B-175534, APR 20, 1972

B-175534, APR 20, 1972

BID PROTEST - CANCELLATION OF IFB - SUSPENSION OF DAVIS-BACON ACT - BID PREPARATION COSTS - ANTICIPATED PROFITS DECISION DENYING THE PROTEST OF GEORGE C. WRIGHT LUMBER COMPANY FOR BID PREPARATION COSTS AND ANTICIPATED PROFITS INCIDENT TO THE GOVERNMENT'S CANCELLATION OF AN IFB ISSUED BY ALTUS AFB, OKLA. THERE IS NO LEGAL BASIS FOR ALLOWING AN UNSUCCESSFUL BIDDER TO RECOVER ANTICIPATED PROFITS. HEYER PRODUCTS COMPANY V. UNITED STATES, CT. CL. 63 (1956). BID PREPARATION COSTS MAY BE RECOVERED ONLY WHERE THE RECORD INDICATES THAT THE GOVERNMENT'S ACTION WAS ARBITRARY. KECO INDUSTRIES, INC. V. UNITED STATES, 192 CT. CL. 773 (1970). SINCE THE IFB WAS CANCELLED AS A RESULT OF THE PRESIDENTIAL PROCLAMATION SUSPENDING THE PROVISIONS OF THE DAVIS-BACON ACT, THE COMP. GEN. IS UNABLE TO CONCLUDE THAT THE CANCELLATION WAS IMPROPER OR UNREASONABLE, AND THE CLAIM MUST BE DENIED. B-171851, MAY 11, 1971.

TO GEORGE C. WRIGHT LUMBER COMPANY:

REFERENCE IS MADE TO YOUR CLAIM OF $20,948 FOR BID PREPARATION COSTS AND LOSS OF ANTICIPATED PROFITS AS A RESULT OF THE GOVERNMENT'S CANCELLATION OF INVITATION FOR BIDS NO. F34612-71-B-0368 AND AWARD OF A CONTRACT TO A COMPETITOR UNDER A SUBSEQUENT INVITATION.

THE FILE REVEALS THAT YOU WERE THE LOW BIDDER UNDER THE ORIGINAL IFB ISSUED BY ALTUS AIR FORCE BASE, OKLAHOMA. A PROPOSED CONTRACT WAS PREPARED AND EXECUTED BY BOTH PARTIES. HOWEVER, UNDER GENERAL PROVISION 65 INCLUDED IN THE SOLICITATION (ASPR 7-105.2), THE CONTRACT WAS NOT BINDING UNTIL IT RECEIVED A DESIGNATED WRITTEN APPROVAL. BEFORE SUCH APPROVAL WAS OBTAINED THE PRESIDENT ISSUED PROCLAMATION 4031 ON FEBRUARY 23, 1971, SUSPENDING THE PROVISIONS OF THE DAVIS-BACON ACT. ACCORDINGLY, THE IFB WAS CANCELLED AND THE PROCUREMENT WAS RESOLICITED WITHOUT THE DAVIS-BACON ACT REQUIREMENTS. ALTHOUGH YOU LOWERED YOUR BID ON THE SECOND SOLICITATION, YOU WERE NOT THE LOW BIDDER AND AWARD WAS MADE TO ANOTHER COMPANY.

YOU MAINTAIN THAT YOU LOST THE CONTRACT BECAUSE YOUR FIRST BID WAS EXPOSED AT THE FIRST OPENING, AND THEREFORE, YOU ARE ENTITLED TO RECOVER $948 FOR BID PREPARATION COSTS AND $20,000 FOR LOST PROFITS.

THERE IS NO LEGAL BASIS FOR ALLOWING AN UNSUCCESSFUL BIDDER TO RECOVER ANTICIPATED PROFITS. HEYER PRODUCTS COMPANY V. UNITED STATES, 135 CT. CL. 63 (1956); 48 COMP. GEN. 471 (1969). BID PREPARATION COSTS MAY BE RECOVERED ONLY UPON A SHOWING THAT THE GOVERNMENT ACTED ARBITRARILY AND THAT THERE WAS NO REASONABLE BASIS FOR THE GOVERNMENT'S ACTION. KECO INDUSTRIES, INC. V. UNITED STATES, 192 CT. CL. 773 (1970); CONTINENTAL BUSINESS ENTERPRISES, INC. V. UNITED STATES, CT. CL. 160-69, DECEMBER 10, 1971. THE RECORD INDICATES THAT THE FIRST IFB WAS CANCELLED SOLELY IN ACCORDANCE WITH A PRESIDENTIAL PROCLAMATION, AND WE HAVE PREVIOUSLY HELD THAT CANCELLATION UNDER THESE CIRCUMSTANCES WAS NOT IMPROPER OR UNREASONABLE. B-172109, APRIL 2, 1971; B-171851, MAY 11, 1971. THEREFORE, YOUR CLAIM MUST BE DENIED.