B-185587, FEB 11, 1976

B-185587, FEB 11, 1976

NO JURISDICTION EXISTS FOR CONSIDERING FIRM'S PROTEST AGAINST DETERMINATION BY CONTRACTING OFFICER THAT IT DID NOT QUALIFY AS "MANUFACTURER" UNDER WALSH-HEALEY PUBLIC CONTRACTS ACT SINCE RESPONSIBILITY FOR DETERMINING WHETHER BIDDER SO QUALIFIES RESTS IN FIRST INSTANCE WITH CONTRACTING OFFICER, SUBJECT TO REVIEW BY DEPARTMENT OF

LABOR.

SHOCKET SALES COMPANY:

SHOCKET SALES COMPANY PROTESTS THE DETERMINATION OF THE CONTRACTING OFFICER THAT IT DID NOT QUALIFY AS A MANUFACTURER WITHIN THE MEANING OF THE WALSH-HEALEY PUBLIC CONTRACTS ACT (41 U.S.C. SECS. 35-45 (1970)) UNDER INVITATION FOR BIDS NO. DSA400-76-B-1065, ISSUED BY THE DEFENSE GENERAL SUPPLY CENTER, AND THE CONSEQUENT REJECTION OF ITS BID.

IN IMPLEMENTATION OF THE ACT, THE DEPARTMENT OF LABOR (WHICH HAS THE RESPONSIBILITY OF ADMINISTERING THE ACT) HAS PUBLISHED THE "WALSH HEALEY PUBLIC CONTRACTS ACT RULINGS AND INTERPRETATIONS NO. 3," SECTION 29 OF WHICH PROVIDES:

"THE RESPONSIBILITY OF DETERMINING WHETHER OR NOT A BIDDER IS QUALIFIED AS A MANUFACTURER *** 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."

OUR OFFICE IS NOT AUTHORIZED TO REVIEW DETERMINATIONS AS TO WHETHER PARTICULAR FIRMS ARE MANUFACTURERS WITHIN THE PURVIEW OF THE WALSH HEALEY ACT. TRAND ADVERTISING COMPANY, B-182212, FEBRUARY 19, 1975, 75-1 CPD 101.

CONSEQUENTLY, WE MAY NOT ACCEPT JURISDICTION IN THIS MATTER AND MUST DECLINE TO CONSIDER THE CASE ON ITS MERITS.