Protest Alleging That Awardee's Bid Was Nonresponsive

B-195956: Jan 23, 1980

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A firm protested the award of a contract for construction of racquetball courts under an invitation for bids (IFB) issued by the Army Corps of Engineers. The protester contended that the awardee was nonresponsible because it was an export firm relying entirely on subcontractors, lacked technical and financial qualifications, and was not a regular dealer or manufacturer within the meaning of the Walsh-Healey Act. Further, it contended that the awardee's bid was nonresponsive because the design drawings submitted with the bid did not comply with the IFB specifications. Concerning the allegation of nonresponsibility, GAO does not consider issues as to whether a bidder is a regular dealer or manufacturer because such matters are by law for the contracting agency's determination. Moreover, GAO does not review affirmative determinations of responsibility except where fraud is alleged on the part of the procuring officials, or where the solicitation contains definitive responsibility criteria which have allegedly not been applied. Therefore, the issue to be decided was that of responsiveness. The record indicated that the awardee submitted drawings with its bid which not comply with the specifications, but the Army determined that any deviations in the drawings were minor and insignificant, and within an acceptable tolerance according to current racquetball industry practices. The Army did not accept the bid as submitted, but required the proposed awardee to revise its drawings. The Army contended that the specifications were performance specifications and related to bidder responsibility rather than responsiveness. GAO did not agree. It believed that such a required revision seemed inconsistent with a position that the deviation was minor or insignificant. It was concluded that the awardee's bid should be rejected as nonresponsive. Accordingly, the protest was sustained.