B-171729, APR 22, 1971

B-171729, APR 22, 1971

BID PROTEST - BIDDER RESPONSIBILITY - CANCELLATION OF IFB DECISION DENYING PROTEST BY LOW BIDDER AGAINST CANCELLATION OF AN IFB ISSUED BY THE NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION AND REJECTION OF ITS LOW BID ON THE BASIS OF NONRESPONSIBILITY. FIRST THE IFB WAS CANCELLED PURSUANT TO A GSA DIRECTIVE IMPLEMENTING A PRESIDENTIAL PROCLAMATION WHICH SUSPENDED THE DAVIS-BACON ACT, AND REJECTION OF BIDS FOR CONTRACTS ENTERED INTO SUBSEQUENT TO THE PROCLAMATION WAS PROPER. SECOND, THE CONTRACTING OFFICER'S FINDING OF NONRESPONSIBILITY HAS NO EFFECT NOW THAT THE IFB HAS BEEN CANCELLED AND IT IS PREMATURE TO SPECULATE ON WHAT DETERMINATION WILL BE MADE SHOULD PROTESTANT SUBMIT A BID UNDER A NEW INVITATION.

TO SOUTHWEST ENGINEERING COMPANY, INC.:

WE REFER TO YOUR LETTER OF JANUARY 21, 1971, AND SUBSEQUENT CORRESPONDENCE, RELATING TO YOUR PROTEST AGAINST REJECTION OF YOUR LOW BID UNDER NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION IFB N-16-59 71 ON THE BASIS OF NONRESPONSIBILITY, AND TO YOUR LETTERS OF MARCH 30, 1971, AND APRIL 1, 1971, PROTESTING CANCELLATION OF THIS INVITATION IN ORDER TO ALLOW THE PROCURING AGENCY TO READVERTISE THE PROCUREMENT WITHOUT THE PROVISIONS OF THE DAVIS-BACON ACT.

YOUR SECOND PROTEST IS BASED ON YOUR CONTENTION THAT DELETION OF THE DAVIS-BACON ACT PROVISIONS WOULD HAVE NO EFFECT ON THE BID PRICES AND THAT CANCELLATION OF THE ORIGINAL INVITATION DOES NOT PROTECT THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM.

IFB N-16-59-71 WAS CANCELLED ON MARCH 29, 1971, AND THE CONSTRUCTION PROJECT DESCRIBED THEREIN WAS READVERTISED IN A NEW IFB WITHOUT THE PROVISIONS OF THE DAVIS-BACON ACT, 40 U.S.C. 276A. THE NEW IFB WAS ISSUED ON MARCH 29, 1971, AND PROVIDES FOR BID OPENING ON APRIL 20, 1971.

AUTHORITY FOR THE PROCURING AGENCY'S ACTION DERIVES FROM THE DAVIS BACON ACT, 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 25, 1971, THE ACTING ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, ISSUED A MESSAGE TO ALL CIVILIAN AGENCIES IN IMPLEMENTATION OF THE PROCLAMATION, WHICH SET OUT PROCEDURES TO BE FOLLOWED WITH RESPECT TO INVITATIONS WHICH HAD SOLICITED BIDS BASED ON COMPLIANCE WITH THE ACT.

SINCE THE ACTION OF THE PRESIDENT, AS SET OUT IN PROCLAMATION 4031, WAS AUTHORIZED BY STATUTE AND THE GSA DIRECTIVE APPEARS TO BE A PROPER IMPLEMENTATION OF THAT PORTION OF THE PROCLAMATION WHICH SUSPENDED THE DAVIS-BACON ACT WITH RESPECT TO ALL CONTRACTS ENTERED INTO SUBSEQUENT TO THE PROCLAMATION, WE ARE UNABLE TO CONCLUDE THAT CANCELLATION OF IFB N-16- 59-71 OR THE REJECTION OF ALL BIDS RECEIVED THEREUNDER WAS IMPROPER. 172109, APRIL 2, 1971. SEE THE PROVISIONS OF 10 U.S.C. 2305(C) AND PARAGRAPH 10(B) OF THE INSTRUCTIONS TO BIDDERS (STANDARD FORM 22) OF THE INVITATION WHICH AUTHORIZES SUCH ACTION WHEN IT IS DETERMINED TO BE IN THE PUBLIC INTEREST.

WITH RESPECT TO YOUR PROTEST AGAINST REJECTION OF YOUR LOW BID ON THE GROUNDS OF NONRESPONSIBILITY, IT SHOULD BE NOTED THAT A DETERMINATION OF NONRESPONSIBILITY RELATES ONLY TO THE INVITATION UNDER WHICH IT IS MADE AND DOES NOT HAVE THE EFFECT OF DEBARRING A BIDDER FROM BIDDING UNDER ANY OTHER INVITATION. THE CONTRACTING OFFICER'S FINDING OF NONRESPONSIBILITY THEREFORE HAS NO FURTHER EFFECT NOW THAT THE INVITATION UNDER WHICH IT WAS MADE HAS BEEN CANCELLED, AND IT WOULD THEREFORE APPEAR THAT THE CANCELLATION ACTION HAS RENDERED THIS PORTION OF YOUR PROTEST ACADEMIC. FURTHER, IT WOULD BE PREMATURE AT THIS TIME TO SPECULATE WHAT DETERMINATION, IF ANY, WILL BE MADE BY THE CONTRACTING OFFICER REGARDING YOUR BID IN THE EVENT YOU SUBMIT THE LOW BID UNDER THE NEW INVITATION. CONSEQUENTLY, WE WILL NOT RENDER AN OPINION AS TO THE PROPRIETY OF THE CONTRACTING OFFICER'S DETERMINATION UNDER THE CANCELLED INVITATION.

FOR THE REASONS STATED, YOUR PROTEST AGAINST CANCELLATION OF THE INVITATION IS DENIED. THE DOCUMENTS YOU SUBMITTED IN CONNECTION WITH YOUR PROTEST ARE RETURNED IN ACCORDANCE WITH YOUR REQUEST.