B-172240, APR 19, 1971

B-172240, APR 19, 1971

BID PROTEST - DAVIS BACON ACT DECISION DENYING PROTEST BY INITIAL LOW BIDDER AGAINST READVERTISEMENT FOR BIDS ISSUED BY THE U.S. ARMY ENGINEER DISTRICT, FORT WORTH, TEXAS, 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 ASSISTANT SECRETARY OF DEFENSE 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, READVERTISEMENT AND SUBSEQUENT AWARD OF THE INSTANT CONTRACT WAS PROPER AND THE PROTEST IS DENIED.

TO KEMP, SMITH, WHITE, DUNCAN & HAMMOND:

REFERENCE IS MADE TO TELEFAX OF MARCH 18, AND YOUR SUPPLEMENTING LETTER OF MARCH 26, 1971, PROTESTING THE READVERTISEMENT FOR BIDS AND SUBSEQUENT AWARD TO THE LOW BIDDER AFTER RECEIPT OF THE INITIAL LOW BID OF ROBERT E. MCKEE, INC., UNDER INVITATION FOR BIDS NO. DACA63-71-B 0074, ISSUED BY THE UNITED STATES ARMY ENGINEER DISTRICT, FORT WORTH, TEXAS.

THE MCKEE COMPANY SUBMITTED THE LOWEST BID UNDER THE IFB. HOWEVER, THE IFB WAS CANCELLED ON MARCH 3, 1971, AND REISSUED ON THE SAME DATE BY THE PROCURING ACTIVITY WITH A NEW BID OPENING DATE OF MARCH 16, 1971, AS DACA63-71-B-0161, WITHOUT THE PROVISIONS OF THE DAVIS-BACON ACT, 40 U.S.C. 276A. YOU PROTEST THE CANCELLATION, AND REISSUANCE, AND SUBSEQUENT AWARD OF A CONTRACT, SINCE YOU STATE THAT THERE WERE NO COMPELLING REASONS FOR THE ACTION OF THE DISTRICT ENGINEER IN READVERTISING FOR BIDS IN THIS CASE.

YOU ALSO STATE THAT PRESIDENTIAL PROCLAMATION 4031, BY ITS EXPRESS TERMS DOES NOT HAVE RETROSPECTIVE APPLICATION, AND ITS INTENT IS THAT SUBSEQUENT BID OPENINGS SHOULD BE IN ACCORD WITH THE EXECUTIVE ORDER. YOU THEREFORE ASK THAT WE OVERRULE THE CONTRACTING OFFICER'S DECISION TO REJECT ALL BIDS AND MAKE THE AWARD TO THE LOWEST BIDDER ON THE ORIGINAL ADVERTISEMENT, CITING SEVERAL DECISIONS OF OUR OFFICE AS AUTHORITY TO DO SO.

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 24, 1971, THE ASSISTANT SECRETARY OF DEFENSE, INSTALLATIONS AND LOGISTICS, ISSUED A MEMORANDUM IN IMPLEMENTATION OF THE PROCLAMATION WHICH SUSPENDED THE DAVIS-BACON ACT REQUIREMENTS AS CONTAINED IN THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), AND SET OUT PROCEDURES TO BE FOLLOWED WITH RESPECT TO INVITATIONS WHICH HAD SOLICITED BIDS BASED UPON COMPLIANCE WITH THE ACT. A COPY OF THE FEBRUARY 24 MEMORANDUM IS ALSO ENCLOSED.

SINCE THE ACTION OF THE PRESIDENT, AS SET OUT IN PROCLAMATION 4031, WAS AUTHORIZED BY STATUTE, AND THE MEMORANDUM OF FEBRUARY 24 APPEARS TO BE A PROPER IMPLEMENTATION OF THAT PORTION OF THE PROCLAMATION WHICH SUSPENDS THE PROVISIONS OF 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-0107, OR THE REJECTION OF BIDS RECEIVED THEREUNDER, WAS IMPROPER. SEE THE PROVISIONS OF 10 U.S.C. 2305(C), ASPR 2 -404.1(B)(VIII), AND PARAGRAPH 10(B) OF THE INSTRUCTIONS TO BIDDERS IN IFB -0107, WHICH AUTHORIZE SUCH ACTION WHEN IT IS DETERMINED TO BE IN THE PUBLIC INTEREST.

THE PRESIDENT'S PROCLAMATION BY ITS TERMS APPLIES TO ALL CONTRACTS ENTERED INTO ON AND SUBSEQUENT TO FEBRUARY 23, 1971, AND THEREFORE INCLUDES ALL PROCUREMENTS ON WHICH BIDS HAD BEEN RECEIVED BUT AWARDS HAD NOT YET BEEN MADE AS OF THAT DATE. THE NECESSITY TO IMPLEMENT THE PROCLAMATION THEREFORE WAS A COMPELLING REASON TO CANCEL AND READVERTISE THE PROCUREMENT TO WHICH YOUR PROTEST IS DIRECTED. IN SUCH CIRCUMSTANCES, THE DECISIONS OF THE OFFICE CITED BY YOU CANNOT BE RECOGNIZED AS AUTHORITY TO OVERRULE THE AGENCY ACTION IN THIS PROCUREMENT. WHILE YOU STATE THAT OTHER FEDERAL AGENCIES HAVE ESTABLISHED GUIDELINES IN AWARDING CONTRACTS BASED ON BIDS WHICH WERE OPENED PRIOR TO ISSUANCE OF THE PRESIDENT'S PROCLAMATION, WE ARE NOT FAMILIAR WITH ANY SUCH GUIDELINES APPLICABLE TO CONTRACTS AWARDED BY THE FEDERAL GOVERNMENT. IN THIS CONNECTION, IT IS NOTED THAT THE CIVILIAN AGENCIES OF THE FEDERAL GOVERNMENT HAD INSTRUCTIONS IDENTICAL TO THAT CONTAINED IN THE DEPARTMENT OF DEFENSE DIRECTIVE ABOVE. SEE THE ENCLOSED COPY OF GSA INSTRUCTION TO THOSE AGENCIES.

IN VIEW OF THE FOREGOING, WE MUST CONCLUDE THAT AN AWARD AFTER FEBRUARY 23, 1971, OF A CONTRACT INCLUDING THE DAVIS-BACON CLAUSE WOULD NOT HAVE BEEN IN ACCORD WITH THE PROCLAMATION. ADDITIONALLY, AN AWARD TO THE LOW BIDDER UNDER THE ORIGINAL INVITATION OF A CONTRACT WHICH DID NOT INCLUDE THE DAVIS-BACON CLAUSE WOULD HAVE VIOLATED THE RULE OF COMPETITIVE BIDDING REQUIRING ALL BIDDERS TO BID ON THE SAME BASIS, AND REQUIRING AN AWARD TO BE MADE ON THE SAME BASIS AS THAT ON WHICH BIDS WERE REQUESTED.

ACCORDINGLY, YOUR PROTEST MUST BE DENIED.