A-28003, JULY 23, 1929, 9 COMP. GEN. 23

A-28003: Jul 23, 1929

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DEBARMENT OF BIDDERS THERE IS NO AUTHORITY UNDER SECTION 3709. WHERE PAST PERFORMANCES HAVE BEEN UNSATISFACTORY THROUGH ATTEMPT TO DEFRAUD THE GOVERNMENT. INSTRUCTIONS MAY BE ISSUED TO REJECT ALL BIDS OF SUCH CONTRACTOR UNTIL SUCH TIME AS THE CONTRACTOR IS ABLE TO SUBMIT SATISFACTORY ASSURANCES OF THE DISCONTINUANCE OF SUCH PRACTICES. TO THE EFFECT IT WAS CONTEMPLATED TO PERMANENTLY DEBAR CHARLES S. UNQUESTIONABLY THESE ARE REPREHENSIBLE PRACTICES. IT IS NOTED THAT IN THE INCLOSURE OF MEMORANDUM DATED JUNE 28. THE STATEMENT IS MADE THAT: * * * IT IS. AS WAS STATED IN DECISION DATED SEPTEMBER 8. TO THE SECRETARY OF THE NAVY: THERE IS NO AUTHORITY UNDER THE PROVISIONS OF SAID SECTION 3722.

A-28003, JULY 23, 1929, 9 COMP. GEN. 23

DEBARMENT OF BIDDERS THERE IS NO AUTHORITY UNDER SECTION 3709, REVISED STATUTES, FOR THE PERMANENT DEBARMENT OF BIDDERS FOR FURNISHING SUPPLIES TO THE WAR DEPARTMENT, BUT WHERE PAST PERFORMANCES HAVE BEEN UNSATISFACTORY THROUGH ATTEMPT TO DEFRAUD THE GOVERNMENT, INSTRUCTIONS MAY BE ISSUED TO REJECT ALL BIDS OF SUCH CONTRACTOR UNTIL SUCH TIME AS THE CONTRACTOR IS ABLE TO SUBMIT SATISFACTORY ASSURANCES OF THE DISCONTINUANCE OF SUCH PRACTICES.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, JULY 23, 1929:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 11, 1929, WITH INCLOSURES, TO THE EFFECT IT WAS CONTEMPLATED TO PERMANENTLY DEBAR CHARLES S. JAMISON, 1801-1807 MARKET STREET, DENVER, COLO., FROM FURTHER BIDDING ON SUPPLIES FOR THE WAR DEPARTMENT FOR THE REASON THAT:

* * * MR. JAMISON HAS DEMONSTRATED HIS DESIRE TO DELIVER INFERIOR QUALITY SUPPLIES AND HAS ATTEMPTED TO DELIVER SUCH GOODS AT HOURS OTHER THAN THOSE SPECIFIED IN THE CONTRACT IN ORDER THAT HE MIGHT AVOID INSPECTION, THOUGH HE HAD BEEN WARNED REPEATEDLY THAT HIS GOODS MUST BEAR THE INSPECTOR'S STAMP BEFORE DELIVERY. UPON ONE OCCASION OF DELIVERY OF POULTRY, WHICH HAD NOT BEEN PROPERLY BLED, AT THE FITZSIMONS GENERAL HOSPITAL, AN AGENT OF MR. JAMISON ATTEMPTED TO BRIBE A CIVILIAN EMPLOYEE TO ACCEPT DELIVERY IN THE ABSENCE OF THE VETERINARY INSPECTOR.

UNQUESTIONABLY THESE ARE REPREHENSIBLE PRACTICES, AND IT IS NOTED THAT IN THE INCLOSURE OF MEMORANDUM DATED JUNE 28, 1929, FROM THE JUDGE ADVOCATE GENERAL, AND AFTER A DETAILED RECITATION OF THE CHARGES AND COUNTERCHARGES IN THIS MATTER, THE STATEMENT IS MADE THAT:

* * * IT IS, THEREFORE, THE OPINION OF THIS OFFICE THAT, UNTIL RECEIPT OF EVIDENCE TENDING TO REBUT THE PRESUMPTION OF LACK OF RESPONSIBILITY RAISED BY THE EXPERIENCE OF GOVERNMENT AGENCIES IN CONNECTION WITH PREVIOUS CONTRACTS WITH THIS DEALER, HE MAY BE CONSIDERED AS NOT RESPONSIBLE, AND THAT THE SECRETARY OF WAR, IN THE EXERCISE OF THE SUPERVISORY AUTHORITY VESTED IN HIM BY LAW, MAY AUTHORIZE THE ISSUANCE OF SUCH INSTRUCTIONS, BASED UPON THIS UNREBUTTED PRESUMPTION, AS MAY BE DEEMED NECESSARY FOR THE PROTECTION OF THE INTERESTS OF THE UNITED STATES.

THIS CONCLUSION IN THIS CASE MEETS WITH THE APPROVAL OF THIS OFFICE, BUT IT DOES NOT FOLLOW THAT JAMISON OR ANY OTHER FORMER CONTRACTOR MAY BE PERMANENTLY DEBARRED FROM FURTHER BIDDING ON SUPPLIES FOR THE WAR DEPARTMENT. AS WAS STATED IN DECISION DATED SEPTEMBER 8, 1928 (A 24103), TO THE SECRETARY OF THE NAVY:

THERE IS NO AUTHORITY UNDER THE PROVISIONS OF SAID SECTION 3722, REVISED STATUTES (OR IN SECTION 3709, REVISED STATUTES), FOR THE DEBARMENT OF BIDDERS OR THE ISSUANCE OF A DEBARRED BIDDERS' LIST. IT WOULD SEEM THAT THE PURPOSE AND INTENT OF SAID SECTION IS TO AUTHORIZE THE NAVY DEPARTMENT, AFTER THE RECEIPT OF BIDS FROM FIRMS, INDIVIDUALS, ETC., TO REJECT SAID BIDS IF THE CONDITIONS INVOLVED IN A PRIOR DEFAULT UNDER A CONTRACT WITH THE NAVY DEPARTMENT ARE SHOWN TO REQUIRE SUCH ACTION. OTHER WORDS, THE PROVISIONS OF SAID SECTION ARE FOR APPLICATION ONLY AFTER BIDS HAVE BEEN RECEIVED IN RESPONSE TO THE ADVERTISEMENT.

IT WILL BE NOTED THAT SECTION 3722, REVISED STATUTES, IS APPLICABLE SOLELY TO THE NAVY DEPARTMENT AND THAT THERE IS NO SUCH STATUTE APPLICABLE TO THE WAR DEPARTMENT. IT NECESSARILY FOLLOWS THAT UNDER SECTION 3709, REVISED STATUTES, THERE IS NO AUTHORITY FOR PERMANENTLY DEBARRING A BIDDER FROM SUBMITTING PROPOSALS IN RESPONSE TO ADVERTISEMENTS OF THE WAR DEPARTMENT FOR THE DELIVERY OF SUPPLIES. THERE IS AUTHORITY, HOWEVER, AS STATED, TO REFUSE TO ACCEPT A BID OF AN UNSATISFACTORY CONTRACTOR WHO HAS ATTEMPTED FRAUD ON THE GOVERNMENT UNTIL, AS STATED BY THE JUDGE ADVOCATE GENERAL OF THE ARMY,"RECEIPT OF EVIDENCE TENDING TO REBUT THE PRESUMPTION OF LACK OF RESPONSIBILITY RAISED BY THE EXPERIENCE OF GOVERNMENT AGENCIES IN CONNECTION WITH PREVIOUS CONTRACTS WITH THIS DEALER.' SEE 7 COMP. GEN. 547.