B-166285(2), JAN. 13, 1970

B-166285(2): Jan 13, 1970

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IN VIEW OF LACK OF AUTHORITY TO REVIEW FINDINGS OF WHETHER PARTICULAR BIDDERS ARE WITHIN PURVIEW OF WALSH-HEALEY PUBLIC CONTRACTS ACT. REQUEST THAT CONTRACTING OFFICER SUPPORT DETERMINATION THAT COMPETITOR IS A MANUFACTURER MAY NOT BE GRANTED. MATTER IS FOR DEPARTMENT OF LABOR. INCORPORATED: REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 4. WE ADVISED YOU THAT OUR OFFICE DOES NOT CONSIDER THAT IT HAS ANY AUTHORITY TO REVIEW ADMINISTRATIVE FINDINGS AS TO WHETHER PARTICULAR BIDDERS ARE WITHIN THE PURVIEW OF THE ACT AND THAT THE QUESTION WHETHER A BIDDER IS QUALIFIED UNDER THE ACT IS FOR DETERMINATION BY THE CONTRACTING OFFICER SUBJECT TO FINAL REVIEW BY THE DEPARTMENT OF LABOR. OUR OFFICE MUST REJECT YOUR REQUEST THAT WE REQUIRE THE CONTRACTING OFFICER TO FURNISH EVIDENCE TO OUR OFFICE TO SUPPORT HIS DETERMINATION THAT FAIRCHILD IS A MANUFACTURER WITHIN THE MEANING OF THE WALSH-HEALEY ACT.

B-166285(2), JAN. 13, 1970

BID PROTEST--BIDDER RESPONSIBILITY AS MANUFACTURER DECISION TO TYCO, INC; CONCERNING COMPTROLLER GENERAL'S DECISION OF NOVEMBER 26, 1969, DENYING PROTEST AGAINST NEGOTIATED AWARD TO FAIRCHILD HILLER CORPORATION ISSUED BY DEFENSE CONSTRUCTION SUPPLY CENTER. IN VIEW OF LACK OF AUTHORITY TO REVIEW FINDINGS OF WHETHER PARTICULAR BIDDERS ARE WITHIN PURVIEW OF WALSH-HEALEY PUBLIC CONTRACTS ACT, REQUEST THAT CONTRACTING OFFICER SUPPORT DETERMINATION THAT COMPETITOR IS A MANUFACTURER MAY NOT BE GRANTED. MATTER IS FOR DEPARTMENT OF LABOR.

TO TYCO, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 4, 1969, WITH ENCLOSURES, CONCERNING OUR DECISION TO YOU DATED NOVEMBER 26, 1969, WHEREIN WE CONSIDERED YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO FAIRCHILD HILLER CORPORATION (FAIRCHILD) UNDER REQUEST FOR PROPOSALS (RFP) NO. DSA700-69-R-8038, ISSUED BY THE DEFENSE CONSTRUCTION SUPPLY CENTER (DCSC), COLUMBUS, OHIO.

YOU RAISE FURTHER QUESTIONS REGARDING THE ELIGIBILITY OF FAIRCHILD AS A "MANUFACTURER" OF FAN MOTORS UNDER THE WALSH-HEALEY PUBLIC CONTRACTS ACT, 41 U.S.C. 35-45. IN OUR NOVEMBER 26 DECISION, WE ADVISED YOU THAT OUR OFFICE DOES NOT CONSIDER THAT IT HAS ANY AUTHORITY TO REVIEW ADMINISTRATIVE FINDINGS AS TO WHETHER PARTICULAR BIDDERS ARE WITHIN THE PURVIEW OF THE ACT AND THAT THE QUESTION WHETHER A BIDDER IS QUALIFIED UNDER THE ACT IS FOR DETERMINATION BY THE CONTRACTING OFFICER SUBJECT TO FINAL REVIEW BY THE DEPARTMENT OF LABOR. IN VIEW OF THIS LACK OF JURISDICTION (SEE PARAGRAPH 12-604 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR)), OUR OFFICE MUST REJECT YOUR REQUEST THAT WE REQUIRE THE CONTRACTING OFFICER TO FURNISH EVIDENCE TO OUR OFFICE TO SUPPORT HIS DETERMINATION THAT FAIRCHILD IS A MANUFACTURER WITHIN THE MEANING OF THE WALSH-HEALEY ACT. WE HAVE BEEN INFORMALLY ADVISED BY A REPRESENTATIVE OF THE DEFENSE SUPPLY AGENCY (DSA) THAT THE DEPARTMENT OF LABOR IS PRESENTLY CONSIDERING YOUR PROTEST AGAINST THE CONTRACTING OFFICER'S DECISION. ANY EVIDENCE YOU MAY POSSESS BEARING ON THE QUESTION OF FAIRCHILD'S STATUS AS A MANUFACTURER SHOULD BE BROUGHT TO THE ATTENTION OF THE DEPARTMENT OF LABOR WHICH HAS FINAL AUTHORITY.

WITH RESPECT TO YOUR CONTENTION THAT DCSC HAS REFUSED TO ANSWER CERTAIN QUESTIONS YOU RAISED CONCERNING RFP NO. DSA700-70-R-0492, WE HAVE BEEN INFORMALLY ADVISED BY A REPRESENTATIVE OF DSA THAT NO AWARD HAS BEEN MADE UNDER THIS RFP. SINCE AWARD OF A CONTRACT HAS NOT BEEN MADE, THE IDENTITY AND NUMBER OF OTHER OFFERORS OR INFORMATION CONCERNING THEIR PROPOSALS MAY NOT BE MADE AVAILABLE TO YOUR COMPANY. SEE ASPR 3-507.2 AND 3-805.1 (B).

IN THE CIRCUMSTANCES, WE AGAIN ADVISE THAT IF YOU HAVE ANY FURTHER QUESTIONS AS TO THE STATUS OF YOUR FIRM OR FAIRCHILD AS A MANUFACTURER, SUCH QUESTIONS SHOULD PROPERLY BE PURSUED WITH THE PROCUREMENT ACTIVITY AND THE DEPARTMENT OF LABOR.