B-149781, OCT. 29, 1962

B-149781: Oct 29, 1962

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

IT IS CONCLUDED THAT THE BID OF NUCLEAR SUPPLY AND SERVICE COMPANY WAS PROPERLY REJECTED PURSUANT TO ASPR 1-603 (C). WHICH PROVIDES THAT WHERE A CONCERN LISTED ON A DEBARRED BIDDER'S LIST IS PROPOSED AS A SUBCONTRACTOR. THE PROCURING ACTIVITY DETERMINED THAT THE REJECTION WAS JUSTIFIED BECAUSE THE SUPPLIER OF THIS LOW BIDDER WAS LISTED AS A DEBARRED BIDDER UNDER THE AUTHORITY OF SECTION 1 (A) OF THE WALSH-HEALEY ACT. WE BELIEVE THE REJECTION WAS IMPROPER. THE SAME STANDARDS THEN COULD BE APPLIED IN ASCERTAINING THE FITNESS OF A SUBCONTRACTOR OR SUPPLIER AS WERE OBSERVED IN DETERMINING THE FITNESS OF THE PRIME CONTRACTOR. 37 COMP. OUR OFFICE WILL TAKE NO FURTHER ACTION IN THE MATTER.

B-149781, OCT. 29, 1962

TO THE SECRETARY OF THE ARMY:

IN A LETTER OF AUGUST 23, 1962, NUCLEAR SUPPLY AND SERVICE COMPANY PROTESTED THE AWARD OF CONTRACT NO. 04-351 OI-5742-62 TO CHRISTIE ELECTRIC CORPORATION FOR THREE BATTERY CHARGERS, ON THE GROUNDS THAT IT HAD SUBMITTED THE LOWEST BID.

IN REPORTS OF OCTOBER 3 AND 17, 1962, IT IS CONCLUDED THAT THE BID OF NUCLEAR SUPPLY AND SERVICE COMPANY WAS PROPERLY REJECTED PURSUANT TO ASPR 1-603 (C), WHICH PROVIDES THAT WHERE A CONCERN LISTED ON A DEBARRED BIDDER'S LIST IS PROPOSED AS A SUBCONTRACTOR, THE CONTRACTING OFFICER SHOULD, WHERE APPROPRIATE, DECLINE TO CONSENT TO SUBCONTRACTING WITH SUCH CONCERN. THE PROCURING ACTIVITY DETERMINED THAT THE REJECTION WAS JUSTIFIED BECAUSE THE SUPPLIER OF THIS LOW BIDDER WAS LISTED AS A DEBARRED BIDDER UNDER THE AUTHORITY OF SECTION 1 (A) OF THE WALSH-HEALEY ACT, 49 STAT. 2036.

WE BELIEVE THE REJECTION WAS IMPROPER. NOTHING IN THE WALSH-HEALEY ACT PROHIBITS AN AWARD OF A CONTRACT TO A COMPANY WHICH CONTEMPLATES SUBCONTRACTING. 34 COMP. GEN. 595. FURTHERMORE, THE RESPONSIBILITY OF THE BIDDER GENERALLY MAY NOT BE EVALUATED ON THE BASIS OF THE QUALIFICATIONS OF HIS INTENDED SUBCONTRACTOR UNLESS THE APPLICABLE INVITATION SO PROVIDES. 38 COMP. GEN. 778, 780, AND CASES CITED THEREIN. ALSO, SEE B-132479, DATED SEPTEMBER 5, 1957. THE INSTANT INVITATION AND CONTRACT CONTAINED NO PROVISION THAT THE QUALIFICATIONS OF THE SUBCONTRACTOR AND SUPPLIER WOULD BE SUBJECT TO DETERMINATION AND APPROVAL BY THE CONTRACTING OFFICER. IF IT HAD, THE SAME STANDARDS THEN COULD BE APPLIED IN ASCERTAINING THE FITNESS OF A SUBCONTRACTOR OR SUPPLIER AS WERE OBSERVED IN DETERMINING THE FITNESS OF THE PRIME CONTRACTOR. 37 COMP. GEN. 544, 546. WITHOUT SUCH A PROVISION, THE AGENCY HAD NEITHER CONTRACTUAL NOR STATUTORY AUTHORITY TO QUESTION THE QUALIFICATIONS OF THE SUPPLIER.

HOWEVER, SINCE DELIVERY OF THE BATTERY CHARGERS HAS ALREADY BEEN COMPLETED, IT WOULD NOT BE IN THE BEST INTERESTS OF THE GOVERNMENT TO CANCEL THIS CONTRACT. ACCORDINGLY, OUR OFFICE WILL TAKE NO FURTHER ACTION IN THE MATTER.