B-127947, SEP. 10, 1956
Highlights
INC.: REFERENCE IS MADE TO YOUR LETTERS OF AUGUST 9 AND 14. IT IS UNDERSTOOD. AS YOU PREVIOUSLY WERE ADVISED IN OUR LETTER OF JUNE 5. THE FUNCTION OF DETERMINING WHETHER A PARTICULAR DEALER IS A RESPONSIBLE BIDDER. IS ESSENTIALLY AN ADMINISTRATIVE ONE INVOLVING THE DETERMINATION OF SUCH FACTUAL ISSUES AS THE BIDDER'S REPUTATION FOR PAST PERFORMANCE. THE VARIOUS AGENCIES LISTED IN YOUR LETTERS HAVE DECIDED TO FOLLOW THE ACTION OF THE DEPARTMENT OF DEFENSE IN REFUSING TO AWARD YOU CONTRACTS OVER A GIVEN PERIOD OF TIME. IS A MATTER LYING SOLELY WITHIN THE INDIVIDUAL DISCRETION OF EACH OF SUCH AGENCIES. WE WOULD NOT BE JUSTIFIED IN DISTURBING THEIR ACTION EXCEPT UPON A CLEAR SHOWING OF BAD FAITH UPON THEIR PART OR THAT THEIR ACTION WAS NOT IN ACCORDANCE WITH APPLICABLE REGULATIONS.
B-127947, SEP. 10, 1956
TO MANHATTAN LIGHTING EQUIPMENT CO., INC.:
REFERENCE IS MADE TO YOUR LETTERS OF AUGUST 9 AND 14, 1956, WHEREIN YOU QUESTION THE PROPRIETY OF THE DEBARMENT ACTION TAKEN AGAINST YOU BY SEVERAL GOVERNMENTAL AGENCIES OTHER THAN THE DEPARTMENT OF DEFENSE WHICH, IT IS UNDERSTOOD, DEBARRED YOU FROM BIDDING ON ITS INVITATIONS FOR THE 3- YEAR PERIOD COMMENCING FROM MAY 14, 1956.
AS YOU PREVIOUSLY WERE ADVISED IN OUR LETTER OF JUNE 5, 1956, B 127947, AND AGAIN IN OUR DECISION OF MARCH 1, 1956, B-126782, THE FUNCTION OF DETERMINING WHETHER A PARTICULAR DEALER IS A RESPONSIBLE BIDDER, WITHIN THE INTENT AND MEANING OF THE ADVERTISING STATUTES OF THE UNITED STATES, AND THUS ELIGIBLE TO RECEIVE AN AWARD OF GOVERNMENT CONTRACTS, IS ESSENTIALLY AN ADMINISTRATIVE ONE INVOLVING THE DETERMINATION OF SUCH FACTUAL ISSUES AS THE BIDDER'S REPUTATION FOR PAST PERFORMANCE, HIS OVERALL EXPERIENCE IN THE PARTICULAR INDUSTRY INVOLVED, HIS PLANT FACILITIES AND EQUIPMENT, INTEGRITY, FINANCIAL RESPONSIBILITY, AND LIKE CONSIDERATIONS, SUCH AS CAN BE DETERMINED ONLY BY, AND TO THE SATISFACTION OF, THE ADMINISTRATIVE OFFICERS OF THE GOVERNMENTAL ACTIVITY DIRECTLY CONCERNED. SEE O-BRIEN V. CARNEY, 6 F.SUPP. 761, 762; 14 COMP. GEN. 305; 34 ID. 86.
THEREFORE, IF BY VIRTUE OF THEIR UNSATISFACTORY EXPERIENCES IN THEIR PAST DEALINGS WITH YOUR FIRM, THE VARIOUS AGENCIES LISTED IN YOUR LETTERS HAVE DECIDED TO FOLLOW THE ACTION OF THE DEPARTMENT OF DEFENSE IN REFUSING TO AWARD YOU CONTRACTS OVER A GIVEN PERIOD OF TIME, THAT, OF COURSE, IS A MATTER LYING SOLELY WITHIN THE INDIVIDUAL DISCRETION OF EACH OF SUCH AGENCIES, AND WE WOULD NOT BE JUSTIFIED IN DISTURBING THEIR ACTION EXCEPT UPON A CLEAR SHOWING OF BAD FAITH UPON THEIR PART OR THAT THEIR ACTION WAS NOT IN ACCORDANCE WITH APPLICABLE REGULATIONS.