McDonald-Bradley

B-270126 Feb 08, 1996 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights A firm protested two Department of Labor (DOL) contract awards for management services, contending that: (1) the awardees based their proposals on wage rates below those required; and (2) DOL misled it during discussions. GAO held that: (1) the awardees were not required to bid the specified wage rates, as long as they did not take exception to the solicitation's requirements; and (2) there was no evidence that the protester was prejudiced during discussions. Accordingly, the protest was denied. View Decision Matter of: McDonald-Bradley File: B-270126 Date: February 8, 1996 Contracting agency may award contract to offeror whose proposal indicated that its price was based on wage rates below Service Contract Act wage determination levels where the proposal does not take exception to solicitation requirement that employees be paid in accordance with the Act. Protest that agency misled protester during discussions is denied where protester has not demonstrated a reasonable possibility that it was prejudiced. Attorneys DECISION McDonald-Bradley protests the award of contracts to Technical Assistance and Training Corporation (TATC) and Zeiders Enterprises, Inc. under request for proposals (RFP) No. 95-32, issued by the Department of Labor (DOL) for management services, curriculum development, training, and automated management system development. McDonald asserts that the awardees' proposals improperly were based on wage rates below those required and that the agency conducted misleading discussions. We deny the protest. The RFP contemplated the award of a time-and-materials, labor hour contract for a base year with three 1-year options. The RFP listed the categories of personnel that would be required under the contract, and estimated a minimum and maximum number of hours that each labor category would be required to perform. The price evaluation was to be based on the maximum number of hours estimated for each labor category. Offerors were to propose hourly rates for each class of employee. With the exception of certain costs such as travel, which were to be reimbursed separately, the proposed hourly rates were to include all costs and profit. Offerors were also required to support their labor rates with detailed breakdowns that included indirect and direct labor costs and profit. The solicitation incorporated provisions implementing the Service Contract Act of 1965 (SCA), requiring the contractor to pay covered employees in accordance with a wage determination that was included in the solicitation. The solicitation indicated which classes of employees were covered by the SCA, and by which wage determination category they would be covered. Up to three contracts were to be awarded to offerors submitting the proposals most advantageous to the government, based on cost and technical factors. Seven offerors responded to the solicitation. After evaluating the initial proposals, holding two rounds of discussions, and requesting, receiving and evaluating two rounds of best and final offers (BAFO), the agency awarded contracts to Zeiders and TATC, the offerors with the highest technical scores and the lowest prices. This protest followed. McDonald maintains that the awards were improper because Zeiders's and TATC's proposals indicated that they intended to pay wages lower than the minimums specified in the wage determination for the database administrator (DBA) technician and the applications programmer analyst. This argument is without merit. A contracting agency properly may award a contract to an offeror whose proposal indicates that its price is based on hourly rates below the SCA wage rates so long as the offeror does not take exception to the terms of the solicitation, such that it will be obligated under the contract to pay the applicable SCA wage rates to employees. See PRC/VSE Assocs. Joint Venture, B-240160 et al., Oct. 30, 1990, 90-2 CPD Para. 348; NKF Eng'g, Inc.; Stanley Assocs., B-232143; B-232143.2, Nov. 21, 1988, 88-2 CPD Para. 497. There is nothing in TATC's or Zeiders's proposals that takes exception to the SCA requirements. Zeiders's proposal did state that the two employees in question were professional employees that it believed were exempt from the SCA, but the agency had specifically advised all offerors during discussions to provide such an explanation if proposed personnel were believed to be exempt from the SCA. Thus, Zeiders's statement was not an exception to SCA requirements--the statement did not indicate that Zeiders would not pay wages as required by the SCA if the DOL ultimately disagreed with Zeiders. [1] Rather, the statement was an explanation, as requested by the agency, as to why the lower wages for the two employees were not inconsistent with SCA requirements.