B-132506, B-132460, AUG. 26, 1957

B-132506, B-132460, AUG. 26, 1957

TO MANHATTAN LIGHTING EQUIPMENT COMPANY, INC.:

FURTHER REFERENCE IS MADE TO YOUR PROTESTS AGAINST THE CONDUCT OF THE GENERAL STORES SUPPLY OFFICE, PHILADELPHIA, PENNSYLVANIA, AND THE NAVY PURCHASING OFFICE, NORFOLK, VIRGINIA, IN HAVING REFUSED TO AWARD YOU CERTAIN ITEMS OF SUPPLIES AS ADVERTISED UNDER THEIR RESPECTIVE INVITATIONS NOS. IFB-155-/2/-2438-57 AND IFB-189-825-57, ISSUED MAY 27 AND MAY 8, 1957.

THE BUREAU OF SUPPLIES AND ACCOUNTS, DEPARTMENT OF THE NAVY, HAS NOW FURNISHED US WITH REPORTS ON THE TRANSACTIONS ABOVE REFERRED TO, AND OF THE BASIS FOR THE REFUSAL TO AWARD YOU THE ITEMS ADVERTISED IN THE SAID INVITATIONS.

INVITATION NO. IFB-155-/2/-2438-57, ISSUED BY THE PHILADELPHIA GENERAL STORES SUPPLY OFFICE, COVERED A QUANTITY OF 3,000 BED LIGHTS, IN ACCORDANCE WITH MILITARY STANDARD SPECIFICATION MS16194 (DOCKS) DATED JANUARY 9, 1957. THIRTY-ONE INVITATIONS WERE ISSUED AND AT THE TIME OF OPENING ONLY ONE BID WAS RECEIVED, THAT OF THE WHITE PLAINS ELECTRICAL COMPANY, INC. THE BUREAU OF SUPPLIES AND ACCOUNTS REPORTS THAT THE PURCHASING ACTIVITY'S ENTIRE BIDDERS LIST FOR THE PARTICULAR MATERIAL CATEGORY WAS SOLICITED, AND YOUR FIRM, MANHATTAN, WAS NOT INCLUDED ON THIS LIST. THEREAFTER, CONTRACT NO. N155S-31129, FOR $14,700, WAS AWARDED THE WHITE PLAINS ELECTRICAL SUPPLY COMPANY, COVERING THE 3,000 LIGHTING UNITS INVOLVED.

IT APPEARS THAT YOU WERE NOT AFFORDED AN OPPORTUNITY TO BID ON THE ABOVE ITEM INASMUCH AS THE CONTRACTING OFFICER FOR THE GENERAL STORES SUPPLY OFFICE AT PHILADELPHIA HAD DETERMINED THAT YOUR FIRM WAS NOT A "REGULAR DEALER" FOR THIS TYPE OF MATERIAL WITHIN THE PURVIEW OF SECTION 1-201.9 (A) (1), ARMED SERVICES PROCUREMENT REGULATIONS. WHILE YOU CLAIM TO HAVE PREVIOUSLY FURNISHED THIS ITEM TO THE NAVY AT A LOWER PRICE, AN ADMINISTRATIVE CHECK DISCLOSED THAT IT WAS NOT THE SAME ITEM.

INVITATION NO. IFB-189-825-57, ISSUED BY THE NAVAL SUPPLY CENTER, NORFOLK, VIRGINIA, COVERED A QUANTITY OF 108,000 POUNDS OF ALUMINUM OXIDE, GRAIN 60, ELECTRIC FURNACE GRIT, 95 PERCENT PURE, TO BE SIMILAR OR EQUAL TO "ALUNDUM" AS MANUFACTURED BY THE NORTON COMPANY, WORCESTER, MASSACHUSETTS, AND PACKAGED IN ACCORDANCE WITH APPLICABLE PORTIONS OF JAN- F-113 (2), DATED AUGUST 15, 1952. DELIVERY WAS REQUIRED AS ORDERED DURING THE FISCAL YEAR 1958 BY THE NAVAL AIR STATION AT NORFOLK.

TWO BIDS WERE RECEIVED IN RESPONSE TO THIS INVITATION, THE LOW BID OF$0.09999 PER POUND HAVING BEEN SUBMITTED BY YOUR FIRM, AND THE SECOND LOW BID OF $0.104 PER POUND HAVING BEEN RECEIVED FROM THE EXOLON COMPANY. IN EVALUATING THESE BIDS, THE CONTRACTING OFFICER, NOT REALIZING THAT YOU WERE NOT CONSIDERED A "REGULAR DEALER" IN THIS CATEGORY OF SUPPLY, REQUESTED YOU TO CONFIRM YOUR BID PRICE, WHICH YOU DID. HOWEVER, WHILE YOU ARE CONSIDERED A REGULAR DEALER IN SAND PAPER, YOU ARE NOT A LISTED DEALER FOR THE ADVERTISED MATERIAL, WHICH IS USED IN RECONDITIONING, GRINDING, AND POLISHING WHEELS FOR HEAVY DUTY WORK. THIS FACT WAS DISCOVERED PRIOR TO THE AWARD, AND ACCORDINGLY, ON JUNE 24, 1957, CONTRACT NO. N189-36496A (188), FOR $11,232, WAS AWARDED THE EXOLON COMPANY, TONAWANDA, NEW YORK.

CONCERNING YOUR CONTENTION THAT YOU ARE A QUALIFIED DEALER IN MANY ITEMS IN ADDITION TO THOSE SHOWN ON A LIST RECENTLY COMPILED BY THE DEPARTMENT OF THE NAVY, THE RECORD SHOWS THAT ON JANUARY 14, 1957, WHICH WAS SUBSEQUENT TO REMOVAL OF YOUR COMPANY FROM THE NAVY'S DEBARRED LIST, THE OFFICE OF NAVAL MATERIAL REQUESTED THE INSPECTOR OF NAVAL MATERIAL AT NEW YORK TO CONDUCT A THOROUGH SURVEY OF YOUR CONCERN AND ADVISE THE OFFICE OF THE RESULTS. THIS SURVEY WAS ORDERED WITH A VIEW TO ELIMINATING THE NECESSITY FOR FURTHER PREAWARD SURVEYS OF YOUR COMPANY IN CONNECTION WITH FUTURE PROCUREMENTS BY THAT DEPARTMENT. IT IS REPORTED THAT THE SURVEY OF YOUR PLANT WAS CONDUCTED BY TWO INSPECTORS FROM THE NEW YORK OFFICE, WHO SPENT TWO ENTIRE DAYS IN THE PROCESS. ON MARCH 19, 1957, A REPORT OF THIS SURVEY WAS FORWARDED TO THE OFFICE OF NAVAL MATERIAL, WASHINGTON, D.C., WHICH SENT THE REPORT TO THE FIELD PURCHASING OFFICES UNDER THE BUREAU OF SUPPLIES AND ACCOUNTS FOR THE GUIDANCE OF CONTRACTING OFFICERS OF THE NAVY. IT IS UNDERSTOOD THAT YOU HAVE BEEN FURNISHED A COPY OF THE LIST OF ITEMS AS TO WHICH THE DEPARTMENT OF THE NAVY CONSIDERS YOU TO BE A "REGULAR DEALER," WITHIN THE CONTEMPLATION OF THE ARMED SERVICES PROCUREMENT REGULATIONS.

SECTION 1.201-9 (A) (1) OF THE REGULATIONS DEFINES A "REGULAR DEALER" TO BE:

"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.'

IN INTERPRETING THE ABOVE OR SIMILAR REGULATIONS, THE COURTS AS WELL AS OUR OFFICE, HAVE RECOGNIZED THAT THE FUNCTION OF DETERMINING WHO IS A REGULAR DEALER IN A NEEDED ARTICLE OR COMMODITY IS PRIMARILY THAT OF THE INTERESTED GOVERNMENTAL CONTRACTING AGENCY WHOSE OVERALL RESPONSIBILITY IN A MATTER SUCH AS THIS INCLUDES THE DETERMINATION OF THE BIDDER'S FINANCIAL RESPONSIBILITY, JUDGMENT, SKILL, INTEGRITY, EXPERIENCE, AND HIS CAPACITY TO SATISFACTORILY PERFORM A PROPOSED CONTRACT. SEE O-BRIEN V. CARNEY, 6 F.SUPP. 761; 14 COMP. GEN. 305; ID. 313; 33 ID. 41; 34 ID. 86.

CONTRARY TO YOUR ALLEGATIONS IN THIS MATTER, THE RECORD SHOWS THAT THE SURVEYS RECENTLY CONDUCTED OF YOUR PLANT FACILITIES UNDER THE SUPERVISION OF THE INSPECTOR OF NAVAL MATERIAL, NEW YORK, WERE THOROUGH AND IMPERSONAL, AND THERE IS NO EVIDENCE OF DISCRIMINATION AGAINST YOUR FIRM.

IN THE CIRCUMSTANCES, WE HAVE NO ALTERNATIVE BUT TO AFFIRM THE ADMINISTRATIVE ACTION TAKEN WITH RESPECT TO THE TWO AWARDS.