B-146235, FEB. 20, 1962

B-146235, FEB. 20, 1962

TO MR. G. A. GODINEZ:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 17, 1962, PROTESTING AGAINST THE REJECTION OF THE BID SUBMITTED BY YOUR COMPANY UNDER DISTRICT OF COLUMBIA INVITATION 623062-JB.

YOUR FIRM WAS THE LOW BIDDER ON ITEMS 4, 28, 53 THROUGH 56, AND 72. HOWEVER, UPON INVESTIGATION, THE DISTRICT OF COLUMBIA CONTRACTING OFFICER LEARNED THAT YOUR FIRM HAD BEEN DEBARRED BY THE VETERANS ADMINISTRATION FROM BIDDING FOR A PERIOD OF ONE YEAR FOR THE FOLLOWING REASONS: POOR LABELING, DISAGREEABLE ODOR, POOR DELIVERY AND POOR CONTRACT PERFORMANCE IN GENERAL. IN THE LIGHT OF THE DEBARMENT BY THE VETERANS ADMINISTRATION, THE DISTRICT OF COLUMBIA CONTRACTING OFFICER DECIDED NOT TO MAKE AN AWARD TO YOUR FIRM. IT HAS BEEN REPORTED, AS AN ADDED FACTOR, THAN ON OCTOBER 17, 1961, YOU AND YOUR FIRM WERE INDICTED ON 16 COUNTS BY A FEDERAL GRAND JURY FOR NONPAYMENT OF IMPORT DUTIES ON SULPHA DRUGS IMPORTED FROM DENMARK.

IN OUR DECISION B-127947, SEPTEMBER 10, 1956, THERE WAS CONSIDERED A SIMILAR CASE IN WHICH, ON THE BASIS OF A DEBARMENT BY ONE GOVERNMENT AGENCY, OTHER FEDERAL AGENCIES REFRAINED FROM MAKING AWARDS TO THE DEBARRED BIDDER. IN THAT DECISION IT WAS STATED THAT THE FUNCTION OF DETERMINING WHETHER A PARTICULAR BIDDER IS A RESPONSIBLE BIDDER IS ESSENTIALLY AN ADMINISTRATIVE ONE INVOLVING THE DETERMINATION OF SUCH FACTUAL ISSUES AS THE BIDDER'S REPUTATION FOR PAST PERFORMANCE AND INTEGRITY, AMONG OTHERS, SUCH AS CAN BE DETERMINED ONLY BY, AND TO THE SATISFACTION OF, THE ADMINISTRATIVE OFFICERS OF THE CONTRACTING ACTIVITY DIRECTLY CONCERNED. FURTHER, IT WAS STATED THAT IF VARIOUS CONTRACTING AGENCIES DECIDED TO FOLLOW THE ACTION OF THE DEBARRING AGENCY THAT WOULD BE A MATTER SOLELY WITHIN THEIR DISCRETION AND WE WOULD NOT BE JUSTIFIED IN DISTURBING THEIR ACTION.

IN THE IMMEDIATE CIRCUMSTANCES, SINCE THE ACTION TAKEN BY THE CONTRACTING OFFICER WAS WITHIN THE EXERCISE OF HIS DISCRETION, THERE APPEARS TO BE NO LEGAL BASIS FOR ANY OBJECTION ON OUR PART.