B-166905, JUL. 24, 1969

B-166905, JUL. 24, 1969

BID PROTEST - QUALIFICATIONS DECISION TO DOMCO TEXTILES, INC., LOW OFFEROR, INDICATING THAT GAO WOULD NOT TAKE ANY ACTION ON PROTEST AGAINST REJECTION OF PROPOSAL FOR FURNISHING M-1 BANDOLEERS TO FRANKFORD ARSENAL ON BASIS THAT DEPARTMENT OF ARMY, WITH DEPARTMENT OF LABOR CONCURRING, DETERMINED THAT PROTESTANT DID NOT QUALIFY AS MANUFACTURER UNDER THE WALSH-HEALEY PUBLIC CONTRACTS ACT, 41 U.S.C. 35-45.

TO DOMCO TEXTILES, INC.:

REFERENCE IS MADE TO YOUR TELEGRAM OF MAY 8, 1969, PROTESTING AGAINST THE AWARD OF A CONTRACT UNDER REQUEST FOR PROPOSALS (RFP) NO. DAAA-25-69-R- 0362, ISSUED BY THE FRANKFORD ARSENAL, PHILADELPHIA, PENNSYLVANIA.

THE ABOVE MENTIONED RFP FOR M-1 BANDOLEERS IN ACCORDANCE WITH TECHNICAL DATA PACKAGE LIST NO. 6543490 DATED NOVEMBER 10, 1968, WAS ISSUED ON FEBRUARY 17, 1969. THE TOTAL REQUIREMENT WAS FOR 2,569,136 BANDOLEERS. OF THE SIX (6) POTENTIAL SOURCES SUBMITTING OFFERS, YOUR FIRM SUBMITTED THE LOWEST OFFER.

PURSUANT TO THE WALSH-HEALEY ACT, 41 U.S.C. 35-45, BIDDERS WERE REQUIRED TO INDICATE ON THEIR BIDS THAT THEY WERE EITHER THE MANUFACTURER OF, OR A REGULAR DEALER IN, THE ITEMS BID UPON. YOU REPRESENTED IN YOUR BID THAT YOU WERE THE MANUFACTURER OF THE ITEMS BID UPON.

BY LETTER OF APRIL 2, 1969, THE PROCURING ACTIVITY REQUESTED THAT THE DEFENSE CONTRACT ADMINISTRATION SERVICES REGION (DCASR), NEW YORK, CONDUCT A PRE-AWARD SURVEY. THE DCASR PRE-AWARD SURVEY DATED APRIL 17, 1969, RECOMMENDED NO AWARD FOR SEVERAL REASONS. ONE OF THE REASONS CITED WAS THAT YOUR FIRM DID NOT QUALIFY AS A MANUFACTURER UNDER THE WALSH-HEALEY PUBLIC CONTRACTS ACT OF JUNE 30, 1936, 49 STAT. 2036 (41 U.S.C. 35-45) AND ARMED SERVICES PROCUREMENT REGULATION (ASPR) 12 603.1. BASED ON INFORMATION SUPPLIED BY THE PRE-AWARD SURVEY, THE CONTRACTING OFFICER MADE A DETERMINATION THAT YOUR FIRM DID NOT QUALIFY AS A MANUFACTURER FOR THE BANDOLEER M-1 WITHIN THE MEANING AND INTENT OF THE WALSH-HEALEY PUBLIC CONTRACTS ACT. THE SURVEY INDICATED THAT A REVIEW OF YOUR FACILITIES DISCLOSED NO EVIDENCE OF ANY SEWING OPERATIONS BEING PERFORMED OR INSPECTED AT YOUR PLANT AND WHILE THERE WERE FOUR SINGLE NEEDLE MACHINES ON THE FLOOR AT THE TIME OF THE SURVEY, NO WORK WAS IN PROGRESS ON EITHER COMMERCIAL OR GOVERNMENT CONTRACTS. MOREOVER, DCASR HAD NO RECORD OF PERFORMANCE FOR YOUR FIRM. ADDITIONALLY, IT WAS DETERMINED THAT YOUR FIRM COULD NOT QUALIFY AS NEWLY ENTERING SUCH MANUFACTURING ACTIVITY, SINCE IT WAS NOT SHOWN THAT YOUR FIRM HAD MADE ALL THE NECESSARY PRIOR ARRANGEMENTS FOR SPACE, EQUIPMENT AND PERSONNEL TO PERFORM MANUFACTURING OPERATION FOR FULFILLMENT OF THIS CONTRACT.

SINCE YOUR PROTEST OF MAY 8, 1969, TO THIS OFFICE WAS CONSIDERED BY THE DEPARTMENT OF THE ARMY TO BRING INTO QUESTION THE CONTRACTING OFFICER'S DETERMINATION THAT YOUR FIRM DID NOT QUALIFY AS A MANUFACTURER, A DECISION WAS REQUESTED FROM THE DEPARTMENT OF LABOR BY LETTER OF MAY 14, 1969, CONCERNING YOUR ELIGIBILITY AS A MANUFACTURER UNDER THE WALSH-HEALEY PUBLIC CONTRACTS ACT. BY LETTER OF JUNE 30, 1969, ADDRESSED TO MR. JOHN H. VOGEL, ASSISTANT GENERAL COUNSEL, DEPARTMENT OF THE ARMY, THE DEPARTMENT OF LABOR, WAGE AND HOUR AND PUBLIC CONTRACTS DIVISIONS, STATED THAT IT WOULD TAKE NO EXCEPTION TO THE CONTRACTING OFFICER'S DETERMINATION THAT YOUR FIRM WAS NOT QUALIFIED FOR AWARD AS A MANUFACTURER OF M-1 BANDOLEERS UNDER THE WALSH HEALEY PUBLIC CONTRACTS ACT.

THE ACT AUTHORIZED THE SECRETARY OF LABOR TO ADMINISTER ITS PROVISIONS AND ISSUE RULES AND REGULATIONS THEREUNDER. 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 29, 1962, IN CONSIDERING THESE PROVISIONS, WE 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. * * *" ALSO SEE B 162807, DECEMBER 27, 1967. 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. * * *" TO THE SAME EFFECT ARE B-163457, MARCH 29, 1968; B-157352, SEPTEMBER 30, 1965.

IN VIEW OF THE FOREGOING, NO FURTHER ACTION WILL BE TAKEN BY THIS OFFICE IN CONNECTION WITH YOUR PROTEST.