Wright Tool Company

B-272413 Sep 11, 1996 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Low bid which unequivocally offered to perform in accordance with solicitation requirements is responsive. Protest styled as questioning bid responsiveness which actually relates to affirmative determination of responsibility is not for review by our Office absent circumstances not present here. Wright argues that Sigma's bid for one of the items was nonresponsive because Sigma offered a nonconforming product. Requested bids for tool kits consisting of 10 items which were further broken into components. Nine responses were received by the October 26. Sigma was the low bidder on items 4. Wright's bid was second low for item 8. At issue here is a component contained in Item No. 8. Which was to be provided in accordance with Federal Specification GGG-C-744A. View Decision Matter of: Wright Tool Company File: B-272413 Date: September 11, 1996 Low bid which unequivocally offered to perform in accordance with solicitation requirements is responsive; protest styled as questioning bid responsiveness which actually relates to affirmative determination of responsibility is not for review by our Office absent circumstances not present here. Attorneys DECISION Wright Tool Company protests the award of a contract to Sigma West under invitation for bids (IFB) No. 6FES-G6-94G617-S, issued by the General Services Administration's Federal Supply Service, Tools Acquisition Division II, for tool kits made up of 10 items. Wright argues that Sigma's bid for one of the items was nonresponsive because Sigma offered a nonconforming product. We dismiss the protest. The solicitation, issued June 30, 1995, requested bids for tool kits consisting of 10 items which were further broken into components, with award to be made on an item-by-item basis to the low responsive bidders. Nine responses were received by the October 26, 1995, bid opening. Sigma submitted bids for items 2, 3, 4, 5, 8, and 10. Wright submitted a bid for item 8. Sigma was the low bidder on items 4, 5, 8, and 10. Wright's bid was second low for item 8. At issue here is a component contained in Item No. 8, identified as No. 85 (5120-00-221-7980), a ratchet wrench, which was to be provided in accordance with Federal Specification GGG-C-744A, dated May 15, 1965, and Interim Amendment-1, dated January 12, 1971. Sigma's bid took no exception to these specifications. Subsequent to bid opening, the contracting officer requested a Plant Evaluation Facility Report (PEFR) from a Quality Assurance Specialist (QAS) to determine Sigma's capability to meet the requirements of the contract. The PEFR recommended complete award to Sigma. Included with the PEFR was a letter from the QAS stating, "[i]t has been determined that an on-site survey is not necessary. A "Capable of Performing" recommendation was justified by the proposed awardee's current satisfactory performance." On January 30, 1996, the agency made award to Sigma for Item Nos. 4, 5, 8, and 10. On February 1, Wright submitted a Freedom of Information Act (FOIA) request to the agency seeking information concerning the PEFR evaluation of Sigma. The documents responsive to Wright's request revealed to the contracting officer for the first time that Sigma had submitted a questionable commitment letter on Item 8, Component No. 85. Specifically, in a letter dated December 21, 1995, from Imperial Eastman, Sigma's supplier, Imperial stated that: "Imperial has discontinued the production of the 123-C three size ratchet wrench pending a detailed evaluation of our tooling." Imperial offered to provide Sigma a 125-C ratchet instead. Sigma was advised that once Imperial completed its evaluation, Imperial would decide whether or not it would continue to offer the 123-C three size ratchet wrench. On March 28, Wright filed an agency-level protest in which it argued, based on the commitment letter from Imperial Eastman, that the "agency committed a deviation and accepted a non-compliant offer" and that these actions were arbitrary, capricious, and in bad faith. As a result of the protest, on April 24, the contracting officer requested the QAS to perform an "on-site" PEFR. On April 26, Sigma submitted a new commitment letter from Imperial Eastman stating that it would continue to manufacture the 123-C heavy duty ratchet wrench. Sigma's capability to perform was reviewed by QAS personnel and on June 17, a positive PEFR was received by the contracting officer. The PEFR stated that based on the April 26, letter of commitment from Imperial Eastman, Sigma was deemed capable of performing. On June 18, the agency denied Wright's protest. The agency concluded that Component No. 85 of Item No. 8 was not a brand name item, and thus the contractor receiving the award has the right to procure the item from any manufacture that complies with the specification.