TITLE:  Northeast Military Sales, Inc.; Fevata's Bakery, Inc.; Tony's Fine Foods;, B-291384, November 20, 2002
BNUMBER:  B-291384
DATE:  November 20, 2002
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Northeast Military Sales, Inc.; Fevata's Bakery, Inc.; Tony's Fine Foods;,
B-291384, 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 S: 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. 4, 2002) at 3.
    
The protesters object to DeCA's determination that the SCA would be
applicable to the deli/bakery operations to be provided under the
contract.  Specifically, the protesters complain that the principal
purpose of the deli/bakery contract was *the provision of food, not
services.*  Protest at 11. 
    
Initially, DeCA requested that we summarily dismissal the protest, because
DOL had issued a wage determination applicable to the 1996 deli/bakery
operations contract and the work under the 1996 contract was the same as
would be provided under the RFP.  We declined to summarily dismiss the
protest because DOL had not issued a wage determination for this
procurement, and the record otherwise indicated that DOL had not yet
determined the applicability of the SCA to this procurement.  See Letter
from DOL (Oct. 21, 2002).  Also, DeCA informed us that it would not await
DOL's determination in this regard.
    
Subsequently, in response to DeCA's submission of an amended SF-98, DOL
issued a new wage determination applicable to this procurement.  DeCA
renewed its request for dismissal on the basis that DOL, and not our
Office, was the proper place for the protester to challenge the
application of the wage determination.
    
The SCA generally applies to any federal contract, *the principal purpose
of which is to furnish services.*  41 U.S.C. S: 351(a); FAR S: 22.1003-1. 
The regulations implementing the SCA contemplate an initial determination
by the procuring agency as to whether the SCA is applicable to a
particular procurement.  If the agency believes that a proposed contract
*may be subject to* the SCA, the agency is required to notify DOL of the
agency's intent to make a service contract so that DOL can provide the
appropriate wage determination.  29 C.F.R. S: 4.4 (2001).  If there is any
question or doubt as to the application of the SCA to a particular
procurement, the agency is required to obtain DOL's views.  FAR S:
22.1003-7.
    
Because DOL has the primary responsibility for interpreting and
administering the SCA, see 41 U.S.C. S: 353(a), we have long held that we
will not review a procuring agency's determination to follow DOL's views
on the applicability of the SCA, unless those views are clearly contrary
to law.  Ober United Travel Agency, Inc., B-252363, May 7, 1993, 93-1 CPD
P: 375 at 2; Hewes Eng'g Co., Inc., B-179501, Feb. 28, 1974, 74-1 CPD P:
112 at 3.  Here, the protesters assert that the application of the SCA to
this procurement would be clearly contrary to law.
    
In a telephone conference with the parties, DOL informed us that it has
made no *official* determination of the applicability of the SCA to this
procurement.  See also Letter from DOL (Oct. 31, 2002).  Rather, in
response to DeCA's SF-98 notice of intent to make a service contract, DOL
issued a wage determination applicable to this procurement.  DOL also
stated that, in the absence of a contrary ruling by DOL, a procuring
agency may rely upon the wage determination in applying the SCA to a
particular procurement.  See Ober United Travel Agency, Inc., supra, at
2-3.
    
Under DOL's regulations implementing the SCA:
    
Any interested party affected by a wage determination . . . may request
review and reconsideration by the Administrator.  A request for review and
reconsideration may be made by the contracting agency or other interested
party, including contractors or prospective contractors and associations
of contractors, representatives of employees, and other interested
Governmental agencies.
29 C.F.R. S: 4.56(a); see also 29 C.F.R. S: 4.101(g) (inquiries as to DOL
official rulings and interpretations with respect to the application of
the SCA should be directed to the Administrator of the Wage and Hour
Division).  A decision of the Administrator of DOL Wage and Hour Division
under section 4.56(a) of DOL's regulations may be appealed to the agency's
Administrative Review Board.  See 29 C.F.R. S: 4.56(b).
    
The protesters argue that we should not dismiss its challenge to the
application of the SCA because the protester has asserted that the
application of the Act to this procurement is contrary to law.  The
protesters argue that our Office has the authority and responsibility
under the Competition in Contracting Act of 1984, 31 U.S.C. S: 3553 et
seq. (2000) to review DOL's judgment as to the applicability of the SCA
where DOL's determination is shown to be clearly contrary to law.[1]
    
The protester has not availed itself of the opportunity set forth in DOL's
regulations to obtain DOL's review of the applicability of the SCA to this
procurement.  As noted above, it is DOL, and not our Office, which has the
primary responsibility for interpreting and administering the SCA.  Under
this authority, DOL has promulgated regulations, which provide a specific
mechanism for requesting DOL's review of a wage determination and its
applicability to a particular procurement.  We think it is inappropriate
for our Office to consider a protest challenging the application of the
SCA to a particular procurement, where DOL has not been given the
opportunity (as provided under 29 C.F.R. S: 4.56(a)) to provide its
determination governing applicability.  See Ober United Travel Agency,
Inc., supra, at 3.
    
The protest is dismissed.
    
Anthony H. Gamboa
General Counsel
    

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   [1] The protesters also appear to argue, citing to a number of our
decisions, that we should review the reasonableness of DeCA's
determination that the SCA is applicable to this procurement.  The
decisions cited by the protesters involve the situation where a procuring
agency had determined that the SCA (or the Davis Bacon Act) did not apply
to a procurement, without obtaining a wage determination from DOL,  or
otherwise obtaining DOL's views as to applicability.  See, e.g., Resource
Recovery Int'l  Group, Inc., B-265880, Dec. 19, 1995, 95-2 CPD P: 277 at
2.  Where a procuring agency does not believe that a proposed contract is
subject to the SCA, there is no duty to notify DOL or include the SCA
provisions in the solicitation.  Tenavision, Inc., B‑231453, Aug. 8,
1988, 88-2 CPD P: 114 at 2.  We will review, however, the reasonableness
of a procuring agency's judgment in this regard, including whether DOL's
views should have been solicited.  Information Handling Servs., B-240011,
Oct. 17, 1990, 90-2 CPD P: 306 at 4.  That is not, however, the case here.