B-171851, MAY 11, 1971

B-171851, MAY 11, 1971

BID PROTEST - DAVIS BACON ACT DECISION DENYING PROTEST AGAINST REJECTION OF ALL BIDS AND CANCELLATION OF AN IFB ISSUED BY THE JOB CORPS, DEPARTMENT OF LABOR INCIDENT TO THE SUSPENSION OF THE DAVIS BACON ACT PROVISIONS. THE SUSPENSION OF THE PROVISIONS OF THE DAVIS-BACON ACT BY PRESIDENTIAL PROCLAMATION CONSTITUTES JUSTIFICATION FOR REJECTION OF ALL BIDS BASED ON ADHERENCE TO THE PREVAILING WAGE RATE REQUIREMENTS WHICH HAD BEEN OPENED. FURTHER A NEW SOLICITATION WAS ISSUED FOR THE INSTANT PROCUREMENT ON MARCH 29, 1971, OMITTING THE DAVIS-BACON ACT PROVISIONS AND AN AWARD MAY BE MADE THEREUNDER, NOTWITHSTANDING THE REINSTATEMENT OF THE PROVISIONS.

TO MCNEANY, ROSE AND SHOLER

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 9, 1971, WITH ENCLOSURE, SUPPLEMENTING THE PROTEST OF THE JACK B. HENDERSON CONSTRUCTION COMPANY, INCORPORATED, CONCERNING AN AWARD OF CONTRACT UNDER INVITATION FOR BIDS NO. 71-100, ISSUED BY THE JOB CORPS, UNITED STATES DEPARTMENT OF LABOR.

WE HAVE BEEN ADVISED BY THE PROCURING ACTIVITY THAT THE INVITATION HAS BEEN CANCELED ON THE BASIS 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 25, 1971, THE ADMINISTRATOR, WORKPLACE STANDARDS ADMINISTRATION, DEPARTMENT OF LABOR, IN IMPLEMENTATION OF THE PROCLAMATION, INDICATED THAT WHERE BIDS BASED ON ADHERENCE TO THE PREVAILING WAGE RATE REQUIREMENTS HAD ALREADY BEEN OPENED, THE PURPOSE OF THE ORDER COULD BE ACCOMPLISHED BY A READVERTISING FOR BIDS. INVITATION FOR BIDS NO. 71-100 WAS ACCORDINGLY CANCELED AND WE ARE INFORMALLY ADVISED THAT A NEW SOLICITATION WAS ISSUED FOR THE PROCUREMENT ON MARCH 29, 1971, OMITTING THE DAVIS-BACON ACT PROVISIONS.

IT IS OUR VIEW THAT SUSPENSION OF THE PROVISIONS OF THE DAVIS-BACON ACT BY THE PRESIDENT CONSTITUTES JUSTIFICATION FOR THE REJECTION OF ALL BIDS UNDER THE ORIGINAL INVITATION. IN LIGHT OF THAT CONCLUSION, WE DO NOT FIND IT NECESSARY TO DECIDE WHAT THE PROPER DISPOSITION OF THE BIDS WOULD HAVE BEEN BUT FOR CANCELLATION OF THE SOLICITATION BECAUSE OF THE PRESIDENT'S ACTION. THE DAVIS-BACON ACT PROVISIONS HAVE SINCE BEEN RESTORED BY PRESIDENTIAL PROCLAMATION WITH RESPECT TO SOLICITATIONS ISSUED AFTER MARCH 29, 1971. HOWEVER, AS TO SOLICITATIONS ISSUED ON OR BEFORE THAT DATE, CONTRACTS MAY BE AWARDED WITHOUT THE DAVIS-BACON ACT PROVISIONS.