B-126782, MAR. 1, 1956

B-126782: Mar 1, 1956

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INC.: REFERENCE IS MADE TO YOUR LETTERS OF JANUARY 21 AND 19. AS TO WHICH ITEMS YOU ALLEGE YOU WERE THE LOW BIDDER. IN THIS LETTER YOU WERE INFORMED THAT. WERE NOT ELIGIBLE TO RECEIVE AN AWARD UNDER THE INVITATIONS. YOU WILL OBSERVE THAT SECTION 1.307/A) OF THE ARMED SERVICES PROCUREMENT REGULATIONS DEFINES A "RESPONSIBLE" PROSPECTIVE CONTRACTOR AS A "MANUFACTURER. A "REGULAR DEALER" IS DEFINED IN SECTION 1.201-9 OF THE REGULATIONS. OR EQUIPMENT OF THE GENERAL CHARACTER DESCRIBED BY THE SPECIFICATIONS AND REQUIRED UNDER THE CONTRACT ARE BOUGHT. LONG HAVE RECOGNIZED THAT IT IS THE PRIMARY FUNCTION OF THE INTERESTED GOVERNMENTAL CONTRACTING AGENCY TO DETERMINE SUCH FACTUAL MATTERS AS THE BIDDER'S OVERALL RESPONSIBILITY.

B-126782, MAR. 1, 1956

TO MANHATTAN LIGHTING EQUIPMENT CO., INC.:

REFERENCE IS MADE TO YOUR LETTERS OF JANUARY 21 AND 19, 1956, WITH ENCLOSURES, AND YOUR SUBSEQUENT CORRESPONDENCE IN WHICH YOU PROTEST THE ACTION OF THE GENERAL STORES SUPPLY OFFICE, PHILADELPHIA, PENNSYLVANIA, IN HAVING FAILED OR REFUSED TO AWARD YOU CERTAIN ITEMS OF INVITATION FOR BIDS NOS. 155/3/-395-56 AND 383-395-56, OPENED ON NOVEMBER 1 AND 15, 1955, RESPECTIVELY, AS TO WHICH ITEMS YOU ALLEGE YOU WERE THE LOW BIDDER.

THE BASIS FOR THE ADMINISTRATIVE ACTION IN HAVING AWARDED THESE ITEMS TO YOUR COMPETITORS HAS BEEN FULLY EXPLAINED IN THE CONTRACTING OFFICER'S COMMUNICATION OF JANUARY 17, 1956, TO YOU. IN THIS LETTER YOU WERE INFORMED THAT, UPON THE BASIS OF PAST PRE-AWARD SURVEYS CONDUCTED BY THE INSPECTOR OF NAVY MATERIAL AT THAT DEPOT, THE CONTRACTING OFFICER HAD DETERMINED AS A FACT THAT YOU DID NOT QUALIFY AS A "REGULAR DEALER" IN THE ITEMS UPON WHICH YOU HAD BID, AND HENCE, WERE NOT ELIGIBLE TO RECEIVE AN AWARD UNDER THE INVITATIONS. IN THIS CONNECTION, YOU WILL OBSERVE THAT SECTION 1.307/A) OF THE ARMED SERVICES PROCUREMENT REGULATIONS DEFINES A "RESPONSIBLE" PROSPECTIVE CONTRACTOR AS A "MANUFACTURER, CONSTRUCTION CONTRACTOR, OR REGULAR DEALER, IF THE CONTRACT OR ORDER CALLS FOR SUPPLIES.' A "REGULAR DEALER" IS DEFINED IN SECTION 1.201-9 OF THE REGULATIONS, AS FOLLOWS:

"/I) A PERSON OR FIRM WHO OWNS, OPERATES, OR MAINTAINS A STORE,WAREHOUSE OR OTHER ESTABLISHMENT IN WHICH THE MATERIALS, SUPPLIES, ARTICLES, OR EQUIPMENT OF THE GENERAL CHARACTER DESCRIBED BY THE SPECIFICATIONS AND REQUIRED UNDER THE CONTRACT ARE BOUGHT, KEPT IN STOCK, AND SOLD TO THE PUBLIC IN THE USUAL COURSE OF BUSINESS.'

IT APPEARS THAT THE SUPPLIES CALLED FOR UNDER THE INVITATIONS HEREIN REFERRED TO CONSISTED OF A MISCELLANEOUS ASSORTMENT OF ITEMS WHICH DO NOT FALL WITHIN THE CATEGORIES STIPULATED IN THIS REGULATION.

THE COURTS, AS WELL AS OUR OFFICE, LONG HAVE RECOGNIZED THAT IT IS THE PRIMARY FUNCTION OF THE INTERESTED GOVERNMENTAL CONTRACTING AGENCY TO DETERMINE SUCH FACTUAL MATTERS AS THE BIDDER'S OVERALL RESPONSIBILITY, EXPERIENCE AND OTHER FACTORS CONSIDERED, AND ITS CAPACITY TO RENDER SATISFACTORY PERFORMANCE UNDER A PARTICULAR CONTRACT. SEE O-BRIEN V. CARNEY, 6 F.SUPP. 761, 762; 14 COMP. GEN. 305; ID. 313; 34 COMP. GEN. 86; CF. 33 ID. 63. IN FACT, SECTION 3/B) OF THE ARMED SERVICES PROCUREMENT ACT OF 1947, WHICH APPLIES HERE, EXPRESSLY REQUIRES AWARDS OF CONTRACTS TO ,RESPONSIBLE" BIDDERS ONLY.

ACCORDINGLY, WE HAVE NO OTHER ALTERNATIVE BUT TO AFFIRM THE ADMINISTRATIVE ACTION TAKEN WITH RESPECT TO THESE AWARDS.