Protest Against Evaluation Criteria

B-192453: Jun 18, 1980

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A firm protested a Federal grantee's selection of another sludge treatment system for the construction of an advanced wastewater treatment facility. The agency rejected the protester's bid as nonresponsive. The protester complained that the agency's refusal to consider its system placed undue restriction on competition, the agency's use of a two brand name was inappropriate, and its bid was functionally responsive to the solicitation and should not have been rejected, because it offered a system which would meet all material performance requirements. A protest to the grantee was rejected and appealed to the Environmental Protection Agency (EPA). EPA found that the protest was without merit and that the proposed award was reasonably supported. EPA contended that the protester's innovative technology excluded the protester and that its protest did not relate to procurement issues. Further, EPA believed that GAO was not an appropriate forum to consider issues involving basic project design determinations. GAO believed that a review is merited when a contractor complains of exclusionary specifications by Federal grantees because the EPA regulations encourage open competition. Therefore, the EPA request that GAO dismiss the matter was rejected. Regarding the restrictiveness of the specification, EPA stated the protester's system had not been used in any installation. Because pilot-scale installations were not in operation, the technical data submitted to the grantee were largely theoretical. The protester's system incorporates essentially untried design and process differences from past practice. Under these circumstances, GAO believed the use of the two brand name or equal specification and the finding that the protester's system was not equal to the specified system was not unreasonable or the result of bad faith. In any event, the protester was not prejudiced by the EPA refusal to consider its complaint. It was not necessary to resolve the other issues raised by the protester. The complaint was denied.