B-148072, JUN. 14, 1962

B-148072, JUN. 14, 1962

TO A. B. C. ALUMINUM MFG. CORP.:

IN LETTER OF JUNE 4, 1962, YOU REQUEST RECONSIDERATION OF OUR DECISION OF MAY 3, 1962, B-148072, HOLDING THAT THE CONTRACTING OFFICER HAD A SUBSTANTIAL BASIS FOR THE CONCLUSION THAT YOUR FIRM WAS NOT A RESPONSIBLE BIDDER.

ESSENTIALLY, IT IS YOUR CONTENTION THAT THE CONTRACTING OFFICER'S DETERMINATION WAS BASED UPON ,HEARSAY" EVIDENCE WHICH YOU WERE NOT GIVEN THE OPPORTUNITY TO REFUTE AND WHICH YOU BELIEVE YOU COULD HAVE OVERCOME BY CERTAIN MATTERS OF FACT THAT YOU LIST IN YOUR LETTER. FURTHER, YOU CONTEND THAT OUR OFFICE WRONGFULLY ENDORSED AND SUPPORTED "ALL OF THE MISLEADING STATEMENTS AND CONTENTIONS SUBMITTED BY THE CONTRACTING OFFICER IN HIS SELF SERVING HALF TRUE PRESENTATION.'

THESE STATEMENTS INDICATE THAT YOU ARE NOT AWARE OF THE MANNER IN WHICH DETERMINATIONS CONCERNING "RESPONSIBILITY" ARE MADE BY CONTRACTING OFFICERS OR OF THE ROLE OUR OFFICE PLAYS IN REVIEWING THE DETERMINATIONS THAT ARE ACTUALLY MADE.

THE DETERMINATION OF BIDDERS' RESPONSIBILITY IS THE FUNCTION OF EACH CONTRACTING OFFICER AS HE PASSES UPON THE BIDS RECEIVED FOR AN AWARD TO BE MADE BY HIM. THE ARMED SERVICES PROCUREMENT REGULATION, SECTION 1-904.1, REQUIRES THAT THE CONTRACTING OFFICER, IN EVERY CASE WHERE AN AWARD OF A CONTRACT IS TO BE MADE, MAKE A DOCUMENTED DETERMINATION THAT THE BIDDER TO WHOM HE PROPOSES TO LET THE CONTRACT IS RESPONSIBLE, AND WHERE HE DETERMINES THAT THE BIDDER IS NOT RESPONSIBLE SUCH A DETERMINATION ALSO IS REQUIRED TO BE DOCUMENTED AND FILED IN THE PROCUREMENT RECORD. FURTHER, THE PROCUREMENT REGULATIONS DO NOT REQUIRE THAT THE CONTRACTING OFFICER HOLD HEARINGS, INFORMAL OR OTHERWISE, TO ASCERTAIN THE BIDDER'S RESPONSIBILITY, BUT RATHER THE REGULATIONS AUTHORIZE HIM TO CONSIDER INFORMATION FROM EVERY AND ANY SOURCE THAT HE CONSIDERS PROPER AND NECESSARY IN THE CIRCUMSTANCES. AND WHILE IT MAY BE THAT IN SOME RESPECTS SUCH INFORMATION IN A COURT OF LAW MIGHT BE CONSIDERED "HEARSAY," WE KNOW OF NO REQUIREMENT REQUIRING THE EXCLUSION OF SUCH DATA FROM THE CONTRACTING OFFICER'S DETERMINATION OF BIDDER'S RESPONSIBILITY. IN THIS CONNECTION IT SHOULD BE UNDERSTOOD THAT THE QUESTION OF RESPONSIBILITY IS NOT DECIDED BY A BIDDER'S PAST PERFORMANCE ALONE, BUT THAT OTHER FACTORS, INCLUDING THE BIDDER'S REPUTATION IN ITS DEALING WITH THE GOVERNMENT BEFORE ANY AND ALL GOVERNMENT AGENCIES, ARE FOR CONSIDERATION, FOR AFTER ALL IT IS NOT REALLY JUST A PARTICULAR AGENCY THAT IS INVOLVED, BUT RATHER IT IS THE WHOLE GOVERNMENT ACTING THROUGH A PARTICULAR AGENCY IN EACH SPECIFIC CIRCUMSTANCE THAT IS INVOLVED.

ONCE THE CONTRACTING OFFICER MAKES HIS DETERMINATION, IT IS ENTITLED TO GREAT WEIGHT FOR, AS THE COURTS HAVE INDICATED, THE FINAL SELECTION OF A CONTRACTOR INVOLVES DISCRETION THAT IS NOT ORDINARILY SUBJECT TO REVIEW. FRIEND V. LEE, 221 F.2D 96. IN FACT, THE COURTS HAVE GONE TO THE EXTENT OF INDICATING THAT CONDUCT OF THE CONTRACTING OFFICER TANTAMOUNT TO FRAUD BE PROVED AS A CONDITION TO REVIEWING THE CONTRACTING OFFICER'S DETERMINATION. IBID. OUR OFFICE HAS GENERALLY ADHERED TO THE SAME PRINCIPLE. THEREFORE, OUR DECISION OF MAY 3, 1962, SHOULD NOT BE UNDERSTOOD AS AN INDICTMENT OF YOUR FIRM, BUT ONLY AS A REVIEW OF A RECORD TO ASCERTAIN WHETHER THERE WAS A FOUNDATION FOR THE CONTRACTING OFFICER'S CONCLUSION AND THAT IT WAS NOT MERELY THE RESULT OF A PERSONAL WHIM OR CAPRICE. IN THIS CONNECTION, IT SHOULD BE UNDERSTOOD THAT THIS OFFICE IS NOT REQUIRED TO DETERMINE WHETHER OR NOT YOUR FIRM IS RESPONSIBLE. THIS OFFICE MERELY ASCERTAINS WHETHER THE INFORMATION THAT THE CONTRACTING OFFICER RELIED UPON REASONABLY SUPPORTED THE CONCLUSION HE REACHED. INDICATED IN THE MAY 3 DECISION, IT APPEARED, IN OUR OPINION, THAT THE INFORMATION THAT THE CONTRACTING OFFICER HAD BEFORE HIM WAS SUFFICIENT TO LEND ITSELF TO THE CONCLUSION THAT HE REACHED.

IN THE CIRCUMSTANCES, WE ARE AWARE OF NO COMPELLING LEGAL REASON WHY WE SHOULD NOT ADHERE TO THE DECISION OF MAY 3, 1962.