B-205599, MAY 6, 1982
Highlights
WHETHER A BIDDER IS CAPABLE OF SUPPLYING AN ITEM CONFORMING TO THE SPECIFICATION. IS A MATTER OF THAT BIDDER'S RESPONSIBILITY. GAO WILL NOT QUESTION AN AGENCY'S AFFIRMATIVE RESPONSIBILITY DETERMINATION ABSENT CIRCUMSTANCES NOT RELEVANT HERE. 2. WHETHER THE AWARDEE ULTIMATELY SUPPLIES ITEMS WHICH COMPLY WITH THE SPECIFICATION IS A MATTER OF CONTRACT ADMINISTRATION FOR CONSIDERATION BY THE CONTRACTING AGENCY. THAT EMD THUS SHOULD NOT HAVE RECEIVED THE AWARD. IT WAS RESPONSIVE TO THE SOLICITATION. WHETHER EMD IS CAPABLE OF MEETING ITS OBLIGATION UNDER ITS BID BY FURNISHING THE COAST GUARD WITH AN ENGINE MEETING THE SPECIFICATION IS STRICTLY A MATTER OF THAT FIRM'S RESPONSIBILITY AS A PROSPECTIVE CONTRACTOR.
B-205599, MAY 6, 1982
DIGEST: 1. WHETHER A BIDDER IS CAPABLE OF SUPPLYING AN ITEM CONFORMING TO THE SPECIFICATION, AS PROMISED IN ITS BID, IS A MATTER OF THAT BIDDER'S RESPONSIBILITY; GAO WILL NOT QUESTION AN AGENCY'S AFFIRMATIVE RESPONSIBILITY DETERMINATION ABSENT CIRCUMSTANCES NOT RELEVANT HERE. 2. WHETHER THE AWARDEE ULTIMATELY SUPPLIES ITEMS WHICH COMPLY WITH THE SPECIFICATION IS A MATTER OF CONTRACT ADMINISTRATION FOR CONSIDERATION BY THE CONTRACTING AGENCY, NOT GAO.
WORLD WIDE DIESEL, INC.:
WORLD WIDE DIESEL, INC. PROTESTS THE AWARD OF A CONTRACT TO ELECTRO MOTIVE DIVISION (EMD) OF GENERAL MOTORS CORPORATION, UNDER INVITATION FOR BIDS (IFB) NO. DTCG40-81-B-70059, ISSUED BY THE U. S. COAST GUARD, DEPARTMENT OF TRANSPORTATION. THE SOLICITATION CALLED FOR TWO MAIN PROPULSION SHIPSETS FOR 180-FOOT CLASS CUTTERS, EACH SHIPSET CONSISTING OF TWO DIESEL ENGINES. WORLD WIDE CONTENDS THAT THE ENGINE EMD INTENDS TO FURNISH DOES NOT CONFORM TO CERTAIN MATERIAL REQUIREMENTS OF THE SPECIFICATION, AND THAT EMD THUS SHOULD NOT HAVE RECEIVED THE AWARD. FN1 WE DISMISS THE PROTEST.
THE SOLICITATION REQUIRED ONLY THAT BIDDERS AGREE TO FURNISH SHIPSETS WHICH CONFORMED TO THE SPECIFICATION. SINCE EMD'S BID AGREED TO DO SO AND TOOK NO EXCEPTIONS TO THE SPECIFICATION OR OTHER TERMS OF THE SOLICITATION, IT WAS RESPONSIVE TO THE SOLICITATION. SEE SCIENCE APPLICATIONS, INC., B-193479, MARCH 8, 1979, 79-1 CPD 167.
WHETHER EMD IS CAPABLE OF MEETING ITS OBLIGATION UNDER ITS BID BY FURNISHING THE COAST GUARD WITH AN ENGINE MEETING THE SPECIFICATION IS STRICTLY A MATTER OF THAT FIRM'S RESPONSIBILITY AS A PROSPECTIVE CONTRACTOR. THE COAST GUARD REPORTS THAT THE ENGINE OFFERED BY EMD HAS BEEN FOUND TO MEET ALL MATERIAL REQUIREMENTS OF THE SPECIFICATION. MOREOVER, IN MAKING AWARD TO EMD, THE COAST GUARD NECESSARILY DETERMINED THAT EMD WAS A RESPONSIBLE CONTRACTOR. POTOMAC DOCUMENTATION AND DESIGN, INC., B-197347, B-197349, SEPTEMBER 19, 1980, 80-2 CPD 211. OUR OFFICE WILL NOT REVIEW A PROTEST CHALLENGING AN AFFIRMATIVE RESPONSIBILITY DETERMINATION, WHICH IS LARGELY A BUSINESS JUDGMENT, ABSENT A SHOWING OF FRAUD OR BAD FAITH ON THE PART OF GOVERNMENT OFFICIALS, OR AN ALLEGATION THAT DEFINITIVE RESPONSIBILITY CRITERIA HAVE NOT BEEN APPLIED. ENVIRONMENTAL CONTAINER SYSTEMS, INC., B-201739, FEBRUARY 9, 1981, 81-1 CPD 83. NEITHER EXCEPTION APPEARS TO EXIST HERE.
WE ADD THAT WHETHER EMD ULTIMATELY SUPPLIES ENGINES WHICH COMPLY WITH THE SPECIFICATION IS A MATTER OF CONTRACT ADMINISTRATION FOR CONSIDERATION BY THE COAST GUARD, NOT OUR OFFICE. LA POINTE INDUSTRIES, INC., B-204594, DECEMBER 24, 1981, 81-2 CPD 495. FOR THE SAME REASON, WE WILL NOT CONSIDER WORLD WIDE'S ADDITIONAL CONTENTION THAT EMD FAILED TO SUBMIT A TORSIONAL VIBRATION ANALYSIS WITHIN 60 DAYS AFTER AWARD, AS REQUIRED BY THE SOLICITATION.
THE PROTEST IS DISMISSED.
FN1 ALTHOUGH WORLD WIDE WAS THE THIRD LOW BIDDER BEHIND EMD AND ALBAN ENGINE POWER, WE HAVE BEEN ADVISED BY THE COAST GUARD THAT, SUBSEQUENT TO BID OPENING, ALBAN INDICATED IT WAS BIDDING ON THE SAME ENGINE AS EMD. THUS, WORLD WIDE'S ALLEGATIONS APPLY TO BOTH EMD AND ALBAN.