B-140040, B-140099, SEP. 11, 1959

B-140040,B-140099: Sep 11, 1959

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INVITATION NO. 2410 WAS ISSUED MAY 8. BOTH INVITATIONS WERE AMENDED PRIOR TO OPENING BY THE SUBSTITUTION OF A NEW SECTION 3 IN THE APPLICABLE SPECIFICATIONS. PARAGRAPH NO. 3.1 OF THE REVISED SECTION PROVIDES IN PART: "* * * THE TERM "MANUFACTURER" AS USED IN THIS SPECIFICATION IS MEANT TO APPLY TO A COMPANY OF ESTABLISHED REPUTATION. WHICH ARE USED IN THE ASSEMBLY OF CONVEYOR EQUIPMENT. * * *.'. AWARDS PURSUANT TO THE TWO INVITATIONS WERE MADE ON JUNE 30. YOUR PROTEST IN EACH INSTANCE IS BASED ON A CONTENTION THAT THE SUCCESSFUL BIDDER CANNOT QUALIFY AS A MANUFACTURER UNDER THE QUOTED DEFINITION. YOUR POSITION IS STATED IN THE LETTER OF JUNE 30 IN PART AS FOLLOWS: "OUR PROTEST IS BASED ON THE FACT THAT INDUSTRIAL NUCLEONICS ARE NOT A CONVEYOR MANUFACTURER.

B-140040, B-140099, SEP. 11, 1959

TO THE ALVEY-FERGUSON COMPANY:

WE REFER AGAIN TO YOUR TELEGRAM OF JULY 2, 1959, AND YOUR TELEGRAM OF JUNE 26 AND LETTER OF JUNE 30, 1959, PROTESTING THE AWARD TO INDUSTRIAL NUCLEONICS CORPORATION OF CONTRACTS PURSUANT TO POST OFFICE DEPARTMENT INVITATIONS FOR BIDS NOS. 2409 AND 2410.

INVITATION NO. 2409, ISSUED MAY 6, 1959, SOLICITED BIDS FOR FURNISHING AND INSTALLING A ,MAIL-FLO" DISTRIBUTING SYSTEM IN THE MAIN POST OFFICE AT PITTSBURGH, PENNSYLVANIA. INVITATION NO. 2410 WAS ISSUED MAY 8, 1959, FOR A SIMILAR SYSTEM TO BE INSTALLED IN THE CHICAGO, ILLINOIS POST OFFICE. BOTH INVITATIONS WERE AMENDED PRIOR TO OPENING BY THE SUBSTITUTION OF A NEW SECTION 3 IN THE APPLICABLE SPECIFICATIONS. PARAGRAPH NO. 3.1 OF THE REVISED SECTION PROVIDES IN PART:

"* * * THE TERM "MANUFACTURER" AS USED IN THIS SPECIFICATION IS MEANT TO APPLY TO A COMPANY OF ESTABLISHED REPUTATION, ENGAGED IN THE MANUFACTURE AND INSTALLATION OF MAIL DISTRIBUTION TYPE CONVEYOR SYSTEMS AND IN THE ASSEMBLY OF CONVEYOR EQUIPMENT FROM PRODUCTS OF THEIR OWN MANUFACTURE. THE MANUFACTURER SHALL ALSO ASSUME THE RESPONSIBILITY OF PRODUCTS NOT MANUFACTURED BY THEM, BUT WHICH ARE USED IN THE ASSEMBLY OF CONVEYOR EQUIPMENT. * * *.'

AWARDS PURSUANT TO THE TWO INVITATIONS WERE MADE ON JUNE 30, 1959, TO THE LOW BIDDER IN EACH CASE, INDUSTRIAL NUCLEONICS CORPORATION.

YOUR PROTEST IN EACH INSTANCE IS BASED ON A CONTENTION THAT THE SUCCESSFUL BIDDER CANNOT QUALIFY AS A MANUFACTURER UNDER THE QUOTED DEFINITION. YOUR POSITION IS STATED IN THE LETTER OF JUNE 30 IN PART AS FOLLOWS:

"OUR PROTEST IS BASED ON THE FACT THAT INDUSTRIAL NUCLEONICS ARE NOT A CONVEYOR MANUFACTURER, BUT A CONTROL MANUFACTURER, AND THEY DO NOT MEET THE REQUIREMENTS OF SECTION 3.1 OF THE GENERAL SPECIFICATIONS POD-M-1016- RE DATED APRIL 24 AND REVISED MAY 1, 1959, WHICH SPECIFY THAT A MANUFACTURER SHOULD BE A COMPANY OF ESTABLISHED REPUTATION ENGAGED IN THE MANUFACTURE AND INSTALLATION OF MAIL DISTRIBUTION TYPE CONVEYOR SYSTEMS AND IN THE ASSEMBLY OF CONVEYOR EQUIPMENT FROM PRODUCTS OF THEIR OWN MANUFACTURE.

"INDUSTRIAL NUCLEONICS BEING A MANUFACTURER OF ELECTRONIC CONTROL EQUIPMENT WOULD NECESSARILY SUB-CONTRACT THE CONVEYORS AS THEY DO NOT HAVE THE EQUIPMENT AND FACILITIES TO MANUFACTURE THEM. THE CONVEYOR EQUIPMENT ON THIS ORDER REPRESENTS APPROXIMATELY 70 PERCENT OF THE VALUE OF THE TOTAL CONTRACT.'

THE FACE SHEETS OF BOTH INVITATIONS REQUIRE A REPRESENTATION BY THE BIDDER THAT HE IS A REGULAR DEALER IN OR MANUFACTURER OF THE SUPPLIES BID UPON. SUCH REPRESENTATIONS ARE REQUIRED BY THE WALSH-HEALEY ACT, AS AMENDED, 41 U.S.C. 35, TO BE INCLUDED IN ANY GOVERNMENT CONTRACT FOR SUPPLIES OR EQUIPMENT EXCEEDING $10,000 IN AMOUNT. UNDER THE ACT AND REGULATIONS PROMULGATED PURSUANT THERETO NO BIDDER IS ELIGIBLE FOR AWARD OF THE TYPE OF CONTRACT DESCRIBED UNLESS HE QUALIFIES AS A REGULAR DEALER OR MANUFACTURER. SO FAR AS COMPLIANCE WITH THAT ACT IS CONCERNED, THE DETERMINATION AS TO WHETHER A BIDDER MEETS THOSE REQUIREMENTS IS INITIALLY THE RESPONSIBILITY OF THE CONTRACTING OFFICER, SUBJECT TO REVIEW BY THE DEPARTMENT OF LABOR, WHICH HAS THE FINAL AUTHORITY; SUCH DETERMINATION IS NOT WITHIN THE PROVINCE OF OUR OFFICE. ANY APPEAL WITH RESPECT TO THE SUCCESSFUL BIDDER'S QUALIFICATION AS A MANUFACTURER UNDER THE ACT SHOULD, THEREFORE, BE MADE TO THE SECRETARY OF LABOR.

WITH RESPECT TO THE MORE STRINGENT DEFINITION OF THE TERM "MANUFACTURER" INCLUDED IN THE SPECIFICATION (COMPARE THE DEFINITION ESTABLISHED UNDER THE WALSH-HEALEY ACT WHICH APPEARS AT 41 C.F.R. 201.101), ASIDE FROM THE FACT WE FIND NOTHING IN THE BID DOCUMENTS SPECIFICALLY STATING THAT BIDDERS WILL NOT BE ELIGIBLE FOR AWARD UNLESS THEY MEET THE DEFINITION IN PARAGRAPH 3.1 OF THE SPECIFICATION, THE POST OFFICE DEPARTMENT POINTS OUT THAT INDUSTRIAL NUCLEONICS IS ENGAGED IN THE MANUFACTURE AND INSTALLATION OF CONVEYOR SYSTEMS OF A MAIL DISTRIBUTION TYPE. IT IS ALSO POINTED OUT THAT PARAGRAPH 3.1 DOES NOT REQUIRED THE ASSEMBLY OF CONVEYOR EQUIPMENT FROM THE PRODUCTS OF ONLY ONE MANUFACTURER, AS IS DEMONSTRATED BY THE LAST SENTENCE OF THE PARAGRAPH WHICH REQUIRED A MANUFACTURER TO ASSUME RESPONSIBILITY FOR PRODUCTS USED IN THE ASSEMBLY OF CONVEYOR EQUIPMENT WHICH ARE NOT OF HIS OWN MANUFACTURE. WE THEREFORE DO NOT DISAGREE WITH THE CONCLUSION OF THE POST OFFICE DEPARTMENT THAT INDUSTRIAL MUCLEONICS DID MEET THE INTENDMENT OF PARAGRAPH 3.1, AND WE FIND NO BASIS FOR DISTRIBUTING THE AWARDS MADE.