B-168035, MAR. 20, 1970

B-168035, MAR. 20, 1970

TO PROGRESS EQUIPMENT CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 4, 1970, REQUESTING THE RECONSIDERATION OF OUR DECISION B-168035, DATED DECEMBER 24, 1969, WHICH DENIED YOUR PROTEST AGAINST THE AWARDS OF CONTRACTS UNDER REQUEST FOR PROPOSALS NO. DAAA09-70-R0007, ISSUED BY THE AMMUNITION PROCUREMENT AND SUPPLY AGENCY, DEPARTMENT OF THE ARMY.

IN YOUR PROTEST, YOU ALLEGED THAT THE CONTRACTING OFFICER HAD ERRONEOUSLY DETERMINED THAT YOU WERE NOT A MANUFACTURER UNDER THE WALSH-HEALY PUBLIC CONTRACTS ACT, 41 U.S.C. 35-45, AND HAD ERRONEOUSLY REFUSED TO SUBMIT THE QUESTION OF YOUR CAPACITY AND CREDIT TO THE SMALL BUSINESS ADMINISTRATION (SBA). ON THIS LATTER POINT, WE HELD THAT UNDER ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1.705.4 (C) AND 1.705.4 (C) (V), NO SUBMISSION OF THE QUESTION TO SBA WAS REQUIRED SINCE YOU WERE FOUND NONRESPONSIBLE FOR A REASON IN ADDITION TO A LACK OF CAPACITY OR CREDIT, NAMELY, THAT YOU WERE NOT A MANUFACTURER UNDER THE WALSH HEALY PUBLIC CONTRACTS ACT, SUPRA.

CONCERNING THE QUESTION OF YOUR STATUS AS A MANUFACTURER, YOU WERE ADVISED THAT THE GENERAL ACCOUNTING OFFICE HAS NO AUTHORITY TO REVIEW THE DETERMINATION OF CONTRACTING OFFICERS ON THIS MATTER BECAUSE THAT AUTHORITY IS VESTED BY STATUTE IN THE DEPARTMENT OF LABOR. THE MATTER OF YOUR STATUS AS A MANUFACTURER APPARENTLY HAS BEEN FINALLY SETTLED BY A DECISION OF THE DEPARTMENT OF LABOR, DATED MARCH 5, 1970, TO THE EFFECT THAT YOU WERE NOT A MANUFACTURER AS OF THE DATE OF AWARD.

IN YOUR LETTER REQUESTING RECONSIDERATION, YOU ADVANCE ARGUMENTS TO SHOW THAT VARIOUS PROVISIONS OF ASPR HAVE NOT BEEN COMPLIED WITH AND THAT YOU WERE HINDERED IN YOUR ATTEMPTS TO RESOLVE THE MATTER OF YOUR MANUFACTURER STATUS. HOWEVER, EVEN IF WE ACCEPT YOUR CONTENTIONS AS CORRECT, THEY WOULD NOT PROVIDE A BASIS UPON WHICH OUR PRIOR DECISION COULD BE REVERSED. ACCORDINGLY, OUR DECISION OF DECEMBER 24, 1969, IS AFFIRMED.