Request for Reconsideration

A firm requested reconsideration of a decision which denied its protest that the two lowest bids on a solicitation were nonresponsive for failure to comply with an invitation for bids (IFB) provision. Because the provision was not being evaluated in determining the awardee, there was no option price ceiling and nothing in the IFB indicated that the offer for the provisional article was mandatory. GAO concluded that failure to comply with the provision was not a material deviation requiring bid rejection. GAO also held that a bidder which did not offer the option did not obtain an unfair competitive advantage. On reconsideration, the protester focused on the GAO conclusion that the failure to bid on the provision did not render the two low bids nonresponsive. The protester did not show that the prior decision contained an error of fact or law. However, GAO clarified the decision. The provision clearly falls within the option definition in a Defense Acquisition Regulation. The failure to comply with the optional provision was not a material deviation which required bid rejection because the IFB stated that the option would not be part of the evaluation and the IFB had no ceiling on option prices. Therefore, the Government was not denied a valuable contract right. Since an otherwise proper bid could not be rejected because of unreasonably high option prices, the absence of prices should not result in bid rejection. GAO recognized that the applicable solicitation paragraph was unclear. However, it concluded that the solicitation did not require the option to be evaluated. The agency's failure to reject the bids to obtain lower prices was of no consequence since rejection of those bids would have been improper. Since the protester did not show that the prior decision contained any error of fact or law, that decision was affirmed.