B-148338, MAY 28, 1962

B-148338: May 28, 1962

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TO ALBERT BRICK: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 5. ALTHOUGH THE PRISMO SAFETY CORPORATION WAS THE LOW BIDDER ON THREE OF THE ITEMS COVERED BY THE CITED INVITATION. IT WAS ERRONEOUSLY. THE ORIGINAL DETERMINATION TO THE CONTRARY AND THE RESULTING AWARD TO ANOTHER FIRM WERE ERRONEOUS. IT IS ADMINISTRATIVELY REPORTED THAT YOUR PROTEST AND THE ALLEGATIONS MADE IN SUPPORT THEREOF APPARENTLY RELATE TO THE PROCUREMENT ACTION TAKEN UNDER INVITATION FOR BIDS NO. 63077-955-62. YOUR PROTEST WILL THEREFORE BE CONSIDERED ON THAT BASIS. IN RESPONSE TO THE INVITATION REQUIREMENT THAT BIDDERS INDICATE IN THE APPROPRIATE SPACE WHETHER THEY WERE REGULAR DEALERS IN OR MANUFACTURERS OF THE SUPPLIES BID UPON.

B-148338, MAY 28, 1962

TO ALBERT BRICK:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 5, 1962, PROTESTING, AS ATTORNEY FOR THE PRISMO SAFETY CORPORATION, HUNTINGDON, PENNSYLVANIA, THE REJECTION OF THAT FIRM'S BID UNDER INVITATION FOR BIDS NO. 63077-1470-62, ISSUED BY THE MILITARY INDUSTRIAL SUPPLY AGENCY (NOW THE DEFENSE INDUSTRIAL SUPPLY CENTER), PHILADELPHIA, PENNSYLVANIA.

YOU ALLEGE THAT, ALTHOUGH THE PRISMO SAFETY CORPORATION WAS THE LOW BIDDER ON THREE OF THE ITEMS COVERED BY THE CITED INVITATION, IT WAS ERRONEOUSLY, AND WITHOUT ANY OPPORTUNITY TO PRESENT ANY FACTS, DISQUALIFIED FOR AWARD BY THE PROCURING AGENCY ON THE GROUND THAT IT DID NOT QUALIFY AS A MANUFACTURER OR REGULAR DEALER IN THE SUPPLIES INVOLVED. YOU FURTHER ALLEGE THAT, BASED ON THE SUBSEQUENT ADMINISTRATIVE DETERMINATION THAT THE FIRM QUALIFIED FOR AWARDS ON SUPPLIES OF THE NATURE INVOLVED IN THE INVITATION, THE ORIGINAL DETERMINATION TO THE CONTRARY AND THE RESULTING AWARD TO ANOTHER FIRM WERE ERRONEOUS. ACCORDINGLY, YOU REQUEST THAT THE CONTRACT BE CANCELLED AND THE AWARD MADE TO PRISMO SAFETY CORPORATION.

IT IS ADMINISTRATIVELY REPORTED THAT YOUR PROTEST AND THE ALLEGATIONS MADE IN SUPPORT THEREOF APPARENTLY RELATE TO THE PROCUREMENT ACTION TAKEN UNDER INVITATION FOR BIDS NO. 63077-955-62, ISSUED BY THE MILITARY INDUSTRIAL SUPPLY AGENCY, UNDER DATE OF OCTOBER 10, 1961, RATHER THAN TO THE INVITATION CITED IN YOUR LETTER. YOUR PROTEST WILL THEREFORE BE CONSIDERED ON THAT BASIS.

THE RECORD SHOWS THAT, IN RESPONSE TO THE INVITATION REQUIREMENT THAT BIDDERS INDICATE IN THE APPROPRIATE SPACE WHETHER THEY WERE REGULAR DEALERS IN OR MANUFACTURERS OF THE SUPPLIES BID UPON, THE PRISMO SAFETY CORPORATION CHECKED THE BOX REPRESENTING THAT IT WAS A MANUFACTURER. VIEW OF A TELEGRAM RECEIVED FROM A COMPETING BIDDER PROTESTING AWARD TO PRISMO ON THE GROUND THAT, CONTRARY TO ITS REPRESENTATION, IT WAS NOT A MANUFACTURER OF THE SUPPLIES COVERED BY THE INVITATION, THE PROCURING AGENCY REQUESTED THE INSPECTOR OF NAVAL MATERIAL TO CONDUCT A PRE-AWARD SURVEY OF THE FIRM'S FACILITIES AND CAPABILITIES. THE RESULTING SURVEY REPORT, DATED NOVEMBER 21, 1961, WHICH CONTAINED THE SPECIFIC STATEMENT THAT IT WAS BASED ON INFORMATION "FURNISHED BY MR. CHARLES LANG, OFFICE SALES MANAGER, AND MR. WILLIS ZEHMER, TREASURER AND COMPTROLLER" OF PRISMO SAFETY CORPORATION, SHOWED THAT, ALTHOUGH THE FIRM WAS DEEMED A RELIABLE CONTRACTOR, IT DID NOT HAVE A MANUFACTURING PLANT OR PRODUCTION FACILITIES AND RELIED ENTIRELY FOR PRODUCTION ON CERTAIN NAMED SUBCONTRACTORS. THE BASIS THEREOF THE CONTRACTING OFFICER DETERMINED THAT THE FIRM DID NOT QUALIFY FOR AWARD AS A MANUFACTURER. UPON REVIEW, THE AGENCY'S CONTRACT REVIEW BOARD, AFTER OBTAINING A NEGATIVE REPORT ON ITS FURTHER INQUIRY AS TO WHETHER THE FIRM HAD EVER BEEN CERTIFIED AS A REGULAR DEALER OR MANUFACTURER BY THE DEPARTMENT OF LABOR, DETERMINED THAT THE PRISMO SAFETY CORPORATION DID NOT QUALIFY AS A MANUFACTURER OR REGULAR DEALER WITHIN THE MEANING OF THE WALSH HEALEY ACT, 41 U.S.C. 35, AND THUS WAS NOT ELIGIBLE FOR AN AWARD. ACCORDINGLY, AWARD WAS MADE UNDER THAT INVITATION TO ANOTHER FIRM AS THE LOWEST QUALIFIED BIDDER AND DELIVERIES UNDER THE RESULTING CONTRACT WERE COMPLETED ON MARCH 9, 1962.

IT IS FURTHER REPORTED THAT SUBSEQUENT TO THAT AWARD THE BUREAU OF SUPPLIES AND ACCOUNTS, DEPARTMENT OF THE NAVY, ON THE BASIS OF ADDITIONAL INFORMATION FROM MANAGEMENT OFFICIALS OF THE PRISMO SAFETY CORPORATION, REQUESTED A SUPPLEMENTAL SURVEY OF THAT FIRM. THE SUPPLEMENTAL SURVEY REPORTS, DATED JANUARY 16 AND 26, 1962, CONFIRMED THE EXISTENCE OF CERTAIN WAREHOUSE FACILITIES WHICH WERE USED BY THAT FIRM IN THE STORAGE, DISTRIBUTION AND SALE OF PAINT PRODUCTS TO ITS CUSTOMERS. PURSUANT THERETO, IT WAS DETERMINED THAT THE PRISMO SAFETY CORPORATION QUALIFIED FOR AWARDS AS A REGULAR DEALER IN PAINT PRODUCTS. IT IS ALSO REPORTED THAT FOLLOWING THAT DETERMINATION THE PRISMO SAFETY CORPORATION, UNDER ITS BID SUBMITTED IN RESPONSE TO ANOTHER INVITATION FOR BIDS, WAS AWARDED CONTRACT NO. N63077-9919, DATED FEBRUARY 7, 1962.

UNDER THE WALSH-HEALEY ACT, SUPRA, AND IMPLEMENTING REGULATIONS, A BIDDER TO BE ELIGIBLE FOR AWARD MUST ESTABLISH THAT IT IS A MANUFACTURER OF, OR A REGULAR DEALER IN, THE SUPPLIES TO BE FURNISHED UNDER THE COVERING INVITATION. THE SECRETARY OF LABOR, AUTHORIZED BY THE ACT TO ADMINISTER THE PROVISIONS THEREOF AND TO PRESCRIBE THE RULES AND REGULATIONS WITH RESPECT THERETO, HAS VESTED INITIAL RESPONSIBILITY IN THE CONTRACTING AGENCY TO DETERMINE WHETHER A BIDDER QUALIFIES AS A MANUFACTURER OR REGULAR DEALER SUBJECT TO REVIEW BY THE DEPARTMENT OF LABOR, WHICH HAS THE FINAL AUTHORITY.

IN THE APPLICATION OF THE FOREGOING REQUIREMENTS TO THE PROCUREMENT HERE INVOLVED, THE CONTRACTING AGENCY PROPERLY OBTAINED A REPORT FOR THE PURPOSE OF DETERMINING WHETHER THE PRISMO SAFETY CORPORATION QUALIFIED AS A PROPER SOURCE OF SUPPLY FOR THE ITEMS COVERED BY THE INVITATION. ON THE BASIS OF THE REPORT COVERING THE INITIAL PRE AWARD SURVEY OF THAT FIRM, BOTH THE CONTRACTING OFFICER AND THE CONTRACT REVIEW BOARD DETERMINED THAT IT WAS NOT QUALIFIED TO RECEIVE AN AWARD. REVIEW OF THAT DETERMINATION BY THE DEPARTMENT OF LABOR WAS NOT REQUESTED EITHER PRIOR OR SUBSEQUENT TO AWARD. WHILE, ON THE BASIS OF EVIDENCE PRESENTED AFTER AWARD--- SPECIFICALLY STATED IN THE SURVEY REPORT OF JANUARY 16, 1962, AS NOT HAVING BEEN PRESENTED BY THE FIRM'S OFFICIALS, MESSRS. LANG AND ZEHMER, DURING THE INITIAL SURVEY- - IT WAS DETERMINED THAT THE PRISMO SAFETY CORPORATION, THOUGH NOT QUALIFYING FOR AWARDS AS A MANUFACTURER, AS REPRESENTED IN ITS BID, DID IN FACT SO QUALIFY AS A REGULAR DEALER, WE PERCEIVE NO BASIS UPON WHICH THIS FACT MAY BE CONSIDERED AS AFFECTING THE PROPRIETY OF THE ADMINISTRATIVE ACTION AT THE TIME OF THE AWARD. THE RECORD APPEARS TO ESTABLISH THAT ANY ERROR IN THE MATTER WAS MADE, NOT BY THE GOVERNMENT BUT, BY PRISMO SAFETY CORPORATION IN REPRESENTING THAT IT WAS A MANUFACTURER, INSTEAD OF A REGULAR DEALER, OF THE SUPPLIES INVOLVED, AND IN FAILING TO FURNISH COMPLETE INFORMATION, INCLUDING THE OWNERSHIP AND USE MADE OF CERTAIN WAREHOUSE FACILITIES, DURING THE INITIAL SURVEY.

ACCORDINGLY, WE FIND NO LEGAL BASIS FOR DISTURBING THE AWARD MADE UNDER THIS INVITATION TO A FIRM OTHER THAN THE PRISMO SAFETY CORPORATION.