B-173665, JUL 13, 1972

B-173665, JUL 13, 1972

BID PROTEST - MANUFACTURER - DETERMINATION BY DEPARTMENT OF LABOR DECISION CLARIFYING DECISION OF APRIL 4, 1972, DENYING PROTEST AGAINST AWARD OF A CONTRACT BY THE DEFENSE SUPPLY AGENCY TO ANOTHER. DETERMINATION THAT A PROTESTANT IS NOT THE MANUFACTURER OF A PART OFFERED WITHIN THE WALSH-HEALEY PUBLIC CONTRACTS ACT, IS NOT WITHIN THE ADMINISTRATIVE PURVIEW OF GAO, BUT IS ONE FOR FINAL DETERMINATION BY THE DEPARTMENT OF LABOR. THE GAO DECISION OF APRIL 4, 1972, IN THIS MATTER MERELY ACKNOWLEDGED LABOR'S DECISION.

TO MR. NORVEL P. TYLER:

WE REFER TO YOUR LETTERS OF APRIL 6, 1972, IN WHICH YOU REQUEST CLARIFICATIONS OF OUR DECISION B-173665 DATED APRIL 4, 1972, DENYING YOUR PROTEST AGAINST THE AWARD OF CONTRACT NO. DSA-400-71-C-1027 BY THE DEFENSE SUPPLY AGENCY (DSA) UNDER REQUEST FOR PROPOSALS (RFP) NO. DSA 400-70-R- 5173 TO ANOTHER OFFEROR.

FIRST, YOU WOULD LIKE THE DECISION CLARIFIED WITH RESPECT TO OUR STATEMENT THAT YOUR FIRM INTENDED TO FURNISH PESCO PART NO. 189087-300 RATHER THAN YOUR OWN MANUFACTURED PART NO. 2500-124D, WHICH ADMITTEDLY CONTAINS COMPONENTS MANUFACTURED BY THE PESCO PRODUCTS DIVISION OF BORG WARNER CORPORATION. IN THIS REGARD, BEFORE THE RFP WAS AMENDED SO AS TO ALLOW THE PESCO AND TYCO PARTS TO BE OFFERED, YOUR FIRM HAD BEEN DISQUALIFIED BY DSA BECAUSE TYCO WOULD SUBCONTRACT 99.5% OF THE MANUFACTURING EFFORT" FOR THE PART IN QUESTION. HENCE, IT WAS CONCLUDED THAT TYCO WAS NOT THE MANUFACTURER OF THE PART OFFERED WITHIN THE CONTEMPLATION OF THE WALSH-HEALEY PUBLIC CONTRACTS ACT. UPON REVIEW, THIS DETERMINATION WAS CONCURRED IN BY THE DEPARTMENT OF LABOR. NOTWITHSTANDING THE FACTS AS YOU SEE THEM, THE RESPONSIBILITY FOR DETERMINING WHETHER OR NOT AN OFFEROR IS QUALIFIED AS A MANUFACTURER UNDER THE ACT RESTS IN THE FIRST INSTANCE WITH THE CONTRACTING AGENCY, SUBJECT TO REVIEW BY THE DEPARTMENT OF LABOR, WHICH IS CHARGED WITH ADMINISTRATION OF THE ACT. THE GENERAL ACCOUNTING OFFICE HAS NO ADMINISTRATIVE RESPONSIBILITIES UNDER THE ACT. B-172535, JUNE 21, 1971. WE MUST, THEREFORE, ACCEPT SUCH DETERMINATIONS MADE BY THE CONTRACTING OFFICER AND BY THE DEPARTMENT OF LABOR AND THE STATEMENT IN OUR DECISION CHALLENGED BY YOU WAS MERELY AN ACKNOWLEDGMENT OF THE DETERMINATION MADE BY THE CONTRACTING OFFICER AND CONCURRED IN BY THE DEPARTMENT OF LABOR.

YOU ALSO REQUEST THAT WE CLARIFY OUR REASONS FOR UPHOLDING THE CONTRACTING OFFICER'S DECISION TO ALLOW PESCO TO SUBMIT AN OFFER ON THE RFP AS AMENDED, IN VIEW OF OUR PRIOR DECISIONS WHICH YOU FEEL HELD THAT NEW OFFERS, REQUESTED AFTER AMENDMENT OF A SOLICITATION, MAY BE REQUESTED ONLY OF THOSE FIRMS HAVING SUBMITTED OFFERS UNDER THE ORIGINAL UNAMENDED SOLICITATION. OUR DECISION WAS BASED ON THE GROUNDS THAT WHEN A CHANGE IN PROCUREMENT NEEDS OCCURS WHICH IS OF SUCH SUBSTANTIVE NATURE AS TO PERMIT CANCELLATION OF THE ORIGINAL SOLICITATION AND ISSUANCE OF A NEW SOLICITATION, FIRMS OTHER THAN THOSE WHICH SUBMITTED OFFERS ORIGINALLY MAY BE PERMITTED TO RESPOND IF THE SOLICITATION IS APPROPRIATELY AMENDED IN LIEU OF CANCELLATION. SEE B 165933, AUGUST 26, 1969, COPY ENCLOSED. THE AMENDMENT INVOLVED IN OUR DECISION B-171724, MARCH 26, 1971, TO WHICH YOU REFER, DID NOT INVOLVE A SUBSTANTIVE CHANGE AND NO NEW PROPOSALS WERE ACCEPTED THEREUNDER. THEREFORE, THAT CASE AND THIS ARE DISTINGUISHABLE.

FINALLY, YOU QUESTION WHY WE STATED THAT NO OBJECTION WOULD BE TAKEN BY OUR OFFICE AS TO THE CONTRACTING OFFICER'S CONCLUSION THAT THE CHANGE (PART NUMBERS) WAS "SUBSTANTIAL." IN THE CONTEXT OF THAT PROCUREMENT WE HAD DOUBT WHETHER OUR OFFICE, IF IT WERE IN THE SAME POSITION, WOULD HAVE COME TO THE SAME CONCLUSION. BUT SINCE THE CONTRACTING OFFICER'S DECISION TO SOLICIT PESCO WAS ONE OF JUDGMENT MADE IN GOOD FAITH WHICH WAS NOT UNREASONABLE UNDER THE CIRCUMSTANCES, WE FELT THAT HIS JUDGMENT SHOULD NOT BE QUESTIONED.