B-175193, MAY 2, 1972, 51 COMP GEN 703

B-175193: May 2, 1972

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WAS A PROPER ACTION THAT WAS NOT IN VIOLATION OF DUE PROCESS SINCE A WRITTEN DETERMINATION IS NOT REQUIRED IF IT IS NOT IN THE BEST INTEREST OF THE GOVERNMENT TO AWARD A CONTRACT TO A SUSPENDED BIDDER WHOSE PLACEMENT ON THE CONSOLIDATED LIST WAS NOT FOR THE PURPOSE OF PUNISHMENT BUT IN THE BEST INTEREST OF THE GOVERNMENT. BECAUSE THE BIDDER'S STATUS IS BEFORE THE COURTS. GENERAL ACCOUNTING OFFICE WILL NOT QUESTION THE VALIDITY OF THE REGULATION. BIDDERS - QUALIFICATIONS - ADMINISTRATIVE DETERMINATIONS - NOTICE OF BID REJECTION THE SIGNING OF A CONTRACT BY A CONTRACTING OFFICER ON THE BASIS OF A FAVORABLE PREAWARD SURVEY CONSTITUTES THE AFFIRMATIVE DETERMINATION OF BIDDER RESPONSIBILITY THAT IS REQUIRED BY PARAGRAPH 1-904.1 OF THE ARMED SERVICES PROCUREMENT REGULATION.

B-175193, MAY 2, 1972, 51 COMP GEN 703

BIDDERS - DEBARMENT - CONTRACT AWARD ELIGIBILITY - REJECTION OF BIDDER IN BEST INTEREST OF GOVERNMENT THE REJECTION, BOTH AS PRIME CONTRACTOR OR SUBCONTRACTOR, OF THE LOW BIDDER UNDER AN INVITATION FOR BIDS TO OVERHAUL THE TOPSIDE OF A NAVY VESSEL AS BEING IN THE BEST INTEREST OF THE GOVERNMENT WITHOUT ISSUING THE WRITTEN DETERMINATION OF RESPONSIBILITY REQUIRED BY PARAGRAPH 1 904.1 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), AND REFERRAL TO THE SMALL BUSINESS ADMINISTRATION UNDER ASPR 1-705.4(VI), BECAUSE THE BIDDER HAD BEEN PLACED IN A SUSPENDED STATUS ON THE JOINT CONSOLIDATED LIST OF DEBARRED, INELIGIBLE, AND SUSPENDED CONTRACTORS, PURSUANT TO ASPR 1-605, FOR LACK OF BUSINESS INTEGRITY, WAS A PROPER ACTION THAT WAS NOT IN VIOLATION OF DUE PROCESS SINCE A WRITTEN DETERMINATION IS NOT REQUIRED IF IT IS NOT IN THE BEST INTEREST OF THE GOVERNMENT TO AWARD A CONTRACT TO A SUSPENDED BIDDER WHOSE PLACEMENT ON THE CONSOLIDATED LIST WAS NOT FOR THE PURPOSE OF PUNISHMENT BUT IN THE BEST INTEREST OF THE GOVERNMENT. BIDDERS - DEBARMENT - PROCEDURE - DUE PROCESS STATUS SINCE THE PROCEDURES UNDER PARAGRAPH 1-605 OF THE ARMED SERVICES PROCUREMENT REGULATION, WHICH PRESCRIBES TEMPORARY OR LIMITED SUSPENSION FOR A REASONABLE TIME IN THE INTEREST OF THE GOVERNMENT OF A CONTRACTOR SUSPECTED OF THE COMMISSION OF SPECIFIC CRIMES, INCLUDING BRIBERY, OR ANY OTHER OFFENSE INDICATING A LACK OF BUSINESS INTEGRITY OR BUSINESS HONESTY, ALTHOUGH LACKING CERTAIN ELEMENTS WHICH MAY BE CONSIDERED BY A COURT IN ORDER TO AFFORD DUE PROCESS IN A MORE SEVERE DEBARMENT ACTION, DO NOT RESULT IN A DENIAL OF DUE PROCESS, AS THE REGULATION INCLUDES SAFEGUARDS AND PROVIDES FOR MODIFICATION OF A SUSPENSION AND A CONTRACT AWARD WHEN IN THE BEST INTEREST OF THE GOVERNMENT, AND BECAUSE THE BIDDER'S STATUS IS BEFORE THE COURTS, THE U.S. GENERAL ACCOUNTING OFFICE WILL NOT QUESTION THE VALIDITY OF THE REGULATION. BIDDERS - QUALIFICATIONS - ADMINISTRATIVE DETERMINATIONS - NOTICE OF BID REJECTION THE SIGNING OF A CONTRACT BY A CONTRACTING OFFICER ON THE BASIS OF A FAVORABLE PREAWARD SURVEY CONSTITUTES THE AFFIRMATIVE DETERMINATION OF BIDDER RESPONSIBILITY THAT IS REQUIRED BY PARAGRAPH 1-904.1 OF THE ARMED SERVICES PROCUREMENT REGULATION, AND, THEREFORE, THE FACT THAT A WRITTEN DETERMINATION RESPECTING RESPONSIBILITY WAS NOT ISSUED TO THE LOW REJECTED BIDDER DOES NOT INVALIDATE THE CONTRACT. MOREOVER, SINCE RESPONSIBILITY IS A QUESTION OF FACT TO BE DETERMINED BY THE CONTRACTING OFFICER AND NECESSARILY INVOLVES THE EXERCISE OF A CONSIDERABLE RANGE OF DISCRETION, THE U.S. GENERAL ACCOUNTING OFFICE WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE CONTRACTING OFFICER WHERE THERE IS NO CONVINCING EVIDENCE THAT A RESPONSIBILITY DETERMINATION WAS ARBITRARY, CAPRICIOUS, OR NOT BASED UPON SUBSTANTIAL EVIDENCE.

TO VOM BAUR, COBURN, SIMONS & TURTLE, MAY 2, 1972:

FURTHER REFERENCE IS MADE TO YOUR PROTEST ON BEHALF OF HORNE BROTHERS, INCORPORATED, AGAINST THE AWARD OF A CONTRACT TO ANOTHER FIRM UNDER INVITATION FOR BIDS NO. N62678-72-B-0048, ISSUED BY THE SUPERVISOR OF SHIPBUILDING, CONVERSION AND REPAIR, U.S. NAVY, PORTSMOUTH, VA.

THE SUBJECT INVITATION WAS ISSUED ON DECEMBER 13, 1971, FOR THE REGULAR OVERHAUL OF THE U.S.S. FRANCIS MARION AND WAS DIVIDED INTO THREE LOTS, WITH WORK ON LOT II TO COMMENCE ON FEBRUARY 11, 1972, AND BE COMPLETED ON MAY 22, 1972. BIDS ON LOT II (TOPSIDE OVERHAUL ONLY) OF $1,643,725 AND $1,759,000 WERE SUBMITTED ON JANUARY 5, 1972, BY HORNE AND METRO MACHINE CORP., RESPECTIVELY. HOWEVER, HORNE WAS ADVISED BY THE CONTRACTING OFFICER IN A LETTER DATED JANUARY 7, 1972, THAT ITS BID WAS REJECTED BECAUSE ON DECEMBER 14, 1971, IT HAD BEEN PLACED ON THE JOINT CONSOLIDATED LIST OF DEBARRED, INELIGIBLE, AND SUSPENDED CONTRACTORS, IN A SUSPENDED STATUS, AND "IT HAS NOT BEEN DETERMINED TO BE IN THE BEST INTEREST OF THE GOVERNMENT TO CONSIDER YOUR BID."

THEREFORE, ON JANUARY 11, 1972, A PREAWARD SURVEY OF METRO, AS THE NEXT LOWEST RESPONSIVE BIDDER, WAS COMMENCED PURSUANT TO SECTION I, PART 9, OF THE ARMED SERVICES PROCUREMENT REGULATIONS TO DETERMINE METRO'S STATUS AS A RESPONSIBLE PROSPECTIVE CONTRACTOR. BASED UPON AN AFFIRMATIVE REPORT AND RECOMMENDATION OF AWARD DATED JANUARY 19, 1972, BY THE SURVEY TEAM, THE CONTRACTING OFFICER DETERMINED METRO RESPONSIBLE WITHIN THE MEANING OF THE APPLICABLE REGULATIONS AND AWARDED IT A CONTRACT ON JANUARY 24, 1972.

IT IS REPORTED THAT ON JANUARY 12, 1972, PRIOR TO THE AWARD, REPRESENTATIVES OF BOTH HORNE AND THE SECRETARY OF THE NAVY, MET TO DISCUSS HORNE'S REQUEST FOR REMOVAL FROM THE SUSPENDED LIST AND AWARD OF THE SUBJECT CONTRACT. THERE WERE SUBSEQUENT TELEPHONE CONFERENCES BETWEEN HORNE AND NAVY REPRESENTATIVES; HOWEVER, SINCE IT WAS CONSIDERED INAPPROPRIATE AND CONTRARY TO ASPR 1-605.3(IV) TO DISCUSS THE REASONS FOR SUSPENSION BEYOND WHAT WAS STATED IN THE NOTICE, NO FURTHER MEETINGS WERE HELD. FINALLY, ON FEBRUARY 14, 1972, THE NAVY DECLINED TO GRANT HORNE A HEARING ON THE SUSPENSION ACTION AND REFUSED TO REVERSE ITS DETERMINATION THAT HORNE WOULD NOT BE ALLOWED TO PARTICIPATE IN THE PROCUREMENT EITHER AS A PRIME OR SUBCONTRACTOR.

YOUR PROTEST ON BEHALF OF HORNE WAS FILED WITH OUR OFFICE ON FEBRUARY 11, 1972. ON FEBRUARY 15, 1972, SUIT ON BEHALF OF HORNE WAS INSTITUTED IN THE U.S. DISTRICT COURT OF THE DISTRICT OF COLUMBIA (CIVIL ACTION NO. 289-72) FOR INJUNCTIVE RELIEF AND A DECLARATORY JUDGMENT. A MOTION FOR A TEMPORARY RESTRAINING ORDER (TRO) WAS ALSO FILED AND SUBSEQUENTLY DENIED AS WAS HORNE'S MOTION FOR AN INJUNCTION PENDING APPEAL OF THAT ORDER. FEBRUARY 18, 1972, NOTICE OF APPEAL FROM THOSE ORDERS AND A MOTION FOR AN INJUNCTION PENDING APPEAL FROM THE ORDER DENYING THE TRO WERE FILED IN THE U.S. COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA (CASE NO. 72-1146). FEBRUARY 23, 1972, HORNE FILED A MOTION FOR AN IMMEDIATE HEARING ON THE MOTION FOR AN INJUNCTION. BY ORDER DATED MARCH 3, 1972, THE COURT OF APPEALS DENIED BOTH MOTIONS. HOWEVER, ON APRIL 13, 1972, THE DISTRICT COURT GRANTED HORNE'S MOTION FOR A PRELIMINARY INJUNCTION, ORDERING CESSATION OF PERFORMANCE OF THE WORK PENDING A DECISION BY OUR OFFICE ON THE PROTEST. WE UNDERSTAND THAT ON APRIL 14, 1972, THE DISTRICT COURT GRANTED THE GOVERNMENT'S MOTION FOR A 10-DAY STAY OF THE INJUNCTION.

YOUR ATTACK ON THE NAVY'S REJECTION OF HORNE'S BID IS BASICALLY TWOFOLD; FIRST, YOU CONTEND THAT THE NAVY'S REJECTION OF HORNE'S BID WITHOUT A WRITTEN DETERMINATION RESPECTING RESPONSIBILITY PURSUANT TO SECTION 1- 904.1(IV) OF ASPR, INCLUDING REFERRAL TO THE SMALL BUSINESS ADMINISTRATION FOR REVIEW OF A NEGATIVE DETERMINATION PURSUANT TO ASPR 1-705.4(VI), WAS INVALID; SECOND, YOU CONTEND THAT HORNE'S SUSPENSION PURSUANT TO ASPR 1- 605 WAS INVALID BECAUSE IT WAS NOT BASED UPON "ADEQUATE EVIDENCE" AS REQUIRED THEREIN, THERE WAS NO ALLEGATION OF AN OFFENSE WHICH IS GROUNDS FOR SUSPENSION THEREUNDER, AND THE REGULATION IS IN EXCESS OF ANY STATUTORY AUTHORITY AND VIOLATES THE DUE PROCESS REQUIREMENTS OF THE CONSTITUTION.

WITH REGARD TO THE LAST POINT, YOU CONTEND THAT THE REGULATION IS INVALID BECAUSE IT FAILS TO ESTABLISH ADEQUATE STANDARDS FOR PLACEMENT ON THE LIST AND FAILS TO ESTABLISH ADEQUATE PROCEDURES, INCLUDING NOTICE OF SPECIFIC CHARGES, OPPORTUNITY TO PRESENT EVIDENCE AND CROSS EXAMINE ADVERSE WITNESSES, AND DOES NOT CULMINATE IN ADMINISTRATIVE FINDINGS AND CONCLUSIONS BASED UPON THE RECORD SO MADE. ALSO, YOU ARGUE THAT THE SECRETARY OF THE NAVY HAS NO SPECIFIC STATUTORY AUTHORITY TO PLACE BIDDERS ON SUCH A LIST, AND ANY SUCH INHERENT POWER HE MAY POSSESS WAS NOT VALIDLY EXERCISED IN THE INSTANT CASE AS IT WAS BASED UPON REGULATIONS WHICH ARE NULL AND VOID, CITING GONZALEZ V. FREEMAN, 334 F.2D 570 (1964), AND OVERSEAS MEDIA CORPORATION V. MCNAMARA, 385 F.2D 308 (1967).

FURTHERMORE, IT IS YOUR CONTENTION THAT THE STATEMENT IN THE NOTICE OF SUSPENSION THAT THE NAVY HAS "SUBSTANTIAL REASON TO BELIEVE" THAT HORNE HAD GIVEN GRATUITIES AND FAVORS TO NAVAL PERSONNEL DOES NOT COMPORT WITH THE REQUIREMENT OF ASPR 1-605 THAT SUCH DETERMINATION BE BASED UPON "ADEQUATE EVIDENCE," AND THAT THE "GIVING OF GRATUITIES AND FAVORS" DOES NOT BY ITSELF SUPPORT SUSPENSION UNDER THE REGULATION.

FINALLY, YOU CONTEND THAT AWARD TO METRO WITHOUT A WRITTEN DETERMINATION OF RESPONSIBILITY PURSUANT TO ASPR 1-904.1 IS INVALID. FURTHERMORE, IT IS YOUR POSITION THAT SINCE THE NAVY HAS ALSO BARRED HORNE FROM PERFORMING AS A SUBCONTRACTOR FOR METRO THE LATTER DOES NOT HAVE THE REQUIRED RESOURCES, FACILITIES, AND EXPERTISE TO BE CONSIDERED A RESPONSIBLE CONTRACTOR. ALSO, YOU ARGUE THAT BARRING HORNE AS A SUBCONTRACTOR IS INVALID UNDER ASPR 1-906(B) IN THE ABSENCE OF A NEGATIVE DETERMINATION OF RESPONSIBILITY.

IT IS THE NAVY'S POSITION THAT WHEN A PROSPECTIVE CONTRACTOR IS SUSPENDED PURSUANT TO ASPR 1-605, HE IS BY THE TERMS OF THE SUSPENSION "INELIGIBLE" TO RECEIVE AN AWARD UNLESS THE SECRETARY DETERMINES THAT AWARD TO THE SUSPENDED FIRM WOULD BE IN THE BEST INTEREST OF THE GOVERNMENT AND A DETERMINATION RESPECTING RESPONSIBILITY IS NOT REQUIRED. HOWEVER, THE NAVY CONTENDS THAT IF A DETERMINATION CONCERNING RESPONSIBILITY IS REQUIRED A SUSPENDED FIRM WOULD NOT "BE OTHERWISE QUALIFIED AND ELIGIBLE TO RECEIVE AN AWARD UNDER APPLICABLE LAWS AND REGULATIONS" AS PROVIDED BY ASPR 1-903.1(V), IN WHICH CASE REFERRAL TO SBA FOR REVIEW OF A NEGATIVE DETERMINATION IS NOT REQUIRED. THEREFORE, IT IS THE NAVY'S POSITION THAT THE FAILURE TO MAKE A SPECIFIC DETERMINATION OF NONRESPONSIBILITY IS NOT ALONE SUFFICENT TO INVALIDATE THE AWARD TO METRO.

WITH REGARD TO THE MATTER OF HORNE ACTING AS A SUBCONTRACTOR FOR METRO, THE NAVY REPORTS THAT PRIOR TO THE AWARD IT ADVISED METRO IN RESPONSE TO ITS QUESTION THAT SUBCONTRACTING WITH HORNE WOULD NOT BE PERMITTED BECAUSE HORNE WAS ON THE SUSPENDED LIST. THE NAVY POINTS OUT THAT UNDER ASPR 1- 906(B) IT IS AUTHORIZED TO MAKE SUCH A DETERMINATION AND THAT THE SAME RATIONALE DISCUSSED ABOVE CONCERNING HORNE'S RESPONSIBILITY AS A PRIME CONTRACTOR APPLIES.

CONCERNING YOUR ARGUMENT THAT METRO IS NOT RESPONSIBLE UNLESS IT SUBCONTRACTS WITH HORNE, THE NAVY REPORTS THAT IN CONNECTION WITH ITS PREAWARD SURVEY METRO FURNISHED A LIST OF PROPOSED SUBCONTRACTORS WHICH EXCLUDED HORNE. NEVERTHELESS, THE SURVEY TEAM MADE AN AFFIRMATIVE DETERMINATION AFTER CONSIDERING SUCH FACTORS AS TECHNICAL, PRODUCTION, AND FINANCIAL CAPABILITY, PURCHASING AND SUBCONTRACTING AND ABILITY TO MEET SCHEDULE.

THE NAVY REPORTS THAT THE SUSPENSION ACTION WAS TAKEN ONLY AFTER SEVERAL MONTHS OF INVESTIGATION BY BOTH THE NAVY AND DEPARTMENT OF JUSTICE INTO ALLEGATIONS THAT, AMONG OTHER THINGS, HORNE HAD GIVEN GRATUITIES TO NAVY EMPLOYEES IN THE FORM OF LIQUOR, GASOLINE FOR PRIVATE CARS, AND HOME IMPROVEMENTS FOR PRIVATE RESIDENCES IN RETURN FOR FAVORABLE ACTIONS IN THE PERFORMANCE OF SUCH EMPLOYEE'S OFFICIAL DUTIES. FURTHER, IT IS REPORTED THAT AS A RESULT OF THE INVESTIGATION A SPECIAL GRAND JURY WAS CONVENED IN NOVEMBER 1971 FOR THE PURPOSE OF RECEIVING TESTIMONY AND EXHIBITS TO DETERMINE WHETHER CRIMINAL CHARGES SHOULD BE BROUGHT AGAINST HORNE. UNDERSTAND THAT ON APRIL 24, 1972, THE SPECIAL GRAND JURY RETURNED A 21- COUNT CRIMINAL INDICTMENT AGAINST HORNE BROTHERS, INCORPORATED, TWO OF ITS WHOLLY OWNED SUBSIDIARIES, AND 16 OFFICERS AND EMPLOYEES OF HORNE BROTHERS AND A CIVILIAN INSPECTOR OF THE NAVY.

SECTION 1-605.1 OF ASPR PROVIDES THAT AN AGENCY MAY, IN THE INTEREST OF THE GOVERNMENT, SUSPEND A FIRM OR INDIVIDUAL SUSPECTED, UPON ADEQUATE EVIDENCE, OF COMMISSION OF SPECIFIED CRIMES, INCLUDING BRIBERY, OR ANY OTHER OFFENSE INDICATING A LACK OF BUSINESS INTEGRITY OR BUSINESS HONESTY, WHICH SERIOUSLY AND DIRECTLY AFFECTS THE QUESTION OF PRESENT RESPONSIBILITY AS A GOVERNMENT CONTRACTOR. WITH REGARD TO THE PERIOD OF SUSPENSION, ASPR 1-605.2(A) PROVIDES THAT ALL SUSPENSIONS ARE FOR A TEMPORARY PERIOD PENDING COMPLETION OF INVESTIGATION AND SUCH LEGAL PROCEEDINGS AS MAY ENSUE. IT ALSO PROVIDES FOR A LIMIT ON THE PERIOD OF SUSPENSION IN THE EVENT PROSECUTIVE ACTION IS NOT COMMENCED WITHIN A MAXIMUM OF 18 MONTHS.

WHILE IT IS TRUE, AS YOU CONTEND, THAT THE PROCEDURES LACK CERTAIN ELEMENTS WHICH MAY BE CONSIDERED NECESSARY BY A COURT IN ORDER TO AFFORD DUE PROCESS IN THE MORE SEVERE DEBARMENT ACTION, WHICH WAS INVOLVED IN THE GONZALEZ CASE, SUPRA, AS A GENERAL RULE, TEMPORARY OR LIMITED SUSPENSION FOR A REASONABLE TIME BY WAY OF SUCH SUMMARY ACTION AS PROVIDED FOR IN THIS REGULATION 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). WE NOTE THAT CERTAIN SAFEGUARDS ARE INCLUDED IN THE REGULATION. FOR EXAMPLE, SUSPENSION MUST BE BASED UPON ADEQUATE EVIDENCE, NOT MERE ACCUSATION; IN ASSESSING THE ADEQUACY OF THE EVIDENCE, CONSIDERATION MUST BE GIVEN TO HOW MUCH CREDIBLE INFORMATION IS AVAILABLE, ITS REASONABLENESS IN VIEW OF SURROUNDING CIRCUMSTANCES, CORROBORATION OR LACK THEREOF, AND INFERENCES WHICH MAY BE DRAWN FROM THE EXISTENCE OR ABSENCE OF AFFIRMATIVE FACTS; AND THE ASSESSMENT OF THE EVIDENCE INCLUDES AN EXAMINATION OF BASIC DOCUMENTS, SUCH AS CONTRACTS, INSPECTION REPORTS, AND CORRESPONDENCE. MOREOVER, THE REGULATION PROVIDES THAT THE SUSPENSION MAY BE MODIFIED AND CONTRACTS MAY BE AWARDED IF IT IS DETERMINED TO BE IN THE BEST INTEREST OF THE GOVERNMENT. IN VIEW OF THE FOREGOING, AND SINCE THE MATTER IS PRESENTLY BEFORE THE COURTS, WE DO NOT BELIEVE IT PROPER FOR OUR OFFICE TO QUESTION THE VALIDITY OF THE REGULATION.

ALTHOUGH THE NOTICE OF SUSPENSION DID NOT ALLEGE COMMISSION OF ONE OF THE SPECIFIC CRIMINAL ACTS NAMED IN THE REGULATION, IT STATED THAT THE SUSPECTED GRATUITIES AND FAVORS WERE CONSIDERED INDUCEMENTS OR IRREGULARITIES INDICATING A "LACK OF BUSINESS INTEGRITY." IN THIS REGARD, THE REGULATION PROVIDES FOR SUSPENSION NOT ONLY WHERE COMMISSION OF A SPECIFIC CRIME IS SUSPECTED, BUT OF "ANY OTHER OFFENSE INDICATING A LACK OF BUSINESS INTEGRITY OR BUSINESS HONESTY." WE DO NOT BELIEVE IT IS NECESSARY TO DECIDE AT THIS TIME WHETHER THE WORD "OFFENSE" SHOULD BE READ TO MEAN "CRIMINAL OFFENSE." SUFFICE IT TO SAY THAT THE EVIDENCE UPON WHICH THE SUSPENSION WAS BASED WAS ALSO THE BASIS FOR CONVENING THE SPECIAL GRAND JURY TO CONTINUE THE INVESTIGATION RESULTING ON APRIL 24, 1972, IN A 21-COUNT CRIMINAL INDICTMENT. INCLUDED IN THE INDICTMENT ARE CHARGES THAT NAVY INSPECTORS WERE BRIBED WITH "TANKS OF GASOLINE, LIQUOR AND OTHER THINGS OF VALUE." THE INDICTMENT APPEARS SUFFICIENT TO ESTABLISH THAT THERE WAS ADEQUATE EVIDENCE OF CRIMINAL OFFENSES TO SATISFY THE STANDARDS OF THE REGULATION.

FURTHERMORE, IT IS OUR VIEW THAT REJECTION OF HORNE'S BID WITHOUT MAKING A DETERMINATION OF NONRESPONSIBILITY PURSUANT TO ASPR SECTION I, PART 9, WAS A PROPER ACTION. ASPR 1-605 PROVIDES THAT PLACING AN INDIVIDUAL OR FIRM ON THE CONSOLIDATED LIST IS FOR THE PURPOSE OF PROTECTING THE INTEREST OF THE GOVERNMENT AND NOT FOR THE PURPOSE OF PUNISHMENT. PROTECT THE INTEREST OF THE GOVERNMENT, ASPR 1-603(A) PROVIDES:

TYPE D INCLUDES CONCERNS WHICH HAVE BEEN SUSPENDED UNDER THE CONDITIONS SET FORTH IN 1-605. CONCERNS UNDER TYPE D LISTINGS SHALL NOT BE AWARDED CONTRACTS OR SOLICITED FOR BIDS OR PROPOSALS, EXCEPT WHERE THE SECRETARY CONCERNED OR HIS AUTHORIZED REPRESENTATIVE DETERMINES IT TO BE IN THE BEST INTEREST OF THE GOVERNMENT TO MAKE AN EXCEPTION FOR A PARTICULAR PROCUREMENT OR WHERE THE LISTING INDICATES THAT THE SUSPENSION DOES NOT APPLY TO SALES CONTRACTS OR TO PROCUREMENT CONTRACTS.

ALSO, SECTION 1-605.3(III) PROVIDES FOR THE NOTICE OF SUSPENSION TO CONTAIN LANGUAGE TO THE SAME EFFECT. BY CLEAR TERMS THE REGULATION PROHIBITS THE AWARD OF A CONTRACT TO A SUSPENDED INDIVIDUAL OR FIRM EXCEPT IN THE ONE SITUATION WHERE THE SECRETARY CONCERNED OR HIS DESIGNEE DETERMINES IT TO BE IN THE BEST INTEREST OF THE GOVERNMENT TO MAKE AN EXCEPTION FOR A PARTICULAR PROCUREMENT. IN THESE CIRCUMSTANCES, TO REQUIRE A WRITTEN DETERMINATION OF NONRESPONSIBILITY PURSUANT TO APPLICABLE REGULATIONS WOULD SERVE NO USEFUL PURPOSE. WITH REGARD TO THE MATTER OF METRO'S RESPONSIBILITY, ASPR 1-904.1 PROVIDES THAT NO CONTRACT SHALL BE AWARDED TO ANY FIRM UNLESS THE CONTRACTING OFFICER HAS MADE AN AFFIRMATIVE DETERMINATION. AS NOTED ABOVE, SUCH DETERMINATION WAS MADE ON THE BASIS OF THE FAVORABLE PREAWARD SURVEY. FURTHERMORE, THE APPLICABLE REGULATION PROVIDES THAT THE SIGNING OF THE CONTRACT BY THE CONTRACTING OFFICER CONSTITUTES SUCH A DETERMINATION. RESPONSIBILITY IS A QUESTION OF FACT TO BE DETERMINED BY THE CONTRACTING OFFICER AND NECESSARILY INVOLVES THE EXERCISE OF A CONSIDERABLE RANGE OF DISCRETION. WHERE, AS HERE, THERE IS NOT CONVINCING EVIDENCE THAT THE DETERMINATION WAS ARBITRARY, CAPRICIOUS, OR NOT BASED UPON SUBSTANTIAL EVIDENCE, WE WILL NOT SUBSTITUTE OUR JUDGMENT FOR THAT OF THE CONTRACTING OFFICER. 45 COMP. GEN. 4 (1968).

ACCORDINGLY, THERE IS NO PROPER BASIS FOR OUR OFFICE TO DISTURB THE AWARD TO METRO AND YOUR PROTEST IS DENIED.