B-151552, OCT. 20, 1964

B-151552, OCT. 20, 1964

TO MR. HYMAN HURWITZ:

RECEIPT IS ACKNOWLEDGED OF YOUR LETTERS DATED SEPTEMBER 9 AND SEPTEMBER 11, 1964, IN FURTHER REFERENCE TO YOUR PROTEST AGAINST THE AWARD OF A CONTRACT MADE BY THE UNITED STATES NAVY PURCHASING OFFICE, BROOKLYN, NEW YORK, TO THE COTTAGE LOOMS CORPORATION UNDER INVITATION NO. N140-430-63. THIS MATTER WAS THE SUBJECT OF OUR DECISION TO YOU DATED APRIL 30, 1964, DENYING THE PROTEST FOR THE REASONS SET FORTH THEREIN. ALSO, UPON RECEIPT OF SUBSEQUENT REQUESTS FROM YOU THIS DECISION WAS REVIEWED AND THE CONCLUSION REACHED WAS AFFIRMED IN OUR LETTERS TO YOU DATED JULY 22, 1964, AND AUGUST 13, 1964.

IN YOUR LETTER DATED SEPTEMBER 9, 1964, YOU STATED THAT YOU HAD RECEIVED NO RESPONSE TO A LETTER ADDRESSED TO OUR OFFICE UNDER DATE OF AUGUST 3, 1964, IN FURTHER REFERENCE TO THE MATTER. HOWEVER, BY LETTER DATED SEPTEMBER 11, 1964, OR ONLY 2 DAYS LATER, YOU DID ACKNOWLEDGE RECEIPT OF OUR REPLY DATED AUGUST 13, 1964--- ALMOST A MONTH EARLIER-- TO YOUR LETTER OF AUGUST 3, 1964. BE THAT AS IT MAY, HOWEVER, A REVIEW OF YOUR LETTERS DATED SEPTEMBER 9 AND SEPTEMBER 11, 1964, SHOWS THAT NO NEW OR MATERIAL FACTS OR EVIDENCE HAVE BEEN PRESENTED REGARDING YOUR BASIC PROTEST. RATHER SUCH LETTERS CONTAIN ONLY SELF SERVING DECLARATIONS AS TO HOW YOU HAVE BEEN WRONGED IN THIS MATTER BY THE GOVERNMENT CONTRACTING OFFICER, THE DEPARTMENT OF THE NAVY, THE DEPARTMENT OF LABOR, THE SMALL BUSINESS ADMINISTRATION, AND OUR OFFICE.

THE ISSUE IN THIS CASE RESOLVED ITSELF INTO THE SOLE QUESTION AS TO WHETHER, UNDER THE CIRCUMSTANCES REPORTED, YOU DID OR DID NOT QUALIFY AS A REGULAR DEALER IN THE TYPE OF COTTON CLOTH SPECIFIED UNDER INVITATION NO. N140-430-63. IN THIS REGARD, YOUR ATTENTION AGAIN IS DIRECTED TO OUR DECISION DATED APRIL 30, 1964, WHEREIN THERE WERE SET FORTH THE REASONS WHY THE GOVERNMENT CONTRACTING OFFICER DETERMINED THAT YOU DID NOT QUALIFY UNDER THE APPLICABLE REGULATIONS AS A REGULAR DEALER, AS WELL AS THE REASONS WHY OUR OFFICE GENERALLY WILL NOT OBJECT TO THE CONCLUSION REACHED BY A CONTRACTING OFFICER IN CASES OF THIS KIND. MOREOVER, YOU ALSO WERE ADVISED IN OUR DECISION OF APRIL 30, 1964, OF THE POSITION TAKEN BY OUR OFFICE ON ALL QUESTIONS AS TO WHETHER A FIRM QUALIFIES AS A REGULAR DEALER UNDER THE WALSH-HEALEY PUBLIC CONTRACTS ACT. IN THIS REGARD, IT IS NOTED THAT YOU DID, IN FACT, APPEAL THE CONTRACTING OFFICER'S DETERMINATION OF YOUR INELIGIBILITY AS A REGULAR DEALER TO THE ADMINISTRATOR, WAGE AND HOUR AND PUBLIC CONTRACTS DIVISION, DEPARTMENT OF LABOR, BUT IT IS EVEN MORE SIGNIFICANT TO NOTE THAT, ALTHOUGH YOU ORIGINALLY HAD PURSUED THE RIGHT WHICH YOU HAD FOR SUCH A DETERMINATION UNDER THE ACT, YOU ULTIMATELY ABANDONED THE APPEAL WHICH YOU PREVIOUSLY HAD MADE. IN THE FINAL ANALYSIS, THERE IS REITERATED HERE, THE CONCLUSION REACHED IN OUR DECISION OF APRIL 30, 1964, THAT WHERE, AS IN YOUR CASE, A CONTRACTING OFFICER DETERMINES A BIDDER NOT TO BE A REGULAR DEALER IN A GIVEN COMMODITY REFERENCE OF THE CASE TO THE SMALL BUSINESS ADMINISTRATION FOR A DETERMINATION AS TO CAPACITY AND CREDIT IS NOT REQUIRED UNDER THE PROVISIONS OF THE ARMED SERVICES PROCUREMENT REGULATION 1-705.6 (B) (IV) AND 1-903.1 (VI). IN NO PART OF ANY OF THE REPORTS RECEIVED BY OUR OFFICE FROM EITHER THE DEPARTMENT OF THE NAVY OR THE DEPARTMENT OF LABOR IN THIS CASE HAVE WE FOUND ANY INDICATION OF ARBITRARY OR CAPRICIOUS ACTION TAKEN BY THOSE DEPARTMENTS IN EVALUATING YOUR QUALIFICATIONS AS A REGULAR DEALER IN THE TYPE OF COTTON CLOTH SPECIFIED UNDER INVITATION NO. N140-430-63.

ACCORDINGLY, OUR DECISION OF APRIL 30, 1964, AGAIN IS AFFIRMED, AND IN THE ABSENCE OF ANY COMPLETELY NEW AND MATERIAL FACTS OR EVIDENCE FROM YOU IN REGARD TO THE MATTER, FURTHER CONSIDERATION OF THE MERITS OF YOUR PROTEST BY OUR OFFICE WILL SERVE NO USEFUL PURPOSE.