B-182748, DEC 27, 1974

B-182748: Dec 27, 1974

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ISSUES RAISED RELATING TO ADMINISTRATION OF WALSH-HEALEY PUBLIC CONTRACTS ACT ARE NOT FOR CONSIDERATION BY OUR OFFICE SINCE THEY CONCERN MATTERS OVER WHICH DEPARTMENT OF LABOR HAS STATUTORY JURISDICTION SUBJECT TO JUDICIAL REVIEW. A RESURVEY WAS REQUESTED BY THE PROCURING ACTIVITY AND THE RESURVEY REPORT REACHED THE SAME CONCLUSION CONCERNING ASTRODYNE'S FAILURE TO QUALIFY AS A MANUFACTURER. WE HAVE BEEN INFORMALLY ADVISED BY DSA THAT THE CONTRACTING OFFICER HAS DECLINED TO MAKE A DETERMINATION CONCERNING THE ELIGIBILITY OF ASTRODYNE FOR AWARD UNDER THE ABOVE-REFERENCED IFB. THE CONTRACTING OFFICER IS IN THE PROCESS OF FORWARDING ALL PERTINENT DATA TO THE DEPARTMENT OF LABOR (DOL) TO ENABLE DOL TO MAKE A DETERMINATION AS TO WHETHER ASTRODYNE MAY PROPERLY BE CONSIDERED A MANUFACTURER UNDER THE PROVISIONS OF THE WALSH HEALEY ACT AND ITS IMPLEMENTING REGULATIONS.

B-182748, DEC 27, 1974

ISSUES RAISED RELATING TO ADMINISTRATION OF WALSH-HEALEY PUBLIC CONTRACTS ACT ARE NOT FOR CONSIDERATION BY OUR OFFICE SINCE THEY CONCERN MATTERS OVER WHICH DEPARTMENT OF LABOR HAS STATUTORY JURISDICTION SUBJECT TO JUDICIAL REVIEW.

ASTRODYNE, INC.:

THE DEFENSE CONTRACT ADMINISTRATION SERVICES DISTRICT, GARDEN CITY, NEW YORK, CONDUCTED A PREAWARD SURVEY OF ASTRODYNE, INC. (ASTRODYNE), THE LOW BIDDER UNDER DEFENSE SUPPLY AGENCY (DSA) INVITATION FOR BIDS (IFB) DSA 400 -75-B-0115. THE REPORT RECOMMENDED THAT NO AWARD BE MADE TO ASTRODYNE ON THE BASIS THAT ASTRODYNE DID NOT QUALIFY AS A MANUFACTURER UNDER THE WALSH -HEALEY PUBLIC CONTRACTS ACT, 41 U.S.C. SEC. 35-45 (1970). A RESURVEY WAS REQUESTED BY THE PROCURING ACTIVITY AND THE RESURVEY REPORT REACHED THE SAME CONCLUSION CONCERNING ASTRODYNE'S FAILURE TO QUALIFY AS A MANUFACTURER. WE HAVE BEEN INFORMALLY ADVISED BY DSA THAT THE CONTRACTING OFFICER HAS DECLINED TO MAKE A DETERMINATION CONCERNING THE ELIGIBILITY OF ASTRODYNE FOR AWARD UNDER THE ABOVE-REFERENCED IFB. RATHER, THE CONTRACTING OFFICER IS IN THE PROCESS OF FORWARDING ALL PERTINENT DATA TO THE DEPARTMENT OF LABOR (DOL) TO ENABLE DOL TO MAKE A DETERMINATION AS TO WHETHER ASTRODYNE MAY PROPERLY BE CONSIDERED A MANUFACTURER UNDER THE PROVISIONS OF THE WALSH HEALEY ACT AND ITS IMPLEMENTING REGULATIONS.

ASTRODYNE CONTENDS THAT (1) THE GOVERNMENT ENFORCES THE PROVISIONS OF THE WALSH-HEALEY ACT IN A DISCRIMINATORY MANNER; (2) THAT THE GOVERNMENT USES ITS UNLIMITED RESOURCES TO DISCOURAGE CONTRACTORS FROM SEEKING REDRESS OF GRIEVANCES CAUSED BY THE APPLICATION OF THE PROVISIONS OF THE WALSH-HEALEY ACT; AND (3) THAT THE GOVERNMENT, THROUGH ITS APPLICATION OF THE WALSH- HEALEY ACT IS CLEARLY OPERATING IN A MANNER DETRIMENTAL TO ITS OWN BEST INTEREST.

IT SHOULD BE NOTED THAT THE ISSUES RAISED BY ASTRODYNE RELATE TO THE ADMINISTRATION OF THE PROVISIONS OF THE WALSH-HEALEY ACT AND ITS IMPLEMENTING REGULATIONS, AND, AS SUCH, ARE NOT WITHIN THE JURISDICTION OF OUR OFFICE. THE WALSH-HEALEY ACT PROVIDES THAT, WITH CERTAIN EXCEPTIONS NOT HERE MATERIAL, EVERY CONTRACT EXCEEDING $10,000 IN AMOUNT ENTERED INTO BY ANY GOVERNMENT AGENCY FOR THE PROCUREMENT OF SUPPLIES SHALL CONTAIN A STIPULATION THAT THE CONTRACTOR IS A MANUFACTURER OF OR REGULAR DEALER IN SUCH SUPPLIES. THE ACT PLACES NO RESPONSIBILITY OR AUTHORITY IN OUR OFFICE RESPECTING THE ADMINISTRATION OF THE ACT. THE RESPONSIBILITY OF ADMINISTERING THE PROVISIONS OF THE ACT AND THE AUTHORITY TO PRESCRIBE RULES AND REGULATIONS, TO CONDUCT HEARINGS, AND TO MAKE FINDINGS OF FACT AND DECISIONS THEREON NECESSARY TO ENFORCE THE PROVISIONS OF THE ACT ARE PLACED SPECIALLY IN THE SECRETARY OF LABOR.

FURTHER, SECTION 5 OF THE WALSH-HEALEY ACT, 41 U.S.C. SEC. 39 (1970) PROVIDES FOR A HEARING BY THE SECRETARY OF LABOR, OR A REPRESENTATIVE DESIGNATED BY HIM, FOR "ANY PERSON AFFECTED BY ANY RULING OF ANY AGENCY OF THE UNITED STATES IN RELATION TO ANY PROPOSAL OR CONTRACT INVOLVING THE PROVISIONS" OF THE ACT. ADDITIONALLY, SECTION 10(C) OF THE ACT, 41 U.S.C. SEC. 43AC), PROVIDES THAT "ANY INTERESTED PERSON SHALL HAVE THE RIGHT OF JUDICIAL REVIEW OF ANY LEGAL QUESTION WHICH MIGHT OTHERWISE BE RAISED, INCLUDING, BUT NOT LIMITED TO *** THE INTERPRETATION OF *** MANUFACTURER." MATTER OF SOLAR LABORATORIES, B-179795 ET AL., APRIL 3, 1974. SEE ALSO CITY CHEMICAL CORPORATION V. SHREFFLER, 333 F. SUPP. 46 (1971).

IN VIEW OF THE FOREGOING, NO FURTHER ACTION WILL BE TAKEN BY OUR OFFICE IN CONNECTION WITH THE ASTRODYNE PROTEST.