B-170777, SEP. 30, 1970

B-170777: Sep 30, 1970

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

TESTS ON ITEM TO BE FURNISHED WHICH WERE FOR THE PURPOSE OF DETERMINING CAPABILITY OF BIDDER TO MANUFACTURE ITEM. TO MONARK BOAT COMPANY: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 11. GOVERNMENT REPRESENTATIVES WILL INSPECT AND WITNESS TRIALS AND TESTS TO INSURE COMPLIANCE WITH THIS PURCHASE DESCRIPTION PRIOR TO THE AWARD OF A CONTRACT. TEN DAYS NOTICE WILL BE GIVEN TO THE PROSPECTIVE CONTRACTOR TO PREPARE A BOAT FOR TRIALS AND TESTS.". YOU STATE THAT REPRESENTATIVES OF YOUR COMPANY INSPECTED THE BOAT PROVIDED BY THE LOW BIDDER UNDER SECTION 4.1 OF THE SPECIFICATIONS AND OBSERVED THAT THE LIFTING EYE WAS NOT POSITIONED AS SPECIFIED. THAT THE THWART WAS LESS THAN MINIMUM WIDTH. THAT THERE WERE NO STEPS LEADING THROUGH THE WALK-THROUGH WINDSHIELD.

B-170777, SEP. 30, 1970

BID PROTEST - BIDDER RESPONSIBILITY DENIAL OF PROTEST AGAINST AWARD OF CONTRACT FOR ALUMINUM BOATS TO LOW BIDDER ON BASIS THAT TEST BOAT MADE AVAILABLE UNDER "QUALITY ASSURANCE PROVISIONS" DID NOT MEET SPECIFICATIONS. TESTS ON ITEM TO BE FURNISHED WHICH WERE FOR THE PURPOSE OF DETERMINING CAPABILITY OF BIDDER TO MANUFACTURE ITEM, SUCH TESTS AFFECTED THE RESPONSIBILITY OF THE BIDDER RATHER THAN HIS OBLIGATIONS AND ACCORDINGLY DEFICIENCIES IN TEST ITEM DOES NOT AFFECT BIDDERS OBLIGATION TO CONSTRUCT ITEM MEETING SPECIFICATION.

TO MONARK BOAT COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 11, 1970, AND TO THE PRIOR TELEGRAM, PROTESTING THE AWARD OF A CONTRACT TO THE LOW BIDDER UNDER COAST GUARD INVITATION FOR BIDS CG-04,378-A FOR WELDED ALUMINUM BOATS.

THE "QUALITY ASSURANCE PROVISIONS" OF THE SPECIFICATIONS PROVIDED:

"4.1 PRIOR TO AWARD OF CONTRACT, A COMPLETED BOAT WITH OPERATORS AND NECESSARY EQUIPMENT INCLUDING OUTBOARD MOTORS EQUAL IN HORSEPOWER TO THOSE MENTIONED IN 3.5.1 SHALL BE MADE AVAILABLE BY THE BIDDER AT BIDDER'S PLACE OF BUSINESS FOR INSPECTION, DEMONSTRATION TRIALS AND STRENGTH TESTS. THE BIDDER SHALL ASSUME THE RISK FOR ANY BOAT OR EQUIPMENT DAMAGE THAT MAY BE INCURRED. GOVERNMENT REPRESENTATIVES WILL INSPECT AND WITNESS TRIALS AND TESTS TO INSURE COMPLIANCE WITH THIS PURCHASE DESCRIPTION PRIOR TO THE AWARD OF A CONTRACT. TEN DAYS NOTICE WILL BE GIVEN TO THE PROSPECTIVE CONTRACTOR TO PREPARE A BOAT FOR TRIALS AND TESTS."

YOU STATE THAT REPRESENTATIVES OF YOUR COMPANY INSPECTED THE BOAT PROVIDED BY THE LOW BIDDER UNDER SECTION 4.1 OF THE SPECIFICATIONS AND OBSERVED THAT THE LIFTING EYE WAS NOT POSITIONED AS SPECIFIED; THAT THE THWART WAS LESS THAN MINIMUM WIDTH; THAT THERE WERE NO STEPS LEADING THROUGH THE WALK-THROUGH WINDSHIELD; AND THAT THE FITTING OF COMPONENTS, WELDING AND WORKMANSHIP WERE NOT IN ACCORDANCE WITH THE BEST BOAT BUILDING PRACTICES. TO THESE CONTENTIONS, THE COAST GUARD HAS REPLIED AS FOLLOWS:

"A. PRIOR TO TESTS BY THE EVALUATION TEAM, THREE POINT LIFTING EYES WERE INSTALLED.

"B. THE CORRECT THWART WAS ALSO PROVIDED PRIOR TO TESTING.

"C. THE STEP LEADING THROUGH THE WALK-THRU WINDSHIELD WILL BE PROVIDED ON THE BOATS OFFERED FOR ACCEPTANCE.

"D. THE QUALITY OF FITTING OF COMPONENTS, WELDING AND WORKMANSHIP IS A JUDGMENT AREA. BEARING IN MIND THAT DURACRAFT'S STOCK MODEL BOAT IN PRODUCTION IS CONSTRUCTED OF 1/8" ALUMINUM AND THAT THE BOAT OFFERED FOR TEST REQUIRED 3/16" BOTTOM AND TRANSOM, AND WAS PRODUCED ON SHORT NOTICE, SOME OF THE WORK WAS ON THE ROUGH SIDE. HOWEVER, THE EVALUATION TEAM ADVISES THAT THIS IN NO WAY AFFECTED THE HULL STRENGTH, WHICH WAS THE MAIN PURPOSE OF THE TEST. THE EVALUATION TEAM DID HAVE AN OPPORTUNITY TO INSPECT 15 OR SO IDENTICAL BOATS IN STOCK, EXCEPT FOR THE DIFFERENCE IN HULL THICKNESS. ALL THESE BOATS WERE JUDGED TO BE OF OUTSTANDING WORKMANSHIP; WITH SMOOTH GLASS LIKE FINISH.

"E. THE BOAT OFFERED FOR TEST WAS LEFT UNPAINTED AS REQUESTED TO PERMIT CLOSER INSPECTION OF CONSTRUCTION DETAILS AND TO READILY REVEAL ANY DAMAGE RESULTING FROM TESTING. AN UNPAINTED BOAT DOES PRESENT A LESS PLEASING APPEARANCE." THE COAST GUARD RESPONSE ACKNOWLEDGES IN PART THE CORRECTNESS OF YOUR REPRESENTATIVES' OBSERVATIONS.

YOU STATE THAT IT IS YOUR UNDERSTANDING THAT THE PREAWARD EVALUATION IS SUPPOSED TO BE BASED UPON THE BOAT BUILT FOR TESTING AND NOT THE PROMISE OF THE BIDDER TO BUILD BETTER BOATS TO MEET THE SPECIFICATIONS. HOWEVER, THE COAST GUARD HAS REPORTED THAT THE PURPOSE OF THE TESTS WAS TO DETERMINE WHETHER THE BIDDER HAS THE ABILITY TO COMPLY WITH THE SPECIFICATIONS. IN THAT REGARD, OUR OFFICE HAS HELD THAT WHERE TEST RESULTS WERE REQUESTED FOR THE SOLE PURPOSE OF RESTRICTING AWARD TO OFFERORS WHOSE PRODUCTS HAD PREVIOUSLY PASSED PRESCRIBED TESTS, THE PURPOSE OF SUCH TESTS WAS TO DETERMINE, PRIOR TO AWARD, THAT THE OFFEROR IS ABLE TO DESIGN, CONSTRUCT AND FURNISH PRODUCTION ITEMS MEETING THE STATED NEEDS OF THE GOVERNMENT. IN THAT CONTEXT, WE REGARDED THE TESTS AS AFFECTING THE RESPONSIBILITY OF THE OFFEROR AND NOT AS FIXING THE OBLIGATIONS UNDER THE CONTRACT. B 168610, APRIL 7, 1970, AND B-165685(3), JUNE 24, 1969. IN THIS CASE, THE COAST GUARD HAS INDICATED THAT AS A RESULT OF THE TESTS AND EXAMINATION OF OTHER BOATS IN THE LOW BIDDER'S INVENTORY, IT IS SATISFIED THAT IT IS CAPABLE OF MANUFACTURING THE REQUIRED BOATS. FURTHER, BY THE TERMS OF THE BID, THE BIDDER HAS AGREED TO FURNISH BOATS IN ACCORDANCE WITH THE SPECIFICATIONS. THEREFORE, NOTWITHSTANDING ANY DEFICIENCIES IN THE BOAT CONSTRUCTED FOR TESTING, THE BIDDER IS OBLIGATED UNDER ITS BID TO FURNISH A BOAT MEETING SPECIFICATIONS. 17 COMP. GEN. 940, 943 (1938).

ACCORDINGLY, IN VIEW OF THE ABOVE, THE PROTEST IS DENIED.