B-177197, APR 4, 1973

B-177197, APR 4, 1973

BID PROTEST - STANDARD PRODUCTION REQUIREMENT - BIDDER RESPONSIBILITY - CERTIFICATE OF COMPETENCY DECISION DENYING THE PROTEST OF WESTERN TRACTION COMPANY AGAINST THE AWARD OF A CONTRACT TO LITTLE GIANT CRANE & SHOVEL, INC. UNDER AN IFB ISSUED BY GSA FOR FOUR HYDRAULIC EXCAVATORS. SINCE LITTLE GIANT TOOK NO EXCEPTION TO THE IFB'S SPECIFICATIONS, IT IS BOUND TO THEM. THEREFORE, WHETHER THE ITEMS TO BE FURNISHED BY LITTLE GIANT ARE "ALL NEW AND OF CURRENT STANDARD PRODUCTION" AND ARE OF "PROVEN DESIGN" IS A MATTER OF RESPONSIBILITY. SEE B-176896, JANUARY 19, 1973. THE SBA'S DECISION TO ISSUE A CERTIFICATE OF COMPETENCY TO LITTLE GIANT IS CONCLUSIVE UNDER 15 U.S.C. 637(B)(7) AS REGARDS ITS CAPACITY AND ABILITY TO PERFORM THE CONTRACT.

TO HUNTON, WILLIAMS, GAY & GIBSON:

WE REFER TO YOUR LETTER OF JANUARY 26, 1973, AND PRIOR CORRESPONDENCE, PROTESTING ON BEHALF OF THE WESTERN TRACTION COMPANY AGAINST THE PROPOSED AWARD OF A CONTRACT FOR FOUR HYDRAULIC EXCAVATORS TO LITTLE GIANT CRANE & SHOVEL, INC., UNDER INVITATION FOR BIDS NO. FPNML-T3-44635-A-7-12-72, ISSUED BY THE FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION (GSA).

LITTLE GIANT SUBMITTED THE LOW BID FOR THIS PROCUREMENT. THE CONTRACTING ACTIVITY REQUESTED A PLANT FACILITIES REPORT ON LITTLE GIANT TO ASCERTAIN WHETHER THAT FIRM WAS CAPABLE OF PERFORMING IN ACCORDANCE WITH THE SPECIFICATIONS. THE FINDINGS OF THE REPORT SHOWED LITTLE GIANT TO BE INCAPABLE OF PERFORMING BECAUSE THAT FIRM HAD NEVER MANUFACTURED THE EXACT TYPE OF EXCAVATOR BEING PROCURED AND COULD NOT THEREFORE BE CONSIDERED AS BEING ABLE TO FURNISH AN ITEM MEETING THE SPECIFICATION PROVISION THAT THE ITEM BE "ALL NEW AND OF CURRENT STANDARD PRODUCTION" AND BECAUSE LITTLE GIANT WAS UNABLE TO FURNISH AN ITEM WITH A TILTING ACTION OF "PROVEN DESIGN." THE REPORT ALSO NOTED THAT LITTLE GIANT WAS, AT THAT TIME, MANUFACTURING TWO EXCAVATORS FOR THE AIR FORCE WHICH WERE SIMILAR TO THAT CALLED FOR IN THE INVITATION SPECIFICATIONS, AND THAT IF THESE SUCCESSFULLY PASSED AIR FORCE TESTS AND COULD BE CONSIDERED TO MEET THE REQUIREMENTS UNDER WHICH LITTLE GIANT HAD BEEN FOUND INCAPABLE OF PERFORMING THEN THE EVALUATION OF LITTLE GIANT COULD BE CHANGED TO CAPABLE OF PERFORMING.

BECAUSE LITTLE GIANT IS A SMALL BUSINESS CONCERN, THE QUESTION OF LITTLE GIANT'S CAPABILITY TO PERFORM WAS REFERRED TO THE SMALL BUSINESS ADMINISTRATION (SBA) SO THAT IT MIGHT ISSUE A CERTIFICATE OF COMPETENCY (COC) TO THAT FIRM IF SUCH WERE DETERMINED TO BE JUSTIFIED. ON OCTOBER 31, 1972, THE CONTRACTING OFFICER RECEIVED NOTIFICATION THAT SBA HAD ISSUED A COC TO LITTLE GIANT.

IT IS YOUR CONTENTION THAT THE QUESTION IN THIS CASE IS NOT WHETHER LITTLE GIANT IS A RESPONSIBLE CONTRACTOR, AND THUS IS CAPABLE OF PRODUCING THE EXCAVATORS, BUT RATHER WHETHER THE LITTLE GIANT BID IS RESPONSIVE TO THE ADVERTISED SPECIFICATIONS. YOU CONTEND THAT LITTLE GIANT HAS NEVER MANUFACTURED AN EXCAVATOR THAT WOULD MEET THE REQUIREMENTS OF THE INVITATION SPECIFICATIONS AND, CONSEQUENTLY, BECAUSE THE SPECIFICATIONS CALL FOR A MACHINE THAT IS "ALL NEW AND OF CURRENT STANDARD PRODUCTION," THE "MANUFACTURER'S STANDARD," OR "ESSENTIALLY THE STANDARD PRODUCT OF THE MANUFACTURER" AND FOR A HYDRAULIC-ACTIVATED ROTATING MECHANISM OF "PROVEN DESIGN," YOU BELIEVE THAT THE LITTLE GIANT BID OFFERING AN EXCAVATOR OF ITS MANUFACTURE IS NONRESPONSIVE TO THE INVITATION REQUIREMENTS. YOU FURTHER OUTLINE IN DETAIL WHY THE EXCAVATORS FURNISHED THE AIR FORCE BY LITTLE GIANT DO NOT MEET THE ADVERTISED SPECIFICATIONS FOR THE PRESENT PROCUREMENT.

THE SPECIFICATION PROVIDES FOR THE EXCAVATING MACHINE "TO BE FURNISHED" UNDER THE INVITATION TO COMPLY WITH CERTAIN REQUIREMENTS NOTED ABOVE. INASMUCH AS LITTLE GIANT TOOK NO EXCEPTION TO, OR OTHERWISE MANIFESTED AN INTENTION IN ITS BID NOT TO BE BOUND BY, ANY PROVISION OF THE INVITATION, IT IS THE OPINION OF OUR OFFICE THAT THE QUESTION WAS TREATED CORRECTLY BY THE CONTRACTING ACTIVITY TO BE ONE OF RESPONSIBILITY. SEE B-176896, JANUARY 19, 1973. THIS ISSUE WAS RESOLVED BY THE SBA DECISION TO ISSUE A COC TO LITTLE GIANT, IN VIEW OF THE FACT THAT THIS DECISION IS CONCLUSIVE UNDER 15 U.S.C. 637(B)(7) AS REGARDS THE BIDDER'S CAPACITY AND ABILITY TO PERFORM A GOVERNMENT CONTRACT.

OUR DECISION B-175493(1) OF APRIL 20, 1972, CITED BY YOU, IS INAPPLICABLE TO THE IMMEDIATE SITUATION. IN THAT CASE, A BIDDER WHO WAS UNABLE TO ESTABLISH AFTER BID OPENING THAT THE EQUIPMENT OFFERED MET A ONE-YEAR QUANTITY-IN-USE REQUIREMENT IN THE INVITATION WAS REJECTED AS NONRESPONSIVE AND OUR OFFICE UPHELD THE DETERMINATION. ALTHOUGH THE INVITATION DID NOT CLEARLY ESTABLISH THE EXPERIENCE REQUIREMENT AS A MATTER OF RESPONSIVENESS RATHER THAN RESPONSIBILITY (SEE B-175493(2), APRIL 20, 1972, COPY ENCLOSED), WE CONCLUDED THAT THE REQUIREMENT DESERVED SPECIAL RECOGNITION AND CONSIDERATION BECAUSE THE RELIABILITY OF THE EQUIPMENT BEING PROCURED WAS ESSENTIAL TO PRESERVING THE WELL-BEING AND LIVES OF ITS USERS. THE IMMEDIATE EQUIPMENT IS NOT BEING PROCURED FOR THE SAME PURPOSE.

ACCORDINGLY, WE HAVE NO LEGAL OBJECTION TO AN AWARD TO LITTLE GIANT, AND THE PROTEST IS DENIED.