B-172109, APR 2, 1971

B-172109, APR 2, 1971

BID PROTEST - CANCELLATION OF IFB - DAVIS BACON ACT DECISION DENYING PROTEST OF LOW BIDDER AGAINST CANCELLATION OF IFB ISSUED BY THE VA HOSPITAL WEST HAVEN, CONNECTICUT, DUE TO THE SUSPENSION OF THE DAVIS-BACON ACT. BECAUSE THE ACTION OF THE PRESIDENT IN SUSPENDING THE DAVIS-BACON ACT WAS AUTHORIZED BY STATUTE, AND THE ORDER OF THE ACTING ADMINISTRATOR, GSA AND THE VA CENTRAL OFFICE SUSPENDING THE PROVISIONS OF SUCH ACT WITH RESPECT TO ALL CONTRACTS ENTERED INTO SUBSEQUENT TO THE PRESIDENT'S PROCLAMATION WAS A PROPER IMPLEMENTATION OF THAT PROCLAMATION, THE COMP. GEN. CONCLUDES THAT THE CANCELLATION OF THE INSTANT IFB WAS PROPER, AND THE PROTEST IS DENIED.

TO J. H. HOGAN, INC.:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 4, 1971, PROTESTING THE GOVERNMENT'S FAILURE TO AWARD YOUR FIRM A CONTRACT UNDER INVITATION FOR BIDS (IFB) NO. 065176 ISSUED BY THE VETERANS ADMINISTRATION HOSPITAL, WEST HAVEN, CONNECTICUT.

YOUR COMPANY SUBMITTED THE LOWEST BID UNDER THE IFB. HOWEVER, THE IFB WAS CANCELLED ON FEBRUARY 23, 1971, BY THE PROCURING ACTIVITY AND WAS SCHEDULED FOR REISSUANCE ON MARCH 11, 1971, WITHOUT THE PROVISIONS OF THE DAVIS-BACON ACT, 40 U.S.C. 276A. YOU APPEAL FOR THE AWARD ON THE BASIS THAT THE PROJECT WAS BID UPON PRIOR TO THE DATE OF FEBRUARY 23, 1971, AND THAT YOUR BID PRICE IS NOW PUBLIC KNOWLEDGE.

AUTHORITY FOR THE PROCUREMENT AGENCY'S ACTION STEMS FROM THE DAVIS BACON ACT ITSELF, 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, COPY ENCLOSED.

ON FEBRUARY 25, 1971, THE ACTING ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION (GSA), 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 UPON COMPLIANCE WITH THE ACT. ON MARCH 1, 1971, THE VETERANS ADMINISTRATION CENTRAL OFFICE ISSUED DEPARTMENT OF MEDICINE AND SURGERY CIRCULAR 10/71-47 TO DIRECTORS OF HOSPITALS, DOMICILIARY AND VA OUTPATIENT CLINICS, SETTING FORTH AGENCY INSTRUCTIONS IN IMPLEMENTATION OF THE PROCLAMATION. COPIES OF THE GSA AND VA DOCUMENTS ARE ALSO ENCLOSED.

SINCE THE ACTION OF THE PRESIDENT, AS SET OUT IN PROCLAMATION 4031, WAS AUTHORIZED BY STATUTE, AND THE GSA AND VA DIRECTIVES APPEAR TO BE PROPER IMPLEMENTATIONS OF THAT PORTION OF THE PROCLAMATION WHICH SUSPENDS THE DAVIS-BACON ACT WITH RESPECT TO ALL CONTRACTS ENTERED INTO SUBSEQUENT TO THE DATE OF THE PROCLAMATION, WE ARE UNABLE TO CONCLUDE THAT CANCELLATION OF IFB-065176, OR THE REJECTION OF BIDS RECEIVED THEREUNDER WAS IMPROPER. SEE THE PROVISIONS OF 10 U.S.C. 2305(C) AND PARAGRAPH 10(B) OF THE INSTRUCTIONS TO BIDDERS IN IFB-065176 WHICH AUTHORIZE SUCH ACTION WHEN IT IS DETERMINED TO BE IN THE PUBLIC INTEREST.

ACCORDINGLY, YOUR PROTEST MUST BE DENIED.