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GENERAL SERVICES ADMINISTRATION: WE ARE ENCLOSING COPIES OF OUR LETTERS OF TODAY TO POLETTI. OUR DECISION ON THESE PROTESTS ARE NECESSARILY BASED UPON WHETHER THE AWARDS ON THESE PROJECTS WERE IN VIOLATION OF LAW OR REGULATION. WE REALIZE THAT THE BURDEN OF PROVING QUALIFICATIONS IN THE VARIOUS MATTERS WHICH ARE REQUIRED TO BE CONSIDERED BY CONTRACTING AGENCIES UNDER SECTION 1-1.310-5 OF THE FEDERAL PROCUREMENT REGULATIONS PRIOR TO A DETERMINATION OF RESPONSIBILITY MUST BE PLACED UPON THE BIDDER. INDICATES THAT YOUR CONCLUSIONS IN THE INSTANT CASES WOULD NOT HAVE BEEN DIFFERENT HAD YOU BEEN IN POSSESSION OF ALL INFORMATION AND CONSIDERED ALL ARGUMENTS PRESENTED TO THIS OFFICE BY THE PROTESTING BIDDERS AFTER AWARDS HAD BEEN MADE.

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B-150791, B-150861, APR. 25, 1963

TO ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION:

WE ARE ENCLOSING COPIES OF OUR LETTERS OF TODAY TO POLETTI, FREIDIN, PRASHKER AND HARNETT, AND TO LAWRENCE GOCHBERG, AS ATTORNEYS RESPECTIVELY FOR S. S. SILBERBLATT, INC., AND FOR A JOINT VENTURE COMPOSED OF TERMINAL CONSTRUCTION CORPORATION, PAUL HARDEMAN, INC., AND F. D. RICH COMPANY, INC., DENYING THEIR PROTESTS AGAINST REJECTION OF THEIR LOW AND SECOND LOW BIDS FOR THE CONSTRUCTION OF FEDERAL OFFICE BUILDINGS IN KANSAS CITY AND IN NEW YORK CITY.

THERE DOES NOT APPEAR TO BE ANY REQUIREMENT OF LAW OR REGULATION FOR NOTICE OR HEARING PRIOR TO REJECTION OF A BID BASED UPON LACK OF INTEGRITY IN A BIDDER, AND OUR DECISION ON THESE PROTESTS ARE NECESSARILY BASED UPON WHETHER THE AWARDS ON THESE PROJECTS WERE IN VIOLATION OF LAW OR REGULATION.

WE REALIZE THAT THE BURDEN OF PROVING QUALIFICATIONS IN THE VARIOUS MATTERS WHICH ARE REQUIRED TO BE CONSIDERED BY CONTRACTING AGENCIES UNDER SECTION 1-1.310-5 OF THE FEDERAL PROCUREMENT REGULATIONS PRIOR TO A DETERMINATION OF RESPONSIBILITY MUST BE PLACED UPON THE BIDDER, AND YOUR LETTER OF APRIL 3, 1963, AS WELL AS ORAL DISCUSSIONS WITH MEMBERS OF YOUR STAFF ON APRIL 1, INDICATES THAT YOUR CONCLUSIONS IN THE INSTANT CASES WOULD NOT HAVE BEEN DIFFERENT HAD YOU BEEN IN POSSESSION OF ALL INFORMATION AND CONSIDERED ALL ARGUMENTS PRESENTED TO THIS OFFICE BY THE PROTESTING BIDDERS AFTER AWARDS HAD BEEN MADE.

HOWEVER, IN FUTURE CASES INVOLVING A DETERMINATION OF A BIDDER'S RESPONSIBILITY, WHERE THE FACTS AND CIRCUMSTANCES ARE OF A NATURE WHICH CONSTITUTE A BASIS FOR DEBARMENT ACTION UNDER SECTION 1-1.605 OF THE REGULATIONS, WE ARE OF THE OPINION THAT BEFORE A LOW BID IS REJECTED AND AWARD MADE TO A HIGHER BIDDER, THE LOW BIDDER SHOULD BE INFORMED OF THE PROPOSED ACTION AND THE REASONS THEREFOR AND BE GIVEN AN OPPORTUNITY TO PRESENT SUCH VIEW IN THE MATTER AS HE MAY WISH, WHERE SUCH A PROCEDURE WOULD NOT UNDULY DELAY THE PROCUREMENT PROCESS.

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