B-164254, JUL. 2, 1968

B-164254: Jul 2, 1968

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BRASWELL: REFERENCE IS MADE TO YOUR LETTER OF MAY 3. PROTESTING AGAINST THE CONTRACTING OFFICER'S DETERMINATION THAT YOUR COMPANY IS NOT ELIGIBLE FOR AWARD UNDER DEPARTMENT OF THE ARMY (CORPS OF ENGINEERS) INVITATION FOR BIDS DACW21-68-B-0022 BECAUSE IT DOES NOT QUALIFY AS A REGULAR DEALER OR MANUFACTURER UNDER THE WALSH-HEALEY PUBLIC CONTRACTS ACT. A PREAWARD SURVEY WAS MADE OF YOUR COMPANY. THE SURVEY REPORT INDICATED THAT KROWDER INDUSTRIES IS AN INDIVIDUAL PROPRIETORSHIP CONSISTING SOLELY OF YOURSELF. IT WAS ADMINISTRATIVELY DETERMINED THAT YOUR COMPANY DID NOT QUALIFY AS A REGULAR DEALER OR MANUFACTURER. 000 IN AMOUNT SHALL CONTAIN A STIPULATION THAT THE CONTRACTOR IS THE MANUFACTURER OF OR A REGULAR DEALER IN SUCH SUPPLIES.

B-164254, JUL. 2, 1968

TO MR. M. M. BRASWELL:

REFERENCE IS MADE TO YOUR LETTER OF MAY 3, 1968, PROTESTING AGAINST THE CONTRACTING OFFICER'S DETERMINATION THAT YOUR COMPANY IS NOT ELIGIBLE FOR AWARD UNDER DEPARTMENT OF THE ARMY (CORPS OF ENGINEERS) INVITATION FOR BIDS DACW21-68-B-0022 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 INVITATION FOR BIDS REQUIRED THE DESIGN, MANUFACTURE AND SHOP TESTING OF AN AUTOMATIC RADIO DATA REPORTING NETWORK SYSTEM CONSISTING OF VARIOUS TYPES OF TRANSMITTERS, RECEIVERS AND ACCESSORIES.

TO ASSIST IN DETERMINATION OF RESPONSIBILITY, A PREAWARD SURVEY WAS MADE OF YOUR COMPANY. THE SURVEY REPORT INDICATED THAT KROWDER INDUSTRIES IS AN INDIVIDUAL PROPRIETORSHIP CONSISTING SOLELY OF YOURSELF; THAT YOU DO NOT OWN, OPERATE OR MAINTAIN A FACTORY OR ESTABLISHMENT THAT PRODUCES THE EQUIPMENT OR PERSONNEL TO PERFORM THE MANUFACTURING OPERATIONS; AND THAT YOU PROPOSED WORKING IN THE BASEMENT OF YOUR HOME. ON THIS BASIS, IT WAS ADMINISTRATIVELY DETERMINED THAT YOUR COMPANY DID NOT QUALIFY AS A REGULAR DEALER OR MANUFACTURER.

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. * * *"

IN VIEW OF THE FOREGOING, OUR OFFICE DOES NOT INTEND TO TAKE ANY FURTHER ACTION ON YOUR PROTEST.