B-172307, JUL 16, 1971

B-172307, JUL 16, 1971

BID PROTEST - NEGOTIATED PROCUREMENT - PUBLIC EXIGENCY DECISION DENYING PROTEST AGAINST THE AWARD OF A CONTRACT TO ANY OTHER FIRMS UNDER AN RFP ISSUED BY GENERAL SERVICES ADMINISTRATION, PUBLIC BUILDING SERVICE, WASHINGTON, D.C., FOR THE CONSTRUCTION OF THE FIRST PHASE OF A SPECIAL TRAINING BUILDING IN BELTSVILLE, MD. THE RECORD DOES NOT SUPPORT PROTESTANT'S ALLEGATION THAT IT WAS DENIED AN OPPORTUNITY TO BID AND WHILE THE PROCURING ACTIVITY DID DENY THE REQUEST TO EXTEND THE TIME FOR RECEIPT OF PROPOSALS, THIS CANNOT BE CONSIDERED IMPROPER SINCE THE SUBJECT PROCUREMENT WAS NEGOTIATED PURSUANT TO THE PUBLIC EXIGENCY PROVISION AND TIME WAS OF THE ESSENCE. FURTHER, THE SUSPENSION OF THE DAVIS-BACON ACT DID NOT FORBID THE SOLICITATION OF UNION FIRMS BUT MERELY SUSPENDED THE REQUIREMENT THAT FIRMS RECEIVING CONTRACTS PAY THE PREVAILING WAGE RATES.

TO WILLIAM F. KLINGENSMITH, INC.:

REFERENCE IS MADE TO YOUR TELEFAX OF MARCH 23, 1971, AND YOUR LETTER OF APRIL 2, 1971, PROTESTING THE AWARD OF CONTRACT NO. GS-03B-16264 PURSUANT TO A REQUEST FOR PROPOSALS ISSUED MARCH 17, 1971, BY THE GENERAL SERVICES ADMINISTRATION'S PUBLIC BUILDINGS SERVICE, WASHINGTON, D.C.

THE REFERENCED CONTRACT WAS CONSUMMATED FOR THE CONSTRUCTION OF THE FIRST PHASE OF THE SPECIAL TRAINING BUILDING (PROJECT 19-0049), AS THE INITIAL BUILDING OF THE CONSOLIDATED FEDERAL LAW ENFORCEMENT TRAINING CENTER (CFLETC), BELTSVILLE, MARYLAND, WHICH IS TO BE UTILIZED FOR THE TRAINING, BY THE UNITED STATES SECRET SERVICE, OF PERSONNEL INVOLVED IN THE PROTECTION OF CANDIDATES ON THE 1972 PRESIDENTIAL TICKETS.

THE ESSENCE OF YOUR PROTEST IS THAT YOUR FIRM WAS DENIED AN OPPORTUNITY TO BID ON PROJECT 19-0049; THAT, IMPLIEDLY, YOUR FIRM SHOULD HAVE BEEN INCLUDED AMONG THOSE FROM WHICH PROPOSALS WERE SOLICITED, IN VIEW OF THE FACT THAT YOUR FIRM HAD RECENTLY COMPLETED A CONTRACT FOR CONSTRUCTION OF SIMILAR PROJECT AT BELTSVILLE; THAT GSA REFUSED YOUR REQUEST THAT IT EXTEND THE TIME SET FOR RECEIPT OF PROPOSALS IN ORDER TO ALLOW YOU TO PREPARE A PROPOSAL; AND THAT THE FOUR FIRMS FROM WHICH PROPOSALS WERE RECEIVED WERE UNION CONTRACTORS WHICH, YOU CONTEND, WAS IN DIRECT CONFLICT WITH THE SUSPENSION OF THE DAVIS-BACON ACT.

THE RECORD INDICATES THAT ON MARCH 5, 1971, THE FOLLOWING FINDINGS AND DETERMINATION WERE MADE BY THE ACTING PROJECT DIRECTOR, CFLETC:

"FINDINGS

"IN ACCORDANCE WITH THE PROVISIONS AND REQUIREMENTS OF SECTION 302(C)(2) AND 307 OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, 63 STAT. 377, AS AMENDED, I MAKE THE FOLLOWING FINDINGS:

"1. THE ASSISTANT SECRETARY OF THE TREASURY, BY LETTER OF NOVEMBER 19, 1970, CONFIRMED AN EARLIER UNWRITTEN STATEMENT OF THE IMMEDIATE NEED FOR THE SPECIAL TRAINING BUILDING, THE INITIAL BUILDING OF THE CONSOLIDATED FEDERAL LAW ENFORCEMENT TRAINING CENTER (CFLETC). THE BUILDING IN QUESTION IS TO BE DEVOTED TO THE TRAINING NEEDS OF THE SECRET SERVICE. THE SEPARATE TRAINING BUILDING MUST RECEIVE PRIORITY ATTENTION IN ORDER TO PROVIDE FACILITIES REQUIRED BY THE U.S. SECRET SERVICE TO CONDUCT THE SPECIALIZED TRAINING OF PERSONNEL WHO, BEGINNING EARLY IN 1972, MUST BE INVOLVED IN PROTECTING CANDIDATES AND NOMINEES FOR THE OFFICE OF PRESIDENT AND VICE PRESIDENT.

"2. THE OUTDOOR RANGES, CURRENTLY UNDER CONSTRUCTION AT THE CFLETC, ARE TO BE COMPLETED IN MID-1971 AND WILL BE IMMEDIATELY AVAILABLE FOR USE IN FIREARMS TRAINING. HOWEVER, THE CURRENT LACK OF A BUILDING IN PROXIMITY TO THE RANGES POSES A SERIOUS QUESTION RELATIVE TO THEIR USEFULNESS AS AN EFFECTIVE TRAINING FACILITY FOR PERSONNEL INVOLVED IN CARRYING OUT THE ON- GOING PROTECTIVE AND INVESTIGATIVE RESPONSIBILITIES OF THE SECRET SERVICE, AS WELL AS THE PERSONNEL TO BE INVOLVED IN PROTECTING CANDIDATES AND NOMINEES FOR THE OFFICE OF PRESIDENT. THE BUILDING IS NEEDED TO PROVIDE CLASSROOM SPACE AND WILL CONTAIN TWO INDOOR RANGES ESSENTIAL TO THIS ACCELERATED TRAINING PROGRAM.

"3. THE DESIGN WORK HAS PROGRESSED MUCH MORE RAPIDLY THAN EXPECTED WITH THE ARCHITECTURAL AND STRUCTURAL DRAWINGS NEARLY 50 PERCENT COMPLETE AND THE FINISHED MECHANICAL AND ELECTRICAL DRAWINGS SCHEDULED TO BE FINISHED BY THE LAST WEEK OF MARCH.

"4. TO INSURE COMPLETION OF THE SPECIAL TRAINING BUILDING AS EXPEDITIOUSLY AS POSSIBLE, IT IS NECESSARY TO AWARD CONSTRUCTION IN TWO PHASES. THE FIRST PHASE TO BE AWARDED IMMEDIATELY AND THE SECOND PHASE WHEN THE MECHANICAL AND ELECTRICAL DESIGNS HAVE BEEN COMPLETED. NEWSPAPER ACCOUNTS INDICATE THAT THE UNION CONTRACT OF THE STEEL MILL WORKERS EXPIRES IN LATE JULY OR AUGUST; THUS A POSSIBILITY OF A STEEL STRIKE EXISTS. THEREFORE, IT IS IMPERATIVE THAT ALL STEEL BE ORDERED IN THE FIRST PHASE OF CONSTRUCTION TO OBVIATE THIS POSSIBLE STEEL STRIKE.

"5. THE NEED FOR THE WORK IS URGENT AND THE EXIGENCY WILL NOT ADMIT OF THE DELAY INCIDENT TO ADVERTISING. THEREFORE, THE GOVERNMENT'S INTEREST WILL BEST BE SERVED BY SOLICITING QUOTATIONS FROM NOT LESS THAN THREE QUALIFIED CONTRACTORS TO COMPETE FOR THE AWARD OF TWO (2) PHASED CONSTRUCTION CONTRACTS ON THE BASIS OF COMPETITIVE PROPOSALS AND NEGOTIATIONS. THE FIRMS SELECTED SHALL BE THOSE OF KNOWN COMPETENCY, WHICH HAVE THE PERSONNEL AND TECHNICAL ABILITY TO COMPLETE CONTRACTS OF THIS NATURE IN A MANNER ACCEPTABLE TO THE GOVERNMENT.

DETERMINATION

"ON THE BASIS OF THE FOREGOING FINDINGS, AND PURSUANT TO THE AUTHORITY DELEGATED TO ME BY THE COMMISSIONER, PUBLIC BUILDINGS SERVICE, I HEREBY DETERMINE AS REQUIRED BY SECTION 302 (C)(2) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, 63 STAT. 393, AS AMENDED (41 U.S.C. 252 (C)(2)), THAT: THE PUBLIC EXIGENCY WILL NOT ADMIT OF THE DELAY INCIDENT TO ADVERTISING, AND THAT TWO (2) PHASED CONSTRUCTION CONTRACTS BE NEGOTIATED FOR CONSTRUCTION OF THE SPECIAL TRAINING BUILDING AT THE CONSOLIDATED FEDERAL LAW ENFORCEMENT TRAINING CENTER, BELTSVILLE, MARYLAND."

ACCORDINGLY, ON MARCH 17, 1971, A LIST WAS PREPARED CONTAINING THE NAMES OF SIX PROSPECTIVE CONTRACTORS TO BE SOLICITED. ALL, WE ARE INFORMED, WERE SMALL BUSINESS CONCERNS, AND ONE WAS A NON-UNION CONCERN. THE REQUEST FOR PROPOSALS, ISSUED THE SAME DATE, REQUIRED RECEIPT OF PROPOSALS BY 4:45 P.M. ON MARCH 24, 1971. THE PROCUREMENT WAS NOT SYNOPSIZED IN THE COMMERCE BUSINESS DAILY SINCE FEDERAL PROCUREMENT REGULATIONS 1-1.1003- 2(A)(4) EXEMPTS FROM THE NECESSITY OF PUBLICATION THOSE PROCUREMENTS WHICH ARE OF SUCH A COMPELLING EMERGENCY THAT THE GOVERNMENT WOULD BE SERIOUSLY INJURED IF OFFERS ARE PERMITTED TO BE MADE MORE THAN 15 CALENDAR DAYS AFTER ISSUANCE OF THE REQUEST FOR PROPOSALS.

THE RECORD CONTAINS AN AFFIDAVIT OF THE ASSISTANT TO THE CHIEF OF THE DESIGN BRANCH, DESIGN AND CONSTRUCTION DIVISION, OFFICE OF OPERATING PROGRAMS, PUBLIC BUILDINGS SERVICE, GSA, IN WHICH IT IS STATED THAT ON MARCH 18 OR 19, 1971, HE RECEIVED A TELEPHONE CALL FROM A PERSON WHO STATED THAT HE REPRESENTED YOUR FIRM; THAT HE INQUIRED IF THERE WAS A PROJECT AT BELTSVILLE AND WAS ADVISED IN THE AFFIRMATIVE; THAT HE WAS INFORMED THAT THIS WAS TO BE A NEGOTIATED PROJECT AND THAT NOTICE OF THE PROJECT WAS NOT POSTED IN THE GSA REGIONAL OFFICE BUILDING; AND THAT HIS COMPANY WAS NOT ON THE LIST OF THE SIX FIRMS BEING SOLICITED FOR THE PROJECT. IT IS STATED THAT THE INQUIRER NEITHER REQUESTED NOR DEMANDED THAT BID MATERIAL BE PROVIDED YOUR FIRM, NOR DID THE AFFIANT REFUSE TO FURNISH THE INQUIRER WITH SUCH MATERIAL. IT WAS THE AFFIANT'S UNDERSTANDING THAT THE INQUIRER WAS MERELY SOLICITING INFORMATION ABOUT THE PROJECT.

LATE IN THE AFTERNOON OF MARCH 23, THE GSA ACTING PROJECT DIRECTOR FOR THE CFLETC RECEIVED A TELEPHONE CALL FROM AN ATTORNEY REPRESENTING YOUR FIRM, EXPRESSING YOUR FIRM'S INTEREST IN THE PROJECT. HE WAS ADVISED THAT PROPOSALS WERE DUE NO LATER THAN 4:45 P.M. ON MARCH 24. THE ATTORNEY REQUESTED A TIME EXTENSION FOR THE SUBMISSION OF PROPOSALS BUT WAS ADVISED THAT THE URGENCY OF THE PROJECT WOULD NOT ALLOW COMPLIANCE WITH THAT REQUEST. THE ATTORNEY WAS SO ADVISED AGAIN THE FOLLOWING MORNING, AFTER THE ACTING PROJECT DIRECTOR HAD CONFERRED WITH THE DEPUTY COMMISSIONER AND ASSISTANT GENERAL COUNSEL, P.B.S.

FOUR PROPOSALS WERE RECEIVED, AFTER WHICH THE PROCURING ACTIVITY WAS ADVISED THAT YOUR FIRM HAD SUBMITTED A PROTEST TO OUR OFFICE. IT WAS DETERMINED, HOWEVER, IN ACCORDANCE WITH FPR 1-2.407-8(B)(4), THAT AWARD WOULD BE MADE PRIOR TO THE RESOLUTION OF THE PROTEST DUE TO THE URGENT SCHEDULE FOR THE SPECIAL TRAINING BUILDING AND THE DELAY IN PERFORMANCE OF THE CONTRACT THAT WOULD ENSUE FROM FAILURE TO MAKE A PROMPT AWARD. THE FILE IS SO DOCUMENTED, IN COMPLIANCE WITH THE REFERENCED SECTION OF THE FEDERAL PROCUREMENT REGULATIONS, AND WE UNDERSTAND THAT YOU WERE ADVISED THAT AN AWARD WAS BEING MADE.

YOUR TELEGRAM OF MARCH 23 TO THE GSA, REQUESTING AN EXTENSION OF THE DEADLINE FOR RECEIVING PROPOSALS TO MARCH 29 IN ORDER TO ALLOW YOU TO BID ON PROJECT 19-0049, WAS NOT RECEIVED BY THE ACTING PROJECT DIRECTOR FOR THE CFLETC UNTIL LATE IN THE AFTERNOON OF MARCH 24 DUE TO A DELAY IN ITS DELIVERY. GSA'S TELEGRAPHIC REPLY OF MARCH 26 ADVISED YOU THAT THE REQUEST WAS DENIED DUE TO THE EXIGENCY INVOLVED, AND YOU WERE FURTHER ADVISED THAT AN AWARD WOULD BE MADE ON THE BASIS OF THE PROPOSALS RECEIVED. BY LETTER OF MARCH 26, 1971, THE PROPOSAL OF JORDAN CONSTRUCTION COMPANY, INC., IN THE AMOUNT OF $337,777.00 WAS ACCEPTED.

THE RECORD, AS SET FORTH ABOVE IN PERTINENT PART, DOES NOT SUPPORT YOUR ALLEGATION THAT YOU WERE DENIED AN OPPORTUNITY TO BID ON THE REFERENCED PROJECT. THUS, GSA DENIES THAT THE INQUIRY, MADE IN YOUR BEHALF ON MARCH 18 OR 19, 1971, WAS ACCOMPANIED BY A REQUEST FOR BID FORMS, SPECIFICATIONS, OR DRAWINGS, AND GSA ADVISES THAT, HAD SUCH A REQUEST BEEN MADE, THE REQUISITE DOCUMENTS WOULD HAVE BEEN FURNISHED TO YOU.

WHILE IT APPEARS THAT THE PROCURING ACTIVITY DID DENY YOUR REQUEST TO EXTEND THE TIME FOR RECEIPT OF PROPOSALS, WE CANNOT CONSIDER THAT ACTION IMPROPER SINCE THIS PROCUREMENT WAS NEGOTIATED UNDER THE PUBLIC EXIGENCY PROVISION AND, AS SUCH, TIME WAS OF THE ESSENCE.

YOU HAVE STATED THAT YOU HAD JUST COMPLETED A UNITED STATES SECRET SERVICE TRAINING FACILITY AT BELTSVILLE FOR THE GSA, AND YOU THEREFORE IMPLY THAT THE PROCURING ACTIVITY HAD AN AFFIRMATIVE OBLIGATION TO INCLUDE YOUR FIRM ON THE LIST OF PROSPECTIVE CONTRACTORS TO BE SOLICITED. IN THIS CONNECTION, HOWEVER, GSA ADVISES THAT, IN VIEW OF THE URGENT NEED TO AWARD A CONTRACT AND THE NECESSITY FOR ENSURING THAT IT BE COMPLETED ON SCHEDULE, THE BIDDERS LIST WAS DELIBERATELY LIMITED TO CONTRACTORS WHO HAD OUTSTANDING PERFORMANCE RECORDS.

IN RESOLVING QUESTIONS CONCERNING THE ADEQUACY OF THE SOLICITATION OF SUPPLY SOURCES, WE HAVE HELD THAT THE PROPRIETY OF A PARTICULAR PROCUREMENT MUST BE DETERMINED FROM THE GOVERNMENT'S POINT OF VIEW UPON THE BASIS OF WHETHER ADEQUATE COMPETITION AND REASONABLE PRICES WERE OBTAINED, NOT UPON WHETHER EVERY POSSIBLE BIDDER WAS AFFORDED AN OPPORTUNITY TO BID. B-170398, FEBRUARY 17, 1971, 50 COMP. GEN. ; B 167379, AUGUST 15, 1969; B-164047, JUNE 10, 1968. INASMUCH AS YOUR FIRM FAILED TO MEET THE DELIVERY SCHEDULE ON YOUR PREVIOUS CONTRACT WE SEE NO BASIS FOR OBJECTING TO GSA'S FAILURE TO INCLUDE YOU ON THE BIDDER'S LIST, AND SINCE YOU RECEIVED KNOWLEDGE OF THE PROCUREMENT ON MARCH 18 OR 19, AND THEREFORE HAD THE OPPORTUNITY TO REQUEST BID FORMS BUT FAILED TO DO SO, IT CANNOT BE CONCLUDED THAT YOU WERE DENIED AN OPPORTUNITY TO COMPETE.

YOU HAVE FURTHER ALLEGED THAT THE FOUR OFFERORS SUBMITTING PROPOSALS WERE ALL UNION CONTRACTORS, AND THEREFORE THE ACTIONS OF THE PROCURING ACTIVITY WERE IN DIRECT CONFLICT WITH THE PRESIDENT'S SUSPENSION OF THE DAVIS-BACON ACT, THAT SUSPENSION BEING IN EFFECT AT THE TIME OF THE PROCUREMENT. ARE INFORMED, HOWEVER, THAT ONE OF THE SIX FIRMS SOLICITED WAS, IN FACT, A NON-UNION FIRM, AND SINCE WE ARE ADVISED THAT THE SELECTION OF THE SIX FIRMS TO BE SOLICITED WAS PREDICATED UPON THE CRITERIA OF COMPETENCY AND ABILITY TO PERFORM THE WORK IN A SATISFACTORY AND TIMELY MANNER, THE FACT THAT THE MAJORITY OF THEM WERE UNION FIRMS SEEMS PURELY FORTUITOUS. NOTWITHSTANDING THE FOREGOING, THE SUSPENSION OF THE DAVIS-BACON ACT DID NOT PRECLUDE THE SOLICITATION OF UNION FIRMS FOR GOVERNMENT CONTRACTS. INSTEAD, IT MERELY SUSPENDED THE REQUIREMENT THAT FIRMS RECEIVING CONTRACTS PAY THE PREVAILING WAGE RATES AS DETERMINED BY THE SECRETARY OF LABOR.