B-176332, AUG 8, 1972

B-176332, AUG 8, 1972

BID PROTEST - STATUS AS MANUFACTURER - AWARD WITH PROTEST PENDING DENIAL OF PROTEST BY FLO TEK, INC., AGAINST THE REJECTION OF THEIR BID UNDER A SOLICITATION ISSUED BY THE NAVAL REGIONAL PROCUREMENT OFFICE, PHILADELPHIA, PA., ON THE GROUND THAT THEY DID NOT QUALIFY AS A MANUFACTURER UNDER THE WALSH-HEALEY PUBLIC CONTRACTS ACT, 41 U.S.C. 35, ET SEQ. THE AUTHORITY TO REVIEW CONTRACTING OFFICER DETERMINATIONS OF QUALIFICATION AS A MANUFACTURER IS VESTED IN THE DEPARTMENT OF LABOR, NOT GAO. FURTHER, NO BASIS EXISTS FOR CHALLENGING THE AWARD MADE PRIOR TO EITHER THE ISSUANCE OF THE DEPARTMENT OF LABOR DETERMINATION OR CONSIDERATION BY GAO BECAUSE THE CONTRACTING OFFICER COMPLIED WITH THE REQUIREMENTS OF ASPR 2.407-8(B)(3) AND 12-604(A)(5).

TO FLO TEK, INCORPORATED:

YOUR LETTERS OF JULY 3 AND JULY 20, 1972, PROTEST THE REJECTION OF YOUR OFFER UNDER SOLICITATION NO. N00140-72-R-1166, ISSUED BY THE NAVAL REGIONAL PROCUREMENT OFFICE, PHILADELPHIA, PENNSYLVANIA, ON THE GROUND THAT YOUR FIRM DID NOT QUALIFY AS A MANUFACTURER, AS REQUIRED BY THE SOLICITATION, IN ACCORDANCE WITH THE WALSH-HEALEY PUBLIC CONTRACTS ACT, 41 U.S.C. 35, ET SEQ., AND ARMED SERVICES PROCUREMENT REGULATION (ASPR) 12- 603.1. YOU ALSO PROTEST THE FACT THAT AWARD WAS MADE TO ANOTHER OFFEROR BEFORE A DETERMINATION AS TO YOUR STATUS AS A MANUFACTURER WAS MADE BY THE DEPARTMENT OF LABOR. FOR REASONS STATED BELOW, YOUR PROTEST MUST BE DENIED.

THE REPORT IN THIS MATTER SUBMITTED TO OUR OFFICE BY THE NAVAL SUPPLY SYSTEMS COMMAND, A COPY OF WHICH IS ENCLOSED, STATES THAT THE CONTRACTING OFFICER DETERMINED THAT FLO TEK DID NOT QUALIFY AS A MANUFACTURER FOLLOWING A RECOMMENDATION TO THAT EFFECT IN A PRE-AWARD SURVEY REPORT FURNISHED BY THE DEFENSE CONTRACT ADMINISTRATIVE SERVICES REGION (DCASR), NEW YORK. THE ADMINISTRATIVE REPORT STATES FURTHER THAT SUBSEQUENT TO RECEIPT OF A LETTER FROM FLO TEK DATED JUNE 11, 1972, SUBMITTING EVIDENCE OF ITS CLAIMED MANUFACTURER STATUS, THE MATTER WAS REFERRED TO THE DEPARTMENT OF LABOR FOR RESOLUTION PURSUANT TO ASPR 12-604(A)(2)(III).

THE ELECTRICAL TEMPERATURE INDICATOR KITS, THE SUBJECT MATTER OF THE SOLICITATION, WERE URGENTLY NEEDED FOR FIELD USE AND AS A RESULT CARRIED AN 03 PRIORITY DESIGNATOR. THEREFORE, IT WAS DETERMINED BY THE CONTRACTING OFFICER THAT AWARD SHOULD BE MADE ON THE BASIS OF URGENCY BEFORE ISSUANCE OF THE DEPARTMENT OF LABOR DETERMINATION ON YOUR ELIGIBILITY AS A MANUFACTURER, PURSUANT TO ASPR 12-604(A)(5). FLO TEK WAS SO ADVISED BY LETTER DATED JUNE 21, 1972. FOLLOWING THE FILING OF THE FLO TEK PROTEST WITH OUR OFFICE, A DETERMINATION TO MAKE AWARD NOTWITHSTANDING THE PROTEST WAS ALSO MADE IN ACCORDANCE WITH ASPR 2 407.8(B)(3).

WITH RESPECT TO THE DETERMINATION THAT FLO TEK DOES NOT QUALIFY AS A MANUFACTURER, THE AUTHORITY TO REVIEW CONTRACTING OFFICER DETERMINATIONS AS TO WHETHER PARTICULAR FIRMS ARE QUALIFIED AS MANUFACTURERS IS VESTED BY THE WALSH-HEALEY PUBLIC CONTRACTS ACT IN THE DEPARTMENT OF LABOR NOT IN THE GENERAL ACCOUNTING OFFICE. SEE, IN THIS REGARD, 47 COMP. GEN. 793 (1968). WITH RESPECT TO THE DETERMINATION TO MAKE AWARD PRIOR TO A DETERMINATION BY THE DEPARTMENT OF LABOR, ASPR 12-604(A)(5) PROVIDES AS FOLLOWS:

"IF THE CONTRACTING OFFICER FORWARDS THE CASE TO THE DEPARTMENT OF LABOR FOR REVIEW OF ELIGIBILITY UNDER THE WALSH-HEALEY ACT, AWARD WILL BE HELD IN ABEYANCE UNTIL THE CONTRACTING OFFICER RECEIVES A FINAL DETERMINATION FROM THE DEPARTMENT OF LABOR OR THE CONTRACTING OFFICER DETERMINES THAT AWARD SHOULD BE MADE BECAUSE:

(I) THE ITEMS TO BE PROCURED ARE URGENTLY REQUIRED; OR

(II) DELIVERY OR PERFORMANCE WILL BE UNDULY DELAYED BY FAILURE TO MAKE AWARD PROMPTLY; OR

(III) A PROMPT AWARD WILL OTHERWISE BE ADVANTAGEOUS TO THE GOVERNMENT.

IF THE CONTRACTING OFFICER DECIDES TO PROCEED WITH THE AWARD, HE SHALL GIVE WRITTEN NOTICE OF THE DECISION TO PROCEED TO THE PROTESTER AND AS APPROPRIATE TO OTHERS CONCERNED."

FURTHER, ASPR 2.407-8(B)(3) SIMILARLY PROVIDES FOR CONTRACT AWARD ON THE BASIS OF URGENCY IN THE FACE OF PRE-AWARD BID PROTESTS. INASMUCH AS THESE REGULATORY REQUIREMENTS WERE COMPLIED WITH IN THIS INSTANCE, NO BASIS EXISTS FOR CHALLENGING THE AWARD MADE PRIOR TO THE ISSUANCE OF EITHER THE DEPARTMENT OF LABOR DETERMINATION OR CONSIDERATION BY OUR OFFICE ON THE FLO TEK PROTEST. IN THIS REGARD, WE HAVE BEEN ADVISED THAT THE DEPARTMENT OF LABOR SUSTAINED THE CONTRACTING OFFICER'S DETERMINATION WITH RESPECT TO THE ELIGIBILITY OF FLO TEK AS A MANUFACTURER BY LETTER DATED JULY 14, 1972, TO THE PHILADELPHIA NAVAL REGIONAL PROCUREMENT OFFICE.

FINALLY, WITH RESPECT TO THE QUESTION RAISED IN YOUR JULY 20 LETTER AS TO WHY NO CERTIFICATE OF COMPETENCY WAS REQUESTED FROM THE SMALL BUSINESS ADMINISTRATION IN VIEW OF FLO TEK'S SMALL BUSINESS STATUS AND THE FACT THAT THE CONTRACT IN THIS INSTANCE IS FOR MORE THAN $10,000, THE REQUIREMENT THAT SUCH CERTIFICATES BE REQUESTED IS ONLY FOR APPLICATION WHERE A SMALL BUSINESS BIDDER IS REJECTED SOLELY FOR REASONS RELATED TO CAPACITY OR CREDIT. SEE B-168035, DECEMBER 24, 1969, COPY ENCLOSED, AND ASPR 1-705.4(C). SINCE THE REASON FOR REJECTION OF THE FLO TEK BID DID NOT RELATE TO CAPACITY OR CREDIT, BUT RATHER TO THE FIRM'S STATUS AS A MANUFACTURER, THE MATTER WAS NOT ONE REQUIRED TO BE SUBMITTED TO THE SMALL BUSINESS ADMINISTRATION FOR ITS CONSIDERATION.

THEREFORE, YOUR PROTEST MUST BE DENIED.