BNUMBER:  B-265605.5
DATE:  May 29, 1996
TITLE:  M.E.E., Inc.--Recon.

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Matter of:M.E.E., Inc.--Recon.

File:     B-265605.5

Date:May 29, 1996

Donald A. Tobin, Esq., and Thomas J. Touhey, Esq., Bastianelli, Brown, 
Touhey, & Kelley, for the protester.
Henry J. Gorczycki, Esq., and James A. Spangenberg, Esq., Office of 
the General Counsel, GAO, participated in the preparation of the 
decision.

DIGEST

Agency properly amended solicitation and obtained revised proposals, 
as required by the Federal Acquisition Regulation  sec.   22.404-5(c)(3) 
and 22.404-6(c)(2), because it received a revised Davis-Bacon Act wage 
determination prior to award; this was not corrective action in 
response to a prior protest entitling the protester to the recovery of 
its protest costs because the revised wage determination was unrelated 
to the protest.

DECISION

M.E.E., Inc. requests reconsideration of our decision on its protests 
and claim for costs, M.E.E., Inc., B-265605.3; B-265605.4, Feb. 22, 
1996, 96-1 CPD  para.  109, regarding   the Department of the Air Force's 
decision to amend and request revised best and final offers (BAFO) 
under request for proposals (RFP) No. F02604-94-R-0010, issued for a 
Simplified Acquisition of Base Engineering Requirements (SABER) 
procurement for maintenance, repair, and minor construction work at 
various facilities in Arizona.  We denied the protest because the 
agency was required by regulation to amend the solicitation and permit 
submission of revised BAFOs because it had received a revised 
Davis-Bacon Act wage determination.  We denied the claim for costs 
because the required actions were not attributable to M.E.E.'s prior 
protests.  M.E.E. alleges that we incorrectly determined that the 
amendment of the RFP and revised BAFOs were required, and claims that 
M.E.E. is entitled to recover its costs of pursuing the protest 
because the agency's corrective action was actually in response to 
M.E.E.'s protest.

We deny the request for reconsideration.

Under this SABER procurement, offerors were requested to propose 
prices in terms of a coefficient of the "Means price," which is 
determined from standardized prices for construction work published in 
the Means cost book.  Applicable "Means prices," i.e., fixed unit 
prices comprised of the typical cost of performing maintenance, 
repair, and construction work in the locations where the contract is 
performed, are incorporated into the RFP, and subsequently 
incorporated into the contract once each year when the Means prices 
are updated.  These Means prices account for Davis-Bacon Act wage 
determinations and modifications to such determinations.  The prices 
for work performed under the contract will be determined by 
multiplying the applicable Means prices by the contractor's proposed 
price coefficient.

As explained in our prior decision, award had been previously made to 
PI Construction Corporation under this RFP set aside for small 
disadvantaged businesses (SDB).  Subsequent to M.E.E.'s protest to our 
Office, the Small Business Administration (SBA) determined that PI did 
not qualify as an SDB concern.  The agency then decided to obtain 
revised proposals from the remaining offerors because, among other 
things, the applicable Davis-Bacon Act wage determination had been 
modified to increase the wage rates.  We denied M.E.E.'s protest that 
it should have received the award under the RFP, and that the agency 
had no reasonable basis to amend the solicitation and solicit revised 
proposals.

In our prior decision, we determined that under Federal Acquisition 
Regulation (FAR)  sec.  22.404-5(c)(3) and 22.404-6(c)(2), the agency was 
required to amend the RFP to incorporate increases in the Davis-Bacon 
Act wages and provide offerors an opportunity to submit revised BAFOs.  
The regulation provides that, in negotiated procurements, if the 
agency receives a wage modification before contract award, as was the 
case in the protested procurement, the contracting officer shall 
follow the procedures in FAR  sec.  22.404-5(c)(3) and (4), which state:

     "(3)  If the new determination changes any wage rates, the 
     contracting officer shall amend the solicitation to incorporate 
     the new determination, and furnish the wage rate information to 
     all prospective offerors that were sent a solicitation if the 
     closing date for receipt of proposals has not yet occurred, or to 
     all offerors that submitted proposals if the closing date has 
     passed.  All offerors to whom wage rate information has been 
     furnished shall be given reasonable opportunity to amend their 
     proposals.

     "(4) If the new determination does not change any wage rates, the 
     contracting officer shall amend the solicitation to include the 
     number and date of the new determination and award the contract."

FAR  sec.  22.404-5(c)(3) applies here because the revised wage 
determination, issued by the Department of Labor prior to award, 
increased wage rates.  We agreed that the agency was required under 
the circumstances to amend the RFP to include the wage modifications 
and request revised BAFOs.

M.E.E.'s request for reconsideration repeats its previous arguments 
that revised proposals did not need to be obtained because the 
amendment did not involve material matters.  M.E.E. argues that under 
SABER contracts Davis-Bacon wages are accounted for in the Means 
prices incorporated into the contract and when they are updated they 
account for revised wage determinations.  M.E.E. also notes that the 
agency incorporates revised wage determinations into the contract as 
they are issued during contract administration.  M.E.E. asserts that 
the agency was therefore not required to amend the RFP when it 
received the revised wage determination. 

M.E.E.'s arguments provide no basis to reconsider our decision.  
First, the FAR does not provide for any exception to the rule 
requiring revised proposals under these circumstances (where 
Davis-Bacon Act wage determinations change wage rates and are received 
prior to award) for SABER contracts, which provide for the periodic 
updating of prices to reflect such things as wage rate changes.  
Moreover, a contractor's obligation to pay its employees prevailing 
Davis-Bacon Act wage rates depends on whether the wage determination 
establishing the prevailing wages has been incorporated into the 
solicitation/contract or whether there exists some other instrument, 
such as a collective bargaining agreement, binding the contractor to 
pay wages to its employees not lower than those in the prevailing 
Davis-Bacon Act wage determination; this obligation generally is not 
affected by changes in the contract price.  See ABC Paving Co., 66 
Comp. Gen. 47 (1986), 86-2 CPD  para.  436; Robinson & Co., B-265656, Dec. 
1, 1995, 95-2 CPD  para.  262; LaCorte ECM, Inc., B-231448.2, Aug. 31, 1988, 
88-2 CPD  para.  195.  Thus, while the Means prices incorporated into the 
RFP and contract are revised annually to reflect changes in cost 
elements, including Davis-Bacon Act wage modifications, they neither 
incorporate revised Davis-Bacon Act wage determinations into the 
contract nor otherwise bind the contractor to pay the revised wages to 
its employees.  Moreover, where an applicable wage determination has 
been revised prior to contract award, unless a revised wage 
determination is incorporated into the RFP, the contractor would not 
be bound by the contract, as awarded, to pay its employees the revised 
wages.  While an agency could incorporate wage determination 
modifications into the contract after award, such additional 
obligations on the contractor should be imposed, where possible, as 
part of the competition, inasmuch as they define the contractors 
obligations as of the time of award and may affect the offerors' 
initial contract prices (in this case, their coefficients).  This is 
why the FAR requires agencies to amend the solicitation and obtain 
revised proposals when apprised of Davis-Bacon Act wage changes prior 
to award.

M.E.E.'s remaining allegations also do not provide a basis for 
modifying our decision.  For example, M.E.E. alleges that the Air 
Force did not previously amend the RFP to incorporate wage 
modifications at the time they became effective, and thus they should 
not now be cause for amendment of the RFP.  However, an agency's prior 
incorrect practice is not a basis for protesting the application of 
correct procurement practice.  Fry Communications, Inc., 62 Comp. Gen. 
164 (1983), 83-1 CPD  para.  109; Blanton Contractors, Inc., B-260562, June 
27, 1995, 95-1 CPD  para.  292.

M.E.E. also reasserts its earlier protest allegation that 
recompetition here would result in an improper auction.[1]  However, 
as stated in our decision, the possibility that a contract may not be 
awarded on the basis of fair and equal competition has a more harmful 
effect on the integrity of the competitive procurement system than the 
fear of an auction.  Ameriko/Omserv--Recon., B-252879.4, May 25, 1994, 
94-1 CPD  para.  341.  Thus, where, as here, an agency must provide an 
opportunity for submission of revised proposals, even the disclosure 
of an offeror's price is not a basis for precluding the recompetition.  
See id.  

M.E.E. also requests reconsideration of our decision to deny its claim 
for protest costs because it alleges that the record established that 
the protester would have prevailed on its primary protest allegation 
that the agency did not apply the stated evaluation plan.  We 
disagree.  We did not decide the merits of this protest issue because 
the revised Davis-Bacon Act wage determination required amendment of 
the RFP and submission of revised proposals.  Because applicable 
regulations, not M.E.E.'s protest, required the agency's action of 
obtaining revised proposals, M.E.E. is not entitled to reimbursement 
of its protest costs.[2]  See Tri-Ex Tower Corp., B-245877, Jan. 22, 
1992, 92-1 CPD  para.  100, recon. denied, B-245877.2, Mar. 23, 1993, 93-1 
CPD  para.  258.

The request for reconsideration is denied.

Comptroller General
of the United States

1. M.E.E. continues to allege that the agency released its price to 
competitors.  However, the record indicates that M.E.E.'s price was 
not released to its competitors.  The specific information which 
M.E.E. alleges was improperly released was M.E.E.'s protest allegation 
that the "Air Force improperly penalized M.E.E. for providing a price 
below the coefficient."  The agency notified interested parties to the 
protest of this and other protest bases.  Our Bid Protest Regulations 
applicable at the time of this protest provide that the agency shall 
immediately furnish copies of the protest submissions to interested 
parties to the protest.  4 C.F.R.  sec.  21.3(a) (1995).  Unless a 
protester has identified information as protected, the protest 
material submitted generally will not be withheld from any interested 
party.  4 C.F.R.  sec.  21.3(b).  M.E.E.'s protest letter containing this 
statement did not identify this or any other information as protected.

2. To the extent M.E.E. alleges that the agency terminated the 
contract previously awarded to PI Construction Corporation as a result 
of its September 15, 1995, protest to our Office, as stated in our 
prior decision, the contract was terminated as a result of the SBA's 
September 13 determination that PI was not an SDB concern as required 
by the solicitation.  This determination was not prompted by any 
protest to our Office, and the resulting contract termination thus was 
not corrective action in response to a protest to our Office.  In any 
event, the contract was terminated on September 29, which is only 14 
days after the September 15 protest to our Office and prior to the due 
date for an agency report on that protest; therefore, even if we would 
consider the termination to be corrective action in response to that 
protest, the termination was sufficiently prompt that we would not 
have awarded protest costs.  See Oklahoma Indian Corp.--Claim for 
Costs, 70 Comp. Gen. 558 (1991), 91-1 CPD  para.  558.