B-172640, MAY 12, 1971

B-172640, MAY 12, 1971

BID PROTEST - DAVIS BACON ACT REINSTATED - AWARD UNDER ORIGINAL IFB DECISION THAT AN AWARD SHOULD BE MADE TO THE JULIAN SPEER COMPANY, PROTESTANT FOR ALTERATIONS AND CONSTRUCTION OF A 99-BED NURSING HOME CARE UNIT UNDER AN IFB ISSUED BY THE CHILLICOTHE VA HOSPITAL. ALTHOUGH THE ORIGINAL IFB WAS CANCELLED AFTER BID OPENING PURSUANT TO THE PRESIDENTIAL PROCLAMATION SUSPENDING THE DAVIS-BACON ACT, SUBSEQUENT TO THE REINSTATEMENT OF THE ACT, THE DEPARTMENT OF LABOR ISSUED MEMORANDUM #93 PROVIDING THAT WHERE "NO FURTHER ACTION HAS BEEN TAKEN AND NO CONTRACT ENTERED INTO PURSUANT TO SUCH SOLICATION BETWEEN FEBRUARY 23, AND MARCH 29," A CONTRACT SUBJECT TO THE PROVISIONS OF THE ACT MAY BE ENTERED INTO AS IT WOULD HAVE BEEN IF THERE HAD BEEN NO SUSPENSION. THEREFORE, IN ORDER TO PROTECT THE COMPETITIVE BIDDING SYSTEM AND AVOID PREJUDICE TO PROTESTANT JULIAN SPEER COMPANY, LOW BIDDER, UNDER THE ORIGINAL IFB MAY BE AWARDED THE CONTRACT AS ORIGINALLY SOLICITED.

TO MR. JOHNSON:

REFERENCE IS MADE TO LETTER DATED APRIL 27, 1971, REFERENCE 134G FROM THE DIRECTOR, SUPPLY SERVICE, DEPARTMENT OF MEDICINE AND SURGERY, REQUESTING OUR DECISION IN THE MATTER OF THE BID PROTEST MADE BY JULIAN SPEER COMPANY TO THE CHIEF, SUPPLY DIVISION, VA HOSPITAL, CHILLICOTHE, OHIO, UNDER PROJECT NO. 34-5297, SPEC. NO. 538-50S.

AN INVITATION FOR BIDS WAS ORIGINALLY ISSUED ON JANUARY 19, 1971, BY THE CHILLICOTHE HOSPITAL FOR THE ALTERATION OF EXISTING SPACE IN BUILDING NO. 212, FIRST AND SECOND FLOORS, TO PROVIDE A 99-BED NURSING HOME CARE UNIT. BIDS WERE OPENED ON FEBRUARY 18, 1971, WITH THE FOLLOWING BIDS RECEIVED:

BIDDER

JULIAN SPEER COMPANY $294,844.00

B. R. LEPPER CONSTRUCTION CO. $296,277.00

GROHNE COMPANY INC. *$296,330.00

*AS MODIFIED BY TELEGRAM OF FEBRUARY 18, 1971. THE SOLICITATION WAS CANCELLED MARCH 8, 1971, DUE TO PRESIDENTIAL PROCLAMATION 4031 OF FEBRUARY 23, 1971, SUSPENDING THE DAVIS-BACON ACT, 40 U.S.C. 276A.

THE HOSPITAL'S REQUIREMENTS WERE READVERTISED WITH THE INTENTION OF EXCLUDING THE PROVISIONS OF THE DAVIS-BACON ACT. THE DIRECTOR ADVISES THAT THE INVITATION FOR BIDS (STANDARD FORM 20), INCLUDING INFORMATION REGARDING BIDDING MATERIAL, BID GUARANTEE, BONDS, ETC., WAS RELEASED TO PROSPECTIVE BIDDERS ON MARCH 18, 1971. HOWEVER, SUCH DOCUMENTS DID NOT INCLUDE THE BID FORM (STANDARD FORM 21) OR THE SPECIFICATIONS AND DRAWINGS, THE ISSUE DATE OF THE TWO LATTER DOCUMENTS BEING SHOWN AS APRIL 1, 1971. THE PROVISIONS OF THE DAVIS-BACON ACT WERE NOT INCLUDED IN THE DOCUMENTS RELEASED ON MARCH 18.

THE DIRECTOR ALSO ADVISES THAT THE BID FORM (STANDARD FORM 21), ALONG WITH SPECIFICATIONS AND DRAWINGS, WERE ISSUED APRIL 1, 1971, WITHOUT THE PROVISIONS OF THE DAVIS-BACON ACT AND WITH A BID OPENING DATE OF APRIL 15, TO PROSPECTIVE CONTRACTORS WHO HAD EXPRESSED AN INTEREST IN BIDDING. APRIL 14, 1971, THE CONTRACTING OFFICER ISSUED AMENDMENT NO. 1 TO THE SOLICITATION, INCORPORATING THE DAVIS-BACON ACT CLAUSES AND EXTENDING THE BID OPENING DATE FROM APRIL 15 TO APRIL 19, 1971. THE AMENDMENT IS SAID TO HAVE BEEN ISSUED BASED ON THE CONTRACTING OFFICER'S CONSIDERATION OF APRIL 1 AS THE DATE OF THE RESOLICITATION. IT IS THE FURTHER VIEW OF THE DIRECTOR THAT THE DOCUMENTS RELEASED ON MARCH 18 MERELY SERVED AS A PRE- INVITATION NOTICE, SINCE THEY DID NOT CONTAIN THE ESSENTIAL REQUIREMENTS FOR A BIDDER TO SUBMIT A BID.

THREE BIDS HAVE BEEN RECEIVED IN RESPONSE TO THE RESOLICITATION FROM THE SAME THREE BIDDERS WHO BID ON THE ORIGINAL SOLICITATION. THE BIDS HAVE NOT BEEN OPENED, PENDING RESOLUTION OF THE PROTEST.

THE JULIAN SPEER COMPANY PROTESTS CANCELLATION OF THE ORIGINAL INVITATION AND STATES THAT THE SPECIAL CIRCUMSTANCES REGARDING THE TIMING OF THIS PROCUREMENT WITH RESPECT TO THE DAVIS-BACON PROCLAMATIONS OF FEBRUARY 23 AND MARCH 29, 1971, REQUIRE SPECIAL CONSIDERATION IN ORDER TO BE EQUITABLE AND TO MAINTAIN THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM. THE COMPANY THEREFORE HAS EXTENDED THE TIME FOR ACCEPTANCE OF ITS LOW BID UNDER THE ORIGINAL SOLICITATION, AND ASKS THAT IT BE AWARDED A CONTRACT BASED ON THAT BID.

AUTHORITY FOR THE PROCUREMENT AGENCY'S ACTION IN CANCELLING THE ORIGINAL SOLICITATION AND READVERTISING THE PROCUREMENT WITHOUT THE PROVISIONS OF THE DAVIS-BACON ACT STEMS FROM THE 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.

ON FEBRUARY 26, 1971, THE ACTING ADMINISTRATOR, GSA, ISSUED A DIRECTIVE TO THOSE CIVIL AGENCIES OF THE GOVERNMENT SUBJECT TO THE FEDERAL PROCUREMENT REGULATIONS (FPR) IN IMPLEMENTATION OF THE PROCLAMATION WHICH SUSPENDED THE DAVIS-BACON ACT REQUIREMENTS AS CONTAINED IN THE FPR AND SET OUT PROCEDURES TO BE FOLLOWED WITH RESPECT TO INVITATIONS WHICH HAD SOLICITED BIDS BASED UPON COMPLIANCE WITH THE ACT. INSOFAR AS PERTINENT TO THE INSTANT MATTER THE PROCEDURE DIRECTED AGENCIES TO CANCEL INVITATION FOR BIDS IF BIDS HAD BEEN OPENED PRIOR TO FEBRUARY 23, 1971, BUT AWARDS HAD NOT BEEN MADE, AND TO RESOLICIT BIDS AFTER DELETION OF ALL DAVIS-BACON ACT REQUIREMENTS. THE CANCELLATION OF THE INVITATION FOR PROJECT NO. 34- 5297, SPEC. NO. 538-50S, FOLLOWED THIS DIRECTIVE ON MARCH 8, 1971.

THEREAFTER, THE PRESIDENT ISSUED PROCLAMATION 4040 DATED MARCH 29, 1971, WHICH REVOKED PROCLAMATION 4031 AND EFFECTIVELY REINSTATED THE DAVIS-BACON ACT AS TO CONSTRUCTION CONTRACTS FOR WHICH SOLICITATIONS FOR BIDS OR BIDS OR PROPOSALS WERE ISSUED AFTER MARCH 29, 1971. IN VIEW THEREOF, THE INITIAL QUESTION TO BE DECIDED IS WHETHER AN INVITATION WAS ISSUED BETWEEN FEBRUARY 23 AND MARCH 29 UNDER WHICH A CONTRACT WITHOUT THE DAVIS-BACON ACT PROVISIONS COULD PROPERLY BE AWARDED.

WHILE THE DIRECTOR'S LETTER OF APRIL 27 ADVISES THAT THE DOCUMENTS RELEASED TO BIDDERS ON MARCH 18 WERE INTENDED TO EXCLUDE THE PROVISIONS OF THE DAVIS-BACON ACT, WE MUST AGREE WITH HIS CONCLUSION THAT SUCH DOCUMENTS MUST BE REGARDED ONLY AS A PRE-INVITATION NOTICE, SINCE THEY DID NOT INCLUDE THE ESSENTIAL REQUIREMENTS FOR A BIDDER TO SUBMIT A BID. FOLLOWS, THEREFORE, THAT THE DATE ON WHICH BIDS WERE RESOLICITED MUST BE REGARDED AS APRIL 1.

FOLLOWING ISSUANCE OF PRESIDENTIAL PROCLAMATION 4040 ON MARCH 29, THE DEPARTMENT OF LABOR (WHICH HAS STATUTORY AUTHORITY AND RESPONSIBILITY TO ISSUE REGULATIONS DIRECTED TO UNIFORM ADMINISTRATION AND APPLICATION OF THE DAVIS-BACON ACT) ISSUED MEMORANDUM #93 DATED APRIL 6, WHICH READS IN PERTINENT PART AS FOLLOWS:

"WHERE BIDS OR PROPOSALS FOR CONTRACT WORK WERE SOLICITED SUBJECT TO DAVIS-BACON PROVISIONS PRIOR TO PROCLAMATION 4031 SUSPENDING SUCH PROVISIONS WITH RESPECT TO 'CONTRACTS ENTERED INTO' ON OR AFTER FEBRUARY 23, 1971, AND NO FURTHER ACTION HAS BEEN TAKEN AND NO CONTRACT ENTERED INTO PURSUANT TO SUCH SOLICITATION BETWEEN FEBRUARY 23 AND MARCH 29, 1971, INCLUSIVE, IT WOULD APPEAR THAT NO CONTRACT OR SOLICITATION THEREFORE BECAME SUBJECT TO THE SUSPENSION PROCLAMATION BEFORE THE REVOCATION BY PROCLAMATION 4040 AND THAT THE ADDITIONAL EFFORT AND EXPENSE OF ISSUING A RESOLICITATION AFTER MARCH 29, 1971, WOULD NOT BE REQUIRED AS A RESULT SOLELY OF THE TWO PROCLAMATIONS. SO LONG AS THE WAGE DETERMINATION ON THE BASIS OF WHICH THE SOLICITATION WAS MADE REMAINS IN EFFECT, A CONTRACT SUBJECT TO ITS PROVISIONS MAY BE ENTERED INTO AS IT WOULD HAVE BEEN IF THERE HAD BEEN NO SUSPENSION DURING THE INTERVENING PERIOD."

SINCE NO EFFECTIVE RESOLICITATION HAD BEEN ACCOMPLISHED IN THE INSTANT PROCUREMENT PRIOR TO MARCH 30, IT IS OUR OPINION THAT THE PROCUREMENT MUST BE CONSIDERED AS ONE ON WHICH "NO FURTHER ACTION HAS BEEN TAKEN AND NO CONTRACT ENTERED INTO PURSUANT TO SUCH SOLICITATION BETWEEN FEBRUARY 23 AND MARCH 29," AS SET OUT IN THAT PORTION OF MEMORANDUM NO. 93 WHICH IS QUOTED ABOVE.

IN THIS CONNECTION, WE ARE ALSO PERSUADED BY THE FACT THAT BOTH THE SPECIFICATIONS AND THE MINIMUM WAGE RATES INCLUDED IN THE RESOLICITATION ARE IDENTICAL WITH THOSE INCLUDED IN THE ORIGINAL SOLICITATION. UNDER THE CIRCUMSTANCES, WE SEE NO COMPELLING REASON FOR RESOLICITING BIDS, AFTER THE ORIGINAL BID PRICES HAVE BEEN REVEALED, ON THE IDENTICAL TERMS ON WHICH THE ORIGINAL BIDS WERE SOLICITED AND THE ORIGINAL BID PRICES WERE COMPUTED. CONVERSELY, IT IS OUR OPINION THAT SUCH A PROCEDURE WOULD BE PREJUDICIAL TO THE LOW RESPONSIVE AND RESPONSIBLE BIDDER ON THE ORIGINAL SOLICITATION, AND WOULD ADVERSELY REFLECT UPON THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM.

ACCORDINGLY, WE CONCUR IN THE DIRECTOR'S RECOMMENDATION THAT THE AWARD, IF OTHERWISE PROPER, SHOULD BE MADE TO JULIAN SPEER COMPANY UNDER THE ORIGINAL SOLICITATION.

THE FILE FORWARDED WITH THE DIRECTOR'S LETTER OF APRIL 27 IS RETURNED.