B-139792, JUL. 27, 1959

B-139792: Jul 27, 1959

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TO MANHATTAN LIGHTING EQUIPMENT CO.: REFERENCE IS MADE TO YOUR LETTER DATED JULY 16. THESE BIDS WERE REJECTED BY THE CONTRACTING OFFICER ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION THAT YOUR FIRM WAS NOT A "REGULAR DEALER" WITHIN THE PURVIEW OF SECTION 1- 201.9 (B) OF THE ARMED SERVICES PROCUREMENT REGULATION. THIS DETERMINATION WAS BASED UPON A REPORT PREPARED BY THE INSPECTOR OF NAVAL MATERIAL. WHILE YOU CONTEND THAT THE REPORTS MADE BY THE INSPECTOR WERE INACCURATE. THERE IS NOTHING OF RECORD TO INDICATE THAT THE INSPECTORS WERE PREJUDICED OR BIASED. THE FUNCTION OF DETERMINING FACTUALLY WHETHER A PARTY IS A QUALIFIED OR RESPONSIBLE BIDDER LIES PRIMARILY WITH THE INTERESTED GOVERNMENT CONTRACTING ACTIVITY.

B-139792, JUL. 27, 1959

TO MANHATTAN LIGHTING EQUIPMENT CO.:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 16, 1959, WITH ENCLOSURES, AND PRIOR CORRESPONDENCE, PROTESTING THE ACTION OF THE DEPARTMENT OF THE NAVY IN REFUSING TO MAKE AWARDS OF CONTRACTS TO YOU UNDER CERTAIN INVITATIONS FOR BIDS.

THE ADMINISTRATIVE REPORT, REQUESTED OF THE DEPARTMENT OF THE NAVY ON THOSE MATTERS, HAS NOW BEEN RECEIVED. IT APPEARS THAT YOUR FIRM SUBMITTED THE LOWEST BID UNDER THE INVITATIONS INVOLVED. THESE BIDS WERE REJECTED BY THE CONTRACTING OFFICER ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION THAT YOUR FIRM WAS NOT A "REGULAR DEALER" WITHIN THE PURVIEW OF SECTION 1- 201.9 (B) OF THE ARMED SERVICES PROCUREMENT REGULATION. THIS DETERMINATION WAS BASED UPON A REPORT PREPARED BY THE INSPECTOR OF NAVAL MATERIAL, NEW YORK, NEW YORK.

IT APPEARS THAT YOUR COMPLAINTS STEM FROM YOUR OVERALL DISSATISFACTION WITH THE FINDINGS REPORTED BY PERSONNEL ATTACHED TO THE OFFICE OF INSPECTOR OF NAVAL MATERIAL, NEW YORK CITY, WHO CONDUCTED SURVEYS OF YOUR PLANT AND FACILITIES FOR THE PURPOSE OF DETERMINING YOUR CAPACITY TO BID AS A "REGULAR DEALER" UNDER THE INVITATIONS INVOLVED. WHILE YOU CONTEND THAT THE REPORTS MADE BY THE INSPECTOR WERE INACCURATE, THERE IS NOTHING OF RECORD TO INDICATE THAT THE INSPECTORS WERE PREJUDICED OR BIASED.

AS POINTED OUT IN NUMEROUS DECISIONS OF OUR OFFICE TO YOU, THE FUNCTION OF DETERMINING FACTUALLY WHETHER A PARTY IS A QUALIFIED OR RESPONSIBLE BIDDER LIES PRIMARILY WITH THE INTERESTED GOVERNMENT CONTRACTING ACTIVITY, AND THE PROPER EXERCISE OF THAT FUNCTION NECESSARILY INVOLVES A DETERMINATION OF THE BIDDER'S FINANCIAL RESPONSIBILITY, SKILL, INTEGRITY, EXPERIENCE, AND OVERALL CAPACITY TO PERFORM. HENCE, YOU WILL APPRECIATE THAT WE CANNOT USURP PURELY ADMINISTRATIVE FUNCTIONS, AND SUBSTITUTE OUR JUDGMENT FOR THAT OF THE CONTRACTING AGENCY IN MATTERS OF THIS KIND.

WE HAVE BEEN ADVISED BY THE BUREAU OF SUPPLIES AND ACCOUNTS, DEPARTMENT OF THE NAVY, THAT AT ONE TIME AN ATTEMPT WAS MADE BY THE NAVY TO MAINTAIN AN INSPECTOR'S SURVEY LIST OF THE ITEMS ON WHICH YOU WERE DETERMINED TO BE A REGULAR DEALER. IT WAS SOON RECOGNIZED THAT SUCH A LIST COULD NOT BE KEPT CURRENT AND, FOR THIS REASON, ITS USE WAS DISCONTINUED. THE PRESENT PROCEDURE IS TO MAKE DETERMINATIONS ON A CASE-BY-CASE BASIS.

FOR THE REASONS ABOVE INDICATED, OUR OFFICE WOULD NOT BE JUSTIFIED IN OBJECTING TO THE ACTION TAKEN BY THE DEPARTMENT OF THE NAVY IN THE MATTER.