Protest of Bid Rejection as Nonresponsive

A firm protested the award of a contract for computerized tomography whole body scanners and the rejection of its low bid as nonresponsive. The specifications required that the equipment be capable of reconstructing absorption measurements and displaying the computed image in 45 secords or less, and that the 45 seconds applied to all of the manufacturers standard tomography scan modes regardless of the quantity of data collected. The protester's equipment included a specialized mode, the 1080, in addition to its standard modes. In a letter accompanying its bid, the protester stated that reconstruction time for both standard modes was 45 seconds or less. The contracting officer rejected the protester's bid as nonresponsive on the theory that any scan made available on the system was a standard feature, and the 1080 scan mode did not reconstruct in 45 seconds or less. While the contracting officer did not suggest that the protester's equipment operating in its two standard modes did not meet the bid requirements, he admitted that the equipment would have been acceptable if the 1080 mode were not included in the equipment or the printed literature. To be responsive, a bid must comply in all material respects with the invitation for bids (IFB). The purpose of a descriptive literature requirement is to determine if the supplies offered comply with the requirements of the specifications, and where the literature indicates a deviation from the specifications, the bid is properly rejected as nonresponsive. However, GAO was not aware of any requirement prohibiting a bidder from clarifying its preprinted descriptive literature by a letter accompanying the bid which obligates the bidder to contract performance as required. GAO held that where the low bidder offers equipment which met specification requirements and included features which were not required, a bid is acceptable. GAO found the contracting officer was unreasonable in refusing to accept the protester's clarification of its literature where the result was the rejection of a bid for equipment which met its needs and the award of the contract at a higher price. It was recommended that the the agency explore the feasibility of terminating the existing contract for the convenience of the Government. An award to the protester would be consistent with the fair and reasonable treatment of both the awardee and the protester. The protest was sustained.