B-172102, APR 23, 1971
Highlights
BID PROTEST - RESOLICITATION - DAVIS BACON ACT PROTESTANT CONTENDS THAT AS PROVISIONS OF DAVIS-BACON ACT HAVE BEEN REINSTATED THE U.S. AS PARTIES ARE BACK TO THEIR PRE BIDDING POSITIONS. REINSTATING THE DAVIS BACON ACT WAS PROSPECTIVE IN EFFECT. CONTRACTS MAY BE AWARDED UNDER SOLICITATION ISSUED IN THE INTERIM WHERE ACT WAS SUSPENDED. NEUMANN: REFERENCE IS MADE TO YOUR LETTER OF MARCH 30. ONLY AS TO ALL CONSTRUCTION CONTRACTS FOR WHICH SOLICITATIONS FOR BIDS OR PROPOSALS ARE ISSUED AFTER MARCH 29. A COPY OF PROCLAMATION 4040 IS ENCLOSED. AS WAS IFB- 0154. SINCE THE REVOCATION AND REINSTATEMENT ACTIONS WERE AUTHORIZED BY STATUTE. APPEARS TO HAVE BEEN NECESSARY AND PROPER IN THE CIRCUMSTANCES.
B-172102, APR 23, 1971
BID PROTEST - RESOLICITATION - DAVIS BACON ACT PROTESTANT CONTENDS THAT AS PROVISIONS OF DAVIS-BACON ACT HAVE BEEN REINSTATED THE U.S. ARMY ENGINEER DISTRICT, SACRAMENTO, CALIF., SHOULD MAKE CONTRACT AWARD UNDER ORIGINAL IFB RATHER THAN RESOLICITATION ISSUED AFTER SUSPENSION OF THE ACT, AS PARTIES ARE BACK TO THEIR PRE BIDDING POSITIONS. PRESIDENTIAL PROCLAMATION OF MARCH 29, 1971, REINSTATING THE DAVIS BACON ACT WAS PROSPECTIVE IN EFFECT, AND NOT A REVERSAL OF PREVIOUS PROCLAMATION SUSPENDING THE ACT. IF OTHERWISE PROPER, CONTRACTS MAY BE AWARDED UNDER SOLICITATION ISSUED IN THE INTERIM WHERE ACT WAS SUSPENDED.
TO MR. HERMAN H. NEUMANN:
REFERENCE IS MADE TO YOUR LETTER OF MARCH 30, 1971, WITH ENCLOSURES, FURTHER REGARDING YOUR PROTEST OF THE CANCELLATION OF IFB NO. DACA05-71 B- 0103, ISSUED BY THE U.S. ARMY ENGINEER DISTRICT, SACRAMENTO, CALIFORNIA, AND THE RESOLICITATION OF BIDS UNDER IFB NO. DACA05-71-B 0154. YOU REFER TO PRESIDENTIAL PROCLAMATION 4040 OF MARCH 29, 1971, REINSTATING THE PROVISIONS OF THE DAVIS-BACON ACT, AND YOU INDICATE A BELIEF THAT YOU SHOULD NOW BE AWARDED A CONTRACT UNDER THE FIRST IFB, SINCE "THIS PLACES US BACK IN THE SAME POSITION AS PRIOR TO THE BIDDING".
PRESIDENTIAL 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. A COPY OF PROCLAMATION 4040 IS ENCLOSED. RATHER THAN SIMPLY REVERSING THE EFFECT OF THE PREVIOUS SUSPENSION OF THE DAVIS-BACON ACT, THE PROCLAMATION, BY NECESSARY IMPLICATION, PROVIDED THAT CONTRACTS MAY BE AWARDED UNDER SOLICITATIONS ISSUED AFTER FEBRUARY 23, 1971, BUT BEFORE MARCH 30, 1971, AS WAS IFB- 0154, WHICH DO NOT CONTAIN THE DAVIS-BACON ACT PROVISIONS. A MEMORANDUM DATED MARCH 30, 1971, COPY ENCLOSED, FROM THE ASSISTANT SECRETARY OF DEFENSE, INSTALLATIONS AND LOGISTICS, IMPLEMENTS THE PROCLAMATION 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 UNDER IFB-0154, IF OTHERWISE PROPER, WOULD NOT BE IN ACCORDANCE WITH THE REQUIREMENTS OF THE PERTINENT LAW AND REGULATION.
ACCORDINGLY, YOUR REQUEST THAT THE READVERTISEMENT BE CANCELLED AND THE CONTRACT AWARDED TO YOU, IS DENIED.