B-157352, SEP. 30, 1965

B-157352: Sep 30, 1965

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BID OPENING WAS SCHEDULED FOR 10 A.M. ONE BID WAS TIMELY RECEIVED FROM ELECTRO-CERAMICS. YOUR BID WAS RECEIVED LATE BUT IT WAS ADMINISTRATIVELY DETERMINED. YOUR BID WAS OPENED AND ABSTRACTED IN THE AMOUNT OF $26. YOU ADVISED IN YOUR BID THAT THE ANNAPOLIS INSTRUMENT CORPORATION WAS YOUR PRESELECTED PRIME SUBCONTRACTOR FOR THE END ITEMS. A PREAWARD SURVEY WAS CONDUCTED OF YOUR FACILITIES AND CAPABILITIES. THE REPORT ON SUCH SURVEY DISCLOSED THAT YOU ARE AN ENGINEERING FIRM HAVING NO MANUFACTURING FACILITIES AND THAT 100 PERCENT OF THE CONTRACT WORK WOULD HAVE TO BE SUBCONTRACTED. IN RESPONSE TO THE INVITATION REQUIREMENT THAT BIDDERS INDICATE IN THE APPROPRIATE SPACE WHETHER THEY WERE REGULAR DEALERS OR MANUFACTURERS OF THE SUPPLIES BID UPON.

B-157352, SEP. 30, 1965

TO JAMES W. FITZGERALD AND ASSOCIATES, INC.:

BY TELEFAX DATED JULY 29, 1965, YOU PROTESTED AGAINST THE AWARD OF A CONTRACT TO A BIDDER OTHER THAN YOUR COMPANY UNDER INVITATION FOR BIDS NO. 251/483/65, ISSUED BY THE PUGET SOUND NAVAL SHIPYARD, BREMERTON, WASHINGTON.

THE INVITATION DATED MARCH 26, 1965, REQUESTED BIDS FOR FOUR ARRAY TRANSDUCER ASSEMBLIES. BID OPENING WAS SCHEDULED FOR 10 A.M., APRIL 28, 1965. ONE BID WAS TIMELY RECEIVED FROM ELECTRO-CERAMICS, INC., IN THE AMOUNT OF $26,650. YOUR BID WAS RECEIVED LATE BUT IT WAS ADMINISTRATIVELY DETERMINED, PURSUANT TO THE LATE BID PROVISIONS OF THE INVITATION, THAT THE BID COULD BE CONSIDERED IN VIEW OF THE EVIDENCE ESTABLISHING THE BID MAILING TIME. THEREFORE, YOUR BID WAS OPENED AND ABSTRACTED IN THE AMOUNT OF $26,000. YOU ADVISED IN YOUR BID THAT THE ANNAPOLIS INSTRUMENT CORPORATION WAS YOUR PRESELECTED PRIME SUBCONTRACTOR FOR THE END ITEMS. PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-905.4, A PREAWARD SURVEY WAS CONDUCTED OF YOUR FACILITIES AND CAPABILITIES. THE REPORT ON SUCH SURVEY DISCLOSED THAT YOU ARE AN ENGINEERING FIRM HAVING NO MANUFACTURING FACILITIES AND THAT 100 PERCENT OF THE CONTRACT WORK WOULD HAVE TO BE SUBCONTRACTED.

THE RECORD SHOWS THAT, IN RESPONSE TO THE INVITATION REQUIREMENT THAT BIDDERS INDICATE IN THE APPROPRIATE SPACE WHETHER THEY WERE REGULAR DEALERS OR MANUFACTURERS OF THE SUPPLIES BID UPON, YOU CHECKED THE BOX REPRESENTING THAT YOU WERE A REGULAR DEALER. IT WAS EVIDENT FROM THE RECORD THAT YOU ARE NEITHER A REGULAR DEALER OR MANUFACTURER OF ARRAY TRANSDUCER ASSEMBLIES. THE PROCUREMENT AGENCY, HAVING DETERMINED THAT YOU WERE NOT ELIGIBLE FOR AWARD, AWARDED THE CONTRACT TO ELECTRO-CERAMICS, INC., ON JUNE 17, 1965. WE FIND NO LEGAL BASIS TO QUESTION THAT AWARD.

UNDER THE WALSH-HEALEY ACT, 41 U.S.C. 35, AND IMPLEMENTING REGULATIONS, A BIDDER TO BE ELIGIBLE FOR AWARD OF A CONTRACT EXCEEDING $10,000 MUST ESTABLISH THAT IT IS A MANUFACTURER OF, OR A REGULAR DEALER, IN, THE SUPPLIES TO BE FURNISHED UNDER THE INVITATION. SEE ASPR 1-903.1/V) AND 12 -601, ET SEQ. 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 IN THE PROCUREMENT AGENCY THE INITIAL RESPONSIBILITY 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. 41 C.F.R. 50-201.101 DEFINES A MANUFACTURER OR REGULAR DEALER AS FOLLOWS:

"/A) A MANUFACTURER IS A PERSON WHO OWNS, OPERATES, OR MAINTAINS A FACTORY OR ESTABLISHMENT THAT PRODUCES ON THE PREMISES THE MATERIALS, SUPPLIES, ARTICLES, OR EQUIPMENT REQUIRED UNDER THE CONTRACT AND OF THE GENERAL CHARACTER DESCRIBED BY THE SPECIFICATIONS.

"/B) A REGULAR DEALER IS A PERSON WHO OWNS, OPERATES, OR MAINTAINS A STORE, WAREHOUSE, OR OTHER ESTABLISHMENT IN WHICH THE MATERIALS, SUPPLIES, ARTICLES, OR EQUIPMENT OF THE GENERAL CHARACTER DESCRIBED BY THE SPECIFICATIONS AND REQUIRED UNDER THE CONTRACT ARE BOUGHT, KEPT IN STOCK, AND SOLD TO THE PUBLIC IN THE USUAL COURSE OF BUSINESS.'

IN VIEW THEREOF AND THE RECORD BEFORE US, THE DETERMINATION MADE BY THE PROCUREMENT AGENCY THAT YOU WERE NOT A RESPONSIBLE BIDDER UNDER THE STATUTORY REQUIREMENTS OF THE WALSH-HEALEY ACT MAY NOT ..END :