Northeast Military Sales, Inc.; Fevata's Bakery, Inc.; Tony's Fine Foods;, B-291384, November 20, 2002

B-291384 Nov 20, 2002 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Northeast Military Sales, Inc.; Fevata's Bakery, Inc.; Tony's Fine Foods; Military and Deli Bakery Services, Inc.; and Special Markets, Inc. protest the terms of request for proposals (RFP) No. DECA02-02-R-0001, issued by the Defense Commissary Agency (DeCA) for delicatessen and bakery (deli/bakery) operations for commissaries at six military installations in Virginia. The protesters object to the application of the Service Contract Act of 1965 (SCA) to the procurement, contending that to the extent that DeCA or the Department of Labor (DOL) has determined that the principal purpose of this procurement is to furnish services, such a determination is clearly contrary to law. We dismiss the protest. We dismiss the protest. View Decision B-291384, Northeast Military Sales, Inc.; Fevata's Bakery, Inc.; Tony's Fine Foods;, November 20, 2002 Decision Matter of: Northeast Military Sales, Inc.; Fevata's Bakery, Inc.; Tony's Fine Foods; Military and Deli Bakery Services, Inc.; and Special Markets, Inc. File: B-291384 Date: November 20, 2002 Ira E. Hoffman, Esq., and Brian T. Scher, Esq., Grayson Kubli & Hoffman, for the protesters. Elliot J. Clark, Jr., Esq., Defense Commissary Agency, for the agency. Guy R. Pietrovito, Esq., and James A. Spangenberg, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest challenging the application of the Service Contract Act to a procurement for delicatessen and bakery operations at military commissaries is dismissed, where the Department of Labor (DOL) issued a wage determination applicable to the procurement in response to the procuring agency's notice of intent to make a service contract and the protesters did not request that DOL review the wage determination and its applicability to this particular procurement, as provided for in DOL's regulations. DECISION Northeast Military Sales, Inc.; Fevata's Bakery, Inc.; Tony's Fine Foods; Military and Deli Bakery Services, Inc.; and Special Markets, Inc. protest the terms of request for proposals (RFP) No. DECA02-02-R-0001, issued by the Defense Commissary Agency (DeCA) for delicatessen and bakery (deli/bakery) operations for commissaries at six military installations in Virginia. The protesters object to the application of the Service Contract Act of 1965 (SCA) to the procurement, contending that to the extent that DeCA or the Department of Labor (DOL) has determined that the principal purpose of this procurement is to furnish services, such a determination is clearly contrary to law. We dismiss the protest. The RFP, issued May 23, 2002 under the commercial item provisions of Federal Acquisition Regulation (FAR) Part 12, sought proposals for deli/bakery operations at commissaries at Oceana Naval Air Station, Little Creek Naval Air Base, Langley Air Force Base, Fort Eustis, Norfolk Naval Operations Base, and Fort Lee. Deli/bakery operations at these locations were previously provided under a contract awarded in 1996 and were subject to an SCA wage determination issued by DOL. Agency Motion for Summary Dismissal (Oct. 4, 2002) at 1. The RFP at issue here provides for the award of a follow-on contract for deli/bakery operations and incorporated by reference FAR 52.222-41, Service Contract Act of 1965, as Amended. This clause provides that the contract is subject to the SCA and that each service employee employed in the performance of the contract must be paid not less than the minimum wages and fringe benefits determined by DOL in an attached wage determination. Included with the RFP was the wage determination for the 1996 deli/bakery operations contract. On April 2, prior to issuing the RFP, DeCA submitted to the Wage and Hour Division of DOL a Standard Form (SF) 98, Notice of Intention to Make a Service Contract Act and Reponse to Notice. On May 6, DOL returned the SF-98 to DeCA with a request for additional information. On July 8, DeCA provided additional information to DOL to support the SF-98. Subsequently, DOL visited a military commissary to observe deli/bakery operations. On August 20, DeCA was informally informed that DOL would not be rendering a final decision on the application of the SCA anytime in the near future. Agency Motion for Summary Dismissal (Oct. 4, 2002), encl. 11, DeCA Internal E-mail. The contracting officer notified potential offerors that: the issue of the applicability of the SCA to the deli/bakery operations had not been resolved and [the contracting officer] did not anticipate its resolution in the near future and therefore determined to proceed with the . . . solicitation . . . and award activities to insure contractual coverage for the deli/bakery operations for the six commissaries in the Tidewater area of Virginia. Agency Motion for Summary Dismissal (Oct.