Allegation That Solicitation Contained Conflicting Provisions

B-195009: Mar 5, 1980

Additional Materials:

Contact:

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

A firm protested the award of a contract for reporting and transcribing services. The protester alleged that the solicitation provisions were conflicting, substantially affecting its bid prices, and asked that the solicitation be canceled. The area of concern was with respect to whether the contractor would be permitted to sell copies of transcripts to the public. While the agency conceded that two of the provisions were in conflict, it did not believe the deficiency warranted cancellation of the solicitation. Further, the agency suggested that the protester should have realized that the clause in question was an incorrect version of an almost identical clause in another contract between the protester and the agency. The agency argued that the bid would not have changed if the solicitation had been amended. It suggested that the protester exhibited bad faith because it appeared to accept the contracting officer's assurance that the inconsistency would be corrected by an amendment, and protested anyway. The protester argued that it did not rely on the contracting officer's promise in submitting its bid, but viewed the oral promise as contrary to public policy and unenforceable because the solicitation stated that oral explanations or instructions given before the award of the contract would not be binding. GAO found that the agency was correct in that not every defect in a solicitation warrants cancellation of the solicitation. It has been previously held that the cancellation of a defective solicitation may not be appropriate if an award would (1) serve the Government's actual needs, and (2) would not adversely affect the competition to prejudice the other bidders. GAO concluded that the protester considered the revenue from anticipated sale of the transcripts to the public and competed with the awardee on a common basis. GAO found that the defect did not prejudice the protester in the competiton. Since no other bidder protested the matter, and since it was not disputed that the awardee would meet the Government's needs, there was no compelling reason under regulations to cancel the solicitation. Accordingly, the protest was denied.