B-170654, AUG 12, 1971

B-170654, AUG 12, 1971

TO TYCO, INCORPORATED:

WE REFER TO YOUR LETTERS OF FEBRUARY 10, 1971, AND MARCH 2, 1971, WHICH COMMENT FURTHER AND RAISE CERTAIN QUESTIONS REGARDING OUR DECISIONS OF JANUARY 6, 1971, AND FEBRUARY 8, 1971, IN CONNECTION WITH YOUR PROTEST UNDER SOLICITATION D0943150, ISSUED BY THE DEFENSE ELECTRONICS SUPPLY CENTER, DAYTON, OHIO.

YOUR FIRST QUESTION RELATES TO 10 U.S.C. 2305(D) AND ASKS IF THAT SECTION APPLIES TO NEGOTIATED PROCUREMENTS SUCH AS D0943150, AS WELL AS TO FORMALLY ADVERTISED PROCUREMENTS. THE COMPLETE SECTION IS AS FOLLOWS:

"(D) IF THE HEAD OF THE AGENCY CONSIDERS THAT ANY BID RECEIVED AFTER FORMAL ADVERTISING EVIDENCES A VIOLATION OF THE ANTITRUST LAWS, HE SHALL REFER THE BID TO THE ATTORNEY GENERAL FOR APPROPRIATE ACTION."

WHILE THE U.S.C. DOES NOT REQUIRE SUCH REFERRAL AFTER OTHER THAN FORMAL ADVERTISING, ASPR 1-111.2 ADMINISTRATIVELY EXTENDS THE REQUIREMENT TO NEGOTIATED PROCUREMENTS.

WITH RESPECT TO YOUR QUESTION REGARDING THE STATUS OF GENERAL MOTORS AS THE "MANUFACTURER" OF THE PART INVOLVED IN SOLICITATION D0943150, THE REFERENCES TO "MANUFACTURER" AND "DEALERS" IN OUR LETTER OF FEBRUARY 8, 1971, WERE INTENDED ONLY TO BE RESPONSIVE TO THE QUESTION PRESENTED IN THE FIFTH PARAGRAPH OF YOUR JANUARY 11 LETTER, AND OUR USE OF QUOTATION MARKS WITH SUCH TERMS WAS FOR THE PURPOSE OF CONVEYING THAT INTENTION. ASIDE FROM THE FOREGOING, HOWEVER, YOUR PRESENT QUESTION DOES NOT APPEAR TO HAVE ANY PARTICULAR RELEVANCE. WE HAVE PREVIOUSLY ADVISED YOU IN OUR DECISION B-166285, NOVEMBER 26, 1969, THAT THE WALSH-HEALEY PUBLIC CONTRACTS ACT, 41 U.S.C. 35-45, PROVIDES THAT, WITH CERTAIN EXCEPTIONS, EVERY GOVERNMENT SUPPLY CONTRACT EXCEEDING $10,000 IN AMOUNT SHALL CONTAIN A STIPULATION THAT THE CONTRACTOR IS A MANUFACTURER OF OR REGULAR DEALER IN SUCH SUPPLIES. THE CONTRACT IN QUESTION HERE IS IN THE AMOUNT OF $6,620.55. IN VIEW THEREOF, THERE IS NO REQUIREMENT THAT THE STATUS OF THE CONTRACTOR AS A REGULAR DEALER OR MANUFACTURER BE DETERMINED.

WHILE DECISIONS OF THIS OFFICE ARE REVIEWABLE WHEN MATERIAL ERRORS OF EITHER FACT OR LAW ARE ALLEGED AND IDENTIFIED, THE VARIOUS QUESTIONS YOU HAVE DIRECTED TO THIS OFFICE SINCE OUR ORIGINAL DECISION WAS RENDERED ON JANUARY 6, 1971, DO NOT SEEM TO BE SO ORIENTED, AND THE OBJECTIVE TO WHICH THEY MAY BE DIRECTED IS NOT APPARENT.

IN VIEW THEREOF, AND SINCE THE RESOURCES OF THIS OFFICE ARE LIMITED AND THE NECESSARY DEMANDS UPON SUCH RESOURCES ARE GREATER THAN WE ARE ABLE TO COMPLY WITH, IT IS REQUESTED THAT ANY FURTHER CORRESPONDENCE BE LIMITED TO A REQUEST FOR RECONSIDERATION IN THE FORM SET OUT ABOVE.