B-173033, JUL 16, 1971

B-173033: Jul 16, 1971

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

ON A CONTRACT UNDER IFB ISSUED BY GENERAL SERVICES ADMINISTRATION IS NOT A "REGULAR DEALER" UNDER THE WALSH HEALEY PUBLIC CONTRACT ACT OF JUNE 30. 1936 (41 U.S.C. 35-45) IS NOT WITHIN THE JURISDICTION OF THE COMPTROLLER GENERAL AND MUST BE DETERMINED BY THE SECRETARY OF LABOR. TO MASTER PAD AND PAPER CORPORATION: WE ARE IN RECEIPT OF YOUR LETTER DATED MAY 28. WITH REGARD TO YOUR ALLEGATION THAT OVERSEAS PULP AND PAPER CORPORATION IS NOT ENTITLED TO BE DESIGNATED AS A "REGULAR DEALER" UNDER THE PROVISIONS OF THE WALSH-HEALEY PUBLIC CONTRACTS ACT OF JUNE 30. " 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.

B-173033, JUL 16, 1971

BID PROTEST - BID RESPONSIVENESS - "REGULAR DEALER" UNDER WALSH-HEALEY PUBLIC CONTRACT ACT THE VALIDITY OF PROTESTANT'S ALLEGATION THAT OTHER BIDDER, OVERSEAS PULP AND PAPER CORPORATION, ON A CONTRACT UNDER IFB ISSUED BY GENERAL SERVICES ADMINISTRATION IS NOT A "REGULAR DEALER" UNDER THE WALSH HEALEY PUBLIC CONTRACT ACT OF JUNE 30, 1936 (41 U.S.C. 35-45) IS NOT WITHIN THE JURISDICTION OF THE COMPTROLLER GENERAL AND MUST BE DETERMINED BY THE SECRETARY OF LABOR. COPY OF DECISION SENT TO GENERAL COUNSEL FOR GSA.

TO MASTER PAD AND PAPER CORPORATION:

WE ARE IN RECEIPT OF YOUR LETTER DATED MAY 28, 1971, IN WHICH YOU PARTIALLY WITHDRAW YOUR PROTEST INSOFAR AS IT RELATES TO THE RESPONSIVENESS OF OTHER BIDDERS TO INVITATION FOR BIDS (IFB) FPNSP-FZ 10840A ISSUED BY THE GENERAL SERVICES ADMINISTRATION, WASHINGTON, D.C.

WITH REGARD TO YOUR ALLEGATION THAT OVERSEAS PULP AND PAPER CORPORATION IS NOT ENTITLED TO BE DESIGNATED AS A "REGULAR DEALER" UNDER THE PROVISIONS OF THE WALSH-HEALEY PUBLIC CONTRACTS ACT OF JUNE 30, 1936 (41 U.S.C. 35-45) AND THE FEDERAL PROCUREMENT REGULATIONS (FPR) 1-12.6, THIS MUST BE DETERMINED BY THE SECRETARY OF LABOR.

THE ACT AUTHORIZES THE SECRETARY OF LABOR TO ADMINISTER ITS PROVISIONS AND ISSUE RULES AND REGULATIONS THEREUNDER. SECTION 29 OF THE "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-161933, OCTOBER 20, 1967, THIS OFFICE STATED IN PART AS FOLLOWS:

"OUR OFFICE DOES NOT HAVE JURISDICTION TO REVIEW DETERMINATIONS AS TO WHETHER PARTICULAR FIRMS ARE REGULAR DEALERS OR MANUFACTURERS. B 147620, JANUARY 22, 1962."

SINCE THE MATTER IS NOT WITHIN OUR JURISDICTION BUT IS FOR DETERMINATION BY THE CONTRACTING AGENCY SUBJECT TO REVIEW BY THE DEPARTMENT OF LABOR, WE WILL TAKE NO FURTHER ACTION ON THE PROTEST.