B-159242, JUL. 26, 1966

B-159242, JUL. 26, 1966

TO MR. SAMUEL F. SCHWAG, ATTORNEY-AT-LAW:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 21, 1966, WITH ENCLOSURES, PROTESTING, ON BEHALF OF CHERUBINO PETTI AND CO., INC., AGAINST THE AWARD OF ANY CONTRACT TO KRAVITZ CLOTHING, LTD., UNDER DEFENSE SUPPLY AGENCY INVITATION FOR BIDS NO. DSA-100-66-1638,ISSUED BY THE DEFENSE PERSONNEL SUPPORT CENTER, PHILADELPHIA,PENNSYLVANIA.

THE INVITATION REQUESTED BIDS FOR THE MANUFACTURE AND DELIVERY F.O.B. VARIOUS DESTINATIONS OF 255,660 EACH, COAT, MAN-S, WOOL SERGE, AG-44 CLASS 3 E.M. SIXTEEN BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. SINCE NO ONE BIDDER IS ABLE TO FURNISH THE ENTIRE QUANTITY OF COATS, THE CONTRACTING OFFICER CONTEMPLATES MAKING MULTIPLE AWARDS. IT IS REPORTED THAT KRAVITZ CLOTHING, LTD., IS ELIGIBLE FOR AN AWARD OF 660 COATS.

YOU PROTEST AGAINST THE MAKING OF ANY AWARD TO KRAVITZ CLOTHING, LTD., ON THE GROUND THAT THE FIRM CANNOT BE CONSIDERED A RESPONSIBLE BIDDER WITHIN THE MEANING OF ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-903.1 BECAUSE OF THE PAST UNSATISFACTORY RECORD OF INTEGRITY OF ITS PRINCIPALS. YOU ALSO STATE THAT THE FIRM IS GUILTY OF AN ALLEGED PIRATING OF LABOR PERSONNEL FROM THE PETTI PLANT. IT ALSO IS STATED THAT THE INTEGRITY OF THE PRINCIPALS OF KRAVITZ CLOTHING IS A MATTER OF PUBLIC RECORD. IN HIS REPORT OF JUNE 17, 1966, THE CONTRACTING OFFICER STATES THAT EVIDENTLY YOU ARE ALLUDING TO MESSRS. SAMUEL (FATHER) AND HERMAN P. (SON) KRAVITZ, FORMER PRINCIPALS OF KRAVIN PARK CLOTHES, INC., AND TO THEIR UNETHICAL CONDUCT BEFORE THE PERMANENT SUBCOMMITTEE ON INVESTIGATIONS, COMMITTEE ON GOVERNMENT OPERATIONS, UNITED STATES SENATE, WHICH SUBCOMMITTEE CONDUCTED AN INVESTIGATION OF THE PROCUREMENT PRACTICES OF THE ARMED SERVICES TEXTILE AND APPAREL PROCUREMENT AGENCY. IN A REPORT DATED SEPTEMBER 6, 1957, NO. 1166-85TH CONGRESS, 1ST SESSION, THE SUBCOMMITTEE CONCLUDED THAT SINCE HERMAN AND SAMUEL KRAVITZ HAD REFUSED, BY INVOKING THE FIFTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES OVER 200 TIMES, TO GIVE THE SUBCOMMITTEE ANY INFORMATION ABOUT THEIR CLOTHING CONTRACTS, THEY SHOULD RECEIVE NO FURTHER CONTRACTS FROM THE UNITED STATES GOVERNMENT. THE RECORD INDICATES THAT BECAUSE OF THEIR CONDUCT BEFORE THE SUBCOMMITTEE THE NAMES OF SAMUEL KRAVITZ, HERMAN P. KRAVITZ AND KRAVIN PARK CLOTHES, INC., WERE PLACED BY THE DEPARTMENT OF DEFENSE ON THE JOINT CONSOLIDATED LIST OF DEBARRED, INELIGIBLE AND SUSPENDED CONTRACTORS EFFECTIVE NOVEMBER 14, 1952, AND THAT THEIR SUSPENSION WAS TERMINATED AS OF DECEMBER 1, 1964, 12 YEARS LATER. IT ALSO IS REPORTED THAT THIS IS THE FIRST BID RECEIVED FROM THE KRAVITZES SINCE THEIR SUSPENSION WAS ENDED. THE DEFENSE SUPPLY AGENCY HAS EXPRESSED THE OPINION THAT IN VIEW OF THE DECISIONS OF OUR OFFICE REPORTED IN 43 COMP. GEN. 140; ID. 387; AND THE FACT THAT THE NAMES OF THE KRAVITZES HAVE BEEN REMOVED FROM THE JOINT CONSOLIDATED LIST OF DEBARRED, INELIGIBLE AND SUSPENDED CONTRACTORS, THAT AGENCY HAS NO BASIS UPON WHICH TO REFUSE TO MAKE AN AWARD TO KRAVITZ CLOTHING, LTD. IT IS REPORTED THAT KRAVITZ CLOTHING, LTD., IS A SUBSIDIARY OF THE GARDNER CORPORATION; THAT SAMUEL KRAVITZ IS PRESIDENT OF KRAVITZ CLOTHING, LTD.; THAT HERMAN KRAVITZ IS NOT AN EMPLOYEE OF KRAVITZ CLOTHING, LTD., OR THE GARDNER CORPORATION; AND THAT KRAVITZ CLOTHING, LTD., HAS THE LABOR AVAILABLE TO MANUFACTURE THE 660 COATS COVERED BY THE PROPOSED AWARD.

CONTRACTS PURSUANT TO FORMAL ADVERTISING ARE REQUIRED TO BE AWARDED, UNDER 10 U.S.C. 2305 (,"TO THE RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION AND WILL BE THE MOST ADVANTAGEOUS TO THE UNITED STATES.' RESPONSIBLE CONTRACTOR UNDER ASPR 1-903.1 (IV) IS ONE WHO HAS, AMONG OTHER FACTORS, A SATISFACTORY RECORD OF INTEGRITY.

THE FUNCTION OF DETERMINING WHETHER A PARTICULAR PERSON OR FIRM IS A RESPONSIBLE BIDDER, WITHIN THE INTENT AND MEANING OF THE ADVERTISING STATUTES OF THE UNITED STATES, AND THUS ELIGIBLE TO RECEIVE AN AWARD OF GOVERNMENT CONTRACTS, IS ESSENTIALLY AN ADMINISTRATIVE ONE INVOLVING THE DETERMINATION OF SUCH FACTUAL ISSUES AS THE BIDDER'S REPUTATION FOR PAST PERFORMANCE, HIS OVER-ALL EXPERIENCE IN THE PARTICULAR INDUSTRY INVOLVED, HIS PLANT FACILITIES AND EQUIPMENT, INTEGRITY, FINANCIAL RESPONSIBILITY, AND LIKE CONSIDERATIONS, SUCH AS CAN BE DETERMINED ONLY BY, AND TO THE SATISFACTION OF, THE ADMINISTRATIVE OFFICERS OF THE GOVERNMENT ACTIVITY DIRECTLY CONCERNED. SEE O-BRIEN V. CARNEY, 6 F.SUPP. 761, 762; 14 COMP. GEN. 305; 34 ID. 86.

IN REGARD TO THE ALLEGED PIRATING OF LABOR PERSONNEL BY KRAVITZ CLOTHING, LTD., FROM THE PETTI PLANT, THE CONTRACTING OFFICER STATES THAT IT IS HIS OPINION THAT SUCH ACT ALONE WOULD NOT JUSTIFY DETERMINATION THAT THE COMPANY IS NOT A RESPONSIBLE BIDDER UNDER THE INSTANT SOLICITATION. SEE NO LEGAL BASIS FOR DISAGREEING WITH THIS OPINION. HENCE, THERE REMAINS FOR CONSIDERATION WHETHER THE REFUSAL OF ONE OF THE OFFICIALS OF KRAVITZ CLOTHING, LTD., NAMELY SAMUEL KRAVITZ, TO COOPERATE WITH A CONGRESSIONAL SUBCOMMITTEE, AN ACT FOR WHICH MR. KRAVITZ AND HIS FIRM WERE DEBARRED FOR A PERIOD OF APPROXIMATELY 12 YEARS, CONSTITUTES A PROPER BASIS AT THIS TIME FOR DETERMINING THAT THE COMPANY IS NOT A RESPONSIBLE BIDDER UNDER THE INSTANT SOLICITATION.

IN 43 COMP. GEN. 140, CITED BY THE CONTRACTING OFFICER IN HIS REPORT OF JUNE 17, 1966, WE STATED (QUOTING THE SYLLABUS):

"TO DENY A BIDDER, WHO HAD BEEN DETERMINED TO BE NONRESPONSIBLE FOR AWARD OF A CONTRACT BASED ON A CONVICTION OF A CRIMINAL OFFENSE THAT WAS NOT APPEALED BUT WHO HAD NOT BEEN NOTIFIED THAT DEBARMENT ACTION WAS TO BE INVOKED, CONSIDERATION IN SUBSEQUENT PROCUREMENTS BASED ON THE PRIOR ADMINISTRATIVE DETERMINATION OF NONRESPONSIBILITY WOULD RESULT IN AUTHORIZING THE PROCURING AGENCY TO CONTINUE INDEFINITELY TO DISREGARD LOW BIDS BY SUCCESSIVE DETERMINATIONS OF NONRESPONSIBILITY WITHOUT AFFORDING THE BIDDER AN OPPORTUNITY TO BE HEARD, AND, THEREFORE, IN THE ABSENCE OF OTHER EVIDENCE OF LACK OF RESPONSIBILITY, THE LOW BIDDER MUST BE CONSIDERED A RESPONSIBLE BIDDER.'

IN 43 COMP. GEN. 387, ALSO CITED BY THE CONTRACTING OFFICER, WE STATED THAT WHILE THE CAUSES FOR DEBARMENT MAY BE APPLIED TO DETERMINE SUCH RESPONSIBILITY FACTORS AS INTEGRITY, THE SAME CAUSE SHOULD NOT ORDINARILY BE USED TO JUSTIFY A CONTINUING DETERMINATION OF NONRESPONSIBILITY UNLESS DEBARMENT PROCEEDINGS WERE INSTITUTED PROMPTLY AFTER THE FIRST DETERMINATION. IN IMPLEMENTATION OF THE DECISION REPORTED IN 43 COMP. GEN. 387, ASPR 1-604.2 PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"* * * THE DEBARMENT SHALL BE REMOVED AT THE EXPIRATION OF THE SPECIFIED PERIOD UNLESS IT IS DETERMINED THAT DEBARMENT FOR AN ADDITIONAL PERIOD IS REQUIRED IN ORDER TO PROTECT THE GOVERNMENT'S INTEREST. HOWEVER, A DEBARMENT SHALL NOT BE EXTENDED FOR AN ADDITIONAL PERIOD SOLELY ON THE BASIS OF THE FACTS AND CIRCUMSTANCES ON WHICH THE INITIAL DEBARMENT ACTION WAS BASED. WHEN DEBARMENT FOR AN ADDITIONAL PERIOD IS CONSIDERED NECESSARY, NOTICE OF THE PROPOSED DEBARMENT SHALL BE FURNISHED TO THE INDIVIDUAL OR FIRM CONCERNED IN ACCORDANCE WITH 1 604.3. * * *"

THE ABOVE QUOTED ASPR PROVISION IS CONSISTENT WITH THE DECISIONS OF OUR OFFICE IN PROVIDING THAT THE DEBARMENT SHOULD NOT BE EXTENDED FOR AN ADDITIONAL PERIOD SOLELY ON THE BASIS OF THE FACTS AND CIRCUMSTANCES ON WHICH THE INITIAL DEBARMENT ACTION WAS BASED. IN 43 COMP. GEN. 387, WE HELD THAT A PRIOR DETERMINATION OF NONRESPONSIBILITY IS NOT DETERMINATIVE OF A LATER QUESTION OF RESPONSIBILITY. WE ALSO HELD THAT A BIDDER'S RESPONSIBILITY, SUBJECT TO CERTIFICATE OF COMPETENCY PROCEDURES WHERE APPLICABLE, MUST BE BASED ON THE NATURE OF THE WORK TO BE DONE AND HIS CAPACITY, CREDIT, INTEGRITY, TENACITY, PERSEVERANCE AND ALL OTHER APPLICABLE FACTORS AS OF THE TIME OF THE PROCUREMENT.

UNDER THE CIRCUMSTANCES, WE MUST CONCLUDE THAT, IN THE ABSENCE OF ANY EVIDENCE OF LACK OF RESPONSIBILITY OTHER THAN THAT ON WHICH THE DEBARMENT OF KRAVIN PARK CLOTHES, INC., AND ITS PRINCIPALS, HERMAN AND SAMUEL KRAVITZ, WAS BASED, KRAVITZ CLOTHING, LTD., PROPERLY IS TO BE CONSIDERED A RESPONSIBLE BIDDER WITHIN THE MEANING OF 10 U.S.C. 2305 (C). ACCORDINGLY, YOUR PROTEST MUST BE DENIED.