B-222527, MAY 13, 1986, 86-1 CPD 457
Highlights
CONTRACTORS DIGEST: FIRM AGAINST WHICH DEBARMENT ACTION HAS BEEN INITIATED IS INELIGIBLE FOR CONTRACT AWARD. SEMTEX ASSERTS THAT IT SUBMITTED THE LOW OFFER UNDER THE SOLICITATION AND SHOULD HAVE RECEIVED THE CONTRACT DESPITE THE FACT THAT FORMAL DEBARMENT ACTION HAD BEEN INITIATED AGAINST IT BEFORE THE AWARD. OFFERS IN RESPONSE TO THE SOLICITATION WERE DUE ON JULY 25. PRECLUDES A FIRM FROM RECEIVING A CONTRACT AFTER DEBARMENT PROCEEDINGS HAVE BEEN INITIATED. SEMTEX DOES NOT SUGGEST THAT THE DEBARMENT ACTION ITSELF WAS IMPROPER. THE FIRM STATES THAT IT "CAN COME TO NO OTHER CONCLUSION" BUT THAT DLA DELIBERATELY POSTPONED THE AWARD UNTIL SEMTEX WAS INELIGIBLE FOR IT. WE WILL NOT ATTRIBUTE IMPROPER MOTIVES TO PROCUREMENT PERSONNEL BASED ON INFERENCE OR SUPPOSITION.
B-222527, MAY 13, 1986, 86-1 CPD 457
CONTRACTS - PROTESTS - INTERESTED PARTY REQUIREMENT - SUSPENDED, DEBARRED, ETC. CONTRACTORS DIGEST: FIRM AGAINST WHICH DEBARMENT ACTION HAS BEEN INITIATED IS INELIGIBLE FOR CONTRACT AWARD.
SEMTEX INDUSTRIAL CORP.:
SEMTEX INDUSTRIAL CORP. PROTESTS THE AWARD OF A CONTRACT BY THE DEFENSE LOGISTICS AGENCY (DLA) PURSUANT TO SOLICITATION NO. DLA900-86-R 2784. SEMTEX ASSERTS THAT IT SUBMITTED THE LOW OFFER UNDER THE SOLICITATION AND SHOULD HAVE RECEIVED THE CONTRACT DESPITE THE FACT THAT FORMAL DEBARMENT ACTION HAD BEEN INITIATED AGAINST IT BEFORE THE AWARD. WE DISMISS THE PROTEST.
OFFERS IN RESPONSE TO THE SOLICITATION WERE DUE ON JULY 25, 1985. MARCH 24, 1986, DLA INITIATED FORMAL DEBARMENT PROCEEDINGS AGAINST SEMTEX. DLA THEN NOTIFIED SEMTEX IN APRIL OF 1986 THAT THE CONTRACT HAD BEEN AWARDED TO ANOTHER OFFEROR DESPITE SEMTEX'S LOWER OFFER, BECAUSE THE FEDERAL ACQUISITION REGULATION (FAR), 48 C.F.R. SEC. 9.406 3(C)(7) (1984), PRECLUDES A FIRM FROM RECEIVING A CONTRACT AFTER DEBARMENT PROCEEDINGS HAVE BEEN INITIATED.
SEMTEX DOES NOT SUGGEST THAT THE DEBARMENT ACTION ITSELF WAS IMPROPER. RATHER, BASED ON THE PERIOD OF TIME WHICH ELAPSED BETWEEN CLOSING OF THE SOLICITATION AND AWARD OF THE CONTRACT, THE FIRM STATES THAT IT "CAN COME TO NO OTHER CONCLUSION" BUT THAT DLA DELIBERATELY POSTPONED THE AWARD UNTIL SEMTEX WAS INELIGIBLE FOR IT.
WE WILL NOT ATTRIBUTE IMPROPER MOTIVES TO PROCUREMENT PERSONNEL BASED ON INFERENCE OR SUPPOSITION. TCA RESERVATIONS, INC.-- RECONSIDERATION, B-218615.2, OCT. 8, 1985, 85-2 CPD PARA. 389. SEMTEX'S PROTEST THUS PROVIDES NO BASIS ON WHICH TO QUESTION THE TIMING OF THE AWARD. IN ANY CASE, WE HAVE NO LEGAL AUTHORITY TO WAIVE THE FAR PROHIBITION AGAINST AWARDING A CONTRACT TO A FIRM AGAINST WHICH DEBARMENT ACTION HAS BEEN INITIATED. ACCORDINGLY, SEMTEX SIMPLY IS NOT ELIGIBLE FOR AWARD AT THIS TIME. SEE S.A.F.E. EXPORT CORP., B-215022; B-215022.3, JULY 17, 1984, 84-2 CPD PARA. 58.
THE PROTEST IS DISMISSED.