B-174816, MAR 2, 1972, 51 COMP GEN 551

B-174816: Mar 2, 1972

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WAS A PROPER IMPLEMENTATION OF AGENCY REGULATIONS REQUIRING EACH ESTABLISHMENT OF A BIDDER TO HAVE AN AAP AND IN ADDITION PROVIDING FOR A HEARING UPON MORE THAN ONE NONRESPONSIBILITY DETERMINATION. THERE WAS NO DENIAL OF DUE PROCESS AS THE DETERMINATION OF NONRESPONSIBILITY WAS A LIMITED OR TEMPORARY SUSPENSION AND NOT A DE FACTO DEBARMENT. 1972: THIS IS IN REPLY TO YOUR TELEGRAM OF DECEMBER 27. YOU WERE THE LOW BIDDER FOR THE NON-SET-ASIDE PORTION OF THE SOLICITATION COVERING GROUPS I AND II. YOUR BID WAS REJECTED SINCE IT WAS DETERMINED THAT YOUR FIRM DID NOT MEET THE PRESCRIBED STANDARDS OF RESPONSIBILITY IN THAT ACCEPTABLE EQUAL EMPLOYMENT OPPORTUNITY (EEO) AFFIRMATIVE ACTION PLANS (AAP) HAD NOT BEEN DEVELOPED AT YOUR CORPORATE OFFICE AT ALTON.

B-174816, MAR 2, 1972, 51 COMP GEN 551

CONTRACTS - LABOR STIPULATIONS - NONDISCRIMINATION - "AFFIRMATIVE ACTION PROGRAMS" - NONCOMPLIANCE THE REJECTION OF THE LOW BID ON THE NON-SET-ASIDE PORTION OF A REQUIREMENTS TYPE CONTRACT FOR FIBERBOARD BECAUSE OF NONCOMPLIANCE WITH EXECUTIVE ORDER 11246 DUE TO THE BIDDER'S FAILURE TO DEVELOP EQUAL EMPLOYMENT OPPORTUNITY AFFIRMATIVE ACTION PLANS (AAP) AT FACILITIES OTHER THAN THE ONE BIDDING, WAS A PROPER IMPLEMENTATION OF AGENCY REGULATIONS REQUIRING EACH ESTABLISHMENT OF A BIDDER TO HAVE AN AAP AND IN ADDITION PROVIDING FOR A HEARING UPON MORE THAN ONE NONRESPONSIBILITY DETERMINATION; FOR A 30-DAY "SHOW CAUSE" NOTICE REGARDING ENFORCEMENT PROCEEDINGS, WITH AID TO THE BIDDER IN RESOLVING DEFICIENCIES; FOR CONTRACT CANCELLATION OR TERMINATION; AND FOR DEBARMENT, AND THERE WAS NO DENIAL OF DUE PROCESS AS THE DETERMINATION OF NONRESPONSIBILITY WAS A LIMITED OR TEMPORARY SUSPENSION AND NOT A DE FACTO DEBARMENT. HOWEVER, IN THE FUTURE IN ISSUING A "SHOW CAUSE" ORDER A BIDDER SHOULD BE ADVISED HE CAN BE FOUND NONRESPONSIBLE UNTIL RESOLUTION OF THE MATTER - A RESOLUTION THAT SHOULD BE DETERMINED WITHOUT DELAY.

TO THE ALTON BOX BOARD COMPANY, MARCH 2, 1972:

THIS IS IN REPLY TO YOUR TELEGRAM OF DECEMBER 27, 1971, AND SUPPLEMENTAL LETTERS OF JANUARY 6 AND FEBRUARY 3, 1972, PROTESTING THE REJECTION OF THE LOW BID SUBMITTED BY YOUR JACKSONVILLE, FLORIDA, FACILITY UNDER SOLICITATION NO. CHNFT-71-041, ISSUED BY THE GENERAL SERVICES ADMINISTRATION (GSA), REGION 5 (CHICAGO).

THE SOLICITATION, AS AMENDED, REQUESTED SUBMISSION OF BIDS FOR A REQUIREMENT TYPE CONTRACT FOR "FSC 8115" TRIPLE WALL FIBERBOARD BOXES BY THE BID OPENING DATE OF AUGUST 17, 1971. YOU WERE THE LOW BIDDER FOR THE NON-SET-ASIDE PORTION OF THE SOLICITATION COVERING GROUPS I AND II, REGIONS 1 THROUGH 7 FOR AN ESTIMATED AWARD VALUE OF $288,995.

YOUR BID WAS REJECTED SINCE IT WAS DETERMINED THAT YOUR FIRM DID NOT MEET THE PRESCRIBED STANDARDS OF RESPONSIBILITY IN THAT ACCEPTABLE EQUAL EMPLOYMENT OPPORTUNITY (EEO) AFFIRMATIVE ACTION PLANS (AAP) HAD NOT BEEN DEVELOPED AT YOUR CORPORATE OFFICE AT ALTON, ILLINOIS, AND AT YOUR DALLAS, TEXAS, FACILITY. CONTRACTS FOR THE ADVERTISED REQUIREMENTS WERE AWARDED TO OTHER BIDDERS ON DECEMBER 20, 1971.

ESSENTIALLY, YOU STATE TWO BASES FOR YOUR POSITION THAT GSA WRONGFULLY REJECTED YOUR LOW BID. FIRST, YOU QUESTION THE PROPERIETY OF DETERMINING YOUR JACKSONVILLE FACILITY INELIGIBLE BECAUSE OF EEO ACTION TAKEN OR OMITTED AT YOUR OTHER PLANT LOCATIONS. YOU ALSO CONTEND THAT IN THE ABSENCE OF A FORMAL HEARING REGARDING YOUR COMPLIANCE STATUS, AND/OR FURTHER ATTEMPTS AFTER SEPTEMBER 1971, BY THE GOVERNMENT TO OBTAIN COMPLIANCE THROUGH CONCILIATION, MEDIATION AND PERSUASION, THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY WAS UNFAIR AND RESULTED IN A DENIAL OF DUE PROCESS.

THE GOVERNING REGULATION RELATING TO THE BASES OF YOUR PROTEST IS SECTION 60-2.2 OF TITLE 41, WHICH PROVIDES AS FOLLOWS:

SEC 60-2.2 AGENCY ACTION.

(A) ANY CONTRACTOR REQUIRED BY SEC 60-1.40 OF THIS CHAPTER TO DEVELOP AN AFFIRMATIVE ACTION PROGRAM AT EACH OF HIS ESTABLISHMENTS WHO HAS NOT COMPLIED FULLY WITH THAT SECTION IS NOT IN COMPLIANCE WITH EXECUTIVE ORDER 11246, AS AMENDED (30 F.R. 12319). UNTIL SUCH PROGRAMS ARE DEVELOPED AND FOUND TO BE ACCEPTABLE IN ACCORDANCE WITH THE STANDARDS AND GUIDELINES SET FORTH IN SECS 60-2.10 THROUGH 60-2.32, THE CONTRACTOR IS UNABLE TO COMPLY WITH THE EQUAL EMPLOYMENT OPPORTUNITY CLAUSE.

(B) IF, IN DETERMINING SUCH CONTRACTOR'S RESPONSIBILITY FOR AN AWARD OF A CONTRACT IT COMES TO THE CONTRACTING OFFICER'S ATTENTION, THROUGH SOURCES WITHIN HIS AGENCY OR THROUGH THE OFFICE OF FEDERAL CONTRACT COMPLIANCE OR OTHER GOVERNMENT AGENCIES, THAT THE CONTRACTOR HAS NOT DEVELOPED AND ACCEPTABLE AFFIRMATIVE ACTION PROGRAM AT EACH OF HIS ESTABLISHMENTS, THE CONTRACTING OFFICER SHALL NOTIFY THE DIRECTOR AND DECLARE THE CONTRACTOR- BIDDER NONRESPONSIBLE UNLESS HE CAN OTHERWISE AFFIRMATIVELY DETERMINE THAT THE CONTRACTOR IS ABLE TO COMPLY WITH HIS EQUAL EMPLOYMENT OBLIGATIONS OR, UNLESS, UPON REVIEW, IT IS DETERMINED BY THE DIRECTOR THAT SUBSTANTIAL ISSUES OF LAW OR FACT EXIST AS TO THE CONTRACTOR'S RESPONSIBILITY TO THE EXTENT THAT A HEARING IS, IN HIS SOLE JUDGMENT, REQUIRED PRIOR TO A DETERMINATION THAT THE CONTRACTOR IS NONRESPONSIBLE: PROVIDED, THAT DURING ANY PRE-AWARD CONFERENCES EVERY EFFORT SHALL BE MADE THROUGH THE PROCESSES OF CONCILIATION, MEDIATION AND PERSUASION TO DEVELOP AN ACCEPTABLE AFFIRMATIVE ACTION PROGRAM MEETING THE STANDARDS AND GUIDELINES SET FORTH IN SECS 60-2.10 THROUGH 60-2.32 SO THAT, IN THE PERFORMANCE OF HIS CONTRACT, THE CONTRACTOR IS ABLE TO MEET HIS EQUAL EMPLOYMENT OBLIGATIONS IN ACCORDANCE WITH THE EQUAL OPPORTUNITY CLAUSE AND APPLICABLE RULES, REGULATIONS, AND ORDERS: PROVIDED FURTHER, THAT WHEN THE CONTRACTOR-BIDDER IS DECLARED NONRESPONSIBLE MORE THAN ONCE FOR INABILITY TO COMPLY WITH THE EQUAL EMPLOYMENT OPPORTUNITY CLAUSE A NOTICE SETTING A TIMELY HEARING DATE SHALL BE ISSUED CONCURRENTLY WITH THE SECOND NONRESPONSIBILITY DETERMINATION IN ACCORDANCE WITH THE PROVISIONS OF SEC 60-1.26 PROPOSING TO DECLARE SUCH CONTRACTOR-BIDDER INELIGIBLE FOR FUTURE CONTRACTS AND SUBCONTRACTS.

(C) IMMEDIATELY UPON FINDING THAT A CONTRACTOR HAS NO AFFIRMATIVE ACTION PROGRAM OR THAT HIS PROGRAM IS NOT ACCEPTABLE TO THE CONTRACTING OFFICER, THE COMPLIANCE AGENCY REPRESENTATIVE OR THE REPRESENTATIVE OF THE OFFICE OF FEDERAL CONTRACT COMPLIANCE, WHICHEVER HAS MADE SUCH A FINDING, SHALL NOTIFY OFFICIALS OF THE APPROPRIATE COMPLIANCE AGENCY AND THE OFFICE OF FEDERAL CONTRACT COMPLIANCE OF SUCH FACT. THE COMPLIANCE AGENCY SHALL ISSUE A NOTICE TO THE CONTRACTOR GIVING HIM 30 DAYS TO SHOW CAUSE WHY ENFORCEMENT PROCEEDINGS UNDER SECTION 209(B) OF EXECUTIVE ORDER 11246, AS AMENDED, SHOULD NOT BE INSTITUTED.

(1) IF THE CONTRACTOR FAILS TO SHOW GOOD CAUSE FOR HIS FAILURE OR FAILS TO REMEDY THAT FAILURE BY DEVELOPING AND IMPLEMENTING AN ACCEPTABLE AFFIRMATIVE ACTION PROGRAM WITHIN 30 DAYS, THE COMPLIANCE AGENCY, UPON THE APPROVAL OF THE DIRECTOR, SHALL IMMEDIATELY ISSUE A NOTICE OF PROPOSED CANCELLATION OR TERMINATION OF EXISTING CONTRACTS OR SUBCONTRACTS AND DEBARMENT FROM FUTURE CONTRACTS AND SUBCONTRACTS PURSUANT TO SEC 60- 1.26(B), GIVING THE CONTRACTOR 10 DAYS TO REQUEST A HEARING. IF A REQUEST FOR HEARING HAS NOT BEEN RECEIVED WITHIN 10 DAYS FROM SUCH NOTICE, SUCH CONTRACTOR WILL BE DECLARED INELIGIBLE FOR FUTURE CONTRACTS AND CURRENT CONTRACTS WILL BE TERMINATED FOR DEFAULT.

(2) DURING THE "SHOW CAUSE" PERIOD OF 30 DAYS EVERY EFFORT SHALL BE MADE BY THE COMPLIANCE AGENCY THROUGH CONCILIATION, MEDIATION, AND PERSUASION TO RESOLVE THE DEFICIENCIES WHICH LED TO THE DETERMINATION OF NONRESPONSIBILITY. IF SATISFACTORY ADJUSTMENTS DESIGNED TO BRING THE CONTRACTOR INTO COMPLIANCE ARE NOT CONCLUDED, THE COMPLIANCE AGENCY, WITH THE PRIOR APPROVAL OF THE DIRECTOR, SHALL PROMPTLY COMMENCE FORMAL PROCEEDINGS LEADING TO THE CANCELLATION OR TERMINATION OF EXISTING CONTRACTS OR SUBCONTRACTS AND DEBARMENT FROM FUTURE CONTRACTS AND SUBCONTRACTS UNDER SEC 60-1.26(B) OF THIS CHAPTER.

(D) DURING THE "SHOW CAUSE" PERIOD AND FORMAL PROCEEDINGS, EACH CONTRACTING AGENCY MUST CONTINUE TO DETERMINE THE CONTRACTOR'S RESPONSIBILITY IN CONSIDERING WHETHER OR NOT TO AWARD A NEW OR ADDITIONAL CONTRACT.

IN CONNECTION WITH THE PROPRIETY OF DENYING THE CONTRACT AWARD TO YOUR JACKSONVILLE FACILITY BECAUSE OF THE UNACCEPTABLE COMPLIANCE STATUS OF YOUR DALLAS AND ALTON FACILITIES, WE NOTE THAT SECTION 60 1.40 OF TITLE 41 OF THE CODE OF FEDERAL REGULATIONS, AS WELL AS THE ABOVE-QUOTED REGULATION AND YOUR PRIOR CONTRACTS, PROVIDE THAT YOU SHALL DEVELOP A WRITTEN AFFIRMATIVE ACTION COMPLIANCE PROGRAM FOR EACH OF YOUR ESTABLISHMENTS. OUR OPINION, THOSE PROVISIONS CLEARLY CONTEMPLATE A CORPORATE WIDE APPLICATION OF EEO REQUIREMENTS, AND IN THE ABSENCE OF AN ACCEPTABLE AAP AT EACH ESTABLISHMENT, OR IN THE ABSENCE OF AN APPROPRIATE EXEMPTION (SEE 41 CFR 60-1.5), THE CONTRACTING OFFICER WAS AUTHORIZED TO FIND YOUR FIRM NONRESPONSIBLE FOR NONCOMPLIANCE OF ANY OF ITS ESTABLISHMENTS.

IT IS ALSO YOUR POSITION THAT DUE PROCESS AND APPLICABLE REGULATIONS REQUIRE THE GRANTING OF A FORMAL HEARING PRIOR TO DEBARMENT FROM CONTRACT AWARDS, AND IN THE ABSENCE OF SUCH A HEARING THE REJECTION OF YOUR BID WAS UNFAIR AND IMPROPER. MOREOVER, YOU ADVISE THAT, ALTHOUGH YOU SUBMITTED REVISED AAP'S IN AUGUST AND SEPTEMBER FOR YOUR DALLAS AND ALTON FACILITIES, YOU RECEIVED NO COMMUNICATION REGARDING DEFICIENCIES UNTIL THE CONTRACTING OFFICER'S LETTER OF DECEMBER 20, 1971, WHICH ADVISED OF THE REJECTION OF YOUR BID. YOU BELIEVE, THEREFORE, THAT THE GOVERNMENT FAILED TO MAKE SUFFICIENT EFFORT TO DEVELOP AN ACCEPTABLE PLAN THROUGH THE PROCESSES OF CONCILIATION, MEDIATION, AND PERSUASION, AS REQUIRED BY 41 CFR 60-2.2, QUOTED ABOVE.

AS TO WHETHER YOU WERE AWARE OF DEFICIENCIES IN YOUR AAP'S, GSA HAS REPORTED THAT YOUR EEO COORDINATOR WAS MADE FULLY AWARE, DURING SEVERAL CONFERENCES AND TELEPHONIC DISCUSSIONS WITH COMPLIANCE OFFICIALS, OF GSA'S POSITION REGARDING ITS UNWILLINGNESS TO FIND YOU IN COMPLIANCE WITH EEO REQUIREMENTS. IT SEEMS THESE CONFERENCES WERE PROVIDED SPECIFICALLY TO HELP YOU TO DEVELOP AN ACCEPTABLE PLAN. IT IS GSA'S POSITION THAT AS A RESULT OF THESE CONFERENCES, YOUR FIRM SHOULD HAVE BEEN AWARE OF THE REASONS YOUR PLANS WERE UNACCEPTABLE. IN ANY EVENT, IT IS REPORTED THAT SUBSEQUENT TO THE CONFERENCE WITH YOUR EEO COORDINATOR AND THE SUBMISSION OF A REVISED PLAN FOR THE DALLAS FACILITY, YOUR COORDINATOR WAS AGAIN ADVISED WHAT PORTION OF THE PLAN WAS CONSIDERED TO BE UNACCEPTABLE, AND HE STATED THAT YOUR FIRM INTENDED TO STAND BY THE PLAN AS SUBMITTED. IN VIEW OF THESE REPRESENTATIONS BY GSA WE ARE UNABLE TO FIND THAT YOUR FIRM WAS NOT SUFFICIENTLY APPRISED OF THE UNACCEPTABLE ASPECTS OF YOUR PLAN.

IN THIS CONNECTION WE HAVE ALSO NOTED THAT SUBSEQUENT TO THE REJECTION OF YOUR BID ON DECEMBER 20, YOUR FIRM SUBMITTED REVISED AAP'S AND BY LETTER OF JANUARY 26, 1972, GSA ADVISED THAT YOUR PLANS ARE NO LONGER CONSIDERED TO BE DEFICIENT.

THE PROVISIONS IN 41 CFR 60-2.2(D), QUOTED ABOVE, CLEARLY AUTHORIZE AND REQUIRE THAT THE DETERMINATION OF A CONTRACTOR'S RESPONSIBILITY BE MADE DURING THE "SHOW CAUSE" PERIOD, AND PRIOR TO THE CONCLUSION OF FORMAL HEARINGS. IT IS ALSO CLEAR FROM SECTION 60-2.2(B) THAT SO LONG AS A CONTRACTOR-BIDDER IS NOT CONSIDERED TO HAVE DEVELOPED AN ACCEPTABLE AAP AT EACH OF ITS ESTABLISHMENTS THE CONTRACTING OFFICER IS REQUIRED TO DECLARE SUCH CONTRACTOR-BIDDER NONRESPONSIBLE UNLESS HE IS OTHERWISE ABLE TO DETERMINE THAT THE CONTRACTOR IS "ABLE TO COMPLY" WITH EQUAL EMPLOYMENT OBLIGATIONS. HOWEVER, SUBPARAGRAPH (A) OF THE REGULATION FURTHER PROVIDES THAT A CONTRACTOR IS UNABLE TO COMPLY UNTIL ITS AFFIRMATIVE ACTION PROGRAMS ARE DEVELOPED AND FOUND TO BE ACCEPTABLE. WHILE THE REGULATION IN SUBPARAGRAPH (B) REQUIRES NOTICE OF THE TIMELY HEARING DATE TO BE ISSUED CONCURRENTLY WITH THE SECOND NONRESPONSIBILITY DETERMINATION PROPOSING TO DECLARE SUCH CONTRACTOR BIDDER INELIGIBLE FOR FUTURE CONTRACTS, THIS PROVISION WAS APPARENTLY INAPPLICABLE TO YOUR SITUATION. WE THEREFORE CONCLUDE THAT THE CONTRACTING OFFICER'S DETERMINATION THAT YOUR FIRM WAS NONRESPONSIBLE WAS A PROPER IMPLEMENTATION OF THE ABOVE REGULATIONS, SINCE YOUR AAP WAS NOT AT THE TIME CONSIDERED ACCEPTABLE.

AS A TECHNICAL MATTER, PUBLICATION OF THE ABOVE REGULATIONS PROVIDED NOTICE OF THE REQUIREMENT THAT NONCOMPLYING CONTRACTOR-BIDDERS WOULD BE DECLARED NONRESPONSIBLE, AND WE ARE THEREFORE UNABLE TO AGREE THAT YOU WERE ENTITLED TO FURTHER ADVICE TO THAT EFFECT BEFORE THE CONTRACTING OFFICER FOUND YOU NONRESPONSIBLE. HOWEVER, WE BELIEVE THIS CASE ILLUSTRATES IT WOULD BE DESIRABLE, AT THE TIME OF ISSUANCE OF A "SHOW CAUSE" ORDER, FOR THE CONTRACTOR TO ALSO BE SPECIFICALLY ADVISED THAT HE CAN BE FOUND NONRESPONSIBLE UNTIL THE MATTER IS FINALLY RESOLVED. WE ARE THEREFORE RECOMMENDING TO THE ADMINISTRATOR, GSA, AND TO THE DIRECTOR, OFFICE OF FEDERAL CONTRACT COMPLIANCE (OFCC), THAT SUCH NOTICE BE PROVIDED CONTRACTORS IN FUTURE CASES.

YOUR PROTEST ALSO RAISES A QUESTION AS TO WHETHER THE NONRESPONSIBILITY DETERMINATION, AND THE SUBSEQUENT DENIAL OF CONTRACT AWARD, WITHOUT A FORMAL HEARING AS TO YOUR COMPLIANCE STATUS RESULTED IN A DE FACTO DEBARMENT WITHOUT DUE PROCESS. IN THIS REGARD, EXECUTIVE ORDER 11246 AUTHORIZES, AND IS IMPLEMENTED BY, THE REGULATIONS OF THE DEPARTMENT OF LABOR, APPEARING IN CHAPTER 60 OF TITLE 41 OF THE CODE OF FEDERAL REGULATIONS. THE ORDER, IN PERTINENT PART, AUTHORIZES CONTRACTING AGENCIES TO REFRAIN FROM ENTERING INTO FURTHER CONTRACTS WITH ANY NONCOMPLYING CONTRACTOR AND REQUIRES THAT NO ORDER FOR DEBARMENT BE MADE WITHOUT AFFORDING THE CONTRACTOR AN OPPORTUNITY FOR A HEARING. IN OUR OPINION THE DETERMINATION OF NONRESPONSIBILITY IN THIS CASE DOES NOT CONSTITUTE AN "ORDER FOR DEBARMENT" FROM FURTHER CONTRACTS WITHIN THE MEANING OF THE EXECUTIVE ORDER. RATHER, IT WOULD APPEAR TO BE IN THE NATURE OF A LIMITED OR TEMPORARY SUSPENSION, WHICH IS PERMITTED BY OFCC'S IMPLEMENTING REGULATIONS. AS PROVIDED IN THE REGULATIONS A FINDING OF NONCOMPLIANCE COULD RESULT IN NO MORE THAN TWO DETERMINATIONS OF NONRESPONSIBILITY PRIOR TO EFFECTUATION OF FORMAL HEARING PROCEDURES ON THE DEBARMENT ISSUE. AS A GENERAL RULE, TEMPORARY OR LIMITED SUSPENSION BY WAY OF SUCH SUMMARY ACTION DOES NOT OF ITSELF RESULT IN A DENIAL OF DUE PROCESS. SEE GONZALEZ V. FREEMAN, 334 F.2D 570, 579 (1964); OPP COTTON MILLS V. ADMINISTRATOR, 312 U.S. 126, 152-153 (1941) AND R. A. HOLIMAN & CO. V. SECURITIES AND EXCHANGE COMMISSION, 299 F.2D 127, 131-133, CERT. DENIED, 370 U.S. 911 (1962). IN OUR OPINION THERE ARE PROCEDURAL SAFEGUARDS IN THE APPLICABLE REGULATIONS TO PROTECT BIDDERS FROM REPEATED NONRESPONSIBILITY DETERMINATIONS WHICH MIGHT RESULT IN A DE FACTO DEBARMENT WITHOUT THE REQUISITE HEARING. WE ARE THEREFORE UNABLE TO AGREE THAT THE FAILURE TO OFFER YOU A HEARING PRIOR TO DECLARING YOU NONRESPONSIBLE WAS A VIOLATION OF DUE PROCESS.

IN VIEW OF THE FOREGOING, YOUR PROTEST MUST BE DENIED. WE ARE, HOWEVER, CONCERNED BY THE FAILURE OF GSA TO EFFECT A FORMAL RESOLUTION OF THIS MATTER BETWEEN THE TIME OF YOUR LAST COMMUNICATION WITH GSA ON SEPTEMBER 28 AND THE DATE OF AWARD, DECEMBER 20. WHILE IT WOULD APPEAR THAT THE MATTER COULD, AND CERTAINLY SHOULD, HAVE BEEN RESOLVED PRIOR TO DECEMBER 20, WE FIND NO EVIDENCE OF RECORD THAT THE DELAY IN PROVIDING A HEARING OR THE CONTRACTING OFFICER'S FAILURE TO TAKE ANY ACTION PRIOR TO AWARD TOWARDS ELIMINATING THE UNRESOLVED DEFICIENCIES, WERE INTENTIONAL OR IN BAD FAITH. IN THE CIRCUMSTANCES, THE DELAY AFFORDS NO LEGAL BASIS FOR OBJECTION TO THE CONTRACTS AWARDED. WE ARE, HOWEVER, RECOMMENDING APPROPRIATE ACTION BY GSA AND OFCC TO PROTECT AGAINST PROLONGED DELAY, SUCH AS OCCURRED IN THIS CASE, IN THE FUTURE. COPIES OF OUR LETTERS TO GSA AND OFCC ARE ENCLOSED.