Bug Control Unlimited, Inc., B-277739, October 16, 1997

B-277739 Oct 16, 1997 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights DIGEST A bid is nonresponsive where it fails to acknowledge an amendment including a wage determination that established minimum wages for service employees pursuant to the Service Contract Act of 1965 and where the bidder is not otherwise bound to pay its employees wages at least at the level of those established by the wage determination. Identified the following attachment number and title: J-1-1Wage Determination No. _____ (Rev _) (Service Contract Act) Attachment J-1-1 was a blank page with the heading "Wage Determination - Service Contract Act.". 539 was the low bid. It was the only bid that did not acknowledge amendment 0001. The amendment was material. Bug Control alleges that the amendment was not material because the IFB. View Decision Matter of: Bug Control Unlimited, Inc. File: B-277739 Date: October 16, 1997 DIGEST Attorneys DECISION Bug Control Unlimited, Inc. protests the award of a contract under invitation for bids (IFB) No. N00187-96-B-9529, issued by the Department of the Navy, Navy Public Works Center, for annual pest control services at the Naval Amphibious Base Little Creek, Norfolk, Virginia. Bug Control alleges that the Navy improperly rejected Bug Control's low bid as nonresponsive. We deny the protest. The IFB, issued on February 5, 1997, contemplated the award of a combination firm, fixed-price and indefinite quantity contract. The IFB incorporated by reference the contract clause at Federal Acquisition Regulation (FAR) Sec. 52.222-41, "Service Contract Act of 1965, as Amended," which states: (c) Compensation. (1) Each service employee employed in the performance of this contract . . . shall be paid not less than the minimum monetary wages and shall be furnished fringe benefits in accordance with the wages and fringe benefits determined by the Secretary of Labor, . . . as specified in any wage determination attached to this contract. The IFB at Section J, List of Documents, Exhibits, and Other Attachments, identified the following attachment number and title: J-1-1Wage Determination No. _____ (Rev _) (Service Contract Act) Attachment J-1-1 was a blank page with the heading "Wage Determination - Service Contract Act." On February 14, the Navy received a letter from a prospective bidder inquiring about the wage determination. Upon reviewing the IFB, the Navy determined that the IFB did not contain any wage determination. On February 19, the Navy issued amendment No. 0001, which attached wage determination No. 94-2543 (Revision 12) [1] to the IFB. The Navy sent the amendment to all of the companies on the bidders' list, including Bug Control. [2] At bid opening on March 7, the Navy received and opened nine bids. Bug Control's bid of $120,539 was the low bid; however, it was the only bid that did not acknowledge amendment 0001. The agency determined that, since the amendment incorporated the wage determination into the IFB, the amendment was material. The agency thus rejected Bug Control's bid as nonresponsive for failing to acknowledge a material amendment. In response to the Navy's letter notifying Bug Control of the rejection of its bid, Bug Control acknowledged the amendment and protested the rejection of its bid to the Navy. On July 31, the Navy denied the agency- level protest and awarded a contract to the third lowest bidder, Angel Systems, Inc., for $229,647. [3] This protest followed. Bug Control alleges that the amendment was not material because the IFB, as originally issued, had essentially incorporated by reference the current applicable wage determination. Bug Control alternatively claims that it was otherwise bound by its bid to pay wages in excess of the minimum wages stated in the wage determination. We disagree. A bidder's failure to acknowledge an IFB amendment establishing or increasing minimum wage rates for a contract cannot be cured after bid opening, except where a collective bargaining agreement binds the bidder to pay wages not less than those prescribed by the Secretary of Labor. Western Helicopters, Inc., B-243445, Apr. 3, 1991, 91-1 CPD Para. 345 at 1; Air Photo Surveys, Inc., B-228024, Nov. 3, 1987, 87-2 CPD Para. 437 at 1-2. This is so because the wage rates prescribed by the Secretary of Labor are mandated by statute to be included in the contract, and if an agency were to give the bidder the opportunity to acknowledge after bid opening an amendment specifying such wage rates, the bidder could decide to render itself ineligible for award by choosing not to cure the defect. Western Helicopters, Inc., supra, at 1; Air Photo Surveys, Inc., supra, at 2. Since such post-bid opening control by a bidder over the acceptability of its bid compromises the integrity of the competitive procurement system, the bid must be rejected as nonresponsive unless the bidder is already obligated to pay wages not less than those prescribed.