B-154006, SEP. 22, 1964

B-154006, SEP. 22, 1964

TO MR. ALBERT C. RONDINELLI:

REFERENCE IS MADE TO YOUR LETTER OF JULY 28, 1964, RELATIVE TO OUR DECISION OF JULY 14, 1964, B-154006, TO MR. ROBERT C. MAIDA, YOUR ATTORNEY, IN WHICH WE DENIED YOUR PROTEST AGAINST THE ACTION OF THE UNITED STATES ARMY ENGINEER DISTRICT, NEW YORK, IN REJECTING THE LOW BIDS SUBMITTED BY YOU IN RESPONSE TO INVITATIONS FOR BIDS ENG-30-075 63-43, -64 -4, AND -64-20.

YOU QUESTION THE ACCURACY OF CERTAIN STATEMENTS MADE BY OUR OFFICE IN THE DECISION OF JULY 14, 1964. YOU REFER TO OUR STATEMENT ON PAGE 2 THEREOF IN REGARD TO INVITATION NO. ENG-30-075-64-4, TO THE EFFECT, THAT IT IS A MATTER OF RECORD THAT YOU REFUSED TO ACCEPT AN INVITATION TO DISCUSS YOUR RESPONSIBILITY WITH THE NEW YORK DISTRICT CONTRACTING OFFICER. YOU STATE THAT YOU HAVE EXAMINED A COPY OF THE UNDATED ADMINISTRATIVE REPORT SUBMITTED TO OUR OFFICE BY THE NEW YORK DISTRICT, CORPS OF ENGINEERS, AND THAT YOU FAILED TO FIND ANY REFERENCE TO A REQUEST FOR A HEARING. THE RECORD INDICATES THAT BY LETTER DATED JUNE 2, 1964, OUR OFFICE FORWARDED TO YOUR ATTORNEY, MR. ROBERT C. MAIDA, A COPY OF THE BASIC ADMINISTRATIVE REPORT. WHILE IT IS TRUE, AS YOU ALLEGE, THAT THE BASIC REPORT DOES NOT CONTAIN ANY REFERENCE AS TO YOUR REFUSAL TO DISCUSS YOUR RESPONSIBILITY WITH THE NEW YORK DISTRICT CONTRACTING OFFICER, YOU MAY BE ADVISED THAT THE REFERRED-TO STATEMENT WAS CONTAINED IN A MEMORANDUM DATED JANUARY 28, 1964, PREPARED BY THE CONTRACTING OFFICER.

IN CONNECTION WITH OUR STATEMENT THAT NO PROVISION APPEARS IN THE PROCUREMENT REGULATIONS REQUIRING ADMINISTRATIVE HEARINGS TO ASCERTAIN THE BIDDER'S RESPONSIBILITY, YOU REFER TO OUR DECISION OF AUGUST 8, 1963, B- 151269, 43 COMP. GEN. 140, WHEREIN, YOU STATE, WE INDICATED THAT THE CONTINUED REFUSAL OF A PURCHASING ACTIVITY TO AWARD CONTRACTS TO A COMPANY WITHOUT THE OPPORTUNITY TO DEFEND ITSELF AS TO ITS NONRESPONSIBILITY WAS IMPROPER. HOWEVER, THE TWO CASES ARE DISTINGUISHABLE IN THE FACTS. THE DECISION CITED BY YOU WE HAD UNDER CONSIDERATION THE QUESTION WHETHER A BIDDER HELD NOT RESPONSIBLE UNDER AN EARLIER PROCUREMENT BECAUSE OF A CONVICTION FOR VIOLATION OF THE FAIR LABOR STANDARDS ACT COULD BE HELD NOT RESPONSIBLE UNDER A SUBSEQUENT PROCUREMENT FOR THE SAME CONVICTION WITHOUT DEBARMENT PROCEEDINGS HAVING BEEN INSTITUTED IN THE INTERIM. WE HELD THAT PENDING ISSUANCE TO THE BIDDER OF A NOTICE OF INTENT TO DEBAR, AND IN THE ABSENCE OF ANY EVIDENCE OF LACK OF RESPONSIBILITY OTHER THAN THE CONVICTION FOR VIOLATION OF THE FAIR LABOR STANDARDS ACT, THE BIDDER MUST BE CONSIDERED AS A RESPONSIBLE BIDDER WITHIN THE MEANING OF THAT TERM IN 41 U.S.C. 253 (B). AN ADMINISTRATIVE DETERMINATION THAT A BIDDER IS NOT A RESPONSIBLE BIDDER UNDER ONE PROCUREMENT IS NOT DETERMINATIVE OF HIS RESPONSIBILITY UNDER SUBSEQUENT PROCUREMENTS. WHILE WE STATED IN THAT DECISION THAT WE BELIEVE IT PREFERABLE FOR A CONTRACTING OFFICE TO GIVE A BIDDER AN OPPORTUNITY TO DEFEND HIMSELF AGAINST THE CHARGE OF NONRESPONSIBILITY, IT APPEARS FROM THE RECORD BEFORE US THAT YOUR FIRM WAS OFFERED SUCH AN OPPORTUNITY BUT THAT YOU REFUSED IT. IN THAT CONNECTION, WE HAVE CONSISTENTLY HELD THAT WHERE THERE ARE DISPUTED QUESTIONS OF FACT, IN THE ABSENCE OF EVIDENCE SUFFICIENTLY CONVINCING TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS OF THE ADMINISTRATIVE REPORT, THIS OFFICE WILL ACCEPT THE ADMINISTRATIVE REPORT AS ACCURATELY REFLECTING THE DISPUTED QUESTIONS OF FACT. 36 COMP. GEN. 266; 37 COMP. GEN. 568; 41 ID. 47; ID. 266.

IN OUR DECISION WE STATED THAT ALTHOUGH THE CORPS OF ENGINEERS, NEW YORK DISTRICT, ERRED IN NOT REFERRING THE MATTER OF YOUR FIRM'S RESPONSIBILITY TO THE SMALL BUSINESS ADMINISTRATION FOR CONSIDERATION, WE WERE OF THE OPINION THAT SINCE THE SUCCESSFUL CONTRACTOR HAD COMMENCED PERFORMANCE OF THE CONTRACT, IT WOULD NOT BE APPROPRIATE AT THAT TIME TO DISTURB THE AWARD. YOU REFER TO THE ABOVE STATEMENT AND REQUEST ADVICE AS TO WHETHER YOU ARE TO ASSUME FROM SUCH STATEMENT THAT WE CONDONE THE CONTINUATION OF THIS IMPROPER PROCEDURE. WE DO NOT, OF COURSE, CONDONE SUCH PROCEDURE AND UNDER DIFFERENT CIRCUMSTANCES MIGHT HAVE REQUIRED CANCELLATION OF THE AWARD. BUT, AS ABOVE INDICATED, IT WOULD NOT HAVE BEEN TO THE GOVERNMENT'S BEST INTEREST TO DO SO. ALSO, IN ANSWER TO YOUR FURTHER INQUIRY, WE ARE OF THE OPINION IT WOULD NOT BE PROPER FOR A CONTRACTING ACTIVITY TO INTENTIONALLY DELAY ACTION ON A BID PROTEST "UNTIL A FAVORED HIGHER BIDDER COMMENCED WORK ON A CONTRACT.' HOWEVER, THE PRESENT RECORD DOES NOT INDICATE ANY UNUSUAL DELAY ON THE PART OF THE CONTRACTING ACTIVITY IN SUBMITTING ITS REPORT TO OUR OFFICE.

ACCORDINGLY, THE DECISION OF JULY 14, 1964, IS AFFIRMED.

IN REGARD TO YOUR REQUEST FOR INFORMATION AS TO THE NEXT HIGHER AGENCY TO WHICH YOU MAY APPEAL YOUR CASE, YOU MAY BE ADVISED THAT DECISIONS OF OUR OFFICE ARE FINAL AND CONCLUSIVE ON THE EXECUTIVE BRANCH OF THE GOVERNMENT.