine if any costs were unrealistically high or low in relation to the offeror's technical approach and the government estimate. [2] Since the RFP required performance of both service and construction work, it contained the applicable SCA (minimum wage rates applicable to service contracts) and Davis-Bacon Act (DBA) (minimum wages applicable to construction work) provisions. [3] The RFP did not specify which wage rate determination applied to the various line items; however, both determinations included a minimum wage rate for painter--$13.26 under the SCA (maintenance painter) and $10 under the DBA (painter). During the preproposal conference, three attendees asked whether any of the work or line items were considered covered by the DBA. The contracting officer responded, "[i]t is the contractors' responsibility to correctly categorize their employees. . . . [Any] questions concerning labor laws . . . should be directed to the [DOL] Wage and Hour Division." Seventeen proposals were received. The agency determined that 12, including Ameriko's and Patriot's, were technically acceptable and in the competitive range. It held written discussions, and requested and received BAFOs. Ameriko's BAFO price was low ($12,674,247) and Patriot's was second low ($13,057,750). In its cost realism analysis, the agency determined that "each offeror's BAFO reflect[ed] each offeror's ability to perform the requirements . . .