B-172535, JUN 21, 1971
Highlights
WHETHER ALPINE IS A JOBBER. WHICH IS CHARGED WITH ENFORCEMENT OF THE LAW. WHICH IS RESTRICTED TO SMALL BUSINESS CONCERNS. THE FOUR LOWEST BIDS RECEIVED WERE AS FOLLOWS: BIDDER UNIT PRICE MKB MANUFACTURING CORP. $5.94 ALPINE MANUFACTURING CO. INC. 8.63 THE CONTRACTING OFFICER HAS ADVISED THAT MKB WAS REQUESTED TO VERIFY ITS LOW BID. NO AWARD TO MKB IS CONTEMPLATED. YOU PROTEST AGAINST AN AWARD TO ALPINE ON THE BASIS THAT IT IS A JOBBER OR BROKER AND IS THEREFORE IN VIOLATION OF THE WALSH-HEALEY PUBLIC CONTRACTS ACT. ALPINE HAS REPRESENTED IN ITS BID THAT IT IS THE "MANUFACTURER" OF THE SUPPLIES OFFERED. THE CONTRACTING AGENCY HAS REPORTED THAT A COMPLETE PREAWARD SURVEY ON ALPINE HAS BEEN REQUESTED AND THAT THE DEPARTMENT OF LABOR WILL BE REQUESTED TO RENDER A FINAL DECISION ON ALPINE'S ELIGIBILITY UNDER THE WALSH-HEALEY ACT.
B-172535, JUN 21, 1971
BID PROTEST - WALSH HEALY PUBLIC CONTRACT ACT - QUALIFIED MANUFACTURER DECISION DENYING PROTEST OF GRAMERCY MACHINE CORP., THIRD LOW BIDDER, AGAINST AWARD OF CONTRACT TO ALPINE MANUFACTURING CO., INC., SECOND LOW BIDDER, UNDER SOLICITATION ISSUED BY ROCK ISLAND ARSENAL, U.S. ARMY FOR GAS ASSEMBLY CYLINDERS FOR .30 CALIBER RIFLE. THE DECISION, WHETHER ALPINE IS A JOBBER, AS ALLEGED BY PROTESTANT, AND, THEREFORE, NOT QUALIFIED AS A MANUFACTURER UNDER THE WALSH-HEALEY PUBLIC CONTRACTS ACT RESTS IN THE FIRST INSTANCE WITH THE CONTRACTING AGENCY. REVIEW OF ANY DECISION BY SUCH AGENCY MUST BE PURSUED WITH THE DEPARTMENT OF LABOR, WHICH IS CHARGED WITH ENFORCEMENT OF THE LAW, AND NOT WITH GAO.
TO GRAMERCY MACHINE CORPORATION:
WE REFER TO THE COPY OF YOUR LETTER OF APRIL 1, 1971, TO THE CONTRACTING OFFICER, PROTESTING AGAINST THE AWARD OF A CONTRACT TO EITHER MKB MANUFACTURING CORP. OR ALPINE MANUFACTURING CO., INC., UNDER SOLICITATION NO. DAAF01-71-B-0559, ISSUED BY THE ROCK ISLAND ARSENAL, U.S. ARMY.
THE PRESENT SOLICITATION, WHICH IS RESTRICTED TO SMALL BUSINESS CONCERNS, COVERS THE PROCUREMENT OF GAS ASSEMBLY CYLINDERS FOR THE .30 CALIBER M1918A2 RIFLE. THE FOUR LOWEST BIDS RECEIVED WERE AS FOLLOWS:
BIDDER UNIT PRICE
MKB MANUFACTURING CORP. $5.94
ALPINE MANUFACTURING CO., INC. 7.80
GRAMERCY MACHINE CORPORATION 8.60
MILO COMPONENTS, INC. 8.63
THE CONTRACTING OFFICER HAS ADVISED THAT MKB WAS REQUESTED TO VERIFY ITS LOW BID, BUT THAT INSTEAD OF CONFIRMING THE BID, IT ALLOWED THE BID TO EXPIRE. ACCORDINGLY, NO AWARD TO MKB IS CONTEMPLATED.
YOU PROTEST AGAINST AN AWARD TO ALPINE ON THE BASIS THAT IT IS A JOBBER OR BROKER AND IS THEREFORE IN VIOLATION OF THE WALSH-HEALEY PUBLIC CONTRACTS ACT, 41 U.S.C. 35-45, AND THE COVENANT AGAINST CONTINGENT FEES.
ALPINE HAS REPRESENTED IN ITS BID THAT IT IS THE "MANUFACTURER" OF THE SUPPLIES OFFERED. THE CONTRACTING AGENCY HAS REPORTED THAT A COMPLETE PREAWARD SURVEY ON ALPINE HAS BEEN REQUESTED AND THAT THE DEPARTMENT OF LABOR WILL BE REQUESTED TO RENDER A FINAL DECISION ON ALPINE'S ELIGIBILITY UNDER THE WALSH-HEALEY ACT. IN THAT REGARD, THE RESPONSIBILITY FOR DETERMINING WHETHER OR NOT A BIDDER IS QUALIFIED AS A MANUFACTURER OR AS A REGULAR DEALER UNDER THE ACT RESTS IN THE FIRST INSTANCE WITH THE CONTRACTING AGENCY. ANY DECISION WHICH THE CONTRACTING OFFICER MIGHT MAKE IS THEN SUBJECT TO REVIEW BY THE DEPARTMENT OF LABOR, WHICH IS CHARGED WITH ADMINISTRATION OF THE ACT, AND NOT BY THE GENERAL ACCOUNTING OFFICE. 41 U.S.C. 38; B-167396, AUGUST 28, 1969.
OF COURSE, A DETERMINATION BY THE DEPARTMENT OF LABOR THAT ALPINE IS A MANUFACTURER AS REPRESENTED IN ITS BID WOULD SERVE TO DISPROVE YOUR CONTENTION THAT ALPINE IS A JOBBER OR BROKER.
IN THE CIRCUMSTANCES, YOU MAY WISH TO PURSUE THE MATTER WITH THE DEPARTMENT OF LABOR.