B-140186, DEC. 31, 1959

B-140186, DEC. 31, 1959

TO TRIO-TECH COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 20, 1959, WITH ENCLOSURES--- YOUR REFERENCE TT-NAV-59010--- REQUESTING RECONSIDERATION OF OUR DECISION DATED SEPTEMBER 1, 1959, WHEREIN WE ADVISED YOU THAT A DETERMINATION AS TO A BIDDER'S QUALIFICATIONS AS A MANUFACTURER IS BY LAW AND REGULATION THE RESPONSIBILITY OF THE CONTRACTING OFFICER, SUBJECT TO REVIEW BY THE DEPARTMENT OF LABOR, WHICH HAS THE FINAL AUTHORITY. WE ADVISED YOU FURTHER THAT NO LEGAL BASIS HAD BEEN PRESENTED UPON WHICH OUR OFFICE MIGHT QUESTION THE VALIDITY OF THE AWARD MADE IN THIS CASE.

NOTWITHSTANDING THE ADVICE GIVEN YOU IN THE LETTER OF SEPTEMBER 1, 1959, YOU REQUEST RECONSIDERATION ON THE BASIS OF YOUR BELIEF THAT ALL OF THE FACTS AND INFORMATION WERE NOT AVAILABLE TO US WHEN THE DECISION WAS RENDERED. IT IS ALLEGED BY YOU, AMONG OTHER THINGS, THAT YOUR COMPANY HAD MADE ALL PRIOR ARRANGEMENTS FOR SPACE, EQUIPMENT AND PERSONNEL WHICH WOULD ENABLE YOU TO PERFORM THE MANUFACTURING OPERATION REQUIRED FOR CONTRACT PERFORMANCE, AND THAT THE PAST EXPERIENCE OF YOUR PERSONNEL ADEQUATELY QUALIFIED THEM TO FULFILL ANY TECHNICAL REQUIREMENTS FOR ENGINEERING A PROGRAM OF THIS NATURE. IN VIEW THEREOF, YOU EXPRESSED THE VIEW THAT THE PROCURING ACTIVITY SHOULD HAVE CONTACTED THE SMALL BUSINESS ADMINISTRATION AND YOUR COMPANY IN ORDER TO DETERMINE THAT YOU WERE A RESPONSIBLE BIDDER, AND THAT HAD THE PROCUREMENT OFFICER EVALUATED THE BIDS ADEQUATELY AND REQUESTED VERIFICATION BY YOUR COMPANY AS A RESPONSIBLE BIDDER, A CERTIFICATE OF COMPETENCY COULD HAVE BEEN ISSUED AS CONCLUSIVE EVIDENCE OF YOUR CAPABILITY.

YOUR LETTER APPEARS TO EVIDENCE A MISUNDERSTANDING OF THE SCOPE AND EFFECT OF A CERTIFICATE OF COMPETENCY ISSUED BY THE SMALL BUSINESS ADMINISTRATION. SUCH A CERTIFICATE RELATES TO A BIDDER'S COMPETENCY, AS TO CAPACITY AND CREDIT, TO PERFORM A SPECIFIC CONTRACT. AS TO THESE ASPECTS OF A BIDDER'S COMPETENCY, THE DETERMINATION OF THE SMALL BUSINESS ADMINISTRATION IS CONCLUSIVE UPON FEDERAL PROCUREMENT OFFICIALS. APPEARS TO BE YOUR BELIEF THAT AWARD WOULD HAVE BEEN REQUIRED TO BE MADE TO YOU IF THE SMALL BUSINESS ADMINISTRATION HAD ISSUED A CERTIFICATE OF COMPETENCY.

THIS IS NOT THE CASE. AS WAS INDICATED IN OUR DECISION OF SEPTEMBER 1, 1959, A DETERMINATION OF RESPONSIBILITY UNDER SECTIONS 1-902 AND 1 903 OF THE ARMED SERVICES PROCUREMENT REGULATION INVOLVES MATTERS OTHER THAN CAPACITY AND CREDIT. ONE OTHER REQUIREMENT UNDER THOSE SECTIONS IS THAT AN ELIGIBLE BIDDER MUST BE A MANUFACTURER OF, OR A REGULAR DEALER IN, THE SUPPLIES TO BE FURNISHED. THIS REQUIREMENT IS SEPARATE FROM CONSIDERATIONS OF A BIDDER'S CAPACITY OR CREDIT, AND IS IMPOSED BY THE WALSH-HEALEY ACT, 41 U.S.C. 35, UPON ALL SUPPLY CONTRACTS EXCEEDING $10,000. THE CONTRACTING OFFICER DETERMINED, IN YOUR CASE, THAT YOU DID NOT QUALIFY AS A MANUFACTURER WITHIN THE MEANING OF THE WALSH-HEALEY ACT AS CONSTRUED BY SECTION 1-201.9 (B) (I) (B) OF THE ARMED SERVICES PROCUREMENT REGULATION. HIS DETERMINATION ON THIS QUESTION WAS REVIEWABLE, NOT BY THE SMALL BUSINESS ADMINISTRATION NOR THE GENERAL ACCOUNTING OFFICE, BUT BY THE DEPARTMENT OF LABOR, WHICH HAS FINAL AUTHORITY IN SUCH MATTERS.

AS YOU WERE ADVISED IN OUR LETTER OF SEPTEMBER 1, 1959, AND IN THE LETTER OF OCTOBER 22, 1959, FROM THE DEPARTMENT OF LABOR, THE CONTRACTING AGENCY HAS THE RESPONSIBILITY FOR DETERMINING INITIALLY WHETHER OR NOT A BIDDER QUALIFIES AS A MANUFACTURER UNDER THE WALSH HEALEY ACT. ITS DECISION IS SUBJECT TO REVIEW BY THE DEPARTMENT OF LABOR. IN THE INSTANT CASE, NO REVIEW BY THAT AGENCY APPEARS TO HAVE BEEN REQUESTED PRIOR TO AWARD. SUCH CIRCUMSTANCES, AS WE STATED IN OUR LETTER OF SEPTEMBER 1, 1959, WE CANNOT QUESTION THE VALIDITY OF THE AWARD MADE.

WE DID NOT ADVISE YOU IN OUR LETTER TO CONTACT THE DEPARTMENT OF LABOR, BUT MERELY INFORMED YOU OF THE STATUTORY AUTHORITY VESTED IN THAT DEPARTMENT. NOR DO WE AGREE THAT ITS LETTER TO YOU OF OCTOBER 22, 1959, STATED THERE WAS NOTHING THEY COULD DO IN VIEW OF OUR DECISION. WHILE THE LABOR DEPARTMENT LETTER DOES NOT SPECIFICALLY SO STATE, IT APPEARS THAT YOUR FAILURE TO REQUEST REVIEW BY THAT DEPARTMENT OF THE CONTRACTING OFFICER'S DETERMINATION PRIOR TO AWARD WAS THE MAIN REASON FOR ITS REFUSAL TO RULE UPON YOUR ELIGIBILITY AS A MANUFACTURER. ITS LETTER STATES THAT THE QUESTION OF YOUR ELIGIBILITY AT THE TIME YOU BID IS NO LONGER OPEN AND THAT THE DEPARTMENT OF LABOR HAS NO AUTHORITY TO HAVE THE AWARD MADE DECLARED VOID.

IN THE CIRCUMSTANCES, WE FIND NO LEGAL BASIS UPON WHICH WE COULD QUESTION THE VALIDITY OF THE AWARD.