B-159359, MAY 18, 1967

B-159359: May 18, 1967

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

LOLA DICKERMAN: REFERENCE IS MADE TO YOUR LETTERS OF JUNE 16. REFERENCE IS ALSO MADE TO THE PROTEST LETTER DATED JUNE 6. THIS IS A TWO-STEP FORMAL ADVERTISING PROCUREMENT AND IS A TOTAL SET- ASIDE FOR SMALL BUSINESS CONCERNS. THE FIRST STEP SUBMISSION OF THE TWO- STEP ADVERTISED PROCEDURE WAS OPENED ON MARCH 8. UNITEC CORPORATION WAS JUDGED TO BE TECHNICALLY QUALIFIED AND ESSCO WAS JUDGED TO BE MARGINAL. ESSCO WAS EVENTUALLY JUDGED TO BE TECHNICALLY QUALIFIED AFTER SUBMISSION OF ADDITIONAL INFORMATION. THE REMAINING FOUR FIRMS WERE CONSIDERED UNQUALIFIED. THE SECOND STEP OF THE INVITATION FOR BIDS WAS ISSUED ON MAY 3. IT IS REPORTED THAT PRIOR TO ISSUANCE OF THE SECOND STEP. THE INVITATION WAS COORDINATED WITH THE PROCUREMENT COMMITTEE AT MCCLELLAN AIR FORCE BASE.

B-159359, MAY 18, 1967

TO MRS. LOLA DICKERMAN:

REFERENCE IS MADE TO YOUR LETTERS OF JUNE 16, JUNE 22 AND AUGUST 22, 1966, WITH ENCLOSURES AND BRIEF IN BEHALF OF ELECTRONIC SPACE STRUCTURES CORPORATION, PROTESTING THE AWARD OF A CONTRACT TO THE UNITEC CORPORATION UNDER INVITATION FOR BIDS NO. 04-606-66-187 ISSUED BY THE SACRAMENTO AIR MATERIEL AREA, DIRECTORATE OF PROCUREMENT AND PRODUCTION, MCCLELLAN AIR FORCE BASE, CALIFORNIA, ON MAY 3, 1966. REFERENCE IS ALSO MADE TO THE PROTEST LETTER DATED JUNE 6, 1966, WITH ENCLOSURES, AND THE TELEGRAM OF SAME DATE OF THE ELECTRONIC SPACE STRUCTURES CORPORATION (ESSCO).

THIS IS A TWO-STEP FORMAL ADVERTISING PROCUREMENT AND IS A TOTAL SET- ASIDE FOR SMALL BUSINESS CONCERNS. THE FIRST STEP SUBMISSION OF THE TWO- STEP ADVERTISED PROCEDURE WAS OPENED ON MARCH 8, 1966. SIX FIRMS SUBMITTED TECHNICAL PROPOSALS. UNITEC CORPORATION WAS JUDGED TO BE TECHNICALLY QUALIFIED AND ESSCO WAS JUDGED TO BE MARGINAL. ESSCO WAS EVENTUALLY JUDGED TO BE TECHNICALLY QUALIFIED AFTER SUBMISSION OF ADDITIONAL INFORMATION. THE REMAINING FOUR FIRMS WERE CONSIDERED UNQUALIFIED.

THE SECOND STEP OF THE INVITATION FOR BIDS WAS ISSUED ON MAY 3, 1966, TO UNITEC AND ESSCO, THE ONLY FIRMS CONSIDERED TO BE TECHNICALLY QUALIFIED. IT IS REPORTED THAT PRIOR TO ISSUANCE OF THE SECOND STEP, THE INVITATION WAS COORDINATED WITH THE PROCUREMENT COMMITTEE AT MCCLELLAN AIR FORCE BASE. A NUMBER OF CHANGES WERE DESIRED BY THE PROCUREMENT COMMITTEE, ONE OF WHICH WAS THE SUBSTITUTION OF DIFFERENT SIZE CRITERIA FOR USE IN DETERMINING WHAT WAS "SMALL BUSINESS.' THIS CHANGE WAS DESIRED BECAUSE THE IFB FORMAT CONTEMPLATED A SERVICE-TYPE CONTRACT AND IT WAS BELIEVED THAT THE "SERVICES" DEFINITION OF A SMALL BUSINESS SHOULD BE USED. ADDITION, ON MAY 18, 1966, IT WAS DETERMINED THAT THE PORTION OF THE IFB PERTAINING TO "PAINTING AND CAULKING" SHOULD BE COVERED UNDER THE DAVIS- BACON ACT (40 U.S.C. 276A) AND AN AMENDMENT TO THE IFB WAS ISSUED.

THE IFB (SECOND-STEP) WAS OPENED ON TIME, MAY 26, 1966, ALL PRICES READ, AND THE UNITEC CORPORATION DECLARED THE APPARENT LOW BIDDER. AT THIS POINT ESSCO ANNOUNCED ITS DESIRE TO PROTEST AN AWARD TO UNITEC.

THE REQUEST FOR PROPOSALS (FIRST-STEP) ISSUED TO PROSPECTIVE OFFERORS STATED THAT THE DEPARTMENT OF THE AIR FORCE ANTICIPATED A REQUIREMENT TO PROCURE DEPOT LEVEL RECONDITIONING, EMERGENCY TECHNICAL ASSISTANCE, AND EMERGENCY SUPPLY SUPPORT FOR GOVERNMENT-OWNED RIGID AND AIR SUPPORTED RADOMES LOCATED AT VARIOUS SITES AND FOR INSTALLATIONS WORLDWIDE (EXCEPT CANADA) IN ACCORDANCE WITH THE PROVISIONS OF SACRAMENTO AIR MATERIEL AREA WORK SPECIFICATION, FILE NO. SM 5800-3-A, TITLED "APPENDIX A," DATED FEBRUARY 1, 1966, AND "APPENDIX B" THERETO TITLED "SUPPLY INFORMATION," DATED FEBRUARY 1, 1966. THE REQUEST ALSO STATED THAT "THIS PROCUREMENT IS A 100 PERCENT SET ASIDE FOR SMALL BUSINESS CONCERNS. THE DEFINITION OF SMALL BUSINESS AS FOUND IN ASPR 1-701.1 (A) (2/A. IS APPLICABLE * * *.' THE SCHEDULE OF THE INVITATION FOR BIDS (STEP-TWO) CALLED FOR "SERVICES AND SUPPLIES TO BE FURNISHED" AS FOLLOWS:

"TECHNICAL NON-PERSONAL SERVICES FOR DEPOT LEVEL RECONDITIONING, EMERGENCY TECHNICAL ASSISTANCE, AND SUPPLY SUPPORT FOR GOVERNMENT-OWNED AIR-SUPPORTED AND RIGID RADOMES LOCATED AT VARIOUS SITES AND INSTALLATIONS ON A WORLD-WIDE BASIS, WITH THE EXCEPTION OF CANADA, IN ACCORDANCE WITH (1) WORK STATEMENT, FILE NR. SM 5800-3A CONSISTING OF (A), APPENDIX "A" DATED 1 FEBRUARY 1966 AND (B), APPENDIX "B" DATED 1 FEBRUARY 1966 AND (2) YOUR TECHNICAL PROPOSAL DATED ----------- ALL THE ABOVE HEREBY INCORPORATED HEREIN BY REFERENCE. NOTHING CONTAINED IN SAID TECHNICAL PROPOSAL SHALL CONSTITUTE A WAIVER OF ANY OF THE PROVISIONS OF SAID WORK STATEMENT. FOR BIDDING AND ORDERING PURPOSES, THE ABOVE DESIGNATED SERVICES AND SUPPLIES ARE BROKEN DOWN AS FOLLOWS:

"ITEM 1 RECONDITION AIR SUPPORTED RADOMES

"ITEM 2REFURBISH REINFORCED PLASTICS RIGID RADOMES WITH POLYESTER RESINS

"ITEM 3 CAULKING OR RECAULKING RIGID RADOMES

"ITEM 4 PAINTING FIBROUS-GLASS REINFORCED PLASTIC SHELTERS

"ITEM 5 EMERGENCY TECHNICAL SERVICE, INCLUDING INSPECTION AND EVALUATIONS. NO MORE THAN THREE (3) RADOME SPECIALISTS WILL BE REQUIRED TO PROVIDE THESE SERVICES

"ITEM 6 EMERGENCY SUPPLY SUPPORT" PART II OF THE INVITATION PROVIDED THAT THE PERIOD OF PERFORMANCE FOR ANY CONTRACT RESULTING FROM THE INVITATION SHOULD BE JULY 1, 1966, THROUGH SEPTEMBER 30, 1967.

PARTS XXII AND XXIII OF THE IFB PROVIDED THAT THE PROCUREMENT WAS A 100 PERCENT SMALL BUSINESS SET-ASIDE AND DEFINED SMALL BUSINESS FOR THE PROCUREMENT, USING THE DEFINITION FOR SERVICE INDUSTRIES AS SET OUT IN ASPR 1-701.1 (A) (2/D. THE INVITATION ALSO CONTAINED OPTIONS ON THE PART OF THE GOVERNMENT PROVIDING FOR THE ANNUAL EXTENSION OF THE CONTRACT THROUGH SEPTEMBER 30, 1969. AMENDMENT NO. 2 TO THE INVITATION DATED MAY 18, 1966, INCORPORATED INTO THE INVITATION CERTAIN CLAUSES WHICH MADE APPLICABLE TO ITEMS 3 AND 4 OF THE SCHEDULE THE PROVISIONS OF THE DAVIS- BACON ACT (40 U.S.C. 276A ET SEQ.) APPLICABLE WAGE DETERMINATIONS OF THE SECRETARY OF LABOR, AND THE FURNISHING OF PERFORMANCE AND PAYMENT BONDS. IN ADDITION, BID OPENING DATE WAS EXTENDED TO MAY 26, 1966.

AT THE REQUEST OF THE CONTRACTING OFFICER, THE SMALL BUSINESS ADMINISTRATION REGIONAL OFFICE IN SAN FRANCISCO PROVIDED AN OPINION DATED JUNE 2, 1966, THAT THE REQUIREMENTS OF THE IFB WERE SUCH THAT THE PROCUREMENT FELL UNDER THE CONSTRUCTION CLASSIFICATION.

IT IS YOUR CONTENTION THAT (1) UNITEC'S BID IS NON-RESPONSIVE AND MUST BE REJECTED; (2) UNITEC'S SELF-CERTIFICATION AS A SMALL BUSINESS WAS NOT IN GOOD FAITH; (3) THE CLASSIFICATION OF A PRODUCT ESTABLISHING THE SMALL BUSINESS DEFINITION IN THE IFB IS FINAL; (4) THE CLASSIFICATION CONTAINED IN THE IFB IS THE CORRECT CLASSIFICATION FOR THIS PROCUREMENT; (5) PROVISIONS OF THE DAVIS-BACON ACT SHOULD NOT APPLY TO THIS PROCUREMENT; AND (6) IF THE DAVIS-BACON ACT IS APPLICABLE TO THIS PROCUREMENT, THE IFB IS FATALLY DEFECTIVE AND MUST BE CANCELLED.

ASPR 1-701.1 (A) (2) A AND D, WHICH ARE IN ACCORD WITH SBA RULES AND REGULATIONS 121, PROVIDE IN PERTINENT PART AS FOLLOWS:

"1-701.1 SMALL BUSINESS CONCERNS

"/A) (1) GENERAL DEFINITION

"/2) INDUSTRY SMALL BUSINESS SIZE STANDARDS

IN ADDITION TO BEING INDEPENDENTLY OWNED AND OPERATED, AND NOT DOMINANT IN THE FIELD OF OPERATION IN WHICH IT IS BIDDING ON GOVERNMENT CONTRACTS, A SMALL BUSINESS CONCERN IN ORDER TO QUALIFY AS SUCH MUST MEET THE CRITERIA ESTABLISHED FOR THE INDUSTRIES SET FORTH BELOW. ANNUAL SALES OR ANNUAL RECEIPTS, AS USED THROUGHOUT THIS PART MEANS THE ANNUAL SALES OR ANNUAL RECEIPTS, LESS RETURNS AND ALLOWANCES, OF A CONCERN AND ITS AFFILIATES DURING ITS MOST RECENTLY COMPLETED FISCAL YEAR.

"A. CONSTRUCTION INDUSTRIES. FOR CONSTRUCTION, ALTERATION, OR REPAIR (INCLUDING PAINTING AND DECORATING), OF BUILDINGS, BRIDGES, ROADS, OR OTHER REAL PROPERTY, THE AVERAGE ANNUAL RECEIPTS OF THE CONCERN AND ITS AFFILIATES FOR ITS PRECEDING THREE FISCAL YEARS MUST NOT EXCEED $7,500,000, * * *.'

"D. SERVICE INDUSTRIES

1. FOR SERVICES NOT ELSEWHERE DEFINED IN THIS SECTION, THE AVERAGE ANNUAL SALES OR RECEIPTS OF THE CONCERN AND ITS AFFILIATES FOR THE PRECEDING THREE FISCAL YEARS MUST NOT EXCEED $1 MILLION * * *.'

THE EFFECT OF THE CHANGE IN SIZE STANDARDS IN STEPS ONE AND TWO WAS TO PLACE UNITEC IN A POSITION WHERE IT COULD QUALIFY AS A SMALL BUSINESS UNDER THE CONSTRUCTION INDUSTRY CLASSIFICATION IN STEP ONE, BUT COULD NOT QUALIFY UNDER THE SERVICE INDUSTRY CLASSIFICATION IN STEP TWO.

ON JUNE 9, 1966, THE PROCURING OFFICE REQUESTED PERMISSION OF HIGHER AUTHORITY TO AWARD A CONTRACT, BY COMMUNICATION IN PART AS FOLLOWS:

"* * * REQUEST IMMEDIATE APPROVAL TO AWARD CONTRACT UNDER THE PROVISIONS OF AFPI 2-407.9 (B) (2) (C) FOR THE FOLLOWING REASONS: (A) IT IS IMPERATIVE THAT SMAMA BE COVERED IN PY 67, PARTICULARLY IN THE FIRST QUARTER, BY A SUITABLE CONTRACT FOR DEPOT MAINTENANCE OF FSC 5840 RADOMES, (B) AN AVERAGE OF SEVENTY (70) EACH RADOMES ARE PROGRAMMED EACH MONTH IN 1ST QTR FY-67. THIS INVOLVES CONSIDERABLE EFFORT TO ADEQUATELY PLAN THE WORKLOAD SCHEDULES WITH SEVERAL OPERATING COMMANDS. COORDINATION OF CRITICAL SHUT DOWN TIMES AND DATE OF EACH RADAR SYSTEM IS REQUIRED, INCLUDING PRIOR APPROVAL BY OPERATING AGENCIES, SUCH AS NORAD, SAC, FAA, ADC, U.S. ARMY/NAVY, ETC., TO ASSURE THAT THE AIR DEFENSE NETWORK OF THE CONUS AND NORTH AMERICAN CONTINENT IS NOT IMPAIRED. OVERSEAS COMMAND AND MAP COUNTRIES ARE ALSO DIRECTLY AFFECTED. (C) AN ESTIMATED TOTAL OF 378 SEPARATE JOBS ARE PROGRAMMED FOR FY-67, 75 PERCENT OF WHICH MUST BE ACCOMPLISHED IN THE SUMMER SEASON. THIS WORK IS OF SUCH A NATURE THAT IT CANNOT BE ACCOMPLISHED DURING WEATHER SUCH AS OCCURS IN ALASKA AND THE NORTHERN UNITED STATES DURING THE WINTER SEASON. THE SSM HAS MADE COMMITMENTS TO NUMEROUS WORLDWIDE COMMANDS AND AGENCIES WHICH WILL REQUIRE TIMELY ADHERENCE TO AN ANNUAL SCHEDULE. (D) LOSS OF CAPABILITY TO REACT TO THIS SCHEDULE (DUE TO LACK OF CONTRACT AWARD) WILL CREATE A CHAOTIC SITUATION THAT CANNOT BE CORRECTED. THIS INCLUDES A POTENTIAL HAZARD TO COMMERCIAL AND MILITARY AIRCRAFT FLIGHTS IF THE GROUND BASED SURVEILLANCE AND WARNING RADAR SYSTEMS ARE NOT FUNCTIONING DUE TO LOSS OF PROTECTION PROVIDED BY THESE RADOMES. * * *"

HIGHER AUTHORITY ON JUNE 14, 1966, AND PURSUANT TO ASPR 2-407.9 (B) (3), AUTHORIZED THE IMMEDIATE AWARD OF A CONTRACT TO UNITEC CORPORATION.

YOUR ALLEGATIONS THAT UNITEC'S BID IS NON-RESPONSIVE AND THAT ITS SELF- CERTIFICATION AS A SMALL BUSINESS WAS NOT MADE IN GOOD FAITH HAVE BEEN CAREFULLY CONSIDERED. HOWEVER, WE CANNOT AGREE WITH THIS CONCLUSION ON THE RECORD BEFORE US. THE BID ON ITS FACE WAS RESPONSIVE TO THE INVITATION. NOR CAN WE IMPUTE LACK OF GOOD FAITH TO UNITEC'S SELF- CERTIFICATION. IT IS CONCEDED THAT UNITEC COULD NOT QUALIFY AS SMALL BUSINESS UNDER A "SERVICE INDUSTRIES" CLASSIFICATION, BUT, EQUALLY, THERE IS NO QUESTION OF ITS STATUS UNDER A "CONSTRUCTION, CLASSIFICATION. THE RECORD SHOWS THAT THIS PROCUREMENT WAS A CONSTRUCTION PROCUREMENT NOTWITHSTANDING THE USE OF A SERVICE CONTRACT BID FORM. THE INCORPORATION INTO THE BID DOCUMENTS BY AMENDMENT NO. 2 OF THE NECESSITY OF COMPLIANCE WITH THE DAVIS-BACON ACT CLEARLY EVIDENCES THE INTENT OF THE PROCURING AUTHORITY TO AWARD A ,CONSTRUCTION" CONTRACT. UNDER THE CIRCUMSTANCES, AS STATED, WE CANNOT CONCLUDE THAT UNITEC ACTED IN BAD FAITH IN CERTIFYING ITSELF AS SMALL BUSINESS ON THE SECOND STEP CONTAINING AN ERRONEOUS STANDARD WHERE IT WAS IN FACT SMALL BUSINESS FOR THE FIRST STEP OF THE PROCUREMENT.

WITH RESPECT TO YOUR CONTENTIONS THAT THE DETERMINATION MADE BY THE CONTRACTING OFFICER AS TO THE DEFINITION OF SMALL BUSINESS TO BE USED IN THE IFB IS FINAL, AND THAT THE CLASSIFICATION MADE IS IN FACT THE CORRECT ONE, WE MUST AGAIN DISAGREE WITH YOU. AS INDICATED ABOVE, THE SMALL BUSINESS ADMINISTRATION IS OF THE OPINION THAT THE PROCUREMENT FALLS INTO A CONSTRUCTION CLASSIFICATION AND THAT THE IFB DEFINITION OF SMALL BUSINESS WAS IN ERROR. IN ADDITION, THE CONTRACTING OFFICER STATES THAT HE ERRED IN USING THE SERVICE CLASSIFICATION IN THE IFB. UNDER CIRCUMSTANCES WHERE THE FIRST STEP OF THE PROCUREMENT WAS CORRECT AND THE SECOND STEP ERRONEOUS AS ADMITTED BY THE CONTRACTING OFFICER AND FOUND BY THE SMALL BUSINESS ADMINISTRATION WE CANNOT CONSIDER THE DEFINITION STATED IN THE IFB (SECOND STEP) AS ENTITLED TO FINALITY UNDER ASPR 1-703 (B) (5).

YOUR FIFTH BASIS OF PROTEST IS THAT THE PROVISIONS OF THE DAVIS BACON ACT ARE NOT APPLICABLE TO THIS PROCUREMENT. THIS ARGUMENT IS NOT WELL-TAKEN SINCE THE PROCUREMENT (ITEMS 3 AND 4) HAS BEEN FOUND TO BE OF A CONSTRUCTION TYPE, AND THE DAVIS-BACON ACT IS APPLICABLE TO THAT WORK TO BE PERFORMED ON SITES WITHIN THE UNITED STATES.

YOUR SIXTH POINT IS THAT IF THE DAVIS-BACON ACT IS APPLICABLE TO THE PROCUREMENT, THE IFB IS FATALLY DEFECTIVE BY FAILING TO INCLUDE THE APPLICABLE WAGE DETERMINATIONS. YOU HAVE CITED IN SUPPORT OF YOUR CONTENTION OUR DECISION REPORTED AT 40 COMP. GEN. 565. WE STATED THEREIN, AT PAGE 570, THAT

"ALTHOUGH WE HAVE NOT OBJECTED TO A CORRECTION OF CONTRACT WAGE RATES IN INSTANCES WHERE THE ADVERTISED CONDITIONS HAVE CONTAINED INADVERTENT ERRORS, THE (DAVIS-BACON) ACT OBVIOUSLY DOES NOT CONTEMPLATE MAKING SUCH CONDITION EFFECTIVE IN ANY OTHER WAY. SEE 36 COMP. GEN. 341; 17 ID. 471, 473. WHERE THE CONDITIONS HAVE NOT BEEN INCLUDED, WHETHER PROPERLY OR IMPROPERLY, IT IS CLEAR THAT THE ACT DOES NOT OF ITSELF BECOME BINDING UPON A CONTRACTOR. SEE, ALSO, 20 COMP. GEN. 890 (EIGHT HOUR LAW) AND 20 ID. 931 (WALSH-HEALEY ACT) AND CASES CITED THEREIN. WHILE WE MIGHT AGREE THAT THE PUBLIC POLICY MANIFEST IN THE PROVISIONS OF THE DAVIS-BACON ACT WARRANTS CANCELLATION AND READVERTISEMENT, IF FEASIBLE, OF WORK AWARDED WITHOUT CLEARLY APPLICABLE CONDITIONS, NO CORRECTIVE ACTION WOULD APPEAR POSSIBLE WHERE, DUE TO SUBSTANTIAL COMPLETION OF THE WORK OR OTHER PRACTICAL CONSIDERATIONS, IT IS NOT REASONABLE TO CANCEL AND READVERTISE.' WE NOTE THAT APPROXIMATELY 177 DIFFERENT AND WIDELY DISPERSED SITES IN THE UNITED STATES WERE CONCERNED IN THIS PROCUREMENT; THAT THE ORDER IN WHICH THE SITES WERE TO BE SERVICED COULD NOT BE SCHEDULED TOO FAR IN ADVANCE BECAUSE THE SEASON OF THE YEAR, WEATHER CONDITIONS, THE EFFECT THE CLOSING DOWN OF OPERATIONS WOULD HAVE ON MILITARY AND CIVILIAN AIRCRAFT FLIGHTS, ALL HAD TO BE TAKEN INTO CONSIDERATION; AND FURTHER, IT COULD NOT BE DETERMINED IN ADVANCE WHICH ITEMS OF THE PROCUREMENT WOULD BE REQUIRED AT EACH INSTALLATION. MOREOVER, IF CANCELLATION OF THE CONTRACT WAS REQUIRED AND THE PROCUREMENT READVERTISED IT WOULD NECESSITATE THE INCORPORATION INTO THE IFB OF UP TO 177 DIFFERENT SETS OF WAGE RATES, ONE SET FOR EACH RADOME SITE. ALSO EACH SET OF WAGE RATES WOULD IDENTIFY THE LOCATION OF THE RADAR INSTALLATION AND THUS DESTROY THE VERY SECURITY PRECAUTIONS THE CONTRACTING OFFICER WAS ENDEAVORING TO ESTABLISH AND MAINTAIN.

IT ALSO APPEARS THAT AS A PRACTICAL MATTER NO USEFUL PURPOSE WOULD BY THE CANCELLATION OF THE AWARD TO UNITEC AND THE READVERTISEMENT OF THE PROCUREMENT. IN ALL PROBABILITY THE SECOND STEP WOULD BE CHANGED TO BASE THE SMALL BUSINESS DETERMINATION ON THE CONSTRUCTION INDUSTRY CLASSIFICATION, AND THE SAME TWO BIDDERS, UNITEC AND ESSCO, WOULD SUBMIT RESPONSIVE PROPOSALS.

THE DAVIS-BACON ACT IS INTENDED AS A PROTECTION TO LABORERS AND MECHANICS. THE GOVERNMENT'S INTEREST IN THE LAW IS TO SEE THAT LOCAL LABOR AT CONSTRUCTION SITES IS NOT PREJUDICED BY THE IMPORTATION OF NON LOCAL LABORERS AND MECHANICS WHO ARE PAID LOWER WAGES THAN THOSE GENERALLY PREVAILING IN THE AREA OF THE CONSTRUCTION SITE. IN THIS CONNECTION WE ARE ADVISED THAT UNITEC IS PAYING AN ANNUAL WAGE TO ITS EMPLOYEES WHICH IS IN EXCESS OF DAVIS-BACON DETERMINED WAGE RATES. ALTHOUGH WE HAVE INDICATED IN EARLIER DECISIONS THAT "WE MIGHT AGREE THAT THE PUBLIC POLICY MANIFEST IN THE PROVISIONS OF THE DAVIS-BACON ACT WARRANTS CANCELLATION AND READVERTISEMENT," BECAUSE OF THE "OTHER PRACTICAL CONSIDERATIONS," INDICATED ABOVE, WE CAN PERCEIVE NO USEFUL PURPOSE IN TAKING SUCH ACTION HERE.

NOR CAN WE PERCEIVE HOW ANY BIDDER OR PROSPECTIVE BIDDER WAS OR IS NOW PREJUDICED BY THE FAILURE TO SET FORTH THE APPLICABLE WAGE RATES IN THE INVITATION FOR BIDS. BOTH APPROVED BIDDERS WERE FURNISHED OR NOT FURNISHED, AS THE CASE MAY BE, THE SAME INFORMATION, THE BIDDERS WERE PRICING THEIR OWN PROPOSALS AND HENCE KNEW THE NUMBER AND TYPE OF WORKMEN REQUIRED. IN THEIR RELATION TO EACH OTHER, THE OMISSION OF THE WAGE RATES AFFORDED NEITHER BIDDER AN ADVANTAGE OR PLACED IT AT A DISADVANTAGE.

WE THEREFORE ARE OF THE OPINION THAT THE BEST INTERESTS OF THE GOVERNMENT WOULD NOT BE SERVED BY THE CANCELLATION OF THE PRESENT AWARD. TO CONCLUDE OTHERWISE WOULD CAUSE A DISRUPTION IN THE SCHEDULING OF THE WORK, AND CREATE A PERIOD OF NONPERFORMANCE PENDING A REPROCUREMENT.

HOWEVER, WE ARE NOW ADVISED THAT THE SACRAMENTO AIR MATERIEL AREA (SMAMA) WILL NOT EXERCISE THE OPTION UNDER THE UNITEC CONTRACT, AND FURTHER THAT DUE TO INCREASES IN QUANTITIES AND ADDITIONAL NEW REQUIREMENTS, SMAMA INTENDS TO READVERTISE THE PROCUREMENT FOR THE PERIOD FROM OCTOBER 1967 THROUGH JUNE 1968.

WE ALSO ARE ADVISED THAT THE ADMINISTERING CONTRACTING OFFICER IS WORKING COOPERATIVELY WITH THE DEPARTMENT OF LABOR TO ENABLE THE DEPARTMENT OF LABOR TO DEVELOP A WAGE RATE DETERMINATION UNDER THE DAVIS-BACON ACT FOR USE IN FUTURE PROCUREMENTS.

ACCORDINGLY, FOR PRACTICAL CONSIDERATIONS, WE MUST DENY THE PROTEST AND ADVISE THAT WE WILL NOT DISTURB THE AWARD.