B-174350, JUN 16, 1972

B-174350, JUN 16, 1972

BID PROTEST - NONRESPONSIBILITY - QUALIFIED PRODUCTS LIST - ALLEGED IMPROPER DETERMINATION DECISION DENYING THE PROTEST OF AIR AND TOOL ENGINEERING COMPANY AGAINST REJECTION OF ITS BID UNDER AN IFB ISSUED BY THE GENERAL SERVICES ADMINISTRATION. A BIDDER'S RESPONSIBILITY IS PRIMARILY FOR DETERMINATION BY THE PROCURING ACTIVITY. IN THE INSTANT CASE, THE CONTRACTING OFFICER'S DECISION WAS BASED ON A PLANT FACILITIES REPORT INDICATING THAT PROTESTANT WOULD BE UNABLE TO FURNISH THE REQUIRED QUALIFIED PRODUCTS LIST ITEM. ALTHOUGH AIR AND TOOL CONTENDS THAT THE GOVERNMENT INSPECTOR SPOKE TO A COMPANY EMPLOYEE OTHER THAN THE PERSON DESIGNATED IN ITS PROPOSAL, THE COMP. GEN. IS UNABLE TO CONCLUDE THAT THE AGENCY'S DECISION WAS ARBITRARY OR UNREASONABLE. ACCORDINGLY, THE PROTEST IS DENIED.

TO AIR AND TOOL ENGINEERING COMPANY:

THIS IS IN REPLY TO YOUR LETTER OF OCTOBER 15, 1971, PROTESTING AGAINST AWARD OF A CONTRACT UNDER INVITATION FOR BIDS (IFB) FPNTP-B5 33535-A-4-5- 71, ISSUED BY THE GENERAL SERVICES ADMINISTRATION, WASHINGTON, D.C.

THE SOLICITATION WAS FOR VARIOUS ITEMS OF FSC CLASS 5130 TOOL KITS AND TOOLS. THE INVITATION SPECIFIED THAT THE PRODUCT FURNISHED FOR ITEM 7, PORTABLE PNEUMATIC HAMMERS, HAD TO BE A PRODUCT LISTED ON QUALIFIED PRODUCTS LIST (QPL) 00-R-421.

AT BID OPENING ON APRIL 5, 1971, YOU WERE FOUND TO BE THE SECOND LOW BIDDER ON ITEM 7, THE ONLY ITEM ON WHICH YOU BID. HOWEVER, THE CONTRACTING OFFICER, RELYING ON PLANT FACILITIES REPORTS FURNISHED BY GSA'S QUALITY CONTROL DIVISION, DETERMINED THAT YOU AND THE LOW BIDDER WERE NONRESPONSIBLE BECAUSE THERE WAS NO INDICATION THAT EITHER OF YOU COULD FURNISH THE QPL PRODUCT. AWARD WAS MADE TO CHICAGO PNEUMATIC TOOL COMPANY, THE NEXT LOW BIDDER, ON JUNE 29, 1971.

YOU PROTEST THAT REJECTION OF YOUR BID WAS BASED ON AN ERRONEOUS INSPECTION REPORT RESULTING FROM THE GOVERNMENT INSPECTOR'S FAILURE TO CONTACT THE PROPER REPRESENTATIVE OF YOUR COMPANY. YOU CLAIM THAT IN FACT YOU INTENDED TO FURNISH THE ITEM AS STATED IN YOUR BID.

PARAGRAPH 6 ON PAGE 6 OF THE IFB STATED THAT " *** AWARDS WILL BE MADE ONLY FOR SUCH PRODUCTS AS HAVE, PRIOR TO THE TIME SET FOR RECEIPT OF OFFERS, BEEN TESTED AND APPROVED FOR INCLUSION IN THE QUALIFIED PRODUCTS LIST *** ." PARAGRAPH 6 FURTHER STATED:

"(B) THE OFFEROR SHALL INSERT, IN THE SPACES PROVIDED BELOW, THE MANUFACTURER'S NAME AND PRODUCT DESIGNATION, AND THE QPL TEST OR QUALIFICATION REFERENCE NUMBER OF EACH QUALIFIED PRODUCT OFFERED. IF THE OFFEROR IS A QUALIFIED DISTRIBUTOR, HE ALSO SHALL INSERT HIS NAME AND PRODUCT DESIGNATION. ANY OFFER WHICH DOES NOT IDENTIFY THE QUALIFIED PRODUCT OFFERED WILL BE REJECTED."

YOU INSERTED "CHICAGO PNEUMATIC CP-7XB PISTOL GRIP 00-R-421" IN THE SPACE PROVIDED BELOW THAT PROVISION. IN PARAGRAPH 10 OF THE IFB, HEADED "PRODUCTION POINT," YOU LISTED "CHICAGO PNEUMATIC TOOL CO." AS THE MANUFACTURER OF THE ITEM AND "UTICA, N.Y." AS THE PLANT ADDRESS. UNDER PARAGRAPH 8, HEADED "SOURCE INSPECTION," YOU LISTED "AIR & TOOL ENGINEERING CO. 1768 SABRE ST. HAYWARD, CA." AS THE NAME AND ADDRESS OF YOUR PLANT OR FACILITY.

ACCORDING TO THE ADMINISTRATIVE REPORT FURNISHED US BY GSA, A PLANT FACILITIES REPORT WAS REQUESTED ON YOU BECAUSE YOU WERE A NEW BIDDER AND THERE WAS NO INFORMATION ON FILE RELATIVE TO YOUR ABILITY TO PERFORM. THE CONTRACTING OFFICER SPECIFICALLY REQUESTED VERIFICATION THAT THE PRODUCT OFFERED WAS THE CURRENT CHICAGO PNEUMATIC MODEL CP-7XB MANUFACTURED IN ACCORDANCE WITH THE QPL, AND THAT YOU HAD A FIRM COMMITMENT FROM THE MANUFACTURER TO FURNISH THE HAMMER. THE GOVERNMENT REPRESENTATIVE WHO VISITED YOUR FACILITY WAS UNABLE TO CONTACT THE PERSON DESIGNATED IN YOUR BID. HOWEVER, ANOTHER EMPLOYEE EXPLAINED THAT SINCE THE DESIGNATED INDIVIDUAL WAS OUT OF TOWN, HE WOULD PARTICIPATE ON BEHALF OF THE COMPANY. HE FURNISHED THE GOVERNMENT INSPECTOR WITH A PNEUMATIC TOOL THAT HAD THE RIVETED NAME PLATE REMOVED AND WHICH HAD BEEN STAMPED "AIR TOOL SPECIALTY CO." WHEN ASKED ABOUT THE CHICAGO PNEUMATIC BRAND, YOUR EMPLOYEE WAS UNABLE TO PRODUCE ANY EVIDENCE THAT THE COMPANY COULD PROVIDE THAT BRAND OF HAMMER. AS A RESULT OF THIS INSPECTION, THE PLANT FACILITIES REPORT STATED THAT YOU HAD NO FIRM ORDER WITH CHICAGO PNEUMATIC, THAT YOU INTENDED TO SUBMIT TOOLS FROM THE AIR TOOL SPECIALTY COMPANY, AND THAT IT COULD NOT BE ADEQUATELY DETERMINED THAT YOU COULD FURNISH THE QPL PRODUCT. THE REPORT FURTHER INDICATED THAT YOUR PRODUCTION CAPACITY, PURCHASING AND SUBCONTRACTING PROCEDURES, QUALITY CONTROL AND TESTING SYSTEMS WERE ALL INADEQUATE. THEREFORE, THE CONTRACTING OFFICER WAS NOT ABLE TO MAKE AN AFFIRMATIVE DETERMINATION OF YOUR FIRM'S RESPONSIBILITY WITH RESPECT TO THE PROCUREMENT AS REQUIRED BY THE PROCUREMENT REGULATIONS.

YOU CLAIM THAT THE REPORT WAS IN ERROR AND THAT THE ERROR WOULD NOT HAVE BEEN MADE HAD THE PROPER PERSON BEEN CONTACTED BY THE GOVERNMENT REPRESENTATIVE. HOWEVER, OUR FILE INDICATES THAT THE GOVERNMENT REPRESENTATIVE ATTEMPTED WITHOUT SUCCESS TO CONTACT THE PERSON NAMED IN YOUR BID. YOU FURTHER CLAIM THAT YOU ATTEMPTED TO CONTACT THE GOVERNMENT REPRESENTATIVE, ALSO WITHOUT SUCCESS, TO CLEAR UP ANY MISUNDERSTANDING ARISING FROM THE REPRESENTATIVE'S TALKING WITH ANOTHER EMPLOYEE. THE REPRESENTATIVE, HOWEVER, DENIES RECEIVING ANY COMMUNICATION FROM YOU.

ON THE BASIS OF THIS RECORD, WE DO NOT BELIEVE THAT THE CONTRACTING OFFICER'S DECISION WAS ARBITRARY OR UNREASONABLE OR OTHERWISE IMPROPER, AND WE CANNOT CONCLUDE THAT THE CONTRACTING OFFICER ERRONEOUSLY DETERMINED THAT YOU WERE NONRESPONSIBLE. WE HAVE OFTEN STATED THAT THE QUESTION OF BIDDER RESPONSIBILITY IS PRIMARILY FOR DETERMINATION BY THE PROCURING AGENCY, AND WE WILL REGARD THAT DETERMINATION AS CONCLUSIVE UNLESS THERE IS CONVINCING EVIDENCE THAT IT WAS THE RESULT OF ARBITRARY ACTION OR BAD FAITH. 43 COMP. GEN. 228 (1963).

ACCORDINGLY, YOUR PROTEST MUST BE DENIED.