B-192175, JUL 7, 1978

B-192175, JUL 7, 1978

DIGEST: 1. ALLEGATIONS THAT PROPOSED AWARDEE WILL BE UNABLE TO PERFORM CONTRACT AND WILL NOT COMPLY WITH BUY AMERICAN CERTIFICATE RELATE TO BIDDER RESPONSIBILITY, AFFIRMATIVE DETERMINATIONS OF WHICH ARE NOT REVIEWED BY GAO EXCEPT IN LIMITED CIRCUMSTANCES NOT PRESENT HERE. 2. QUESTION OF WHETHER PROPOSED AWARDEE IS REGULAR DEALER AND MANUFACTURER UNDER WALSH-HEALEY ACT IS MATTER FOR DETERMINATION BY CONTRACTING AGENCY SUBJECT TO REVIEW BY SMALL BUSINESS ADMINISTRATION (IF SMALL BUSINESS INVOLVED) AND BY SECRETARY OF LABOR AND IS NOT REVIEWED BY GAO.

GILLETTE INDUSTRIES, INC.:

GILLETTE INDUSTRIES, INC., DOING BUSINESS AS LACROSSE GARMENT MANUFACTURING CO. (GILLETTE) PROTESTS THE PROPOSED AWARD OF A CONTRACT TO HILLSBORO SLEEP PRODUCTS, INC. (HILLSBORO) BY THE DEFENSE LOGISTICS AGENCY, DEFENSE PERSONNEL SUPPORT CENTER (DLA), UNDER SOLICITATION NO. DLA100-78-B-0668.

GILLETTE ALLEGES THAT HILLSBORO IS NOT A RESPONSIBLE BIDDER, IS NOT A REGULAR DEALER OR MANUFACTURER AS REQUIRED BY THE WALSH-HEALEY ACT AND WILL NOT COMPLY WITH THE SOLICITATION'S BUY AMERICAN CERTIFICATE.

WITH RESPECT TO HILLSBORO'S RESPONSIBILITY, GILLETTE ASSERTS THAT HILLSBORO LACKS PRODUCTION CAPACITY, IS WITHOUT AND UNABLE TO ACQUIRE THE NECESSARY EQUIPMENT, IS WITHOUT SUFFICIENT MANPOWER AND FINANCIAL RESOURCES, WILL NOT BE ABLE TO MEET THE PRODUCTION SCHEDULE, AND HAS ENGAGED IN UNSPECIFIED "FRAUDULENT BIDDING AND PROCURING PRACTICES."

THIS OFFICE DOES NOT REVIEW PROTESTS OF AFFIRMATIVE DETERMINATIONS OF RESPONSIBILITY UNLESS EITHER FRAUD IS ALLEGED ON THE PART OF PROCURING OFFICIALS OR THE SOLICITATION CONTAINS DEFINITIVE RESPONSIBILITY CRITERIA WHICH ALLEGEDLY HAVE NOT BEEN APPLIED. CENTRAL METAL PRODUCTS, INC., 54 COMP.GEN. 66 (1974), 74-2 CPD 64. NEITHER EXCEPTION IS PRESENT HERE.

THIS OFFICE ALSO DOES NOT REVIEW QUESTIONS AS TO WHETHER A BIDDER IS A MANUFACTURER OR REGULAR DEALER UNDER THE WALSH-HEALEY ACT, 41 U.S.C. SECS. 35-45 (1970). THE RESPONSIBILITY FOR SUCH DETERMINATIONS RESTS IN THE FIRST INSTANCE WITH THE CONTRACTING AGENCY AND IS SUBJECT TO FINAL REVIEW BY THE SMALL BUSINESS ADMINISTRATION (IF A SMALL BUSINESS IS INVOLVED) AND BY THE SECRETARY OF LABOR. ACME PLASTICS, INC., B-189018, JUNE 8, 1977, 77-1 CPD 415; INTERNATIONAL TRADE OPERATIONS, B-190645, NOVEMBER 30, 1977, 77-2 CPD 432.

FINALLY, GILLETTE QUESTIONS HILLSBORO'S INTENTION TO COMPLY WITH THE BUY AMERICAN CERTIFICATE, WHICH REQUIRES THE BIDDER TO FURNISH DOMESTIC SOURCE END PRODUCTS EXCEPT FOR ANY PRODUCT INDICATED BY THE BIDDER TO BE OTHERWISE.

THE DETERMINATION OF WHETHER A PROPOSED AWARDEE WILL COMPLY WITH THE BUY AMERICAN CERTIFICATE IS A MATTER OF RESPONSIBILITY, AND, AS STATED ABOVE, WE DO NOT REVIEW AFFIRMATIVE DETERMINATIONS OF RESPONSIBILITY EXCEPT IN LIMITED CIRCUMSTANCES NOT PRESENT HERE. MOREOVER, ONCE THE CONTRACT IS AWARDED, COMPLIANCE WITH THE CERTIFICATE IS A MATTER OF CONTRACT ADMINISTRATION, WHICH IS FOR RESOLUTION BY THE CONTRACTOR AND THE GOVERNMENT, AND NOT THIS OFFICE. THORSEN TOOL COMPANY, B-188271, MARCH 1, 1977, 77-1 CPD 154; MARS LIGHT SIGNAL COMPANY, B-189176, NOVEMBER 3, 1977, 77-2 CPD 342; JULIAN A. MCDERMOTT CORPORATION, B-187705, B-188197, APRIL 18, 1977, 77-1 CPD 266.

THE PROTEST IS DISMISSED.