to perform the services scheduled would thereby be in any way limited or reduced. The information to be furnished goes, therefore, not to the matter of responsiveness, the work to be performed, but to responsibility, the ability to perform in accordance with the specifications. Information concerning responsibility may be submitted at any time before a determination as to that factor is made even where, as here, the invitation requires that data with respect thereto must be submitted with the bid and warns that failure to comply may result in rejection. 39 Comp. Gen. 655.

What we have said above with respect to the data required to be furnished with the bid applies a fortiori to data required to be furnished by the lowest bidder within 3 days after bid opening since only in the most unusual circumstances, if at all, could data which is furnished after bid opening affect the responsiveness of the bid.

You also question the capability of the low bidder to perform with respect to certain additional matters as follows:

Under the pertinent provisions of the TM 10-1107, Laboratory tests are required to be made of the fuel to be pumped in those instances "When a filter/ separator is initially placed in service and each three months thereafter". 16a (3) The Contracting Officer in the present instance knew, or should in the exercise of reasonable diligence have known, that the trucks intended to be used in the present contract had not been used by the apparent low bidder for approximately one year. However, no test was made nor has one been made by a laboratory as late as Sunday, 30 June 1963.

With respect to the readiness of the Parker firm to perform upon award, the contracting officer in his findings states:

a. On 3 June 1963, the contracting officer's representative conducted a visual inspection of the vehicles proposed for use in this contract, finding that they were available, and in storage, (Incl No. 1).

b. Registrations of vehicles and drivers for safety purposes were completed on 18 June 1963, (Incl No. 2).

c. On 20 June 1963, interior coating was completed on Parker Oil's trucks, , a full two months in advance of the required date, (Incl No. 3).

d. On 28 June 1963, tests were taken on the effectiveness of filtration, by pumping and sampling fuel from Parker Oil's equipment. The test results met the specifications referenced in the IFB (Page 11, Section III, Para D1) (Incl No. 4).

Finally-and this we regard as the most significant point of the protest-it is urged that, while the low bidder based his bid on the use of filter/separators conforming to specification MIL-F-8508 and modifications identified by the same number with letter or number suffixes, the protesting bidder submitted his bid-upon a proper interpretation of the language of the invitation-in contemplation of specification MIL-F-8901 issued February 14, 1961. The latter specification, which imposes a more stringent requirement, bears on its face legends to the effect that it supersedes MIL-F-8508, October 23, 1956, and that its use is mandatory on the Department of the Army. Specifically, you state

Finally, the attention of the Comptroller General is respectfully directed to page 9 of the IFB, paragraph 4, in which it provides that full compliance must

be made with TM 10-1101, TM 10–1102 and TM 10–1107, and several others, together with all changes to these publications. Reference to change 3 of 10-1107 on page 9, Section 21 indicates that the appropriate Technical Manual having to do with filter/separators is MIL-F-8901. Reference to MIL-F-8901 shows that it supersedes MIL-F-8508, dated October, 1956, and the superseding Military Specification is under date of 14 February 1961. However, the IFB on page 11 still refers to MIL-F-8508a, but does refer to the requirement for compliance with, "Latest revisions thereto". The Contractor, Fuel Service of Enterprise, Inc., knows as a matter of fact that the apparent low bidder, Parker Oil Company, did not, at the time of the opening of the bids on 29 May 1963, comply with this requirement and has not complied since that time. Furthermore, Parker Oil Company did not, within three days after the opening of the bids, make any statement in writing to the Contracting Officer which included, among other things, his plan showing the modifications that are necessary to any existing equipment to meet the technical requirements set forth in the General Delivery Provisions. Fuel Service of Enterprise was aware of the more recent change in the Technical Manuals affecting filter/separators and reflected the cost of making such changes in its bid when it submitted it to the Contracting Officer. It also prepared and planned to submit to the Contracting Officer, if it were found to be the low bidder, a letter as required by the IFB in which it stated its plan to correct the filters to comply with the provisions of TM 10-1107 change 3 and MIL-F-8901. A copy of the letter is enclosed.

The invitation provides on page 11, Section III, Paragraph D1, that all refueling vehicles shall be equipped with filter/separators conforming to specification MIL-F-8508A "and latest revisions thereto." The administrative report indicates that the contracting officer and the low bidder contemplated that the filter/separators employed by the contractor would conform to MIL-F-8508A. In fact, the contracting agency was advised as late as June 10, 1963, by the Petroleum Liaison Division, Fort Worth Army Depot, that filter/separators should be tested on the basis of the criteria contained in the older specification. Tests performed on Parker's equipment followed the cited instruction. The difference between the cost of meeting the old specification as compared to the new is significant. It has been estimated that the cost to the low bidder of converting his equipment from the old specification to the new would be approximately $7,500 and the cost for making the same conversion on the protesting bidder's equipment using his own shops would be about $18,000.

Evidence submitted on behalf of the protesting bidder in the letter quoted above and subsequently supports his position that he was aware of the existence of the new specification well before the invitation in question was issued. The protesting bidder contends that he submitted his bid in contemplation of meeting it. In this connection, however, we deem it pertinent to point out the following statement in a letter of June 20, 1963-some three weeks after bid openingfrom the protesting bidder to the contracting officer.

In addition to this, Section III D(1) of IFB, and Section 2 & 3 of TM 10-1101, Section 4 of TB QM 11-1, Section II of Circular 700-2, Section 4 of Third Army Manual 3A-M-69, and latest revisions thereto requires that all refueling trucks be equipped with Filter/Separator, Specification MIL-F-8508A, and that filter elements in these filters be changed at least once every 18 months.

Also, it is understood that the services performed from July 1, 1962, to the present time, under contract with Fuel Service, have been on

the basis of compliance with MIL-F-8508A even though MIL-F-8901 was issued in February 1961. Upon careful consideration of all of the evidence presented on this point, we believe that it is reasonable to conclude that the Fuel Service bid was submitted with the understanding that MIL-F-8508 not MIL-F-8901 would apply. In view of the foregoing, we further conclude that all bidders in contention were bidding on the same basis, and that this was also the basis upon which the contracting agency intended to solicit bids.

Even if it is assumed that the Fuel Service bid was submitted on the basis that the invitation and related documents required conformity with MIL-F-8901, no basis would be presented for questioning acceptance of the low bid admittedly submitted with the understanding that conformity with the earlier specification only was required unless the invitation could properly be interpreted to require MIL-F-8901. We think that a sound argument may be made in support of the proposition that the phrase "latest revisions thereto" is limited to subsequent issuances carrying the same numerical identification with the addition of letter or number suffixes. Under that interpretation there would be no basis for regarding a superseding specification as a "revision". However, in view of our conclusion as to the basis upon which the Fuel Service bid was submitted, we do not deem it necessary to attempt to decide this issue, since even conceding that the invitation did not properly express the Government's requirements, a valid award could result so long as the contending bidders bid on the real requirement. See B-147370, March 28, 1962.

A question has also been raised as to whether the procuring agency may specify the use of MIL-F-8508 in light of the legends appearing on the face of the new specification and in view of the provisions of sections 1-105 and 1-1202 of ASPR. Our investigation discloses that the waiver of a new specification in a given circumstance in favor of an older one by a procedure similar to that employed here is not unusual and has generally been regarded as valid. In any case, we do not believe that the validity of a procurement may be attacked on the basis that the waiver of a specification-and certainly such waivers may be authorized-did not conform to the prescribed administrative procedure. See B-150713, March 26, 1963 (42 Comp. Gen. 523); B-131030, April 29, 1957.

In summary, we conclude that there has been presented no sufficient basis to justify a determination that the low bid is not responsive to the terms of the invitation. Further, in consideration of the apparent reasonableness of the contracting officer's findings quoted in part above in which he concludes that Parker is responsible and in view of the primary role of the contracting agency in such determination, we find no basis to question the finding of responsibility. See 39 Comp. Gen. 468,472.

758-984 O-65-8

Finally you point out that by agreement of the parties, Fuel Service has been performing on a day-to-day basis since expiration of the prior year's contract. You note that the contract for the last year contains a provision under which the contractor gives the Government an option to extend the contract for an additional month. You contend that in requesting Fuel Service to hold over, the Government was in effect exercising the option. In addition, you point out that ASPR 1-1503 (c) states that generally options will provide for a definite additional period of performance and will not permit the Government to call for less than such additional period. You contend on the basis of the foregoing that the Government is obligated to agree to extend for a period of not less than 1 month.

The cited provision of the contract permits the Government unilaterally to require performance by the contractor during the option. The ASPR provision establishes a general rule governing option provisions in contracts. We think it appropriate to note in this instance that the bilateral agreement under which the contractor has carried over on a day-to-day basis does not in any sense constitute the exercise of an option. Rather, it represents a modus vivendi agreeable to both parties to permit a final determination of your protest prior to award. In addition to the interest of the contractor, the interests of the low bidder and of the Government are properly for consideration also. If the contract option had been exercised, a finding in favor of the acceptability of the low bid at any time significantly in advance of the expiration of the option period would have left the Government in a position of paying a significantly higher price than was obtainable under the low bid (and, incidentally, under the second low bid) when there was no bar to award to the low bidder; and the period of performance by the low bidder would have been reduced to something significantly less than that contemplated in the invitation on the basis of which he presumably calculated the price offered. Therefore, we find no reason for taking exception to the day-to-day continuation of service agreed to by the protest.

In accordance with the foregoing, we conclude that award may properly be made to the low bidder.

[B-148076]

Contracts-Labor Stipulations-Davis-Bacon Act-Off-Site Work Work performed by mechanics and laborers of contractors, subcontractors or materialmen off the site of a Federal construction project subject to the DavisBacon Act, 40 U.S.C. 276a, is not work "directly upon the site" within the meaning of that phrase in the act which phrase must be construed as work within the exact confines of the place of performance of the construction or the precise location of the work and, therefore, work performed by employees of a material supplier 3 miles from the construction area is not work subject to the minimum wage provisions of the Davis-Bacon Act.

To the Secretary of the Army, July 26, 1963:

Reference is made to report dated February 20, 1962, from the Office of the Chief of Engineers, reference ENGGC-L, concerning the protest filed by Hyde Construction Company, Inc., under DA-34-066-CIVENG-60-864, for construction of a spillway at Keystone Dam, Oklahoma, that it improperly was required to pay minimum wages in accordance with the Davis-Bacon Act, 40 U.S.C. 276a, to employees of a material supplier, Traxler Materials, Inc.

It appears from a memorandum of the district engineer dated July 13, 1961, attached to the report, that during April 1960, Hyde arranged with Traxler for the purchase of approximately 355,284 tons of concrete sand stockpiled at the site of the work. For a short time Traxler, an established supplier of fine aggregate materials, attempted to produce sand of a suitable quality from a location on the site and while doing so complied with wage requirements of the prime contract. Subsequently, in July 1960, Traxler moved its operation from the Government site to a privately owned location about 3 miles from the construction area and advised that, because sand thereafter would be produced and processed off the site, it considered compliance with the minimum wage stipulations of the prime contract no longer to be necessary.

The district engineer nevertheless directed "compliance with the contract labor provisions." He stated that Traxler objected, formally advising through the prime contractor that any increased labor costs attributable to enforced compliance with the contract labor laws would be basis for a claim against the Government, and that the contractor "timely appealed" the administrative decision. In view of the fact that the contracting officer was authorized by section 2 of the act, 40 U.S.C. 276a-1, to cancel the contract upon finding a failure to pay wages as required, Hyde had no reasonable alternative following rejection of the appeal but to comply under protest with the directive requiring payment of minimum wages to Traxler's employees; and we understand that wage adjustments aggregating in excess of $40,000 were completed in accordance therewith.

The Office of the Chief of Engineers advised that its decision was premised upon a ruling obtained from the Department of Labor under date of October 13, 1961, "to be relied upon as provided for in Section 5.11" of the Secretary of Labor's Regulations, 29 CFR, Subtitle A. The provisions of that section state that:

All questions arising in any agency relating to the application and interpretation of the regulations contained in this part and of the Davis-Bacon Act, as amended *** shall be referred to the Secretary of Labor for appropriate ruling or interpretation. The rulings and interpretations of the Secretary shall be authoritative *

The Secretary's regulatory function is authorized by the provisions of Reorganization Plan No. 14 of 1950, 5 U.S.C. 133z-15, which