B-155387, NOV. 25, 1964

B-155387: Nov 25, 1964

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INC.: REFERENCE IS MADE TO YOUR TELEGRAM OF OCTOBER 14. YOUR COMPANY WAS NOT A REGULAR DEALER WITHIN THE MEANING OF THE REGULATIONS PROMULGATED UNDER THE WALSH-HEALEY ACT. IN YOUR TELEGRAM YOU STATED THAT THE DEPARTMENT OF LABOR HAS ALSO TAKEN THE POSITION THAT YOUR COMPANY IS NOT A REGULAR DEALER WITHIN THE MEANING OF THE ACT. OUR OFFICE DOES NOT CONSIDER THAT IT HAS ANY AUTHORITY TO REVIEW DETERMINATIONS AS TO WHETHER PARTICULAR FIRMS ARE REGULAR DEALERS OR MANUFACTURERS UNDER THE WALSH-HEALEY ACT. WE HAVE CONSIDERED THAT SUCH DETERMINATIONS REST WITH THE CONTRACTING OFFICER SUBJECT TO THE REVIEW OF THE DEPARTMENT OF LABOR WHICH HAS THE FINAL AUTHORITY. IT IS THE FURTHER POSITION OF YOUR COMPANY THAT THE POST OFFICE DEPARTMENT COULD AND SHOULD FILE WITH THE DEPARTMENT OF LABOR FOR AN EXCEPTION FROM THE APPLICATION OF THE REGULAR DEALER REQUIREMENT TO THE IMMEDIATE PROCUREMENTS INVOLVED BECAUSE OF THE PRICE DIFFERENTIAL IN BIDS AND THE FACT THAT THE CONTRACT WOULD BE PERFORMED IN A LABOR SURPLUS AREA.

B-155387, NOV. 25, 1964

TO MR. PAUL R. MINICH, JR., PRESIDENT C AND M INDUSTRIAL ASSOCIATES, INC.:

REFERENCE IS MADE TO YOUR TELEGRAM OF OCTOBER 14, 1964, AND TO LETTER OF OCTOBER 22, 1964, FROM YOUR ATTORNEY, PROTESTING THE REFUSAL OF THE POST OFFICE DEPARTMENT TO MAKE AN AWARD TO YOUR FIRM UNDER INVITATIONS 1050 AND 1051.

THE POST OFFICE DEPARTMENT DECIDED THAT CONTRARY TO THE REPRESENTATION MADE IN YOUR BIDS UNDER THE SUBJECT INVITATIONS, YOUR COMPANY WAS NOT A REGULAR DEALER WITHIN THE MEANING OF THE REGULATIONS PROMULGATED UNDER THE WALSH-HEALEY ACT, 41 U.S.C. 38. IN YOUR TELEGRAM YOU STATED THAT THE DEPARTMENT OF LABOR HAS ALSO TAKEN THE POSITION THAT YOUR COMPANY IS NOT A REGULAR DEALER WITHIN THE MEANING OF THE ACT.

OUR OFFICE DOES NOT CONSIDER THAT IT HAS ANY AUTHORITY TO REVIEW DETERMINATIONS AS TO WHETHER PARTICULAR FIRMS ARE REGULAR DEALERS OR MANUFACTURERS UNDER THE WALSH-HEALEY ACT. B-147620, JANUARY 22, 1962. RATHER, WE HAVE CONSIDERED THAT SUCH DETERMINATIONS REST WITH THE CONTRACTING OFFICER SUBJECT TO THE REVIEW OF THE DEPARTMENT OF LABOR WHICH HAS THE FINAL AUTHORITY. B-148715, JUNE 25, 1962.

IT IS THE FURTHER POSITION OF YOUR COMPANY THAT THE POST OFFICE DEPARTMENT COULD AND SHOULD FILE WITH THE DEPARTMENT OF LABOR FOR AN EXCEPTION FROM THE APPLICATION OF THE REGULAR DEALER REQUIREMENT TO THE IMMEDIATE PROCUREMENTS INVOLVED BECAUSE OF THE PRICE DIFFERENTIAL IN BIDS AND THE FACT THAT THE CONTRACT WOULD BE PERFORMED IN A LABOR SURPLUS AREA.

SECTION 50-201.601 (A) (1), 41 CFR, PROVIDES:

"/A) (1) REQUEST FOR THE EXCEPTION OR EXEMPTION OF A CONTRACT OR CLASS OF CONTRACTS FROM THE INCLUSION OR APPLICATION OF ONE OR MORE OF THOSE STIPULATIONS REQUIRED BY SEC. 50-201.1 MUST BE MADE BY THE HEAD OF A CONTRACTING AGENCY OR DEPARTMENT AND SHALL BE ACCOMPANIED WITH A FINDING BY HIM SETTING FORTH REASONS WHY SUCH INCLUSION OR APPLICATION WILL SERIOUSLY IMPAIR THE CONDUCT OF GOVERNMENT BUSINESS.'

THE POST OFFICE HAS RESPONDED THAT IT DOES NOT CONSIDER SIGNIFICANT THE FACTORS RELIED UPON BY YOUR COMPANY, SINCE THERE DOES NOT EXIST A SOLE- SOURCE, OR SIMILAR, SITUATION WHICH WOULD IMPAIR THE CONDUCT OF GOVERNMENT BUSINESS IF THE REGULAR DEALER REQUIREMENT WAS NOT REMOVED.

THE EXPLANATION BY THE POST OFFICE DEPARTMENT FOR NOT ISSUING ARE QUEST FOR WAIVER OF THE REGULAR DEALER REQUIREMENT SEEMS REASONABLE. IN THE CIRCUMSTANCES, THERE IS NO REQUIREMENT THAT OUR OFFICE INTERVENE IN THE MATTER.