B-172072, MAR 25, 1971

B-172072: Mar 25, 1971

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BECAUSE THE ACTION OF THE PRESIDENT IN SUSPENDING THE DAVIS-BACON ACT WAS AUTHORIZED BY STATUTE AND THE ORDER OF THE ASSISTANT SECRETARY OF DEFENSE SUSPENDING THE PROVISIONS OF SUCH ACT WITH RESPECT TO ALL CONTRACTS ENTERED INTO SUBSEQUENT TO THE PRESIDENT'S PROCLAMATION WAS PROPER IMPLEMENTATION OF THE PROCLAMATION. CONCLUDES THAT THE CANCELLATION OF THE INSTANT IFB WAS PROPER. THE PROTEST IS DENIED. TO HEATHMAN CONSTRUCTION COMPANY: REFERENCE IS MADE TO YOUR TELEFAX OF MARCH 3. THE IFB WAS CANCELLED ON MARCH 2. BY THE PROCURING ACTIVITY AND IS SCHEDULED TO BE REISSUED ON MARCH 22. SECTION 6 OF WHICH PROVIDES: "IN THE EVENT OF A NATIONAL EMERGENCY THE PRESIDENT IS AUTHORIZED TO SUSPEND THE PROVISIONS OF THIS ACT.".

B-172072, MAR 25, 1971

BID PROTEST - BID CANCELLATION DECISION DENYING PROTEST BY LOW BIDDER AGAINST CANCELLATION OF AN IFB ISSUED BY THE U.S. ARMY ENGINEER DISTRICT, SACRAMENTO, CALIF., DUE TO THE SUSPENSION OF THE DAVIS-BACON ACT. BECAUSE THE ACTION OF THE PRESIDENT IN SUSPENDING THE DAVIS-BACON ACT WAS AUTHORIZED BY STATUTE AND THE ORDER OF THE ASSISTANT SECRETARY OF DEFENSE SUSPENDING THE PROVISIONS OF SUCH ACT WITH RESPECT TO ALL CONTRACTS ENTERED INTO SUBSEQUENT TO THE PRESIDENT'S PROCLAMATION WAS PROPER IMPLEMENTATION OF THE PROCLAMATION, THE COMP. GEN. CONCLUDES THAT THE CANCELLATION OF THE INSTANT IFB WAS PROPER, AND THE PROTEST IS DENIED.

TO HEATHMAN CONSTRUCTION COMPANY:

REFERENCE IS MADE TO YOUR TELEFAX OF MARCH 3, 1971, PROTESTING THE AWARD OF A CONTRACT TO ANYONE OTHER THAN YOUR COMPANY UNDER INVITATION FOR BIDS (IFB) NO. DACA05-71-B-0107, ISSUED BY THE UNITED STATES ARMY ENGINEER DISTRICT, SACRAMENTO, CALIFORNIA.

YOUR COMPANY SUBMITTED THE LOWEST BID UNDER THE IFB. HOWEVER, THE IFB WAS CANCELLED ON MARCH 2, 1971, BY THE PROCURING ACTIVITY AND IS SCHEDULED TO BE REISSUED ON MARCH 22, 1971, WITH A NEW BID OPENING DATE OF APRIL 7, 1971, AS DACA05-71-B-0157, WITHOUT THE PROVISIONS OF THE DAVIS-BACON ACT, 40 U.S.C. 276A. YOU PROTEST THE CANCELLATION AND REISSUANCE OF THE INVITATION AND STATE THAT THIS ACTION DOES NOT PROTECT THE INTEGRITY OF THE LOW BID.

AUTHORITY FOR THE PROCUREMENT AGENCY'S ACTION STEMS FROM THE DAVIS BACON ACT ITSELF, SECTION 6 OF WHICH PROVIDES:

"IN THE EVENT OF A NATIONAL EMERGENCY THE PRESIDENT IS AUTHORIZED TO SUSPEND THE PROVISIONS OF THIS ACT." SUSPENSION ACTION WAS TAKEN THEREUNDER BY PRESIDENTIAL PROCLAMATION 4031, DATED FEBRUARY 23, 1971, COPY ENCLOSED.

ON FEBRUARY 24, 1971, THE ASSISTANT SECRETARY OF DEFENSE, INSTALLATIONS AND LOGISTICS, ISSUED A MEMORANDUM IN IMPLEMENTATION OF THE PROCLAMATION WHICH SUSPENDED THE DAVIS-BACON ACT REQUIREMENTS AS CONTAINED IN THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), AND SET OUT PROCEDURES TO BE FOLLOWED WITH RESPECT TO INVITATIONS WHICH HAD SOLICITED BIDS BASED UPON COMPLIANCE WITH THE ACT. A COPY OF THE FEBRUARY 24 MEMORANDUM IS ALSO ENCLOSED.

SINCE THE ACTION OF THE PRESIDENT, AS SET OUT IN PROCLAMATION 4031, WAS AUTHORIZED BY STATUTE, AND THE MEMORANDUM OF FEBRUARY 24 APPEARS TO BE A PROPER IMPLEMENTATION OF THAT PORTION OF THE PROCLAMATION WHICH SUSPENDS THE PROVISIONS OF THE DAVIS-BACON ACT WITH RESPECT TO ALL CONTRACTS ENTERED INTO SUBSEQUENT TO THE DATE OF THE PROCLAMATION, WE ARE UNABLE TO CONCLUDE THAT CANCELLATION OF IFB-0107, OR THE REJECTION OF BIDS RECEIVED THEREUNDER, WAS IMPROPER. SEE THE PROVISIONS OF 10 U.S.C. 2305(C), ASPR 2 -404.1(B)(VIII), AND PARAGRAPH 10(B) OF THE INSTRUCTIONS TO BIDDERS IN IFB -0107, WHICH AUTHORIZE SUCH ACTION WHEN IT IS DETERMINED TO BE IN THE PUBLIC INTEREST.

ACCORDINGLY, YOUR PROTEST MUST BE DENIED.