B-172074, MAR 30, 1971

B-172074: Mar 30, 1971

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BECAUSE THE PRESIDENT'S SUSPENSION OF THE DAVIS-BACON ACT WAS AUTHORIZED BY STATUTE AND THE INSTRUCTIONS BY THE ASSISTANT SECRETARY OF DEFENSE WAS A PROPER IMPLEMENTATION OF THE PRESIDENT'S ORDER. THE CANCELLATION OF THE IFB WAS PROPER. THERE IS NO VALID BASIS ON WHICH A CONTRACT COULD PROPERLY BE NEGOTIATED WITH PROTESTANT NOTWITHSTANDING IT WAS THE LOW OFFEROR ON THE ORIGINAL IFB. TO GERBUS BROTHERS CONSTRUCTION COMPANY: REFERENCE IS MADE TO YOUR TELEGRAM OF MARCH 3. THE IFB WAS CANCELLED ON FEBRUARY 26. BY THE PROCURING ACTIVITY AND WAS REISSUED ON MARCH 5. SECTION 6 OF WHICH PROVIDES: "IN THE EVENT OF A NATIONAL EMERGENCY THE PRESIDENT IS AUTHORIZED TO SUSPEND THE PROVISIONS OF THIS ACT.".

B-172074, MAR 30, 1971

BID PROTEST - CANCELLATION OF IFB - DAVIS-BACON ACT DECISION DENYING PROTEST AGAINST CANCELLATION OF AN IFB ISSUED BY THE ARMY CORPS OF ENGINEERS AND LATER REISSUED WITHOUT THE PROVISIONS OF THE DAVIS-BACON ACT. BECAUSE THE PRESIDENT'S SUSPENSION OF THE DAVIS-BACON ACT WAS AUTHORIZED BY STATUTE AND THE INSTRUCTIONS BY THE ASSISTANT SECRETARY OF DEFENSE WAS A PROPER IMPLEMENTATION OF THE PRESIDENT'S ORDER, THE CANCELLATION OF THE IFB WAS PROPER. FURTHER, THERE IS NO VALID BASIS ON WHICH A CONTRACT COULD PROPERLY BE NEGOTIATED WITH PROTESTANT NOTWITHSTANDING IT WAS THE LOW OFFEROR ON THE ORIGINAL IFB.

TO GERBUS BROTHERS CONSTRUCTION COMPANY:

REFERENCE IS MADE TO YOUR TELEGRAM OF MARCH 3, 1971, PROTESTING, IN EFFECT, THE CANCELLATION OF INVITATION FOR BIDS (IFB) NO. DACW27-71-B 0062, BY THE UNITED STATES ARMY ENGINEER DISTRICT, LOUISVILLE, KENTUCKY.

YOUR COMPANY SUBMITTED THE LOWEST BID UNDER THE IFB. HOWEVER, THE IFB WAS CANCELLED ON FEBRUARY 26, 1971, BY THE PROCURING ACTIVITY AND WAS REISSUED ON MARCH 5, 1971, AS IFB NO. DACW27-71-B-0085, WITH A NEW BID OPENING DATE OF MARCH 25, 1971, AND WITHOUT THE PROVISIONS OF THE DAVIS- BACON ACT, 40 U.S.C. 276A. YOU REQUEST THAT THE CORPS OF ENGINEERS BE DIRECTED TO NEGOTIATE THE CONTRACT WITH YOU, AFTER ELIMINATION OF THE DAVIS-BACON ACT REQUIREMENTS.

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. NEITHER DO WE SEE ANY VALID BASIS ON WHICH A CONTRACT WITHOUT THE DAVIS-BACON ACT REQUIREMENTS COULD PROPERLY BE NEGOTIATED WITH YOUR COMPANY.

ACCORDINGLY, YOUR PROTEST MUST BE DENIED.