B-164989, SEPT. 11, 1968

B-164989, SEPT. 11, 1968

TO VAN SCHWARTZ AND ASSOCIATES, INC.:

FURTHER REFERENCE IS MADE TO A COPY OF YOUR LETTER OF JULY 31, 1968, TO THE DEFENSE CONSTRUCTION SUPPLY CENTER, DEFENSE SUPPLY AGENCY, PROTESTING THE AWARD MADE UNDER REQUEST FOR PROPOSALS DSA-700-68-R 7451, COVERING THE PROCUREMENT OF 30 TEST KITS FOR USE ON DIESEL ENGINES, BACHARACH MODEL 80- 5035A, OR EQUAL. THE REQUEST FOR PROPOSALS WAS ISSUED MAY 3, 1968, WITH A CLOSING DATE OF MAY 20, 1968. PROPOSALS WERE RECEIVED FROM YOUR COMPANY IN THE AMOUNT OF $850 PER UNIT AND FROM THE BACHARACH INSTRUMENT COMPANY IN THE AMOUNT OF $878.30 PER UNIT.

IN THE PROPOSAL SUBMITTED BY YOUR FIRM, THE REPRESENTATION AS TO ITS STATUS AS A MANUFACTURER OR REGULAR DEALER ON STANDARD FORM 33 WAS ALTERED BY DELETING THE WORD "DEALER" IN PARAGRAPH 2 THEREOF, AND SUBSTITUTING THE WORD "SUPPLIER.' HOWEVER, WE BELIEVE THAT YOUR FIRM CERTIFIED THAT IT WAS, IN EFFECT, A "REGULAR DEALER" IN THE SUPPLIES OFFERED. ON THE BASIS OF A PRIOR PREAWARD SURVEY DATED MARCH 28, 1968, IT WAS DETERMINED THAT YOUR FIRM WAS NOT A MANUFACTURER OR REGULAR DEALER. THE REPORT SHOWED THAT YOUR COMPANY IS PRIMARILY AN ENGINEERING CONSULTANT FIRM AND ALL WORK IS SUBCONTRACTED. IN VIEW THEREOF, THE CONTRACTING OFFICER BY DETERMINATION DATED JUNE 6, 1968, CONCLUDED THAT YOUR FIRM WAS NOT A RESPONSIBLE SUPPLIER SINCE IT DID NOT QUALIFY AS A MANUFACTURER OR REGULAR DEALER. CONTRACT NO. DSA-700 68-C-9847 WAS AWARDED TO BACHARACH INSTRUMENT COMPANY ON JUNE 26, 1968.

THE WALSH-HEALEY PUBLIC CONTRACTS ACT, 41 U.S.C. 35-45, IS SUPPLEMENTED BY ASPR 12-601, WHICH PROVIDES AS FOLLOWS:

"STATUTORY REQUIREMENT. IN ACCORDANCE WITH THE REQUIREMENTS OF THE WALSH -HEALEY PUBLIC CONTRACTS ACT (41 U.S.C. 35-45), ALL CONTRACTS SUBJECT TO SAID ACT ENTERED INTO BY ANY DEPARTMENT FOR THE MANUFACTURE OR FURNISHING OF SUPPLIES IN ANY AMOUNT EXCEEDING $10,000 (I) WILL BE WITH MANUFACTURERS OR REGULAR DEALERS, AND (II) SHALL INCORPORATE BY REFERENCE THE REPRESENTATIONS AND STIPULATIONS REQUIRED BY SAID ACT PERTAINING TO SUCH MATTERS AS MINIMUM WAGES, MAXIMUM HOURS, CHILD LABOR, CONVICT LABOR, AND SAFE AND SANITARY WORKING CONDITIONS.'

ASPR 12-603.1 AND 12-603.2 (A) PROVIDE IN PERTINENT PART AS FOLLOWS:

"MANUFACTURER. AS USED IN 12-601, A MANUFACTURER IS A PERSON WHO OWNS, OPERATES, OR MAINTAINS A FACTORY OR ESTABLISHMENT THAT PRODUCES ON THE PREMISES THE MATERIALS, SUPPLIES, ARTICLES, OR EQUIPMENT REQUIRED UNDER THE CONTRACT AND OF THE GENERAL CHARACTER DESCRIBED BY THE SPECIFICATIONS. * * *

"REGULAR DEALER.

(A) * * * AS USED IN 12-601 A REGULAR DEALER IS A PERSON WHO OWNS, OPERATES OR MAINTAINS A STORE, WAREHOUSE, OR OTHER ESTABLISHMENT IN WHICH MATERIALS, SUPPLIES, ARTICLES, OR EQUIPMENT OF THE GENERAL CHARACTER DESCRIBED BY THE SPECIFICATIONS AND REQUIRED UNDER THE CONTRACT ARE BOUGHT, KEPT IN STOCK, AND SOLD TO THE PUBLIC IN THE USUAL COURSE OF BUSINESS. * * *"

THE WALSH-HEALEY PUBLIC CONTRACTS ACT RULINGS AND INTERPRETATIONS NO. 3, PUBLISHED BY THE DEPARTMENT OF LABOR, STATES AT SECTION 29:

"/A) THE RESPONSIBILITY OF DETERMINING WHETHER OR NOT A BIDDER IS QUALIFIED AS A MANUFACTURER OR AS A REGULAR DEALER UNDER THE PUBLIC CONTRACTS ACT RESTS IN THE FIRST INSTANCE WITH THE CONTRACTING AGENCY. HOWEVER, ANY DECISION WHICH THE CONTRACTING OFFICER MIGHT MAKE IS SUBJECT TO REVIEW BY THE DEPARTMENT OF LABOR WHICH IS CHARGED WITH THE ADMINISTRATION OF THE ACT. THE DEPARTMENT OF LABOR MAY DETERMINE THE QUALIFICATIONS OF A BIDDER IN THE FIRST INSTANCE IN THE ABSENCE OF ANY DECISION BY THE CONTRACTING OFFICER.'

OUR OFFICE DOES NOT HAVE THE JURISDICTION TO REVIEW DETERMINATIONS AS TO WHETHER PARTICULAR BIDDERS ARE REGULAR DEALERS OR MANUFACTURERS. SEE B- 147620, JANUARY 22, 1965. RATHER, WE HAVE CONSIDERED THAT SUCH DETERMINATIONS REST WITH THE CONTRACTING OFFICES SUBJECT TO THE REVIEW OF THE DEPARTMENT OF LABOR WHICH HAS THE FINAL AUTHORITY. SEE B 148715, JUNE 25, 1962.

IN VIEW OF THE FOREGOING, WE FIND NO LEGAL OBJECTION TO THE AWARD MADE TO BACHARACH INSTRUMENT COMPANY AS THE LOWEST RESPONSIBLE OFFEROR. YOUR PROTEST IS THEREFORE DENIED.