B-162841, JAN. 16, 1968

B-162841, JAN. 16, 1968

BIDDERS - REGULAR DEALER - MANUFACTURER DETERMINATION DECISION TO ACCESSORY SPECIALTIES INC. RE PROTEST AGAINST DETERMINATION BY ARMY TANK AUTOMOTIVE COMMAND THAT BIDDER DID NOT QUALIFY AS DEALER OR MANUFACTURER. SINCE AUTHORITY TO REVIEW DETERMINATION OF WHETHER BIDDER IS MANUFACTURER OR DEALER UNDER WALSH-HEALEY PUBLIC CONTRACTS ACT IS VESTED IN DEPT. OF LABOR AND NOT GAO AND MATTER IS BEING REFERRED THERE. NO FURTHER ACTION MAY BE TAKEN BY GAO.

TO MR. PATRICK GRASSO, PRESIDENT:

REFERENCE IS MADE TO YOUR TELEGRAM OF OCTOBER 31, 1967, PROTESTING AGAINST THE CONTRACTING OFFICER'S DETERMINATION THAT YOUR COMPANY IS NOT ELIGIBLE FOR AWARD UNDER UNITED STATES ARMY TANK-AUTOMOTIVE COMMAND INVITATION FOR BIDS DA-AE07-68-B-0266 BECAUSE IT DOES NOT QUALIFY AS A REGULAR DEALER OR MANUFACTURER UNDER THE WALSH-HEALEY PUBLIC CONTRACTS ACT, AS AMENDED, 41 U.S.C. 35.

THE WALSH-HEALEY ACT PROVIDES, IN PART, THAT CONTRACTS ENTERED INTO BY ANY GOVERNMENT AGENCY FOR THE MANUFACTURE OR FURNISHING OF SUPPLIES EXCEEDING $10,000 IN AMOUNT SHALL CONTAIN A STIPULATION THAT THE CONTRACTOR IS THE MANUFACTURER OF OR A REGULAR DEALER IN SUCH SUPPLIES; THAT ANY BREACH OF SUCH STIPULATION SHALL RENDER THE CONTRACTOR LIABLE FOR LIQUIDATED DAMAGES AND CONSTITUTE GROUNDS FOR CANCELLATION OF THE CONTRACT AND PROCUREMENT OF THE SUPPLIES AT THE COST OF THE CONTRACTOR; AND THAT THE SECRETARY OF LABOR SHALL HAVE AUTHORITY TO ADMINISTER THE PROVISIONS OF THE ACT AND TO MAKE SUCH RULES AND REGULATIONS AS MAY BE NECESSARY.

SECTION 29 OF "WALSH-HEALEY PUBLIC CONTRACTS ACT RULINGS AND INTERPRETATIONS NO. 3," PUBLISHED BY THE DEPARTMENT OF LABOR, PROVIDES:

"/A) THE RESPONSIBILITY OF DETERMINING WHETHER OR NOT A BIDDER IS QUALIFIED AS A MANUFACTURER OR AS A REGULAR DEALER UNDER THE PUBLIC CONTRACTS ACT RESTS IN THE FIRST INSTANCE WITH THE CONTRACTING AGENCY. HOWEVER, ANY DECISION WHICH THE CONTRACTING OFFICER MIGHT MAKE IS SUBJECT TO REVIEW BY THE DEPARTMENT OF LABOR WHICH IS CHARGED WITH THE ADMINISTRATION OF THE ACT. THE DEPARTMENT OF LABOR MAY DETERMINE THE QUALIFICATIONS OF A BIDDER IN THE FIRST INSTANCE IN THE ABSENCE OF ANY DECISION BY THE CONTRACTING OFFICER.'

IN B-148715, JUNE 25, 1962, IN CONSIDERING THESE PROVISIONS, IT WAS STATED:

"WE REGARD IT AS CLEAR FROM THE FOREGOING THAT A DETERMINATION AS TO A BIDDER'S QUALIFICATIONS AS A MANUFACTURER IS BY LAW AND REGULATION THE RESPONSIBILITY OF THE CONTRACTING OFFICER, SUBJECT TO REVIEW BY THE DEPARTMENT OF LABOR, WHICH HAS THE FINAL AUTHORITY. * * *" MOREOVER, IN B -161933, OCTOBER 20, 1967, IT WAS STATED:

"OUR OFFICE DOES NOT HAVE JURISDICTION TO REVIEW DETERMINATIONS AS TO WHETHER PARTICULAR FIRMS ARE REGULAR DEALERS OR MANUFACTURERS. B 147620, JANUARY 22, 1962. * * *"

THE CONTRACTING AGENCY HAS ADVISED THAT THE MATTER OF YOUR COMPANY'S ELIGIBILITY UNDER THE WALSH-HEALEY ACT WILL BE SUBMITTED TO THE DEPARTMENT OF LABOR FOR A FINAL DETERMINATION. SINCE, AS INDICATED ABOVE, THE AUTHORITY TO REVIEW THE DETERMINATION OF THE CONTRACTING OFFICER IN SUCH MATTERS IS VESTED IN THE DEPARTMENT OF LABOR AND NOT IN OUR OFFICE, YOU MAY WISH TO PURSUE THE MATTER WITH THE DEPARTMENT OF LABOR.