B-173189, MAR 5, 1973

B-173189: Mar 5, 1973

Additional Materials:

Contact:

Shirley Jones
(202) 512-8156
jonessa@gao.gov

 

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

GAO DOES NOT HAVE AUTHORITY TO DETERMINE THE ACCURACY OF A FIRM'S CERTIFICATION THAT IT IS A REGULAR DEALER IN. THERE IS NO BASIS FOR REOPENING THIS CASE. YOU DID NOT ENCLOSE A COPY OF THE SF 33 ON WHICH YOUR CONTENTION IS BASED. WAS RETURNED TO THAT AGENCY ON AUGUST 4. WAS BASED ON OUR EXAMINATION OF THAT RFP AND C & M'S OFFER THEREUNDER. IN VIEW OF YOUR FAILURE TO SUBMIT A COPY OF THE SF 33 APPLICABLE TO C & M'S OFFER UNDER RFP-3842 WHICH YOU CONTEND YOU HAVE IN YOUR POSSESSION. WHEREIN C & M WAS REFERRED TO AS A DEALER IN THE MOTORS. OUR FILE SHOWS THAT ONLY ONE COPY OF SF 33 WAS RECEIVED FROM YOU. THAT COPY WAS FORWARDED HERE BY YOUR LETTER OF JANUARY 7. IT IS NOT ACTUALLY STATED THEREIN THAT C & M HAD REPRESENTED ITSELF AS A REGULAR DEALER ON THE SF 33 SUBMITTED WITH ITS OFFER UNDER RFP-3842.

B-173189, MAR 5, 1973

BID PROTEST - REQUEST TO REOPEN - REPRESENTATIONS AS REGULAR DEALER LETTER REGARDING THE DECISION OF AUGUST 4, 1972, B-173189, WHICH DENIED A PROTEST BY TYCO, INC., AND HELD THAT C&M PRODUCTS, INC., DID NOT REPRESENT ITSELF TO BE A REGULAR DEALER IN THE MOTORS OFFERED BY THAT FIRM UNDER AN RFP ISSUED BY THE DEFENSE SUPPLY AGENCY. THE CLASSIFICATIONS OF REGULAR DEALER AND MANUFACTURER IN PARAGRAPH 2 OF THE REVERSE OF STANDARD FORM 33 PERTAIN TO THE REQUIREMENTS OF THE WALSH- HEALEY PUBLIC CONTRACTS ACT, 41 U.S.C. 35-45, WHICH HAS APPLICATION TO GOVERNMENT SUPPLY CONTRACTS IN EXCESS OF $10,000, AND WOULD NOT BE APPLICABLE HERE. B-166285, NOVEMBER 26, 1969. FURTHER, GAO DOES NOT HAVE AUTHORITY TO DETERMINE THE ACCURACY OF A FIRM'S CERTIFICATION THAT IT IS A REGULAR DEALER IN, OR A MANUFACTURER OF, AN ITEM, AND SUCH DETERMINATIONS REST WITH THE CONTRACTING OFFICER SUBJECT TO REVIEW BY THE DEPARTMENT OF LABOR. ACCORDINGLY, THERE IS NO BASIS FOR REOPENING THIS CASE.

TO TYCO, INCORPORATED:

WE REFER TO YOUR LETTER OF FEBRUARY 16, 1973, WITH ENCLOSURE, WHEREIN YOU ASK THAT WE EXPLAIN THE STATEMENT IN OUR DECISION TO YOUR COMPANY OF AUGUST 4, 1972, B-173189, THAT C & M PRODUCTS, INCORPORATED, DID NOT REPRESENT ITSELF IN ITS PROPOSAL TO BE A REGULAR DEALER IN THE MOTORS OFFERED BY THAT FIRM UNDER REQUEST FOR PROPOSALS NO. DSA-400-71-R-3842 (RFP-3842).

YOU SAY THAT THE CONTRACTING OFFICER FURNISHED YOU A COPY OF THE REVERSE OF THE STANDARD FORM (SF) 33 EXECUTED BY C & M IN SUBMITTING ITS OFFER ON THE SUBJECT RFP, AND THAT IT SHOWS AN "X" IN THE "REGULAR DEALER" BLOCK OF PARAGRAPH 2. ALTHOUGH YOU ENCLOSED A COPY OF OUR DECISION OF AUGUST 4, YOU DID NOT ENCLOSE A COPY OF THE SF 33 ON WHICH YOUR CONTENTION IS BASED.

THE MATERIAL, INCLUDING C & M'S OFFER, WHICH THE DEFENSE SUPPLY AGENCY FURNISHED THIS OFFICE IN CONNECTION WITH YOUR ORIGINAL PROTEST, WAS RETURNED TO THAT AGENCY ON AUGUST 4, 1972. AS INDICATED IN THE FIRST PART OF THE SENTENCE IN OUR DECISION TO WHICH YOU REFER, OUR STATEMENT THAT C & M DID NOT REPRESENT ITSELF IN ITS OFFER UNDER RFP 3842 TO BE A REGULAR DEALER, WAS BASED ON OUR EXAMINATION OF THAT RFP AND C & M'S OFFER THEREUNDER. IN VIEW OF YOUR FAILURE TO SUBMIT A COPY OF THE SF 33 APPLICABLE TO C & M'S OFFER UNDER RFP-3842 WHICH YOU CONTEND YOU HAVE IN YOUR POSSESSION, WE DO NOT BELIEVE IT WOULD BE APPROPRIATE TO RECALL AND REINSPECT THE ORIGINAL RECORDS.

IN THIS CONNECTION, WE NOTE THAT ON AUGUST 9, 1972, AFTER RECEIPT OF THE AUGUST 4 DECISION, YOU TOOK EXCEPTION TO THE SAME STATEMENT IN OUR DECISION AND CITED THE CONTRACTING OFFICER'S LETTER TO YOU OF MARCH 22, 1971, WHEREIN C & M WAS REFERRED TO AS A DEALER IN THE MOTORS. YOU ALSO STATED THAT YOU HAD FURNISHED THIS OFFICE COPIES OF THE SF 33S FOR RFPS- 3842 AND -5377 AND THAT C & M HAD REPRESENTED ITSELF THEREIN AS A REGULAR DEALER IN THE MOTORS. CONTRARY TO YOUR ALLEGATION, OUR FILE SHOWS THAT ONLY ONE COPY OF SF 33 WAS RECEIVED FROM YOU. THAT COPY WAS FORWARDED HERE BY YOUR LETTER OF JANUARY 7, 1972, AND IT PERTAINS TO RFP-5377, RATHER THAN TO RFP-3842.

REGARDING THE CONTRACTING OFFICER'S LETTER TO YOU OF MARCH 22, 1971, IT IS NOT ACTUALLY STATED THEREIN THAT C & M HAD REPRESENTED ITSELF AS A REGULAR DEALER ON THE SF 33 SUBMITTED WITH ITS OFFER UNDER RFP-3842. THE OTHER HAND, HIS SUBSEQUENT REPORT OF JUNE 23, 1971, CONTAINS SPECIFIC STATEMENTS IN SUCH RESPECT. A COPY OF THIS REPORT WAS FURNISHED YOU BY OUR LETTER OF SEPTEMBER 21, 1971, IN RESPONSE TO YOUR REQUEST OF SEPTEMBER 13, 1971. PARAGRAPH 1 OF THE REPORT EXPLAINS THAT IT IS SUBMITTED TO SET FORTH THE FACTS AND CIRCUMSTANCES PERTINENT TO YOUR PROTEST UNDER RFP- 3842. IN PARAGRAPH 6 OF THE REPORT, THE CONTRACTING OFFICER STATES THAT C & M "DID NOT COMPLETE THE REPRESENTATION CONCERNING WHETHER IT WAS A REGULAR DEALER OR MANUFACTURER OF THE SUPPLIES OFFERED." IT IS AGAIN STATED IN PARAGRAPH 7 THAT C & M HAD MADE "NO REPRESENTATION CONCERNING ITS STATUS AS A DEALER."

IRRESPECTIVE OF WHETHER C & M DID, OR DID NOT, REPRESENT ITSELF AS A REGULAR DEALER IN ITS OFFER UNDER RFP-3842, WE DO NOT CONSIDER ANY REPRESENTATIONS, OR LACK OF REPRESENTATIONS, IN PARAGRAPH 2 OF C & M'S SF 33 ON THAT RFP TO BE A RELEVANT FACTOR IN DETERMINING THE PROPRIETY OF THE CONTRACTING OFFICER'S ACTION IN AWARDING THE SUBJECT CONTRACT TO C & M, THE LOW OFFEROR. PARAGRAPH 2 OF THE REVERSE OF SF 33 SPECIFICALLY STATES THAT IT IS APPLICABLE ONLY TO SUPPLY CONTRACTS EXCEEDING $10,000. SINCE THE CONTRACT AWARDED PURSUANT TO RFP-3842 WAS IN THE TOTAL AMOUNT OF $4,561.65, THERE WAS NO REQUIREMENT FOR THE CONTRACTING OFFICER TO CONSIDER THE REPRESENTATIONS, OR ABSENCE OF REPRESENTATIONS, IN PARAGRAPH 2 IN MAKING THAT AWARD. THIS VIEW ALSO APPLIES TO C & M'S REPRESENTATION THAT IT WAS A REGULAR DEALER IN PARAGRAPH 2 OF THE SF 33 SUBMITTED BY THAT FIRM UNDER RFP-5377 WHICH WAS AWARDED IN A LESSER AMOUNT.

AS YOU WERE ADVISED IN THE DECISION OF AUGUST 4, 1972, AND OUR PRIOR DECISION TO YOU OF NOVEMBER 26, 1969, B-166285, THE CLASSIFICATIONS OF REGULAR DEALER AND MANUFACTURER IN PARAGRAPH 2 OF THE REVERSE OF SF 33 PERTAIN TO THE REQUIREMENTS OF THE WALSH-HEALEY PUBLIC CONTRACTS ACT, 41 U.S.C. 35-45, WHICH HAS APPLICATION TO GOVERNMENT SUPPLY CONTRACTS IN EXCESS OF $10,000, WITH CERTAIN EXCEPTIONS NOT HERE INVOLVED. AS ALSO WAS INDICATED IN B-166285, SUPRA, OUR OFFICE DOES NOT CONSIDER THAT IT HAS AUTHORITY TO DETERMINE THE ACCURACY OF A FIRM'S CERTIFICATION THAT IT IS A REGULAR DEALER IN, OR A MANUFACTURER OF, AN ITEM, AND SUCH DETERMINATIONS REST WITH THE CONTRACTING OFFICER SUBJECT TO THE REVIEW OF DEPARTMENT OF LABOR WHICH HAS THE FINAL AUTHORITY.

ACCORDINGLY, EVEN IF C & M HAD INACCURATELY REPRESENTED ITSELF AS A REGULAR DEALER IN ITS OFFER UNDER RFP-3842, AS YOU CONTEND, SUCH FACTOR WOULD NOT PROVIDE A BASIS FOR THIS OFFICE TO OBJECT TO THE AWARDING OF THE CONTRACT TO C & M. YOUR REQUEST THAT WE REOPEN THE CASE IS THEREFORE DENIED.