B-162807, DEC. 27, 1967

B-162807: Dec 27, 1967

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CONCERNING PROTEST AGAINST REJECTION OF BID FOR FURNISHING ARMY EDGEWOOD ARSENAL CHEMICAL BECAUSE BIDDER WAS NOT MANUFACTURER OR DEALER. A LOW BIDDER WHO PROTESTS DISQUALIFICATION BECAUSE HE WAS NOT A MANUFACTURER OR DEALER WITHIN THE WALSH-HEALEY PUBLIC CONTRACTS ACT. IS ADVISED THAT SUCH DETERMINATION RESTS WITH CONTRACTING AGENCY AND THESE DETERMINATIONS ARE SUBJECT TO REVIEW BY THE SECY. THE INVITATION WAS ISSUED ON SEPTEMBER 12. BIDS WERE OPENED ON OCTOBER 3. YOUR BID WAS THE LOWEST OF FIVE BIDS RECEIVED. THE CONTRACTING OFFICER HAD DETERMINED THAT YOUR CONCERN WAS INELIGIBLE FOR AWARD ON THE BASIS THAT IT WAS NOT A MANUFACTURER OR REGULAR DEALER. HE DECIDED THAT A REVIEW OF YOUR STATUS WAS IN ORDER.

B-162807, DEC. 27, 1967

BIDDERS - RESPONSIBILITY - REGULAR DEALER - MANUFACTURER DETERMINATION DECISION TO GREG-GARY INTERNATIONAL CORP. CONCERNING PROTEST AGAINST REJECTION OF BID FOR FURNISHING ARMY EDGEWOOD ARSENAL CHEMICAL BECAUSE BIDDER WAS NOT MANUFACTURER OR DEALER. A LOW BIDDER WHO PROTESTS DISQUALIFICATION BECAUSE HE WAS NOT A MANUFACTURER OR DEALER WITHIN THE WALSH-HEALEY PUBLIC CONTRACTS ACT, 41 U.S.C. 35-45, IS ADVISED THAT SUCH DETERMINATION RESTS WITH CONTRACTING AGENCY AND THESE DETERMINATIONS ARE SUBJECT TO REVIEW BY THE SECY. LABOR AND NOT GAO. SEE B-159966, FEB. 23, 1967.

TO GREG-GARY INTERNATIONAL CORPORATION:

WE REFER TO YOUR LETTER OF OCTOBER 25, 1967, PROTESTING THE AWARD OF CONTRACT UNDER INVITATION FOR BIDS NO. DAAA15-68-B-0124 ISSUED BY THE DEPARTMENT OF THE ARMY, EDGEWOOD ARSENAL, MARYLAND.

THE INVITATION WAS ISSUED ON SEPTEMBER 12, 1967, FOR 40,720 POUNDS OF CHEMICAL AGENT, CS-1. BIDS WERE OPENED ON OCTOBER 3, 1967, AND YOUR BID WAS THE LOWEST OF FIVE BIDS RECEIVED.

ON PAGE TWO OF THE BID FORM (SF 33) YOU CERTIFIED YOURSELF AS A REGULAR DEALER IN THE SUPPLIES OFFERED. IT APPEARS, HOWEVER, THAT ON A PRIOR PROCUREMENT (DAAA15-67-R-0277 INVOLVING 556,821 POUNDS OF HEXACHLOROETHANE), THE CONTRACTING OFFICER HAD DETERMINED THAT YOUR CONCERN WAS INELIGIBLE FOR AWARD ON THE BASIS THAT IT WAS NOT A MANUFACTURER OR REGULAR DEALER. HE DECIDED THAT A REVIEW OF YOUR STATUS WAS IN ORDER. A PRE-AWARD SURVEY WAS CONDUCTED, AND THE INSPECTOR REPORTED ON OCTOBER 12, 1967, THAT YOUR FIRM WAS NOT QUALIFIED AS A REGULAR DEALER WITHIN THE MEANING OF THE WALSH-HEALEY PUBLIC CONTRACTS ACT AND ASPR 12-603.2 (WHICH SECTION DESCRIBES WHAT A BIDDER MUST SHOW TO QUALIFY AS A REGULAR DEALER). ON OCTOBER 24, 1967, AWARD WAS MADE TO ANOTHER BIDDER.

ON OCTOBER 25, 1967, YOU WROTE TO THE CONTRACTING OFFICER REQUESTING THE OPPORTUNITY TO (1) REVIEW THE EVIDENCE UPON WHICH THE DETERMINATION WAS MADE THAT YOU WERE NOT A REGULAR DEALER; (2) SUBMIT ADDITIONAL EVIDENCE IF ALL THE PERTINENT FACTS WERE NOT CONSIDERED IN MAKING THE DETERMINATION; AND (3) PRESENT A LEGAL BRIEF FOR REVIEW BY THE CONTRACTING OFFICER AND HIGHER AUTHORITY IN SUPPORT OF YOUR POSITION THAT YOU ARE A REGULAR DEALER UNDER THE WALSH-HEALEY ACT. (A COPY OF THIS LETTER WAS FURNISHED BY YOU TO OUR OFFICE, AND FORMS THE BASIS OF YOUR PROTEST.)

ON NOVEMBER 7, 1967, THE CONTRACTING OFFICER RESPONDED TO YOUR OCTOBER 25 LETTER. HE ADVISED YOU THAT AWARD HAD BEEN MADE ON OCTOBER 24, 1967, AND HE SET FORTH WHAT THE INSPECTOR HAD REPORTED CONCERNING THE NON- QUALIFICATION OF YOUR CONCERN AS A REGULAR DEALER. FINALLY, HE ADVISED THAT HE WOULD CONSIDER WHATEVER ADDITIONAL EVIDENCE YOU WISHED TO SUBMIT AND THAT, IF YOU PRESENTED A LEGAL BRIEF, HE WOULD, IF APPROPRIATE, REFER THE MATTER TO THE DEPARTMENT OF LABOR FOR A RULING.

AS YOU MAY KNOW, THE WALSH-HEALEY PUBLIC CONTRACTS ACT VESTS IN THE SECRETARY OF LABOR THE AUTHORITY TO MAKE FINAL ADMINISTRATIVE DETERMINATIONS REGARDING THE INTERPRETATION OF SUCH TERMS AS "REGULAR DEALER" AND "MANUFACTURER" AS USED IN THE ACT. SEE 41 U.S.C. 35-45. HOWEVER, THE RESPONSIBILITY OF DETERMINING WHETHER OR NOT A BIDDER IS QUALIFIED AS A REGULAR DEALER OR MANUFACTURER RESTS IN THE FIRST INSTANCE WITH THE CONTRACTING AGENCY. "RULINGS AND INTERPRETATIONS" NO. 3, SECTION 29 ON PAGE 11 (DATED MAY 31, 1963), PUBLISHED BY THE DEPARTMENT OF LABOR; ASPR 12-604; B-123889, MAY 20, 1955. IN ACCORDANCE WITH THE PUBLIC CONTRACTS ACT, THESE CONTRACTING OFFICERS' DETERMINATIONS ARE SUBJECT TO REVIEW BY THE SECRETARY OF LABOR AND NOT BY THE GENERAL ACCOUNTING OFFICE. SEE B-159966, FEBRUARY 23, 1967.

ACCORDINGLY, ON THE BASIS OF THE RECORD, YOUR LOW BID WAS PROPERLY REJECTED. AS OUTLINED BY THE CONTRACTING OFFICER IN HIS LETTER OF NOVEMBER 7, 1967, MEANS ARE AVAILABLE BY WHICH YOU MAY APPEAL THE DETERMINATION THAT YOUR FIRM IS NOT QUALIFIED FOR BIDDING AS A REGULAR DEALER.