B-169181, MAR. 16, 1970

B-169181: Mar 16, 1970

Additional Materials:

Contact:

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

 

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

EXPIRED WAGE RATES LOW RESPONSIBLE BIDDER OBJECTING TO CANCELLATION OF INVITATION FOR CONVEYOR SYSTEM BY NAVY IN INTERIM BETWEEN BID OPENING AND DATE AWARD WAS RECOMMENDED UNDER PREAWARD SURVEY. WHEN WAGE RATES FOR SUBJECT CONTRACT EXPIRED AND NEW WAGE DETERMINATION WAS ISSUED BY DEPT. OFFERS NO BASIS FOR PROTEST TO CANCELLATION SINCE ASPR 18-704.2 (A) (5) EXPRESSLY MAKES CANCELLATION AND READVERTISEMENT MANDATORY IF LABOR'S NEW DETERMINATION CHANGES WAGE RATES UNLESS SECRETARY OR HIS DESIGNEE AT LEVEL NO LOWER THAN HEAD OF PROCURING ACTIVITY REQUESTS FROM SOLICITOR OF LABOR AND IS GRANTED EXTENSION OF EXPIRATION DATE OF OLD WAGE DETERMINATION. INCORPORATED: REFERENCE IS MADE TO YOUR TELEGRAM OF MARCH 1.

B-169181, MAR. 16, 1970

BIDS--DISCARDING ALL BIDS--READVERTISEMENT JUSTIFICATION--EXPIRED WAGE RATES LOW RESPONSIBLE BIDDER OBJECTING TO CANCELLATION OF INVITATION FOR CONVEYOR SYSTEM BY NAVY IN INTERIM BETWEEN BID OPENING AND DATE AWARD WAS RECOMMENDED UNDER PREAWARD SURVEY, WHEN WAGE RATES FOR SUBJECT CONTRACT EXPIRED AND NEW WAGE DETERMINATION WAS ISSUED BY DEPT. OF LABOR, OFFERS NO BASIS FOR PROTEST TO CANCELLATION SINCE ASPR 18-704.2 (A) (5) EXPRESSLY MAKES CANCELLATION AND READVERTISEMENT MANDATORY IF LABOR'S NEW DETERMINATION CHANGES WAGE RATES UNLESS SECRETARY OR HIS DESIGNEE AT LEVEL NO LOWER THAN HEAD OF PROCURING ACTIVITY REQUESTS FROM SOLICITOR OF LABOR AND IS GRANTED EXTENSION OF EXPIRATION DATE OF OLD WAGE DETERMINATION. SEE COMP. GEN. DECS. CITED.

TO SPILLYARD MACHINERY COMPANY, INCORPORATED:

REFERENCE IS MADE TO YOUR TELEGRAM OF MARCH 1, 1970, PROTESTING THE CANCELLATION OF INVITATION FOR BIDS NO. N00600-70-B-0285 BY THE NAVY PURCHASING OFFICE, WASHINGTON, D.C.

INVITATION FOR BIDS NO. N00600-70-B-0285 WAS ISSUED ON JANUARY 2, 1970, FOR BIDS TO FURNISH, INSTALL, AND MAKE OPERABLE A LIGHT PACK AUTOMATED MATERIALS HANDLING SYSTEM AT THE NAVAL SUPPLY CENTER, CHARLESTON, SOUTH CAROLINA. BIDS WERE OPENED ON JANUARY 26, 1970, AND SPILLYARD MACHINERY WAS THE LOW BIDDER. SINCE THE QUALIFICATIONS OF SPILLYARD WERE NOT KNOWN BY THE CONTRACTING OFFICER, THE DEFENSE CONTRACT ADMINISTRATION SERVICE OFFICE, SAN ANTONIO, TEXAS, WAS REQUESTED TO PERFORM A PRE-AWARD SURVEY OF THAT COMPANY SO THAT THE CONTRACTING OFFICER COULD DETERMINE IF THE LOW BIDDER WAS RESPONSIBLE AS REQUIRED BY LAW. 10 U.S.C. 2305 (C). FEBRUARY 16, 1970, THE DEFENSE CONTRACT ADMINISTRATION SERVICE OFFICE RECOMMENDED THAT A COMPLETE AWARD BE MADE TO SPILLYARD MACHINERY. HOWEVER, IN THE INTERIM BETWEEN BID OPENING AND THE DATE AWARD WAS RECOMMENDED TO SPILLYARD MACHINERY, THE WAGE RATES ESTABLISHED BY THE DEPARTMENT OF LABOR AS SET FORTH IN THE INVITATION FOR BIDS EXPIRED. VIEW OF THE EXPIRATION OF THESE WAGE RATES FOR THE PERFORMANCE OF THE CONTRACT TO BE AWARDED AND THE CHANGE IN THE NEW WAGE RATES ISSUED ON JANUARY 22, 1970, BY THE DEPARTMENT OF LABOR, THE CONTRACTING OFFICER CANCELLED INVITATION FOR BIDS NO. N00600-70-B-0285. THE REQUIREMENT FOR THE CONVEYOR SYSTEM AT THE NAVAL SUPPLY CENTER HAS BEEN READVERTISED UNDER INVITATION FOR BIDS NO. N00600-70-B-0378 SCHEDULED FOR OPENING ON MARCH 12, 1970.

ARMED SERVICES PROCUREMENT REGULATION 18-704.2 (A) (5) PROVIDES IN PART:

"(5) AFTER BIDS HAVE BEEN OPENED IN FORMALLY ADVERTISED PROCUREMENT, IF * * * (II) IN FACT THE WAGE DETERMINATION DOES EXPIRE BEFORE AWARD, THE SECRETARY, OR HIS DESIGNEE AT A LEVEL NO LOWER THAN THE HEAD OF A PROCURING ACTIVITY, MAY, UPON A FINDING THAT AN EXTENSION IS IN THE PUBLIC INTEREST TO PREVENT INJUSTICE, UNDUE HARDSHIP, OR SERIOUS IMPAIRMENT OF THE CONDUCT OF GOVERNMENT BUSINESS, SUBMIT A WRITTEN REQUEST TO THE SOLICITOR OF LABOR FOR AN EXTENSION OF THE EXPIRATION DATE. IF AN EXTENSION IS NOT REQUESTED, OR IF IT IS REQUESTED AND DENIED, A NEW DETERMINATION SHALL BE REQUESTED. IF THE NEW DETERMINATION CHANGES THE WAGE RATES, THE IFB SHALL BE CANCELLED AND THE PROCUREMENT READVERTISED USING THE NEW WAGE RATES." IN THIS PROCUREMENT AN EXTENSION OF THE EXPIRATION DATE OF THE WAGE RATES WAS NOT REQUESTED AND THE NEW DETERMINATION DID CHANGE THE WAGE RATES APPLICABLE TO THE PROCUREMENT. THEREFORE, CANCELLATION OF THE INVITATION FOR BIDS WAS MANDATORY. WHILE OUR OFFICE DOES NOT FAVOR THE CANCELLATION OF OTHERWISE VALID INVITATIONS FOR BIDS, WE HAVE OF NECESSITY APPROVED SIMILAR ACTION TO CANCEL INVITATIONS WHERE THE WAGE RATES HAVE EXPIRED. SEE 46 COMP. GEN. 825 (1967), AND B-165063, OCTOBER 2, 1968.

ACCORDINGLY, WE FIND NO BASIS IN THIS INSTANCE TO OBJECT TO THE CANCELLATION OF INVITATION FOR BIDS NO. N00600-70-B-0285 AND YOUR PROTEST IS DENIED.