BNUMBER:  B-272413
DATE:  September 11, 1996
TITLE:  Wright Tool Company

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Matter of:Wright Tool Company

File:      B-272413

Date:September 11, 1996

Sam Z. Gdanski, Esq., for the protester.
Marie Adamson Collins, Esq., General Services Administration, for the 
agency.
Linda C. Glass, Esq., Office of the General Counsel, GAO, participated 
in the preparation of the decision.

DIGEST

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.

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.  The 
agency concluded that it had received adequate assurance that Sigma 
had the capability to provide an item that meets the specifications.  
This protest to our Office followed, raising basically the same 
grounds as those raised in the agency-level protest, with Wright 
maintaining that the agency allowed Sigma to deviate from the IFB 
specifications. 

It is clear from the record that the bid submitted by Sigma was 
responsive to the terms of the solicitation.  Component No. 85 of Item 
No. 8 was to be provided in accordance with the federal specification; 
the solicitation did not require a brand name item and did not require 
the submission of descriptive literature.[1]  Sigma in its bid made an 
unequivocal offer to supply the item in accordance with the 
specifications.  Thus, Sigma legally obligated itself to supply 
Component No. 85 in exact accordance with the solicitation's 
specifications, and the question of whether it will in fact be able to 
supply conforming goods pertains to the firm's responsibility.  Can-Am 
Indus., Inc., B-235922, Oct. 17, 1989, 89-2 CPD  para.  361.  

Prior to award, an agency is required to make an affirmative 
determination of the prospective awardee's responsibility, Federal 
Acquisition Regulation (FAR) 
 sec.  9.103(b), which our Office will not review absent a showing of 
possible bad faith on the part of government officials, or 
misapplication of definitive responsibility criteria in the 
solicitation.  Bid Protest Regulations 4 C.F.R.  sec.  21.5(c) (1996).  

Definitive criteria are not at issue, and there is no showing of 
possible bad faith here.  Sigma was found responsible on the basis of 
a PEFR that found Sigma capable of performing and recommended complete 
award.  When information was brought to the agency's attention 
indicating that the proposed awardee might not be able to perform in 
accordance with the specifications, an on-site PEFR was requested with 
specific instructions to examine Sigma's ability to provide the item 
in question in accordance with the solicitation's requirements.  The 
second PEFR also concluded that Sigma was capable of performing and, 
on this basis, the contracting officer concluded that Sigma had the 
ability to provide the item in accordance with the specifications.  
The contracting officer reasonably relied on the PEFR findings that 
the awardee was responsible.

The protest is dismissed.

Comptroller General
of the United States

1. The protester argues that the bidder's descriptive literature 
evidences nonconformance with the specifications, hence rejection of 
the bid is required.  However, the solicitation did not require the 
submission of descriptive literature and the December 21 letter from 
Imperial Eastman to Sigma, which was not a part of Sigma's bid, did 
not constitute descriptive literature.