B-165336, JUN. 6, 1969

B-165336: Jun 6, 1969

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

TO UNITED UNIVERSAL CORPORATION: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF SEPTEMBER 26. YOU CONTEND THAT YOU WERE ENTITLED TO AWARD AS THE LOWEST RESPONSIVE. WHICH WAS ISSUED ON JUNE 29. FOUR BIDS WERE RECEIVED AS FOLLOWS: BIDDER BID ON ITEM NO. 1 UNITED UNIVERSAL CORPORATION $12. BIDDERS WERE REQUIRED TO INDICATE IN THEIR BIDS THAT THEY WERE EITHER THE MANUFACTURER OF. UNITED UNIVERSAL CERTIFIED IN ITS BID THAT IT WAS A REGULAR DEALER IN THE SUPPLIES OFFERED. A PREAWARD SURVEY WAS CONDUCTED TO DETERMINE WHETHER YOUR COMPANY QUALIFIED AS A REGULAR DEALER WITHIN THE MEANING OF THE WALSH-HEALEY PUBLIC CONTRACTS ACT AND SECTION 12-603.2 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR).

B-165336, JUN. 6, 1969

TO UNITED UNIVERSAL CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF SEPTEMBER 26, 1968, AND SUBSEQUENT CORRESPONDENCE PROTESTING AGAINST AWARD OF A CONTRACT TO ANY OTHER FIRM UNDER SOLICITATION NO. DAA01-68-B-7011, ISSUED BY THE UNITED STATES ARMY MOBILITY EQUIPMENT COMMAND, ST. LOUIS, MISSOURI. YOU CONTEND THAT YOU WERE ENTITLED TO AWARD AS THE LOWEST RESPONSIVE, RESPONSIBLE BIDDER.

THE SUBJECT INVITATION, WHICH WAS ISSUED ON JUNE 29, 1968, SOLICITED BIDS FOR 48 DRAWING TABLES AND ANCILLARY SUPPORT ITEMS. FOUR BIDS WERE RECEIVED AS FOLLOWS:

BIDDER BID ON ITEM NO. 1

UNITED UNIVERSAL CORPORATION $12,026.00

(UNITED UNIVERSAL)

DEHLER MANUFACTURING CO., INC. 16,714.00

(DEHLER)

H-R SHEET METAL MANUFACTURING17,176.00

CORPORATION

EMERSON-SOCK-WARREN CORPORATION 29,093.36

PURSUANT TO THE TERMS OF THE WALSH-HEALY ACT, 41 U.S.C. 35-45, BIDDERS WERE REQUIRED TO INDICATE IN THEIR BIDS THAT THEY WERE EITHER THE MANUFACTURER OF, OR A REGULAR DEALER IN, THE ITEMS BID UPON. UNITED UNIVERSAL CERTIFIED IN ITS BID THAT IT WAS A REGULAR DEALER IN THE SUPPLIES OFFERED. IN ACCORDANCE WITH APPLICABLE REGULATIONS, A PREAWARD SURVEY WAS CONDUCTED TO DETERMINE WHETHER YOUR COMPANY QUALIFIED AS A REGULAR DEALER WITHIN THE MEANING OF THE WALSH-HEALEY PUBLIC CONTRACTS ACT AND SECTION 12-603.2 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). BASED ON THE INFORMATION MADE AVAILABLE TO THE CONTRACTING OFFICER BY THE REPORT OF THE SURVEY, HE DETERMINED THAT SINCE YOUR COMPANY HAD NOT MADE SALES OF SIMILAR ITEMS REGULARLY IN THE USUAL COURSE OF BUSINESS TO THE PUBLIC, OTHER THAN THE GOVERNMENT, UNITED UNIVERSAL WAS NOT A REGULAR DEALER AS DEFINED IN ASPR 12-603.2, AND WAS THEREFORE INELIGIBLE TO ENTER INTO A CONTRACT WITH THE DEPARTMENT OF THE ARMY EXCEEDING $10,000 FOR FURNISHING OF SUPPLIES SUBJECT TO THE WALSH-HEALEY ACT. CONSEQUENTLY, AWARD WAS MADE PRIOR TO YOUR PROTEST TO DEHLER, THE LOW RESPONSIVE, RESPONSIBLE BIDDER.

THE BASIS OF YOUR PROTEST IS THAT THE CONTRACTING OFFICER'S DETERMINATION WAS INCORRECT BECAUSE UNITED UNIVERSAL AT THE TIME OF ITS BID HELD TWO GOVERNMENT CONTRACTS FROM ANOTHER AGENCY, AS WELL AS A CERTIFICATION OF ELIGIBILITY UNDER DEFENSE MANPOWER POLICY NUMBER 4 (DMP4).

CONCERNING THE TWO REFERENCED CONTRACTS HELD BY YOUR FIRM, IT WAS ADMINISTRATIVELY REPORTED THAT:

"THOSE TWO CONTRACTS ARE INDEFINITE QUANTITY CONTRACTS ON THE FEDERAL SUPPLY SCHEDULE ISSUED BY GSA AFTER FORMAL ADVERTISING. GS-00S 75089 WAS AWARDED 1 MAY 1968 AND IS ESTIMATED TO TOTAL $9,000.00. GS 00S-77889 WAS AWARDED 23 SEPTEMBER 1968 AND IS ESTIMATED TO TOTAL $5,000.00. SINCE THOSE CONTRACTS WERE LESS THAN $10,000.00, NO PREAWARD SURVEY WAS CONDUCTED IN ACCORDANCE WITH FEDERAL PROCUREMENT REGULATIONS (FPR) 1-310.9 (B) AND RESPONSIBILITY WAS DETERMINED WITH RESPECT TO THOSE CONTRACTS BY THE SIGNING OF THE CONTRACTS BY THE RESPECTIVE CONTRACTING OFFICER, SEE FPR 1-310.6 (A). MOREOVER, AS NOTED IN FPR 12-601, THE WALSH-HEALEY PUBLIC CONTRACTS ACT IS ONLY APPLICABLE TO CONTRACTS EXCEEDING $10,000.00.'

WE HAVE HELD THAT THE AWARD OF A CONTRACT TO WHICH WALSH-HEALEY PROVISIONS ARE NOT APPLICABLE DOES NOT ESTOP THE GOVERNMENT FROM ACTING IN A SITUATION WHERE THAT ACT IS APPLICABLE. B-164770, SEPTEMBER 3, 1968, COPY ENCLOSED.

THE CERTIFICATION UNDER DMP NUMBER 4 MEANS THAT YOUR COMPANY IS ONE OF THE CONCERNS THAT HAVE AGREED "TO PERFORM CONTRACTS IN OR NEAR SECTIONS OF CONCENTRATED UNEMPLOYMENT OR UNDEREMPLOYMENT AND WHICH HAVE AGREED TO COMPLY WITH REGULATIONS OF THE SECRETARY OF LABOR WITH RESPECT TO THE EMPLOYMENT OF DISADVANTAGED APPLICANTS.' WE FIND NOTHING IN DMP NUMBER 4 TO SUGGEST THAT IT WAS INTENDED AS A BLANKET GUARANTEE THAT SUCH A CONCERN IS RESPONSIBLE IN ALL RESPECTS.

THE WALSH-HEALEY PUBLIC CONTRACTS ACT RULINGS AND INTERPRETATIONS NO. 3, PUBLISHED BY THE DEPARTMENT OF LABOR, STATES AT SECTION 2A:

"/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.'

UNDER THE FOREGOING LAWS AND REGULATIONS OUR OFFICE DOES NOT HAVE JURISDICTION TO REVIEW DETERMINATIONS AS TO WHETHER PARTICULAR BIDDERS ARE REGULAR DEALERS OR MANUFACTURERS; RATHER, SUCH DETERMINATIONS REST WITH THE CONTRACTING OFFICERS SUBJECT TO THE REVIEW OF THE DEPARTMENT OF LABOR WHICH HAS THE FINAL AUTHORITY. B-164734, SEPTEMBER 9, 1968; B 164989, SEPTEMBER 11, 1968; 47 COMP. GEN. 793.

AFTER RECEIPT OF YOUR PROTEST WE INFORMALLY ADVISED MR. BRENIN OF YOUR OFFICE OF THE JURISDICTIONAL LIMITATIONS OF OUR OFFICE IN SUCH MATTERS AND SUGGESTED THAT ANY APPEAL WISHED TO BE TAKEN FROM THE CONTRACTING OFFICER'S DETERMINATION SHOULD BE ADDRESSED TO THE SECRETARY OF LABOR. THE RECORD REFLECTS THAT ON OCTOBER 5, 1968, YOUR OFFICE DID APPEAL TO THE SECRETARY OF LABOR FROM THE ADVERSE FINDINGS MADE BY THE CONTRACTING OFFICER. WE HAVE BEEN FURNISHED A COPY OF LETTER OF MAY 13, 1969, FROM THE DEPARTMENT OF LABOR ADDRESSED TO YOUR OFFICE WHEREIN THAT DEPARTMENT FOUND NO REASON TO QUESTION THE FINDINGS OF THE CONTRACTING AGENCY AFTER A REINVESTIGATION WHICH RESULTED IN A DETERMINATION THAT YOUR FIRM WAS NOT ELIGIBLE AS A REGULAR DEALER.

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, AND YOUR PROTEST IS THEREFORE DENIED.