B-172240, MAY 20, 1971

B-172240, MAY 20, 1971

BID PROTEST - DAVIS BACON ACT REINSTATED DECISION DENYING PROTEST AGAINST CANCELLATION OF AN IFB AND ANY AWARD UNDER THE RESOLICITATION ISSUED BY THE ARMY ENGINEER DISTRICT, FORT WORTH, TEXAS, INCIDENT TO THE SUSPENSION AND REINSTATEMENT OF THE DAVIS BACON ACT. THE PRESIDENTIAL PROCLAMATION OF MARCH 29, 1971, REINSTATED THE DAVIS BACON ACT PROVISIONS, BUT ONLY AS TO CONTRACTS FOR WHICH SOLICITATIONS WERE ISSUED AFTER THAT DATE. THEREFORE, THE INSTANT PROCUREMENT RESOLICITED WHILE THE PROVISIONS WERE SUSPENDED NEED NOT BE REVOKED AND AN AWARD THEREUNDER WILL BE PROPER.

TO KEMP, SMITH, WHITE, DUNCAN & HAMMOND:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED APRIL 27, 1971, WRITTEN ON BEHALF OF ROBERT E. MCKEE, INC., IN WHICH YOU REAFFIRM YOUR PROTEST AGAINST THE CANCELLATION OF INVITATION FOR BIDS NO. DACA63-71-B 0074, ISSUED BY THE UNITED STATES ARMY ENGINEER DISTRICT, FORT WORTH, TEXAS, AND AGAINST THE RESOLICITATION OF BIDS UNDER IFB NO. DACA63-71-B 0161. YOU STATE THAT IN VIEW OF THE MARCH 29, 1971, PROCLAMATION OF THE PRESIDENT OF THE UNITED STATES REINSTATING THE PROVISIONS OF THE DAVIS-BACON ACT AN AWARD BASED UPON BIDS RECEIVED UNDER IFB NO. DACA63 71-B-0161 WOULD BE IMPROPER, AND YOU DEMAND THAT ALL BIDS SUBMITTED PURSUANT TO THE READVERTISEMENT BE REJECTED.

PRESIDENTIAL PROCLAMATION 4040 DATED MARCH 29, 1971, REVOKED PROCLAMATION 4031 AND EFFECTIVELY REINSTATED THE DAVIS-BACON ACT, 40 U.S.C. 276A, BUT ONLY AS TO CONSTRUCTION CONTRACTS FOR WHICH SOLICITATIONS FOR BIDS OR PROPOSALS WERE ISSUED AFTER MARCH 29, 1971. A COPY OF PROCLAMATION 4040 IS ENCLOSED. A MEMORANDUM DATED MARCH 30, 1971, COPY ALSO 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.

BY ITS TERMS, PROCLAMATION 4040 DOES NOT SPECIFICALLY REQUIRE CHANGES IN PENDING PROCUREMENT ACTIONS OR CONTRACT PROCEDURES WITH RESPECT THERETO WHICH WERE INITIATED PRIOR TO THE REVOCATION OF THE SUSPENSION. CONTRACTS ENTERED INTO WITHOUT DAVIS-BACON PROVISIONS BECAUSE THE SOLICITATIONS WERE ISSUED DURING THE PERIOD BETWEEN FEBRUARY 23 AND MARCH 29, 1971, INCLUSIVE, MAY REMAIN FREE OF SUCH PROVISIONS, IRRESPECTIVE OF THE DATE THEY ARE ENTERED INTO OR THE PERIOD IN WHICH THEIR PERFORMANCE OCCURS.

IN VIEW OF THE FOREGOING IT IS OUR OPINION THAT REISSUANCE OF THE PROCUREMENT UNDER IFB-0161 AND AN AWARD THEREUNDER TO THE LOWEST RESPONSIBLE, RESPONSIVE BIDDER WOULD NOT VIOLATE EITHER OF THE PRESIDENTIAL PROCLAMATIONS, OR THE REGULATIONS ISSUED IN IMPLEMENTATION THEREOF. IN THIS CONNECTION, WE ARE ENCLOSING A COPY OF A MEMORANDUM DATED MAY 7, 1971, FROM THE ACTING ASSISTANT SECRETARY OF DEFENSE SETTING OUT PROCEDURES TO BE FOLLOWED BY THE MILITARY DEPARTMENTS WHICH ARE IN ACCORD WITH THE FOREGOING. WE THEREFORE SEE NO VALID BASIS ON WHICH IT MAY BE CONTENDED THAT AN AWARD MUST NOW BE MADE TO ROBERT E. MCKEE, INC., AS THE LOW BIDDER ON THE ORIGINAL SOLICITATION FOR BIDS, AS ORIGINALLY CONTENDED BY YOU, OR THAT THE PROCUREMENT IS AGAIN REQUIRED TO BE READVERTISED DUE TO THE ISSUANCE OF PROCLAMATION 4040.

ACCORDINGLY, YOUR PROTEST MUST BE DENIED.