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B-172046, MAR 15, 1971, 50 COMP GEN 634

B-172046 Mar 15, 1971
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THE REISSUANCE OF THE INVITATION WITHOUT THE REQUIREMENTS OF THE ACT WERE ACTIONS IN THE PUBLIC INTEREST WITHIN THE MEANING OF 10 U.S.C. 2305(C). THE PROCLAMATION WAS THE COMPELLING REASON CONTEMPLATED BY PARAGRAPH 2-404.1 OF THE ARMED SERVICES PROCUREMENT REGULATION THAT JUSTIFIED CANCELLATION OF THE INVITATION FOR BIDS. 1971: REFERENCE IS MADE TO YOUR TELEGRAMS DATED MARCH 1 AND 3. THE IFB WAS ISSUED ON JANUARY 12. THE IFB WAS CANCELED ON MARCH 1. THE PROJECT WAS READVERTISED UNDER IFB NO. THE BASIS FOR THE PROCURING ACTIVITY'S ACTION WAS THE ISSUANCE OF PRESIDENTIAL PROCLAMATION 4031. STATES: SECTION 6 OF THE DAVIS-BACON ACT PROVIDES: "IN THE EVENT OF A NATIONAL EMERGENCY THE PRESIDENT IS AUTHORIZED TO SUSPEND THE PROVISIONS OF THIS ACT.".

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B-172046, MAR 15, 1971, 50 COMP GEN 634

CONTRACTS - LABOR STIPULATIONS - DAVIS-BACON ACT - SUSPENSION THE DISCARDING OF ALL BIDS FOR THE CONSTRUCTION OF FAMILY HOUSING AT A MILITARY INSTALLATION UNDER AN INVITATION THAT CONTAINED THE PRESCRIBED MINIMUM WAGE RATES DETERMINED BY THE SECRETARY OF LABOR FOR LABORERS AND MECHANICS IN ACCORDANCE WITH THE DAVIS-BACON ACT, 40 U.S.C. 276A, BECAUSE OF PRESIDENTIAL PROCLAMATION 4031, DATED FEBRUARY 23, 1971, WHICH SUSPENDED THE ACT, AND THE REISSUANCE OF THE INVITATION WITHOUT THE REQUIREMENTS OF THE ACT WERE ACTIONS IN THE PUBLIC INTEREST WITHIN THE MEANING OF 10 U.S.C. 2305(C), AND THE PROCLAMATION WAS THE COMPELLING REASON CONTEMPLATED BY PARAGRAPH 2-404.1 OF THE ARMED SERVICES PROCUREMENT REGULATION THAT JUSTIFIED CANCELLATION OF THE INVITATION FOR BIDS.

TO THE QUILLER CONSTRUCTION COMPANY, INC., MARCH 15, 1971:

REFERENCE IS MADE TO YOUR TELEGRAMS DATED MARCH 1 AND 3, 1971, PROTESTING THE CANCELLATION OF INVITATION FOR BIDS (IFB) NO. DACAO5-71 B-0105, BY THE UNITED STATES ARMY ENGINEER DISTRICT, SACRAMENTO, CORPS OF ENGINEERS.

THE IFB WAS ISSUED ON JANUARY 12, 1971, WITH A BID OPENING DATE OF FEBRUARY 4, 1971, FOR THE CONSTRUCTION OF 100 UNITS OF FAMILY HOUSING AT FORT HUACHUCA, ARIZONA. IN ACCORDANCE WITH THE DAVIS-BACON ACT, 40 U.S.C. 276A, THE IFB SPECIFICATIONS CONTAINED THE PRESCRIBED MINIMUM WAGE RATES DETERMINED BY THE SECRETARY OF LABOR TO BE PAYABLE FOR THE VARIOUS CLASSES OF LABORERS AND MECHANICS EMPLOYED AT THE CONSTRUCTION SITE. YOUR FIRM SUBMITTED THE LOWEST BID UNDER THE IFB. HOWEVER, THE IFB WAS CANCELED ON MARCH 1, 1971, BY THE PROCURING ACTIVITY. SUBSEQUENTLY, ON MARCH 5, 1971, THE PROJECT WAS READVERTISED UNDER IFB NO. DACAO5-71-B-0153 WITHOUT DAVIS BACON ACT PROVISIONS.

THE BASIS FOR THE PROCURING ACTIVITY'S ACTION WAS THE ISSUANCE OF PRESIDENTIAL PROCLAMATION 4031, DATED FEBRUARY 23, 1971, 36 FEDERAL REGISTER 3457-8, IN WHICH THE PRESIDENT SUSPENDED THE PROVISIONS OF THE DAVIS-BACON ACT AS TO ALL CONTRACTS ENTERED INTO ON OR SUBSEQUENT TO THE DATE OF THE PROCLAMATION, WHICH, IN PERTINENT PART, STATES:

SECTION 6 OF THE DAVIS-BACON ACT PROVIDES:

"IN THE EVENT OF A NATIONAL EMERGENCY THE PRESIDENT IS AUTHORIZED TO SUSPEND THE PROVISIONS OF THIS ACT."

WHEREAS I FIND THAT A NATIONAL EMERGENCY EXISTS WITHIN THE MEANING OF SECTION 6 OF THE DAVIS-BACON ACT OF MARCH 3, 1931 (46 STAT. 1494, AS AMENDED, 40 U.S.C. 276A).

NOW, THEREFORE, I RICHARD NIXON, PRESIDENT OF THE UNITED STATES OF AMERICA, DO BY THIS PROCLAMATION SUSPEND, AS TO ALL CONTRACTS ENTERED INTO ON OR SUBSEQUENT TO THE DATE OF THIS PROCLAMATION AND UNTIL OTHERWISE PROVIDED, THE PROVISIONS OF THE DAVIS-BACON ACT OF MARCH 3, 1931, AS AMENDED, AND THE PROVISIONS OF ALL OTHER ACTS PROVIDING FOR THE PAYMENT OF WAGES, WHICH PROVISIONS ARE DEPENDENT UPON DETERMINATIONS BY THE SECRETARY OF LABOR UNDER THE DAVIS-BACON ACT;

AND I DO HEREBY SUSPEND UNTIL OTHERWISE PROVIDED THE PROVISIONS OF ANY EXECUTIVE ORDER, PROCLAMATION, RULE, REGULATION OR OTHER DIRECTIVE PROVIDING FOR THE PAYMENT OF WAGES, WHICH PROVISIONS ARE DEPENDENT UPON DETERMINATIONS BY THE SECRETARY OF LABOR UNDER THE DAVIS-BACON ACT:

ON FEBRUARY 24, 1971, THE ASSISTANT SECRETARY OF DEFENSE, INSTALLATIONS AND LOGISTICS, IN IMPLEMENTATION OF THE PROCLAMATION, SUSPENDED THE DAVIS- BACON ACT REQUIREMENTS CONTAINED IN THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) AND DIRECTED THAT "IN ALL FORMALLY ADVERTISED PROCUREMENTS WHERE BIDS HAVE BEEN OPENED AND CONTRACTS NOT AWARDED, CANCEL THE INVITATION FOR BIDS AND RESOLICIT OMITTING THE DAVIS-BACON ACT REQUIREMENTS."

SECTION 2305(C) OF TITLE 10 OF THE U.S.C. PROVIDES THAT ALL BIDS RECEIVED IN RESPONSE TO A FORMALLY ADVERTISED SOLICITATION MAY BE REJECTED WHEN IT IS IN THE PUBLIC INTEREST TO DO SO. THIS STATUTORY PROVISION IS IMPLEMENTED BY ASPR 2-404.1 WHICH PROVIDES THAT, AFTER THE BIDS HAVE BEEN OPENED, CANCELLATION OF A SOLICITATION IS PERMISSIBLE IF "THERE IS A COMPELLING REASON TO REJECT ALL BIDS AND CANCEL THE INVITATION." FURTHER, ASPR 2-404.1(B)(VIII) STATES THAT CANCELLATION OF A SOLICITATION AFTER BID OPENING, BUT PRIOR TO AWARD, IS JUSTIFIED WHERE "CANCELLATION IS CLEARLY IN THE BEST INTEREST OF THE GOVERNMENT." ALSO, PARAGRAPH 10(B) OF THE INSTRUCTIONS TO BIDDERS IN IFB-0105 PERMITS THE GOVERNMENT TO REJECT ALL BIDS WHEN IN ITS INTEREST TO DO SO.

IT IS OUR VIEW THAT THE SUSPENSION OF THE PROVISIONS OF THE DAVIS BACON ACT BY THE PRESIDENT CONSTITUTES JUSTIFICATION FOR THE REJECTION OF ALL BIDS UNDER THE ORIGINAL INVITATION.

ACCORDINGLY, YOUR PROTEST IS DENIED.

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