B-164054, AUG. 19, 1968

B-164054: Aug 19, 1968

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TO WACHTEL AND WIENER: REFERENCE IS MADE TO YOUR LETTERS OF MAY 8. THE INVITATION WAS ISSUED ON MARCH 12. WAS AMENDED BY AMENDMENT NO. 1 ON MARCH 28. BIDS WERE SOLICITED FOR THE EQUIPMENTS UNDER OPTION 1 - TO INCLUDE BEST COMMERCIAL PACKAGING AND PACKING. ALL ITEMS WILL BE AWARDED ONLY AS A UNIT. EVALUATION OF BIDS/OFFERS WILL BE BASED. THE WALSH-HEALEY PUBLIC CONTRACTS ACT IS INCORPORATED AS A PART OF THIS INVITATION FOR BID. EIGHTY-FOUR FIRMS WERE SOLICITED. FIVE BIDS WERE RECEIVED. WERE DETERMINED TO BE NONRESPONSIVE BECAUSE CRADY SUBMITTED NO BID ON ITEMS 0001 THROUGH 0011. SMITH MANUFACTURING COMPANY IS THE APPARENT LOW BIDDER. SMITH MANUFACTURING COMPANY STATED THAT IT IS A MANUFACTURER OF THE SUPPLIES OFFERED.

B-164054, AUG. 19, 1968

TO WACHTEL AND WIENER:

REFERENCE IS MADE TO YOUR LETTERS OF MAY 8, 1968, JULY 24, 1968, AND OTHER CORRESPONDENCE, PROTESTING IN BEHALF OF HENRY PRODUCTS COMPANY, INCORPORATED, THE AWARD OF A CONTRACT TO J. AND H. SMITH MANUFACTURING COMPANY, UNDER INVITATION FOR BIDS NO. DAAB05-68-B-0225 ISSUED BY THE UNITED STATES ARMY ELECTRONICS COMMAND, PHILADELPHIA, PENNSYLVANIA.

THE INVITATION WAS ISSUED ON MARCH 12, 1968, AND WAS AMENDED BY AMENDMENT NO. 1 ON MARCH 28, 1968. IT INCLUDED A TOTAL OF 373 EACH ANTENNA GROUP OA -1389/GRC UNDER ITEMS 0001 THROUGH 0011, 373 EACH ANTENNA ACCESSORY GROUP OA-1398/GRC UNDER ITEMS 0012 THROUGH 0022, AND PROVISIONING DOCUMENTATION AND MONTHLY PRODUCTION PROGRESS REPORT UNDER ITEMS 0023 THROUGH 0025. BIDS WERE SOLICITED FOR THE EQUIPMENTS UNDER OPTION 1 - TO INCLUDE BEST COMMERCIAL PACKAGING AND PACKING, AND OPTION 2 - TO INCLUDE MILITARY PACKAGING AND PACKING. SECTION H.10 OF THE SOLICITATION SPECIFIES THAT "A BIDDER/OFFEROR MUST QUOTE ON ALL ITEMS IN THE SOLICITATION TO BE ELIGIBLE FOR AWARD. ALL ITEMS WILL BE AWARDED ONLY AS A UNIT. EVALUATION OF BIDS/OFFERS WILL BE BASED, AMONG OTHER FACTORS, UPON THE TOTAL PRICE QUOTED FOR ALL ITEMS.' IN PARAGRAPH 17 OF GENERAL PROVISIONS, STANDARD FORM 32 DATED JUNE 1964, THE WALSH-HEALEY PUBLIC CONTRACTS ACT IS INCORPORATED AS A PART OF THIS INVITATION FOR BID. EIGHTY-FOUR FIRMS WERE SOLICITED. FIVE BIDS WERE RECEIVED. THE BID OF CRADY, INCORPORATED, FOR THE ANTENNA ACCESSORY GROUP ITEMS, ITEMS 0012 THROUGH 0022 AND THE PROVISIONING DOCUMENTATION AND MONTHLY PRODUCTION PROGRESS REPORT ITEMS, ITEMS 0023 THROUGH 0025, WERE DETERMINED TO BE NONRESPONSIVE BECAUSE CRADY SUBMITTED NO BID ON ITEMS 0001 THROUGH 0011, ANTENNA GROUP, AND, HENCE, DID NOT COMPLY WITH THE CONDITIONS OF SECTION H.10 OF THE SOLICITATION.

J. AND H. SMITH MANUFACTURING COMPANY IS THE APPARENT LOW BIDDER, AND HENRY PRODUCTS COMPANY, INCORPORATED, THE SECOND LOW BIDDER.

ANTENNA GROUP OA-1389/GRC CONSISTS OF ANTENNA REFLECTOR AND ANTENNA REFLECTOR SUPPORT ASSEMBLIES. ANTENNA ACCESSORY GROUP OA-1398/GRC CONSISTS OF MAST BASE, STAKES, GUYS AND GUY PLATES.

ON PAGE 2 OF ITS BID, J. AND H. SMITH MANUFACTURING COMPANY STATED THAT IT IS A MANUFACTURER OF THE SUPPLIES OFFERED.

IN SECTION E - INSPECTION AND ACCEPTANCE, ON PAGE 88 OF ITS BID, J. AND H. SMITH EXECUTED PARAGRAPH E.1 PLACE OF PERFORMANCE, AS FOLLOWS: "E.1 PLACE OF PERFORMANCE:

"THE WORK CALLED FOR HEREIN WILL BE PERFORMED BY THE BIDDER/OFFEROR AT THE FOLLOWING LOCATION/S) (TO BE INSERTED BY THE BIDDER/OFFEROR):

"ITEM 0001 THRU 0011 AND ITEMS 23, 24, AND 25 J. AND H. SMITH MFG. CO. LITTLE BRITAIN ROAD, NEWBURGH, ORANGE COUNTY, N.Y. "ITEM NO. LOCATION OF

"ITEM 0012 THRU 0022 CRADY INC., OLD FORGE, PA. 0001 THRU FINAL MANUFACTURE -------------------------------------- 0025 (INSERT ADDRESS, CITY, COUNTY, STATE)

"PACKAGING AND PACKING SAME AS ABOVE

(INSERT ADDRESS, CITY, COUNTY, STATE)

"SHIPPING POINT SAME AS ABOVE

(INSERT CITY, STATE)

* * * * * * * "IF NO LOCATION/S) ARE INDICATED ABOVE, THE NAME AND ADDRESS OF THE BIDDER/OFFEROR ON THE FACE-PAGE OF THE DOCUMENT WILL BE CONSIDERED AS THE LOCATION OF FINAL MANUFACTURE, PACKAGING AND PACKING, SHIPPING POINT AND OFFICE OF CONTRACT ADMINISTRATION AND SUPERVISION (INCLUDING OFFICE OF PAYMENT).'

IT IS YOUR CONTENTION THAT THE BID OF J. AND H. SMITH IS NONRESPONSIVE TO THE INVITATION, URGING THAT IT WOULD APPEAR FROM THE REPRESENTATIONS OF J. AND H. SMITH, THAT IF AWARDED THIS CONTRACT, IT WOULD NOT ITSELF PERFORM ALL THE WORK REQUIRED UNDER THE CONTRACT; THAT ONLY CERTAIN ITEMS WOULD BE FINALLY MANUFACTURED, PACKAGED, PACKED AND SHIPPED AT J. AND H. SMITH'S FACILITY AND CERTAIN OTHER ITEMS WOULD BE FINALLY MANUFACTURED, PACKAGED, PACKED AND SHIPPED BY CRADY, INCORPORATED, AT THE FACILITY OF CRADY IN OLD FORGE, PENNSYLVANIA.

YOU ALSO CALL ATTENTION TO THE FACT THAT ANY CONTRACT RESULTING FROM THIS INVITATION IS SUBJECT TO THE WALSH-HEALEY PUBLIC CONTRACTS ACT, 41 U.S.C. 35-45, AND THAT J. AND H. SMITH IS NOT A MANUFACTURER WITHIN THE MEANING OF THE ACT, FAILING TO FALL WITHIN ANY OF THE CATEGORIES IN THE DEFINITION OF A MANUFACTURER.

AS YOU UNDOUBTEDLY 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.

IN THE RECORD BEFORE US, THE CONTRACTING OFFICER, IN HIS DETERMINATION AND FINDINGS, DATED JUNE 7, 1968, AFTER REVIEWING THE HISTORY OF THE PROCUREMENT AND YOUR PROTEST TO THAT DATE, CONCLUDED: "3. ACCORDINGLY, PURSUANT TO ASPR 12-604, I HEREBY DETERMINE THAT J. AND H. SMITH MANUFACTURING CO. IS A MANUFACTURER OF BOTH ANTENNA GROUP OA-1389/GRC AND ANTENNA ACCESSORY GROUP OA-1398/GRC AS DEFINED IN ASPR 12-603.1 AND MEETS ALL ELIGIBILITY REQUIREMENTS OF THE WALSH-HEALEY PUBLIC CONTRACTS ACT TO RECEIVE AN AWARD UNDER INVITATION FOR BIDS NO. DAAB05-68-B-0225.'

ON JULY 12, 1968, THE ADMINISTRATOR OF THE WAGE AND HOUR AND PUBLIC CONTRACTS DIVISIONS, DEPARTMENT OF LABOR, ADVISED HEADQUARTERS, ARMY MATERIEL COMMAND THAT: "THE WHPC DIVISIONS SEE NO REASON TO QUESTION THE DECISION OF THE CONTRACTING OFFICER THAT J. AND H. SMITH MAY BE AWARDED THE CONTRACT IN QUESTION AS A MANUFACTURER. OUR VIEWS WITH RESPECT TO COVERAGE OF SECONDARY CONTRACTS ARE EXPRESSED IN SECTIONS 30 TO 34 OF RULINGS AND INTERPRETATIONS NO. 3.'

IN VIEW OF THE FOREGOING, WE MUST CONCLUDE THAT THE AWARD MADE UNDER THE INSTANT INVITATION IS NOT SUBJECT TO LEGAL OBJECTION BY OUR OFFICE.