Walsh Construction Company II, LLC (MRR-2024-002962)

B-423075.2 Feb 20, 2025 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Walsh Construction Company II, LLC, of Chicago, Illinois, protests the amendment of solicitation No. MRR-2024-002962, issued by the Department of the Army, Corps of Engineers for the repair and renewal project at Naval Hospital Bremerton in Jackson Park, Washington. The protester contends that the agency's amendment of the solicitation to eliminate the requirement that offerors submit a valid project labor agreement (PLA) with their proposals is improper and violates PLA regulatory requirements. We deny the protest. View Decision Decision Matter of: Walsh Construction Company II, LLC File: B-423075.2 Date: February 20, 2025 Michael E. Barnicle, Esq., and Bryan R. Williamson, Esq., Arnold & Porter Kaye Scholer, LLP, for the protester. Reginald M. Jones, Esq., Robert D. Pratt, Esq., and Jane Jung Hyoun Han, Esq., Fox Rothschild LLP, for StructSure Projects, Inc., the intervenor. Tamar Gerhart, Esq., Department of the Army, for the agency. Charmaine A. Stevenson, Esq., and John Sorrenti, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest challenging the amended terms of a task order solicitation, resulting from an agency’s decision to take corrective action in response to an earlier protest, is denied. The agency amended the solicitation to remove the requirement for offerors to submit an executed project labor agreement with their proposals, and the protester has not established that removal of the requirement is contrary to applicable procurement law and regulation. Because the task order was competed among holders of multiple award task order contracts that do not include any clauses regarding project labor agreements, the agency properly concluded that it could not include the project labor agreement requirements in task orders issued under those contracts. DECISION Walsh Construction Company II, LLC, of Chicago, Illinois, protests the amendment of solicitation No. MRR-2024-002962, issued by the Department of the Army, Corps of Engineers for the repair and renewal project at Naval Hospital Bremerton in Jackson Park, Washington. The protester contends that the agency’s amendment of the solicitation to eliminate the requirement that offerors submit a valid project labor agreement (PLA) with their proposals is improper and violates PLA regulatory requirements. We deny the protest. BACKGROUND This protest involves a relatively new requirement that offerors submit PLAs with their proposals for construction projects that meet certain criteria. As background, Executive Order 14063, signed on February 4, 2022, established a requirement that “in awarding any contract in connection with a large-scale construction project,”[1] agencies require every contractor or subcontractor to enter into a PLA with one or more appropriate labor organizations, unless granted an authorized exception from the requirement by a senior agency official no later than the solicitation date. Executive Order No. 14063, 87 Fed. Reg. 7363, 7364 (Feb. 9, 2022). In accordance with the executive order, the Federal Acquisition Regulation (FAR) Council issued final regulations, effective January 22, 2024, to amend the FAR to include the PLA requirement (located at FAR subpart 22.5) and the required solicitation and contract clauses (located at FAR clauses 52.222-33 and 52.222-34). 88 Fed. Reg. 88708-88729 (Dec. 22, 2023). On July 17, 2024, using the procedures at FAR subpart 16.5, the agency issued the task order solicitation to all seven holders of the Army Corps of Engineers’ multiple award task order contracts (MATOCs) for integrated design-build initial outfitting construction services in support of the Defense Health Agency’s medical sustainment, restoration and modernization mission. Contracting Officer’s Statement of Fact and Memorandum of Law (COS/MOL) at 4. The agency previously awarded the underlying indefinite-delivery, indefinite-quantity (IDIQ) MATOCs on February 9, 2023. Id. at 10. The project requires the contractor to replace the building automation systems, including variable air volume boxes, two chillers, and associated components (i.e., pumps, piping), as well as to make repairs to building firewall penetrations. Agency Report (AR), Tab 5, Request for Proposals (RFP) at 5.[2] The solicitation stated that offerors were “requested to furnish [a] proposal and completed [PLA]” by August 30, the proposal due date; MATOC holders that did not intend to provide a proposal were requested to so indicate by August 16. Id. at 2. The RFP included a draft PLA as an attachment. Id. at 4, 53 (referencing attach. 9). The RFP was amended twice to include a clarification that offerors were required to submit a fully executed PLA with their proposals. AR, Tab 12, RFP amend. 002 at 1, 3; Tab 14, RFP amend. 0003 at 1 (“A fully executed PLA is required with your proposal submittal.