B-172508, MAY 12, 1971, 50 COMP GEN 798

B-172508, MAY 12, 1971, 50 COMP GEN 798

CONTRACTS - LABOR STIPULATIONS - DAVIS-BACON ACT - SUSPENSION - REVOKED THE LOW BIDDER UNDER AN INVITATION FOR BIDS THAT WAS CANCELED UPON ISSUANCE OF PRESIDENTIAL PROCLAMATION 4031, DATED FEBRUARY 23, 1971, WHICH SUSPENDED THE PROVISIONS OF THE DAVIS-BACON ACT, 40 U.S.C. 276A, WHO IS THE SECOND LOW BIDDER UNDER THE REISSUED INVITATION IS NOT ENTITLED TO AN AWARD UNDER THE CANCELED INVITATION WHEN PRESIDENTIAL PROCLAMATION 4040 OF MARCH 29, 1971 REVOKED THE SUSPENSION OF THE ACT. PRESIDENTIAL PROCLAMATION 4040 EFFECTIVELY REVOKED THE DAVIS-BACON ACT ONLY AS TO CONSTRUCTION CONTRACTS FOR WHICH SOLICITATIONS FOR BIDS OR PROPOSALS WERE ISSUED AFTER MARCH 29, 1971, AND THE IMPLEMENTING DEFENSE DEPARTMENT REGULATION CONFIRMS THAT SOLICITATIONS ISSUED AFTER FEBRUARY 23, 1971, BUT BEFORE MARCH 30, 1971, SHALL NOT CONTAIN DAVIS BACON ACT PROVISIONS AND, THEREFORE, AN AWARD TO THE LOWEST RESPONSIBLE, RESPONSIVE BIDDER UNDER THE REISSUED INVITATION WOULD BE IN ACCORDANCE WITH THE INTENT OF THE PROCLAMATION AND REGULATION.

TO THE SECRETARY OF THE ARMY, MAY 12, 1971:

REFERENCE IS MADE TO LETTER DATED APRIL 12, 1971, FROM THE DEPUTY GENERAL COUNSEL, OFFICE OF THE CHIEF OF ENGINEERS, REQUESTING AN ADVANCE DECISION ON THE PROTEST MADE BY THE GARDNER-ZEMKE COMPANY AGAINST AN AWARD OF ANY CONTRACT UNDER INVITATION FOR BIDS (IFB) DACA63 71-B-0158, ISSUED BY THE UNITED STATES ARMY ENGINEER DISTRICT, FORT WORTH, TEXAS.

IFB-0158 IS A RESOLICITATION OF IFB-0086, WHICH WAS ISSUED JANUARY 7, 1971, SUBJECT TO THE USUAL DAVIS-BACON ACT PROVISIONS. THE GARDNER ZEMKE COMPANY WAS LOW BIDDER ON IFB-0086. HOWEVER, THAT IFB WAS CANCELED ON MARCH 2, 1971, BY THE PROCURING ACTIVITY AND WAS REISSUED THE SAME DATE, WITH A NEW BID OPENING DATE OF MARCH 17, 1971, AS IFB 0158, WITHOUT THE PROVISIONS OF THE DAVIS-BACON ACT, 40 U.S.C. 276A. THE LOW BIDDER UNDER THE REISSUED INVITATION IS DELTA ELECTRIC CONSTRUCTION COMPANY, INC., WHILE GARDNER-ZEMKE IS SECOND LOW. THE CANCELLATION AND REISSUANCE ACTION WAS TAKEN PURSUANT TO ADMINISTRATIVE PROCEDURES PROMULGATED FOLLOWING ISSUANCE OF PRESIDENTIAL PROCLAMATION 4031 DATED FEBRUARY 23, 1971, WHICH BY ITS TERMS APPLIED TO ALL CONTRACTS ENTERED INTO ON AND SUBSEQUENT TO FEBRUARY 23, 1971, AND THEREFORE INCLUDED ALL PROCUREMENTS ON WHICH BIDS HAD BEEN RECEIVED BUT AWARDS HAD NOT YET BEEN MADE AS OF THAT DATE.

BEFORE AWARD WAS MADE UNDER IFB-0158, HOWEVER, PRESIDENTIAL PROCLAMATION 4040 OF MARCH 29, 1971, REVOKED PROCLAMATION 4031 AS TO ALL CONSTRUCTION CONTRACTS FOR WHICH SOLICITATIONS FOR BIDS WERE ISSUED AFTER THAT DATE.

THE BASIS FOR THE PROTEST IS THAT, SINCE THE DAVIS-BACON ACT HAS BEEN REINSTATED, AWARD SHOULD BE MADE UNDER THE ORIGINAL SOLICITATION, IFB 0086, WHICH WAS CANCELED SOLELY BECAUSE OF THE SUSPENSION, RATHER THAN UNDER THE CURRENT SOLICITATION, IFB-0158.

PRESIDENTIAL PROCLAMATION 4040 REVOKED PROCLAMATION 4031 AND EFFECTIVELY REINSTATED THE DAVIS-BACON ACT BUT ONLY AS TO CONSTRUCTION CONTRACTS FOR WHICH SOLICITATIONS FOR BIDS OR PROPOSALS ARE ISSUED AFTER MARCH 29, 1971. A MEMORANDUM ISSUED MARCH 30, 1971, FROM THE ASSISTANT SECRETARY OF DEFENSE, INSTALLATIONS AND LOGISTICS, IMPLEMENTED THE PROCLAMATION AND SET OUT PROCEDURES TO BE FOLLOWED WITH RESPECT TO INVITATIONS WHICH HAD BEEN ISSUED DURING THE SUSPENSION OF THE DAVIS-BACON ACT. THIS CONFIRMS THAT SOLICITATIONS ISSUED AFTER FEBRUARY 23, 1971, BUT BEFORE MARCH 30, 1971, SHALL NOT CONTAIN DAVIS BACON ACT PROVISIONS.

IN VIEW OF THE FOREGOING, IT IS OUR OPINION THAT REISSUANCE OF THE PROCUREMENT UNDER IFB-0158 AND AN AWARD THEREUNDER TO THE LOWEST RESPONSIBLE, RESPONSIVE BIDDER WOULD BE IN ACCORDANCE WITH THE INTENT OF BOTH THE PRESIDENTIAL PROCLAMATION AND THE REGULATION ISSUED IN IMPLEMENTATION THEREOF. WE, THEREFORE, SEE NO VALID BASIS ON WHICH IT MAY BE CONTENDED THAT AN AWARD MUST NOW BE MADE TO GARDNER-ZEMKE COMPANY AS THE LOW BIDDER ON THE ORIGINAL SOLICITATION FOR BIDS.

ACCORDINGLY, AN AWARD TO THE LOW BIDDER UNDER IFB-0158, IF OTHERWISE PROPER, WOULD NOT BE LEGALLY OBJECTIONABLE.