B-171426, APR 27, 1971

B-171426: Apr 27, 1971

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THE DETERMINATION AS TO WHETHER PROTESTANT WAS A REGULAR DEALER OR MANUFACTURER UNDER THE WALSH-HEALEY ACT IS SOLELY FOR THE CONTRACTING OFFICERS TO DECIDE. TO RHI PRODUCTS: REFERENCE IS MADE TO YOUR LETTERS OF NOVEMBER 30 AND DECEMBER 8. THE LOW BID ON ITEM 0001 WAS SUBMITTED BY YOUR FIRM IN AN AMOUNT IN EXCESS OF $10. IT WAS REPRESENTED IN THE BID THAT YOU WERE A MANUFACTURER OF THE SUPPLIES OFFERED. THE CONTRACTING OFFICER CONCURRED IN THE SURVEY REPORT AND NOTIFIED YOU OF HIS DETERMINATION THAT YOU WERE NOT A MANUFACTURER UNDER THE ACT AND NOT ELIGIBLE FOR AWARD OF THE CONTRACT. THE MATTER WAS THEN REFERRED TO THE DEPARTMENT OF LABOR FOR A FINAL DETERMINATION. OUR OFFICE HAS HELD REPEATEDLY THAT WE LACK JURISDICTION TO REVIEW DETERMINATIONS AS TO WHETHER PARTICULAR BIDDERS ARE REGULAR DEALERS OR MANUFACTURERS AND THAT SUCH DETERMINATIONS REST SOLELY WITH THE CONTRACTING OFFICERS SUBJECT TO REVIEW BY THE DEPARTMENT OF LABOR WHICH HAS FINAL AUTHORITY IN THESE MATTERS.

B-171426, APR 27, 1971

BID PROTEST - BIDDER RESPONSIBILITY - WALSH HEALEY ACT DENYING PROTEST OF RHI PRODUCTS AGAINST THE AWARD OF A CONTRACT ADVERTISED UNDER AN IFB ISSUED BY THE DEFENSE PERSONNEL SUPPORT CENTER, PHILADELPHIA, PA., TO ANY OTHER BIDDER. THE DETERMINATION AS TO WHETHER PROTESTANT WAS A REGULAR DEALER OR MANUFACTURER UNDER THE WALSH-HEALEY ACT IS SOLELY FOR THE CONTRACTING OFFICERS TO DECIDE.

TO RHI PRODUCTS:

REFERENCE IS MADE TO YOUR LETTERS OF NOVEMBER 30 AND DECEMBER 8, 1970, PROTESTING THE PROPOSED AWARD OF A CONTRACT COVERING ITEM 0001 UNDER INVITATION FOR BIDS (IFB) DSA120-71-B-0607, ISSUED BY THE DEFENSE PERSONNEL SUPPORT CENTER (DPSC), PHILADELPHIA, PENNSYLVANIA.

THE LOW BID ON ITEM 0001 WAS SUBMITTED BY YOUR FIRM IN AN AMOUNT IN EXCESS OF $10,000. FURTHER, IT WAS REPRESENTED IN THE BID THAT YOU WERE A MANUFACTURER OF THE SUPPLIES OFFERED.

A DEFENSE CONTRACT ADMINISTRATION SERVICES REGION PREAWARD SURVEY REPORT RECOMMENDED THAT NO AWARD BE MADE TO YOU BECAUSE OF YOUR FAILURE TO QUALIFY AS A MANUFACTURER UNDER THE WALSH-HEALEY PUBLIC CONTRACTS ACT, 41 U.S.C. 35-45, WHICH APPLIES TO CONTRACTS FOR SUPPLIES IN EXCESS OF $10,000. THE CONTRACTING OFFICER CONCURRED IN THE SURVEY REPORT AND NOTIFIED YOU OF HIS DETERMINATION THAT YOU WERE NOT A MANUFACTURER UNDER THE ACT AND NOT ELIGIBLE FOR AWARD OF THE CONTRACT. THE CONTRACTING OFFICER ALSO PROVIDED YOU WITH AN OPPORTUNITY TO CONTEST THE DETERMINATION. IN RESPONSE THERETO, YOU SUBMITTED ADDITIONAL EVIDENCE. HOWEVER, THE EVIDENCE DID NOT CHANGE THE VIEW OF THE CONTRACTING OFFICER. THE MATTER WAS THEN REFERRED TO THE DEPARTMENT OF LABOR FOR A FINAL DETERMINATION. BY LETTER DATED FEBRUARY 23, 1971, THE DEPARTMENT OF LABOR ADVISED THE CONTRACTING OFFICER THAT IT COULD FIND NO REASON TO QUESTION THE FINDING THAT YOUR FIRM DOES NOT QUALIFY AS A MANUFACTURER FOR PURPOSES OF THE WALSH-HEALEY ACT.

OUR OFFICE HAS HELD REPEATEDLY THAT WE LACK JURISDICTION TO REVIEW DETERMINATIONS AS TO WHETHER PARTICULAR BIDDERS ARE REGULAR DEALERS OR MANUFACTURERS AND THAT SUCH DETERMINATIONS REST SOLELY WITH THE CONTRACTING OFFICERS SUBJECT TO REVIEW BY THE DEPARTMENT OF LABOR WHICH HAS FINAL AUTHORITY IN THESE MATTERS. B-166905, JULY 24, 1969, AND DECISIONS CITED THEREIN.

REGARDING YOUR STATEMENT THAT YOU WERE AWARDED A CONTRACT BY DEFENSE GENERAL SUPPLY CENTER PRIOR TO THE PRESENT IFB AND AT THAT TIME A FAVORABLE PREAWARD SURVEY WAS CONDUCTED UPON YOUR FIRM, IT IS ADMINISTRATIVELY REPORTED THAT THAT CONTRACT WAS UNDER $10,000 AND, HENCE, NOT SUBJECT TO THE WALSH-HEALEY STANDARDS.

IN VIEW OF THE FOREGOING, THE PROTEST IS DENIED.