B-140614, SEP. 17, 1959

B-140614, SEP. 17, 1959

TO MCGREGOR CARBON FORMS COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 28, 1959, ENCLOSING A COPY OF YOUR PROTEST TO THE PROPOSED AWARD OF A CONTRACT TO MCGREGOR AND WERNER, INC., UNDER INVITATION NO. DSS-49-083-60-6, FOR FURNISHING 360,000 HECTO- MASTER SETS, FORM DD 250.

YOUR PROTEST IS BASED SOLELY ON THE FACT THAT MCGREGOR AND WERNER, INC., IN ITS BID ON THE INVITATION CONCERNED, REPRESENTED ITSELF AS A "REGULAR DEALER IN" THE SUPPLIES TO BE FURNISHED. SINCE THE AMOUNT OF THE CONTEMPLATED CONTRACT IS IN EXCESS OF $10,000, IT IS SUBJECT TO THE PROVISIONS OF THE WALSH-HEALEY ACT, 41 U.S.C. 35-45.

ONE OF THE REQUIREMENTS OF THAT ACT IS THAT CONTRACTORS SUBJECT THERETO BE EITHER ,MANUFACTURERS OF" OR "REGULAR DEALERS IN" THE SUPPLIES TO BE FURNISHED. IN ACCORDANCE WITH THIS STATUTORY REQUIREMENT, INVITATIONS FOR BIDS WHICH ARE PRESUMPTIVELY SUBJECT TO THE ACT INCLUDE A CLAUSE WHICH ASKS BIDDERS TO STATE WHETHER THEY ARE REGULAR DEALERS OR MANUFACTURERS OF THE SUPPLIES BID UPON.

IN THE PRESENT CASE, MCGREGOR AND WERNER, INC., REPRESENTED ITSELF AS A REGULAR DEALER IN THE SUPPLIES FOR WHICH BIDS WERE REQUESTED. SUBSEQUENTLY, IT HAS ALLEGED THAT IT MEANT TO REPRESENT ITSELF AS A MANUFACTURER. YOUR PROTEST CONCEDES THAT MCGREGOR AND WERNER IS A MANUFACTURER OF SUCH SUPPLIES, AS WAS DETERMINED BY THE DEPARTMENT OF LABOR IN PROCEEDINGS CONCLUDED MARCH 25, 1959. DESPITE THIS FINDING, YOU CONTEND THAT FIRM SHOULD BE DISQUALIFIED FROM ANY AWARD UNDER THE INVITATION INVOLVED BECAUSE OF THE FACT THAT IT REPRESENTED ITSELF AS A "REGULAR DEALER IN" THE SUPPLIES TO BE FURNISHED, RATHER THAN AS A "MANUFACTURER" THEREOF.

WE DO NOT AGREE WITH THE BASIS FOR YOUR PROTEST. THE REQUIREMENTS OF THE WALSH-HEALEY ACT IS STATED IN THE ALTERNATIVE, THAT IS, THAT THE SUCCESSFUL CONTRACTOR BE EITHER A "REGULAR DEALER IN" OR A "MANUFACTURER OF" THE SUPPLIES BID UPON. IN OUR VIEW THE REQUIREMENTS OF THE STATUTE WOULD BE MET BY PROOF OF EITHER CAPACITY, AND WHILE THE STANDARD FORM OF INVITATION REQUESTS BIDDERS TO DESIGNATE WHICH OF THESE TWO CATEGORIES THEY MEET, WE ARE OF THE OPINION THAT A BIDDER SHOULD NOT BE DISQUALIFIED SO LONG AS IT QUALIFIES IN ONE OR THE OTHER CATEGORY.

THE FACT THAT A BIDDER WHO QUALIFIES AS A "MANUFACTURER" UNDER THE WALSH- HEALEY ACT PROPOSES TO SUBCONTRACT ALL OR PART OF THE WORK TO BE PERFORMED UNDER THE CONTRACT DOES NOT PRECLUDE AWARD TO IT. 34 COMP. GEN. 595. IS OUR UNDERSTANDING THAT IN SUCH CASES THE REQUIREMENTS OF THE ACT ARE HELD BY THE DEPARTMENT OF LABOR TO APPLY TO THE SUBCONTRACTOR.

ACCORDINGLY, THERE IS NO VALID BASIS UPON WHICH WE COULD OBJECT TO AN AWARD TO MCGREGOR AND WERNER, INC., UNDER THE INSTANT INVITATION.