B-153855, JUN. 15, 1964

B-153855, JUN. 15, 1964

TO ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION:

WE HAVE RECEIVED A LETTER DATED MARCH 26, 1964, FROM MR. PAUL A. BARRON, ASSISTANT GENERAL COUNSEL, REQUESTING OUR COMMENTS ON CERTAIN GENERAL IDEAS FOR A PROPOSED REVISION OF FPR 1-1.6, DEBARRED AND INELIGIBLE BIDDERS.

SINCE THE PROPOSED REVISION HAS NOT BEEN SUBMITTED FOR OUR PERUSAL, WE CAN NEITHER AGREE NOR DISAGREE WITH THE SPECIFIC PROCEDURES WHICH WILL BE INCLUDED THEREIN. SEE GONZALES V. FREEMAN, NO. 27765, C.A.D.C., MAY 7, 1964, AND CASES CITED THEREIN.

WE OFFER NO OBJECTION TO THE GENERAL PROPOSITION ADVANCED BY THE LETTER OF MARCH 26 THAT A FIRM OR INDIVIDUAL SHOULD BE GIVEN BOTH AN ADVANCE NOTICE OF THE REASONS FOR A PROPOSED DEBARMENT AND AN IMPARTIAL HEARING THEREON. HOWEVER IN CONNECTION WITH THE DEBARMENT OF VIOLATORS OF THE PROVISIONS OF THE DAVIS-BACON ACT, SPECIFICALLY PROVIDED FOR BY SECTION 3 OF THAT ACT (49 STAT. 1011, 40 U.S.C.276E-2 (A) (, IT SHOULD BE NOTED THAT OUR OFFICE MAKES ITS DECISIONS ON THE BASIS OF FACTS FOUND OR ESTABLISHED IN MAJOR PART BEFORE OR BY OTHER AGENCIES. IT IS THEREFORE SUGGESTED THAT, IN ACCORD WITH EXISTING PROCEDURE, THE PROPOSED REVISION MAKE IT CLEAR THAT WHERE FINAL DEBARMENT ACTION IS TO BE TAKEN BY THE COMPTROLLER GENERAL UNDER THE DAVIS-BACON ACT, THE REQUIRED NOTICE AND HEARING SHALL BE GIVEN BY THE DEPARTMENT OF LABOR.

THE LETTER OF MARCH 26 INDICATES THAT THE PROPOSED REVISION WILL PROVIDE THAT DEBARMENT BY AN AGENCY SHALL BE IMPOSED ONLY FOR THE PERIOD DEEMED NECESSARY TO PROTECT THE INTERESTS OF THE GOVERNMENT; THAT IT MAY BE EMPLOYED BY OTHER AGENCIES AS A BASIS FOR CONCURRENT DEBARMENTS; AND THAT IT MAY BE REMOVED PRIOR TO THE EXPIRATION OF THE PRESCRIBED PERIOD. GENERALLY, WE HAVE NO OBJECTION TO THE APPLICATION OF THESE PROCEDURES TO DISCRETIONARY ADMINISTRATIVE DEBARMENTS. HOWEVER, SINCE THE DAVIS-BACON AND BUY AMERICAN ACTS AFFORD NO DISCRETION IN THE APPLICATION OF A THREE- YEAR DEBARMENT FROM ALL GOVERNMENT CONTRACTS, AND SINCE THE WALSH-HEALEY ACT ALSO PROVIDES FOR A BLANKET THREE-YEAR DEBARMENT UNLESS THE SECRETARY OF LABOR OTHERWISE RECOMMENDS, WE SUGGEST THAT THE PROPOSED REVISION SHOULD MAKE APPROPRIATE DISTINCTION BETWEEN ADMINISTRATIVE DEBARMENTS AND THOSE PROVIDED FOR BY EXPRESS STATUTORY PROVISIONS.

WE SHALL, OF COURSE, ADVISE YOU FURTHER IF A NEED FOR ADDITIONAL REVISION OF THE REGULATIONS BECOMES APPARENT DURING THE PERFORMANCE OF OUR WORK.