Protest Against Award of Contract

B-195391: Mar 10, 1980

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A firm protested the award of a contract for on-site laboratory urinalysis (drug detection) services to the only other bidder. The protester first contended that the invitation for bids' (IFB) specifications did not satisfy the procuring activity's requirements. This allegation was considered untimely since it was filed more than 10 days after the initial adverse agency action, in this case bid opening. The next allegation was that the awardee had been operating its laboratory in violation of Federal law since it had not been issued a certain required license, and was therefore not in compliance with the IFB. GAO distinguished between general licensing requirements and a solicitation requirement that a bidder have a particular license. It was held that, in this case, the IFB contained a general licensing requirement and merely placed responsibility for obtaining any licenses needed on the contractor; therefore, the lack of a particular license had no bearing on the award of the contract. The protester also alleged misconduct on the part of the procuring activity's chemist in preparing the samples to be tested by the bidders. GAO held that the protester had not sustained its burden of proof of this and other similar assertions, and that the mere suspicion of wrongdoing was an insufficient basis for review. Finally, the protester contended that the awardee's test samples did not conform to the IFB because their drug content was below the specified level, and that therefore, the drug detection method used by the awardee during preaward testing was incapable of detecting the low levels. The reason for the sample deficiency was the alleged failure of the chemist to follow recognized clinical quality control standards in the preparation of the samples. GAO did not agree that the low drug content negated the test of the bidders' ability to perform. GAO did agree that the manner in which the samples were prepared may have been suspect, and believed that while the awardee's test results may not necessarily have been incorrect, they may have been inconclusive because of the uncertain nature of the samples. Therefore, GAO recommended that the contract option with the awardee not be exercised and the requirement be recompeted using test samples prepared in a manner that would remove all doubt of test validity. Accordingly, the protest was denied in part and sustained in part.