BNUMBER:  B-277739 
DATE:  October 16, 1997
TITLE: Bug Control Unlimited, Inc., B-277739, October 16, 1997
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Matter of:Bug Control Unlimited, Inc.

File:     B-277739

Date:October 16, 1997

Robert M. Tata, Esq., Hunton & Williams, for the protester.
George N. Brezna, Esq., Christopher M. Bellomy, Esq., and Patrick J. 
Coll, Esq., Department of the Navy, for the agency.
Henry J. Gorczycki, Esq., and James A. Spangenberg, Esq., Office of 
the General Counsel, GAO, participated in the preparation of the 
decision.

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.

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.  Western Helicopters, Inc., 
supra, at 1-2; Air Photo Surveys, Inc., supra, at 2.[4]

It is irrelevant whether Bug Control may have known of and intended to 
comply with the wage determination where, as here, the bid documents 
do not evidence its intent to be so bound.  Johnson Moving & Storage 
Co., B-221826, Mar. 19, 1986, 86-1 CPD  para.  273 at 3.  Prior to amendment 
0001, the IFB did not contain the wage determination.  Neither the 
Service Contract Act clause at FAR  sec.  52.222-41, nor the uncompleted 
reference to a wage determination at section J of the IFB incorporated 
the applicable minimum service employee wages determined by the 
Secretary of Labor.  Under the terms of the clause, the minimum wages 
determined by the Secretary of Labor are enforceable against the 
contractor only if the applicable wage determination is attached, FAR  sec.  
52.222-41(c)(1) (otherwise, pursuant to FAR  sec.  52.222-41(e), the 
minimum wage is that set by the Fair Labor Standards Act of 1938).[5]   

Thus, absent acknowledgment of amendment 0001, the bid documents only 
evidence Bug Control's obligation to pay its employees the federal 
minimum wage, which is less than the wage determination minimum rate 
of $9.81 (the sum of $8.25 per hour for wages and $1.56 per hour for 
the cost of fringe benefits) for pest controller, the class of service 
employee applicable to this contract.  See Johnson Moving & Storage 
Co., supra, at 3.

Also, contrary to the protester's assertion, the Service Contract 
Act's requirement for inclusion of the wage determination in the IFB 
does not incorporate the applicable wage determination into the IFB by 
operation of the "Christian doctrine."  See G.I. Christian & Assocs. 
v. United States, 312 F.2d 418, 424-427 (Ct. Cl.), cert. denied, 375 
U.S. 954 (1963).  Operation of the Christian doctrine is limited to 
the incorporation of mandatory contract clauses into otherwise validly 
awarded government contracts; it does not extend to incorporating 
inadvertently omitted mandatory provisions into an IFB for purposes of 
interpreting the IFB or curing a defective bid.  See American Imaging 
Servs., Inc.--Recon., B-250861.2, Jan. 5, 1993, 93-1 CPD  para.  13 at 2; 
Parsons Precision Prods., Inc., B-249940, Dec. 22, 1992, 92-2 CPD  para.  
431 at 6.  Since Bug Control seeks incorporation of the wage 
determination into the IFB to render its bid responsive, the Christian 
doctrine is not applicable.  See Parsons Precision Prods., Inc., 
supra.

Bug Control also alleges that its bid otherwise obligates it to pay 
wages in excess of the applicable minimum wage and benefits in the 
wage determination.  This allegation is based on Bug Control's bid 
price for labor on contract line item number (CLIN) 0002AL of $10 per 
hour, which is greater than the wage determination minimum rate of 
$9.81 for pest controller.  

This contention has no merit.  Although the price bid for CLIN 0002AL 
is greater than the minimum wage rate, the bid price for CLIN 0002AL 
does not reflect the bidder's obligation to pay its employees' wages 
at any particular level.  Rather, the CLIN price is the unit price for 
labor under the indefinite quantity portion of the contract which the 
Navy would pay the contractor.  The IFB specifically states at section 
B.3 that the unit price bid for this CLIN would include all of the 
contractor's direct and indirect costs "associated with performing one 
standard hour of work."  The CLIN price thus does not identify the 
specific wages which the bidder will be obligated to pay its employees 
under the contract; quite to the contrary, such a CLIN price for labor 
can be less than the applicable rates in an attached wage 
determination and the bid may still obligate the bidder to pay its 
employees the applicable minimum wage rates if the bidder has 
committed itself in its bid to do so.  See Stanley Aviation, Inc., 
B-256650, July 14, 1994, 94-2 CPD  para.  23 at 4-5 (proposed hourly rates 
below those specified in a wage determination do not take exception to 
the wage determination, but rather indicate a below-cost bid, which is 
acceptable as long as the bid does not take exception to the wage 
determination).[6]  

Since Bug Control's bid did not acknowledge the applicable minimum 
wage rates specified in amendment 0001, nor obligate Bug Control to 
pay wages at least equal to those wage rates, and since a collective 
bargaining agreement does not otherwise create such an obligation, Bug 
Control's failure to acknowledge amendment 0001 is a material bid 
defect which may not be cured after bid opening.  Therefore, Bug 
Control's bid is nonresponsive for failing to acknowledge the 
amendment.  See Western Helicopters, Inc., supra; Air Photo Surveys, 
Inc., supra.

Bug Control finally contends that the additional cost to the 
government of making award to any bidder other than Bug Control is so 
significant that the agency is obligated to accept Bug Control's bid.  
This is not a basis for sustaining the protest.  It is well 
established that the maintenance of the integrity of the competitive 
bidding system is more in the government's best interest than any 
pecuniary advantage to be gained in a particular case by accepting a 
nonresponsive bid.  Kurtz Constr. Co., B-245914, Oct. 29, 1991, 91-2 
CPD  para.  401 at 2.

The protest is denied.

Comptroller General
of the United States

1. The Department of Labor issued Revision 13 to this wage 
determination on February 3, 1997.  This revision did not change the 
wage rate or fringe benefits for pest controller, the class of service 
employee applicable to this contract.  The Navy states that it 
received this revision on March 27.  To the extent Bug Control alleges 
that the procurement must be recompeted using the latest revised wage 
determination, the protest lacks merit.  The applicable regulations 
anticipate such circumstances and prescribe either that the revision 
will not be effective, FAR  sec.  22.1012-2(b), or that the revision will 
be incorporated into an already-awarded contract, FAR  sec.  22.1012-4.  
Moreover, the inclusion of Revision 12 rather than Revision 13 is 
immaterial in this case since the wage determination rates applicable 
to this IFB did not change.

2. Bug Control states that it has no record of receiving the 
amendment.  A bidder bears the risk of not receiving IFB amendments 
unless it is shown that the contracting agency made a deliberate 
effort to exclude the company from competing.  Fourth Corner Forestry, 
Inc., B-226438, Apr. 27, 1987, 87-1 CPD  para.  439 at 2.  The agency report 
evidences that the amendment was mailed to Bug Control at the same 
time it was mailed to the other bidders.  Bug Control's comments did 
not take exception to this evidence.  Thus, to the extent Bug Control 
protested the distribution of the amendment, it has abandoned that 
protest basis.  See Akal Sec., Inc., B-261996, Nov. 16, 1995, 96-1 CPD  para.  
33 at 5 n.5.

3. The Navy rejected the second lowest bidder as nonresponsible.

4. Bug Control requests application of a legal standard briefly used 
by our Office beginning with our decision, United States Dep't of the 
Interior--Request for Advance Decision, et al., 64 Comp. Gen. 189 
(1985), 85-1 CPD  para.  34, which found that a bidder could cure, as a 
minor informality after bid opening, a defect occasioned by the 
bidder's failure to acknowledge an amendment incorporating a revised 
Davis-Bacon Act wage determination where the amendment's effect on bid 
price was de minimis.  We overruled that decision and abandoned 
application of that standard the next year in ABC Paving Co., 66 Comp. 
Gen. 47, 49-50 (1986), 86-2 CPD  para.  436 at 4-5, finding that even if 
such an amendment's effect on bid price was de minimis, the 
significant legal requirements for the benefit of covered employees 
imposed by the revised wage determination could not be waived; 
therefore, providing a bidder with the opportunity to acknowledge the 
amendment after bid opening would give the bidder post-bid opening 
control over the acceptability of its bid and thus compromise the 
integrity of the competitive procurement system.  

5. Although the Service Contract Act requires every contract to 
contain a provision specifying the minimum service employee wages as 
determined by the Secretary of Labor, 41 U.S.C.  sec.  351(a)(1) (1994), 
the Act, absent insertion in the contract of a provision specifying 
such wage rates, does not put into force any specific wage rates other 
than the federal minimum wage set by the Fair Labor Standards Act.  
See 41 U.S.C.  sec.  351(b)(1).  The minimum wage under the Fair Labor 
Standards Act is $5.15 per hour as of September 1, 1997.  29 U.S.C.A.  sec.  
206(a)(1) (West Supp. 1997). 

6. Moreover, as indicated, CLIN 0002AL is only applicable to 
indefinite quantity work.  Therefore, even if the CLIN price could be 
construed as evidence obligating the bidder to pay minimum wage rates 
in performing the indefinite quantity work to which it applies, it is 
not applicable to the fixed-price work which accounts for the majority 
of work to be performed under the contract.