B-172526, MAY 17, 1971

B-172526, MAY 17, 1971

BID PROTEST - RESOLICITATION - DAVIS BACON ACT SUSPENSION DENIAL OF PROTEST OF BUILDING MAINTENANCE CORP., AGAINST THE AWARD OF A GSA CONSTRUCTION CONTRACT TO ANY OTHER FIRM. PROTESTANT, WHOSE LOW BID WAS REJECTED WHEN THE DAVIS-BACON ACT WAS SUSPENDED BY PRESIDENTIAL PROCLMATION, CONTENDS THAT WITH REINSTATEMENT OF THE WAGE PROVISIONS OF THAT ACT BY SUBSEQUENT PROCLAMATION AWARD SHOULD BE MADE UNDER THE FIRST SOLICITATION. AS SUSPENSION WAS AUTHORIZED BY STATUTE AND AS THE PROCLAMATION REINSTATING THE WAGE RATES WAS PROSPECTIVE, AWARD UNDER THE SECOND SOLICITATION IS PROPER.

TO BUILDING MAINTENANCE CORP.:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 31, 1971, PRESENTING A QUESTION REGARDING THE SUSPENSION AND SUBSEQUENT REINSTATEMENT OF THE DAVIS-BACON ACT. YOU STATE THAT YOU WERE THE LOW BIDDER FOR A GENERAL SERVICES ADMINISTRATION (GSA) CONSTRUCTION PROJECT WHEN THE PRESIDENT SUSPENDED THE ACT; THAT ALL BIDS WERE THEREFORE REJECTED AND NEW BIDS, TO BE OPENED ON APRIL 22, WERE SOLICITED WITHOUT THE DAVIS-BACON ACT WAGE RATES. YOU CONTEND THAT, IN VIEW OF THE REINSTATEMENT OF THE DAVIS-BACON ACT ON MARCH 29, BY PRESIDENTIAL PROCLAMATION 4040, YOU SHOULD NOW BE CONSIDERED IN THE SAME POSITION THAT YOU WERE IN PRIOR TO THE ACT'S SUSPENSION. HOWEVER, SINCE GSA HAS INTERPRETED THE NEW PROCLAMATION NOT TO INCLUDE THE PROJECT IN QUESTION, SINCE IT WAS "ON THE STREET" PRIOR TO REINSTATEMENT OF THE DAVIS-BACON ACT, YOU ASK TO BE ADVISED WHETHER THIS OFFICE IS IN AGREEMENT WITH GSA'S POSITION.

PROCLAMATION 4040 DATED MARCH 29, 1971, BY ITS TERMS REVOKED PROCLAMATION 4031 AND EFFECTIVELY REINSTATED THE DAVIS-BACON ACT, BUT ONLY AS TO ALL CONSTRUCTION CONTRACTS FOR WHICH SOLICITATIONS FOR BIDS OR PROPOSALS ARE ISSUED AFTER MARCH 29, 1971. COPIES OF BOTH PROCLAMATIONS ARE ENCLOSED. THE LATTER, BY NECESSARY IMPLICATION, PROVIDED THAT CONTRACTS MAY BE AWARDED UNDER SOLICITATIONS ISSUED AFTER FEBRUARY 23, 1971, BUT BEFORE MARCH 30, 1971, WHICH DO NOT CONTAIN THE DAVIS-BACON ACT PROVISIONS. THE SAME EFFECT, SEE PARAGRAPH 2 OF A MEMORANDUM DATED MARCH 30, 1971, COPY ALSO ENCLOSED, FROM THE GSA, WHICH IMPLEMENTS PROCLAMATION 4040 AND SETS OUT PROCEDURES TO BE FOLLOWED WITH RESPECT TO INVITATIONS WHICH HAD BEEN ISSUED DURING THE SUSPENSION OF THE DAVIS-BACON ACT.

SINCE THE REVOCATION AND REINSTATEMENT ACTIONS WERE AUTHORIZED BY STATUTE, AND THE IMPLEMENTING MEMORANDUM OF MARCH 30, 1971, APPEARS TO HAVE BEEN NECESSARY AND PROPER IN THE CIRCUMSTANCES, WE ARE UNABLE TO CONCLUDE THAT AN AWARD TO THE LOWEST RESPONSIBLE, RESPONSIVE BIDDER ON THE BIDS TO BE OPENED ON APRIL 22 WOULD BE IMPROPER.