B-141622, FEB. 17, 1960

B-141622, FEB. 17, 1960

TO MANHATTAN LIGHTING EQUIPMENT CO., INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 30, 1959, AND SUBSEQUENT CORRESPONDENCE, PROTESTING THE ACTION OF THE U.S. NAVY GENERAL STORES SUPPLY OFFICE, PHILADELPHIA, PENNSYLVANIA, IN REJECTING YOUR BID SUBMITTED IN RESPONSE TO INVITATION NO. IFB-155-/1-7/-314-60, COVERING THE FURNISHING OF THREE ITEMS OF SHACKLES.

THE RECORD INDICATES THAT IN RESPONSE TO THE INVITATION THE GARDINER MFG. CO., OAKLAND, CALIFORNIA, SUBMITTED THE LOWEST BID ON ITEMS 5 AND 7; THAT THE BOSTON AND LOCKPORT COMPANY, EAST BOSTON, MASSACHUSETTS, SUBMITTED THE NEXT LOWEST BID ON ITEM 5 AND THE LOWEST BID ON ITEM 6; AND THAT YOUR FIRM SUBMITTED THE NEXT LOWEST BID ON ITEM 7. THE LOW BID OF GARDINER MFG. CO., WAS REJECTED ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION THAT IT WAS NOT A RESPONSIBLE SOURCE OF SUPPLY. YOUR BID WAS ALSO REJECTED ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION THAT YOUR FIRM DID NOT QUALIFY AS A REGULAR DEALER OF THE SHACKLES BEING PURCHASED. THIS LATTER DETERMINATION WAS BASED ON A REPORT DATED AUGUST 5, 1959, PREPARED BY THE OFFICE OF THE INSPECTOR, NAVAL MATERIAL, NEW YORK CITY, IN CONNECTION WITH A PRIOR SIMILAR PROCUREMENT. IN THAT REPORT IT WAS STATED THAT YOUR FIRM HAD NO STOCKS OF ANY SHACKLES OF SIMILAR OR EQUAL DESCRIPTION AS REQUIRED IN THE INVITATION TO BID AND THAT A CURSORY REVIEW OF YOUR INVOICES DID NOT INDICATE ANY PAST EXPERIENCES WITH ANCHOR SHACKLES. IT ALSO WAS STATED THAT WHILE YOUR FIRM HAD A FIRM COMMITMENT FROM YOUR SUPPLIER, GARDINER MFG. CO., FOR THE SHACKLES, IN VIEW OF THE ADMINISTRATIVE DETERMINATION THAT YOUR SUPPLIER WAS NOT A RESPONSIBLE BIDDER, HIS OFFICE WAS OF THE OPINION THAT YOUR FIRM COULD NOT MEET THE BID REQUIREMENTS AT THAT TIME. THE OFFICE OF THE INSPECTOR ALSO STATED IN ITS REPORT THAT WHILE YOU ARE A REGULAR DEALER OF LIGHTING EQUIPMENT, APPLIANCES, ELECTRICAL SUPPLIES AND ALLIED HARDWARE, THAT OFFICE DOES NOT CONSIDER YOU A REGULAR DEALER FOR THE PARTICULAR BID ITEM WITHIN THE INTENT AND MEANING OF SECTION 1-201.9 OF THE ARMED SERVICES PROCUREMENT REGULATION.

YOU ALLEGE THAT THE GENERAL STORES SUPPLY OFFICE DID NOT EVEN GIVE YOUR FIRM A REASON FOR DENYING YOU THE AWARD. THE CONTRACTING OFFICER HAS STATED IN HIS REPORT THAT YOUR FIRM WAS ADVISED BY LETTER OF DECEMBER 29, 1959, OF THE REASON FOR THE REJECTION OF YOUR BID. YOU ALSO CONTEND THAT THE ADMINISTRATIVE OFFICE SHOULD NOT HAVE RELIED ON A PREVIOUS PRE-AWARD SURVEY OF YOUR PLANT AND FACILITIES BUT RATHER THAT IT SHOULD HAVE MADE A NEW PRE-AWARD SURVEY. INASMUCH AS THE PRE AWARD SURVEY RELIED UPON BY THE NAVY WAS MADE IN AUGUST 1959, IT IS OUR VIEW THAT THE NAVY WAS JUSTIFIED IN RELYING ON IT IN DETERMINING YOUR RESPONSIBILITY UNDER BIDS OPENED ON SEPTEMBER 1, 1959. IT IS NOTED IN YOUR LETTER OF DECEMBER 21, 1959, TO THE GENERAL STORES SUPPLY OFFICE THAT YOU STRESS THE FACT THAT YOU SENT TO THE ADMINISTRATIVE OFFICE A COPY OF A LETTER DATED NOVEMBER 16, 1959, FROM THE DEPARTMENT OF LABOR WHICH CONFIRMS THAT YOU ARE A QUALIFIED DEALER OF THE ITEM BEING PROCURED ON THE SUBJECT INVITATION. THE RECORD INDICATES THAT THE CONTRACT REVIEW BOARD OF THE GENERAL STORES SUPPLY OFFICE REJECTED YOUR BID ON NOVEMBER 16, 1959, THE SAME DATE WHICH APPEARS ON THE DEPARTMENT OF LABOR LETTER. IN VIEW OF THE FACT THAT BOTH ACTIONS TOOK PLACE ON THE SAME DATE, IT IS NOT APPARENT HOW THE GENERAL STORES SUPPLY OFFICE COULD HAVE BEEN AWARE OF YOUR CERTIFICATION AS A REGULAR DEALER BY THE DEPARTMENT OF LABOR FOR THE ITEM IN QUESTION.

SINCE THE FUNCTION OF DETERMINING WHO IS A REGULAR DEALER IN A NEEDED ARTICLE OR COMMODITY IS PRIMARILY THAT OF THE INTERESTED GOVERNMENT CONTRACTING AGENCY AND SINCE IT APPEARS THAT THE AGENCY HERE INVOLVED WAS NOT AWARE OF YOUR CERTIFICATION AS A REGULAR DEALER BY THE DEPARTMENT OF LABOR FOR THE ITEM IN QUESTION, WE WOULD NOT BE JUSTIFIED IN OBJECTING TO THE ADMINISTRATIVE ACTION TAKEN.