B-167426, AUG. 19, 1969

B-167426: Aug 19, 1969

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LOW BIDDER WHO HAD INDICATED IN BID THAT HE WAS MANUFACTURER BUT WHO WAS DETERMINED NOT TO QUALIFY AS MANUFACTURER AS A RESULT OF PREAWARD SURVEY THAT WAS NOT OBJECTED TO BY DEPARTMENT OF LABOR HAS NO BASIS FOR ACTION BY COMPTROLLER GENERAL SINCE DETERMINATION OF BIDDER'S QUALIFICATIONS AS MANUFACTURER IS SUBJECT TO REVIEW BY SECRETARY OF LABOR WHOSE DECISION IS FINAL. TO DOMCO CHEMICAL CORPORATION: REFERENCE IS MADE TO YOUR LETTER OF JULY 3. PROJECTILE CANISTERS WAS ISSUED ON MAY 16. BIDDERS WERE REQUIRED TO INDICATE ON THEIR BIDS THAT THEY WERE EITHER THE MANUFACTURER OF. YOU REPRESENTED IN YOUR BID THAT YOU WERE A MANUFACTURER OF THE ITEMS BID UPON. 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.

B-167426, AUG. 19, 1969

BID PROTEST - BIDDER QUALIFICATION - MANUFACTURER DECISION DENYING PROTEST OF DOMCO CHEMICAL CORP. AGAINST AWARD FOR 105MM PROJECTILE CANISTERS FOR EDGEWOOD ARSENAL. LOW BIDDER WHO HAD INDICATED IN BID THAT HE WAS MANUFACTURER BUT WHO WAS DETERMINED NOT TO QUALIFY AS MANUFACTURER AS A RESULT OF PREAWARD SURVEY THAT WAS NOT OBJECTED TO BY DEPARTMENT OF LABOR HAS NO BASIS FOR ACTION BY COMPTROLLER GENERAL SINCE DETERMINATION OF BIDDER'S QUALIFICATIONS AS MANUFACTURER IS SUBJECT TO REVIEW BY SECRETARY OF LABOR WHOSE DECISION IS FINAL.

TO DOMCO CHEMICAL CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF JULY 3, 1969, PROTESTING AGAINST THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS (IFB) NO. DAAA15-69-B 0809, ISSUED BY EDGEWOOD ARSENAL, EDGEWOOD ARSENAL, MARYLAND.

THE ABOVE MENTIONED IFB FOR 105MM. PROJECTILE CANISTERS WAS ISSUED ON MAY 16, 1969. OF THE ELEVEN (11) POTENTIAL SOURCES SUBMITTING BIDS, 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 A MANUFACTURER OF THE ITEMS BID UPON.

ON JUNE 10, 1969, THE PROCURING ACTIVITY REQUESTED THAT THE DEFENSE CONTRACT ADMINISTRATIVE SERVICES REGION (DCASR), NEW YORK, CONDUCT A PREAWARD SURVEY. THE DCASR PREAWARD SURVEY DATED JUNE 23, 1969, RECOMMENDED THAT NO AWARD BE MADE TO YOUR FIRM, SINCE YOU 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 PREAWARD SURVEY, THE CONTRACTING OFFICER MADE A DETERMINATION THAT YOUR FIRM DID NOT QUALIFY AS A MANUFACTURER FOR THE 105MM. PROJECTILE CANISTERS WITHIN THE MEANING AND INTENT OF THE WALSH-HEALEY PUBLIC CONTRACTS ACT.

SINCE YOUR PROTEST OF JULY 3, 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 JULY 22, 1969, CONCERNING YOUR ELIGIBILITY AS A MANUFACTURER UNDER THE WALSH-HEALEY PUBLIC CONTRACTS ACT. BY LETTER OF AUGUST 7, 1969, ADDRESSED TO MR. JOHN H. VOGEL, ASSISTANT GENERAL COUNSEL, DEPARTMENT OF THE ARMY, THE DEPARTMENT OF LABOR, WAGE AND HOUR AND PUBLIC CONTRACTS DIVISION, 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 THE PROJECTILE CANISTERS UNDER THE WALSH-HEALEY PUBLIC CONTRACTS ACT.

AS YOU WERE ADVISED BY OUR DECISION B-166905, JULY 24, 1969, THE WALSH- HEALEY PUBLIC CONTRACTS ACT AUTHORIZES 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:

"/2) 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 DETERMINATION BY THE CONTRACTING OFFICER.'

THIS OFFICE HAS CONCLUDED THAT THE LAW AND REGULATIONS PLACE UPON THE CONTRACTING OFFICER THE RESPONSIBILITY OF DETERMINING A BIDDER'S QUALIFICATIONS AS A MANUFACTURER, SUBJECT TO REVIEW BY THE DEPARTMENT OF LABOR, WHOSE DECISION IS FINAL. B-162807, DECEMBER 27, 1967; B 148715, JUNE 25, 1962.

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