B-172240, JUN 29, 1971

B-172240, JUN 29, 1971

BID PROTEST - CANCELLATION AND RESOLICITATION REAFFIRMING DENIAL OF PROTEST OF ROBERT E. MCKEE, INC. AGAINST THE CANCELLATION AND RESOLICITATION OF AN IFB ISSUED BY THE U.S. ARMY ENGINEER DISTRICT, FORT WORTH, TEXAS. WHERE THE ORIGINAL SOLICITATION WAS CANCELLED AND A NEW SOLICITATION ISSUED IN IMPLEMENTATION OF EXECUTIVE PROCLAMATION 4031 SUSPENDING THE DAVIS-BACON ACT AND WHERE THE BIDS ON THE RESOLICITATION HAD BEEN OPENED PRIOR TO THE REVOCATION OF 4031 BY EXECUTIVE PROCLAMATION 4040, IT IS NOT MANDATORY FOR THE CONTRACTING AGENCY TO EITHER READVERTISE THE SOLICITATION, OR TO REINSTATE THE ORIGINAL BIDS.

TO KEMP, SMITH, WHITE, DUNCAN & HAMMOND:

REFERENCE IS MADE TO YOUR LETTER OF MAY 26, 1971, SUPPLEMENTING PREVIOUS CORRESPONDENCE WRITTEN ON BEHALF OF ROBERT E. MCKEE, INC., PROTESTING AGAINST THE CANCELLATION OF INVITATION FOR BIDS (IFB) DACA63 71-B-0074, ISSUED BY THE UNITED STATES ARMY ENGINEER DISTRICT, FORT WORTH, TEXAS, AND AGAINST THE RESOLICITATION OF BIDS UNDER IFB NO. DACA63-71-B-0161.

IN YOUR LETTER OF MAY 26, YOU CALL OUR ATTENTION TO A RECENT MEMORANDUM ISSUED BY THE DEPARTMENT OF LABOR WHICH WE ASSUME TO BE MEMORANDUM NO. 94 DATED APRIL 27, 1971. YOU REFER TO A PORTION OF THE MEMORANDUM WHICH STATES:

"FOR THE FURTHER GUIDANCE OF THE AGENCIES OF THE FEDERAL GOVERNMENT AND THE DISTRICT OF COLUMBIA WITH RESPECT TO THESE PENDING PROCUREMENT ACTIONS, THE PRESIDENT HAS ASKED ME TO EXPLAIN THAT IN THE CASE OF CONTRACTS NOT YET ENTERED INTO AS A RESULT OF THE SOLICITATION OF BIDS OR PROPOSALS DURING THE PERIOD WHEN PROCLAMATION 4031 WAS EFFECTIVE, EACH AGENCY SHOULD, IF IT CAN DO SO LEGALLY AND WITHOUT UNDUE HARDSHIP, TAKE SUCH ACTION TO ACCOMPLISH A RESOLICITATION OF BIDS OR PROPOSALS AS IS AUTHORIZED UNDER THE GOVERNING PROCUREMENT LAWS AND REGULATIONS AND IS MOST APPROPRIATE TO EFFECT A REINSTATEMENT OF THE APPLICATION OF THE DAVIS -BACON PROVISIONS TO THE PROPOSED CONTRACT WORK."

THE ABOVE QUOTED PORTION OF MEMORANDUM NO. 94 IS ENTIRELY CONSISTENT WITH PROCLAMATION 4040 AND OUR DECISION OF MAY 20, 1971. PROCLAMATION 4040 REVOKED PROCLAMATION 4031 AND REINSTATED THE DAVIS-BACON ACT, 40 U.S.C. 276A, BUT ONLY AS TO CONSTRUCTION CONTRACTS FOR WHICH SOLICITATION FOR BIDS OR PROPOSALS WERE ISSUED AFTER MARCH 29, 1971. B 172508, MAY 12, 1971. CONSEQUENTLY, WE DO NOT BELIEVE THAT THE PROCLAMATION REINSTATED, OR WAS INTENDED TO REINSTATE, THE DAVIS-BACON ACT WITH RESPECT TO SOLICITATIONS, SUCH AS IFB DACA63-71-B-0161, WHICH WERE ISSUED BETWEEN FEBRUARY 23 AND MARCH 29. AS WAS POINTED OUT IN OUR DECISION OF MAY 20, PROCLAMATION 4040 DOES NOT, BY ITS TERMS, SPECIFICALLY REQUIRE CHANGES IN PENDING PROCUREMENT ACTIONS OR CONTRACT PROCEDURES WITH RESPECT THERETO WHICH WERE INITIATED PRIOR TO THE REVOCATION OF PROCLAMATION 4031. HOWEVER, WE DO NOT BELIEVE THAT SUCH CHANGES ARE PROHIBITED. IN OUR DECISION B-172640 OF MAY 12, 1971, WE RECOGNIZED THE PROPRIETY OF REINSTATING THE ORIGINAL BIDS WHERE NO RESOLICITATION WAS ISSUED BETWEEN FEBRUARY 23 AND MARCH 29. MOREOVER, WE HAVE HELD THAT MEMORANDUM NO. 94 PERMITS AN AGENCY VOLUNTARILY TO AMEND A RESOLICITATION ISSUED DURING THE SUSPENSION PERIOD SO AS TO INCLUDE DAVIS-BACON ACT PROVISIONS. SEE B- 172649, MAY 17, 1971. ALSO, WE WOULD AGREE THAT AN AGENCY MAY, UNDER THE CIRCUMSTANCES SET OUT IN MEMORANDUM NO. 94, RESOLICIT BIDS OR PROPOSALS SO AS TO INCLUDE DAVIS BACON ACT PROVISIONS. HOWEVER, WE SEE NO VALID BASIS FOR CONCLUDING THAT IT IS MANDATORY ON THE CONTRACTING AGENCY TO REINSTATE THE ORIGINAL SOLICITATION UNDER THE CIRCUMSTANCES OF THE INSTANT CASE.

IN SUPPORT OF OUR POSITION WE NOTE THAT THE MEMORANDUM DATED MAY 7, 1971, FROM THE ACTING ASSISTANT SECRETARY OF DEFENSE, WHICH SETS OUT PROCEDURES TO BE FOLLOWED IN REGARD TO SOLICITATIONS ISSUED DURING THE SUSPENSION PERIOD, STATES IN PERTINENT PART:

"WE BELIEVE THAT IT MAY BE POSSIBLE IN SOME PROCUREMENT SITUATIONS TO REISSUE OUTSTANDING SOLICITATIONS WHICH WERE ISSUED DURING THE SUSPENSION AND THUS MAKE APPLICABLE THE PROVISIONS OF THE DAVIS-BACON ACT AND GIVE EFFECT TO THE PURPOSES OF MEMORANDUM #94. HOWEVER, NO FURTHER ACTION SHOULD BE TAKEN IN CIRCUMSTANCES WHERE (1) O&M FUNDS ARE INVOLVED, OR (2) BIDS HAVE ALREADY BEEN OPENED, OR (3) THE SOLICITATION WAS PREVIOUSLY CANCELLED AND RESOLICITED AS A RESULT OF PRESIDENTIAL PROCLAMATION 4031 OF FEBRUARY 23, 1971. ALL OTHER OUTSTANDING SOLICITATIONS ISSUED DURING THE SUSPENSION SHOULD BE REVIEWED AND WHERE PRACTICABLE SOLICITATIONS SHOULD BE REISSUED IN ORDER TO MAKE APPLICABLE DAVIS-BACON ACT PROVISIONS."

THE ABOVE LANGUAGE COUPLED WITH THAT OF A MEMORANDUM DATED MAY 24, 1971, FROM THE ASSISTANT SECRETARY OF DEFENSE (COPY ENCLOSED) INDICATES THAT THE POLICY OF THE MILITARY DEPARTMENTS WILL BE TO RESOLICIT, WHENEVER IT IS POSSIBLE WITHOUT CREATING UNDUE HARDSHIPS, THOSE SOLICITATIONS ISSUED DURING THE SUSPENSION PERIOD UNDER WHICH NO CONTRACTS HAVE BEEN AWARDED.

ACCORDINGLY, WE MUST AFFIRM OUR POSITION THAT WE SEE NO VALID BASIS ON WHICH IT MAY BE CONTENDED THAT AN AWARD MUST BE MADE TO ROBERT E. MCKEE, INC., AS THE LOW BIDDER ON THE ORIGINAL SOLICITATION FOR BIDS, AS ORIGINALLY CONTENDED BY YOU, OR THAT THE PROCUREMENT IS AGAIN REQUIRED TO BE READVERTISED DUE TO THE ISSUANCE OF PROCLAMATION 4040.