B-166285, SEP 8, 1969

B-166285, SEP 8, 1969

BID PROTEST - BIDDER RESPONSIBILITY - MANUFACTURER OR DEALER DECISION TO TYCO, INC., DENYING PROTEST AGAINST DETERMINATION OF INELIGIBILITY UNDER THE WALSH-HEALEY ACT FOR NEGOTIATED AWARD FOR FURNISHING CONDENSERS TO DEFENSE SUPPLY AGENCY. IN VIEW OF FINDING OF DEPARTMENT OF LABOR THAT PROTESTANT WAS NOT A "MANUFACTURER" UNDER WALSH-HEALEY PUBLIC CONTRACTS ACT AND SUCH FINDING IS CONCLUSIVE ON THE ACCOUNTING OFFICERS, GAO IS WITHOUT REVIEW JURISDICTION.

TO TYCO, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER DATED APRIL 24, 1969, WHEREIN YOU REFERRED TO REQUEST FOR PROPOSALS (RFP) NO. DSA700-69-R-6350, ISSUED BY THE DEFENSE SUPPLY AGENCY, DEFENSE CONSTRUCTION SUPPLY CENTER (DCSC), COLUMBUS, OHIO. YOU INDICATED APPREHENSION THAT DCSC WAS EMPLOYING THE WALSH-HEALEY PUBLIC CONTRACTS ACT (41 U.S.C. 35-45) IN SUCH A WAY AS TO INFLICT A "REPRISAL" ON YOUR COMPANY FOR ITS EARLIER PROTEST ON RFP NO. DSA700-69-R-5302, WHICH WAS THE SUBJECT OF OUR DECISIONS DATED JUNE 5, JULY 16, AND AUGUST 7, 1969. WE TREATED YOUR APRIL 24 LETTER AS A PROTEST OF THE AGENCY'S ACTIONS ON -6350, AND THEREFORE WE REQUESTED THE DEFENSE SUPPLY AGENCY TO FURNISH US WITH A REPORT. THE REPORT WAS DATED MAY 27, 1969, AND A COPY THEREOF WAS MADE AVAILABLE TO YOU FOR COMMENTS AND REBUTTAL. YOU RESPONDED TO THE REPORT IN A LETTER DATED JULY 17, 1969, WITH ENCLOSURES.

THE REPORTED FACTS ON RFP -6350 ARE AS FOLLOWS. THE RFP WAS ISSUED ON FEBRUARY 12, 1969, COVERING 30 CONDENSERS, FEDERAL STOCK NUMBER 4130 774- 5399, IN ACCORD WITH FAIRCHILD HILLER PART NUMBER 105897. TYCO RESPONDED WITH ITS OWN CONDENSER PART NUMBER 2500-123D, WHICH WAS DETERMINED TO BE AN ACCEPTABLE ALTERNATIVE. TYCO'S PRICE OFFER WAS $1,208 PER UNIT; FAIRCHILD HILLER OFFERED A UNIT PRICE OF $1,283.81. A PREAWARD SURVEY WAS CONDUCTED BY THE DEFENSE CONTRACT ADMINISTRATION SERVICES (DCAS), BALTIMORE DISTRICT, AND ITS REPORT DATED MARCH 28, 1969, RECOMMENDED THAT NO AWARD BE MADE TO TYCO FOR THE REASON THAT TYCO WAS DETERMINED NOT TO BE A "MANUFACTURER" WITHIN THE MEANING OF THE WALSH-HEALEY PUBLIC CONTRACTS ACT.

IN YOUR JULY 17 LETTER TO US, YOU STATED: "OUR PRESENT PROTEST STATUS ON THIS PROPOSAL RELATES ONLY TO THE LABOR DEPARTMENT'S APPLICATION OF THE WALSH-HEALEY ACT, AND/OR ITS CONCURRENCE OR DISAGREEMENT WITH DCSC IN THE INEQUITABLE APPLICATION." BY TELEGRAM OF APRIL 14, 1969, YOU WERE ADVISED BY THE CONTRACTING OFFICER OF THE DETERMINATION OF YOUR INELIGIBILITY UNDER THE WALSH-HEALEY ACT, AND, YOU WERE ALSO INFORMED OF THE OPPORTUNITY AFFORDED TO YOU FOR PROTESTING THIS DETERMINATION TO THE DEPARTMENT OF LABOR PRIOR TO AWARD OF ANY CONTRACT. YOU DID PROTEST, AND THE MATTER WAS REFERRED TO THE LABOR DEPARTMENT. YOU WROTE TO THAT AGENCY ON MAY 16, 1969, FURNISHING INFORMATION CONCERNING THE ADVERSE DETERMINATION MADE BY THE ADMINISTRATIVE OFFICIALS. THE ADMINISTRATOR TO THE WAGE AND HOUR PUBLIC CONTRACTS DIVISION, DEPARTMENT OF LABOR, ADVISED YOU AND THE CONTRACTING OFFICER ON JUNE 16, 1969, THAT NO BASIS WAS FOUND TO OVERRULE THE DETERMINATION BY DCAS.

IN VIEW OF THE FACT THAT THIS FINDING BY THE DEPARTMENT OF LABOR IS MADE CONCLUSIVE UPON OTHER GOVERNMENT AGENCIES BY EXPRESS STATUTORY PROVISION (41 U.S.C. 39), OUR OFFICE IS WITHOUT JURISDICTION TO REVIEW THE QUESTION OF YOUR ELIGIBILITY UNDER THE ACT. SEE PARAGRAPH 12 604(A) OF THE ARMED SERVICES PROCUREMENT REGULATION. ACCORDINGLY, YOUR PROTEST REGARDING RFP -6350 IS DENIED. YOU ARE ADVISED, HOWEVER, THAT YOUR PROTESTS ON RELATED PROCUREMENTS, INVOLVING YOUR STATUS AS A "MANUFACTURER" OF OTHER ITEMS, ARE BEING CONSIDERED.