B-132832, SEP. 25, 1957

B-132832: Sep 25, 1957

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INC.: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 5. SEVEN BIDS WERE RECEIVED. WAS THE LOWEST RECEIVED. THE PREAWARD SURVEY INDICATES THAT YOU ARE NOT A FRANCHISED DISTRIBUTOR OR AGENT OF ANY MANUFACTURER OF CONSTRUCTION MACHINERY. THAT SALES OF SUCH EQUIPMENT CONSTITUTE LESS THAN ONE PERCENT OF YOUR TOTAL BUSINESS AND THAT ALL SUCH DELIVERIES WERE MADE DIRECT FROM THE MANUFACTURER'S PLANT. OR EQUIPMENT OF THE GENERAL CHARACTER DESCRIBED BY THE SPECIFICATIONS AND REQUIRED UNDER THE CONTRACT ARE BOUGHT. HAVE RECOGNIZED THAT THE FUNCTION OF DETERMINING WHO IS A REGULAR DEALER IN A NEEDED ARTICLE OR COMMODITY IS PRIMARILY THAT OF THE INTERESTED GOVERNMENT CONTRACTING AGENCY WHOSE OVERALL RESPONSIBILITY IN A MATTER SUCH AS THIS INCLUDES THE DETERMINATION OF THE BIDDER'S FINANCIAL RESPONSIBILITY.

B-132832, SEP. 25, 1957

TO MANHATTAN LIGHTING EQUIPMENT CO., INC.:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 5, 1957, WITH ENCLOSURES, PROTESTING AGAINST ALLEGED UNFAIR TREATMENT ACCORDED TO YOU BY THE UNITED STATES ARMY ENGINEER DISTRICT, PHILADELPHIA, PENNSYLVANIA, IN CONNECTION WITH THE PROCUREMENT OF CERTAIN SUPPLIES.

THE DEPARTMENT OF THE ARMY HAS NOW FURNISHED US A COMPLETE REPORT IN THE MATTER, WHICH, IN SUBSTANCE, INDICATES THE FOLLOWING:

INVITATION NO. CIVENG-36-109-58-6, ISSUED BY THE UNITED STATES ARMY ENGINEER DISTRICT, PHILADELPHIA, PENNSYLVANIA, REQUESTED BIDS FOR A ONE- HALF CUBIC YARD CAPACITY DRAGLINE BUCKET, IN ACCORDANCE WITH MILITARY SPECIFICATION MIL-B-16029B, DATED MARCH 2, 1953, WITH CERTAIN CLARIFICATIONS AND DELETIONS NOTED. IN RESPONSE, SEVEN BIDS WERE RECEIVED. YOUR BID OF JULY 24, 1957, WAS THE LOWEST RECEIVED. ON JULY 30, 1957, THE DISTRICT ENGINEER, NEW YORK DISTRICT, DEPARTMENT OF THE ARMY, PERFORMED A PREAWARD SURVEY OF YOUR COMPANY. THE PREAWARD SURVEY INDICATES THAT YOU ARE NOT A FRANCHISED DISTRIBUTOR OR AGENT OF ANY MANUFACTURER OF CONSTRUCTION MACHINERY, THAT YOU DO NOT STOCK SUCH EQUIPMENT, THAT SALES OF SUCH EQUIPMENT CONSTITUTE LESS THAN ONE PERCENT OF YOUR TOTAL BUSINESS AND THAT ALL SUCH DELIVERIES WERE MADE DIRECT FROM THE MANUFACTURER'S PLANT. THE CONTRACTING OFFICER DETERMINED THAT YOU DID NOT QUALIFY AS A SOURCE OF SUPPLY AS DEFINED UNDER ARMED SERVICES PROCUREMENT REGULATIONS.

SECTION 1.201-9/A) (1) OF THE REGULATIONS DEFINES A "REGULAR DEALER" TO BE:

"A PERSON OR FIRM WHO OWNS, OPERATES, OR MAINTAINS A STORE, WAREHOUSE OR OTHER ESTABLISHMENT IN WHICH THE MATERIALS, SUPPLIES, ARTICLES, OR EQUIPMENT OF THE GENERAL CHARACTER DESCRIBED BY THE SPECIFICATIONS AND REQUIRED UNDER THE CONTRACT ARE BOUGHT, KEPT IN STOCK, AND SOLD TO THE PUBLIC IN THE USUAL COURSE OF BUSINESS.'

ALSO, THE REGULATIONS DEFINE A "RESPONSIBLE PROSPECTIVE CONTRACTOR" AS "A MANUFACTURER, CONSTRUCTION CONTRACTOR, OR REGULAR DEALER IF THE CONTRACT OR ORDER CALLS FOR SUPPLIES.'

IN INTERPRETING THE ABOVE OR SIMILAR REGULATIONS, THE COURTS AS WELL AS OUR OFFICE, HAVE RECOGNIZED THAT THE FUNCTION OF DETERMINING WHO IS A REGULAR DEALER IN A NEEDED ARTICLE OR COMMODITY IS PRIMARILY THAT OF THE INTERESTED GOVERNMENT CONTRACTING AGENCY WHOSE OVERALL RESPONSIBILITY IN A MATTER SUCH AS THIS INCLUDES THE DETERMINATION OF THE BIDDER'S FINANCIAL RESPONSIBILITY, JUDGMENT, SKILL, INTEGRITY, EXPERIENCE, AND HIS CAPACITY TO SATISFACTORILY PERFORM A PROPOSED CONTRACT. SEE O-BRIEN V. CARNEY, 6 F.SUPP. 761; 14 COMP. GEN. 305; ID. 313; 33 ID. 441; 34 ID. 86.

IN THE CIRCUMSTANCES, THERE APPEARS NO LEGAL BASIS FOR DISAGREEING WITH THE ADMINISTRATIVE ACTION TAKEN IN THE MATTER.

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