Protest of Contract Award

B-203581: Oct 9, 1981

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A firm protested the award of a contract for four forklift trucks, asserting that the proposed trucks did not exist in the low bidder's catalog and were not standard commercial items. Bidders were required to certify that the model offered was a standard commercial model which fully complied with the solicitation requirements. The low bidder contended that its truck model met this requirement. The protester contended that the model did not exist and that the low bidder would have to upgrade its model to satisfy the solicitation requirements which would place an increased strain on the truck and its load bearing components. The low bidder denied these allegations and submitted copies of invoices which showed that it had sold five of the trucks. Additionally, the invoices showed that the earliest shipping date for the trucks was 2 months after the date of the solicitation. Thus, none of these trucks could satisfy the solicitation specification that the trucks had to be in use for a minimum of 1 year preceding the solicitation of the procurement. The agency contended that this requirement relates to bidder responsibility and, therefore, GAO should not review this determination. The performance history of a product is a matter of responsiveness. GAO reviews an affirmative determination of responsibility where definitive standards are involved, as in this case. From the solicitation it is clear that bidders are required to provide a truck model that has been in use for 1 year prior to the issuance of the solicitation. The invoices submitted by the low bidder did not establish that its truck met the in-use requirement. However, it is possible that the low bidder may be able to show that the truck model meets the 1-year in-use requirement by submitting other evidence. The agency must satisfy itself that this requirement has been met before it properly may proceed with the award. Therefore, GAO recommended that the agency afford the low bidder the opportunity to establish that the model truck which it bid had been in use for at least 1 year prior to the issuance of the solicitation.

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