SHABA Contracting

B-417934 Dec 03, 2019 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights SHABA Contracting, a small business of Robbinsville, North Carolina, challenges the terms of solicitation No. 12455019R0025, issued by the Department of Agriculture, Forest Service, for tree cutting services in the Croatan National Forest in North Carolina. The protester contends that the terms of the solicitation are inconsistent with certain labor laws and regulations and are unreasonable. We deny the protest. View Decision Decision Matter of:  SHABA Contracting File:  B-417934 Date:  December 3, 2019 Hadley Gross, for the protester. Azine Farzami, Esq., Department of Agriculture, for the agency. Uri R. Yoo, Esq., and Laura Eyester, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest challenging terms in solicitation requiring offerors that propose to employ H-2B nonimmigrant workers to submit temporary employment certificates at the time of proposal submission is denied where the protester fails to establish that the solicitation terms are inconsistent with law or regulation. DECISION SHABA Contracting, a small business of Robbinsville, North Carolina, challenges the terms of solicitation No. 12455019R0025, issued by the Department of Agriculture, Forest Service, for tree cutting services in the Croatan National Forest in North Carolina.  The protester contends that the terms of the solicitation are inconsistent with certain labor laws and regulations and are unreasonable. We deny the protest. BACKGROUND On August 5, 2019, the agency issued the solicitation for manual crop tree release on 184 acres in Croatan Ranger District, New Bern, North Carolina.  Agency Report (AR), Tab 7, Request for Proposals (RFP), at 1.  The period of performance will be from the date of award to December 31.  Id.  The RFP includes an attachment titled “Employment of Eligible Workers and Workforce Certification,” which sets forth requirements for offerors that will employ nonimmigrant workers under the Department of Labor’s (DOL) H-2B[1] temporary nonimmigrant program.  RFP, attach. 6, at 1.  The attachment states that “[c]ontractors are required to provide certification of employment status as part of their representations, certifications, and acknowledgements at the time of submission of proposals/offers/quotes.”  Id. at 6 (emphasis added).  The certification of employment status set forth in the attachment requires offerors to “describ[e] the workforce they will utilize to fulfill the contract requirements under this solicitation and any resulting contract.  If the Contractor will supply workers under the H-2B Program, the Contractor is required to provide a copy of the Temporary Employment Certificate issued by DOL.”  Id.; see also id. at 2 (“The Contractor shall provide applicable H-2B Temporary Employment Certificate and/or Farm Labor Contractor Certificate as part of their representations, certifications, and acknowledgements.”). On August 15, prior to the proposal due date, SHABA filed an agency-level protest alleging, among other things, that the solicitation’s provisions requiring a temporary employment certificate for H-2B workers at the time of offer are inconsistent with the applicable DOL regulations at 20 C.F.R. §§ 655.11 and 655.12.  AR, Tab 8, Agency-Level Protest, August 15, at 1‑2.[2]  The agency denied the agency-level protest and SHABA timely filed this protest with our Office. DISCUSSION The protester alleges that the solicitation’s requirement for certifications by employers of H-2B workers is inconsistent with DOL’s registration requirement under 20 C.F.R. §§ 655.11 and 655.12.[3]  Protest at 2.  Specifically, the protester contends that a potential H-2B employer would not be able to obtain and submit with the offer a valid temporary employment certificate from DOL for the work required under the solicitation during the time the solicitation would be open--32 days.  Id.  According to SHABA, the application and approval process set out in the regulations governing the issuance of those certificates requires a period of 120 days.  Id.  The agency responds that the protester’s allegations should be dismissed for failing to state a valid basis of protest because SHABA has not alleged the agency violated a procurement law or regulation.  MOL at 3-4.  The agency further argues that the terms of the solicitation, specifically the parts requiring temporary employment certificates from employers of H-2B workers, are not in conflict with applicable DOL regulations because potential employers of H-2B workers could obtain the certificates through business planning.  Agency Response to Request for Additional Information at 1.  The jurisdiction of our Office is established by the bid protest provisions of the Competition in Contracting Act (CICA) of 1984, 31 U.S.C.