B-168496, JAN. 16, 1970

B-168496: Jan 16, 1970

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A PRIME CONTRACTOR WHO PROPOSES TO USE A SUBCONTRACTOR THAT IS ON THE DEBARRED BIDDER LIST AT TIME OF BID OPENING BUT REMOVED PRIOR TO AWARD IS NOT PROSCRIBED FROM RECEIVING AWARD SINCE ASPR DOES NOT PRECLUDE DEBARRED FIRM FROM SUBMITTING A BID EVEN THOUGH BIDDER WILL NOT RECEIVE AWARD UNLESS REMOVED. THE INVITATION FOR BIDS WAS ISSUED ON SEPTEMBER 5. BIDS WERE OPENED ON OCTOBER 14. THE LOW BIDDER WAS DETERMINED TO BE NONRESPONSIBLE. WAS THE SECOND LOW BIDDER. WHICH WAS AT THE TIME OF BIDDING ON THE DEPARTMENT OF DEFENSE CONSOLIDATED LIST OF DEBARRED. THE NAVAL SUPPLY SYSTEMS COMMAND HAS ADVISED THIS OFFICE THAT THE FACTS WERE AS YOU HAVE STATED. WAS TERMINATED AND THAT COMPANY'S NAME REMOVED FROM THE SUSPENDED AND DEBARRED LIST.

B-168496, JAN. 16, 1970

BID PROTEST--DEBARRED BIDDERS--ELIGIBILITY DECISION TO LASKO METAL PRODUCTS, INC; DENYING PROTEST AGAINST AWARD TO STANDARD ARMAMENT, INC. BY NAVAL ORDNANCE STATION, LOUISVILLE, KY. A PRIME CONTRACTOR WHO PROPOSES TO USE A SUBCONTRACTOR THAT IS ON THE DEBARRED BIDDER LIST AT TIME OF BID OPENING BUT REMOVED PRIOR TO AWARD IS NOT PROSCRIBED FROM RECEIVING AWARD SINCE ASPR DOES NOT PRECLUDE DEBARRED FIRM FROM SUBMITTING A BID EVEN THOUGH BIDDER WILL NOT RECEIVE AWARD UNLESS REMOVED.

TO LASKO METAL PRODUCTS, INCORPORATED:

THIS CONCERNS YOUR PROTEST BY TELEGRAM DATED NOVEMBER 26, 1969, AGAINST THE AWARD TO STANDARD ARMAMENT, INCORPORATED, UNDER INVITATION FOR BIDS NO. N00197-70-B-0039 ISSUED BY THE NAVAL ORDNANCE STATION, LOUISVILLE, KENTUCKY.

THE INVITATION FOR BIDS WAS ISSUED ON SEPTEMBER 5, 1969, FOR PARACHUTE FLARE DISPENSERS. BIDS WERE OPENED ON OCTOBER 14, 1969, AND THE LOW BIDDER WAS DETERMINED TO BE NONRESPONSIBLE. STANDARD ARMAMENT DIVISION, HARVARD INDUSTRIES, INCORPORATED, WAS THE SECOND LOW BIDDER. YOU PROTESTED AWARD TO THAT COMPANY ON THE BASIS THAT ITS BID SHOWED THE PRINCIPAL PLACE OF PERFORMANCE TO BE TECHFAB DIVISION OF ALSCO, INCORPORATED, WHICH WAS AT THE TIME OF BIDDING ON THE DEPARTMENT OF DEFENSE CONSOLIDATED LIST OF DEBARRED, INELIGIBLE AND SUSPENDED CONTRACTORS.

THE NAVAL SUPPLY SYSTEMS COMMAND HAS ADVISED THIS OFFICE THAT THE FACTS WERE AS YOU HAVE STATED. HOWEVER, THAT COMMAND ALSO HAS ADVISED THAT PRIOR TO AWARD THE OUTSTANDING SUSPENSION OF ALSCO, INCORPORATED, WAS TERMINATED AND THAT COMPANY'S NAME REMOVED FROM THE SUSPENDED AND DEBARRED LIST. ACCORDINGLY, THE COMMAND CONSIDERS THAT A CONTRACT MAY PROPERLY BE AWARDED TO STANDARD ARMAMENT.

ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-601.1 STATES:

"GENERAL. EACH DEPARTMENT SHALL MAINTAIN A RECORD OF FIRMS AND INDIVIDUALS WHICH IT HAS DEBARRED OR SUSPENDED, TO WHOM CONTRACT AWARDS OF ANY CHARACTER, INCLUDING SALES, WILL NOT BE MADE, AND FROM WHOM BIDS OR PROPOSALS WILL NOT BE SOLICITED AS PROVIDED IN THIS PART." THAT REGULATION PROVIDES TWO THINGS; FIRST, THAT CONTRACTS WILL NOT BE AWARDED TO SUSPENDED OR DEBARRED FIRMS AND SECOND, THAT THE AGENCY SHOULD NOT SOLICIT BIDS OR PROPOSALS FROM SUCH FIRMS. HOWEVER, THE REGULATION DOES NOT PROHIBIT SUSPENDED OR DEBARRED FIRMS FROM SUBMITTING BIDS OR PROPOSALS. ASPR 1-604, ADMINISTRATIVE DEBARMENT OF FIRMS OR INDIVIDUALS, PROVIDES IN PART:

"* * * PLACING THE NAME OF AN INDIVIDUAL OR FIRM ON THE CONSOLIDATED LIST WILL BE FOR THE PURPOSE OF PROTECTING THE INTEREST OF THE GOVERNMENT AND NOT FOR PUNISHMENT." ASPR 1-604.2 (A) PROVIDES THE DEBARMENT OF AN INDIVIDUAL OR FIRM MAY BE MODIFIED BY REDUCING THE PERIOD THEREOF WHEN THE CIRCUMSTANCES JUSTIFY SUCH ACTION. ASPR 1-603 (C) ALSO ALLOWS THE ADMINISTRATIVE AGENCY TO CONSENT TO A SUBCONTRACT WITH A DEBARRED FIRM WHEN TO DO SO IS IN THE BEST INTEREST OF THE GOVERNMENT.

THE ASPR PROVISIONS CLEARLY ILLUSTRATE THAT THE DEBARMENT OF FIRMS IS SOLELY FOR THE PROTECTION OF THE GOVERNMENT AND THAT THE PERIOD OF DEBARMENT MAY BE REDUCED OR TERMINATED BY THE GOVERNMENT WHEN THE AGENCY DETERMINES THAT SUCH ACTION IS WARRANTED. FURTHER, WHILE CONTRACT AWARDS MAY NOT BE MADE TO DEBARRED BIDDERS, THERE IS NO PROSCRIPTION AGAINST A DEBARRED FIRM SUBMITTING A BID EVEN THOUGH THAT BIDDER WILL NOT RECEIVE AWARD UNLESS REMOVED FROM THE LIST. A FORTIORI, THERE IS NO REASON FOR PRECLUDING AWARD TO A PRIME CONTRACTOR WHO PROPOSES TO USE A SUBCONTRACTOR REMOVED FROM THE LIST AFTER BID OPENING BUT PRIOR TO AWARD PARTICULARLY SINCE ASPR SPECIFICALLY AUTHORIZES THE USE OF A SUBCONTRACTOR ON THE LIST UNDER SOME CIRCUMSTANCES.