Protest Alleging That Bid Was Improperly Rejected

B-199301: Mar 6, 1981

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A company protested the award of a contract for the supply of certain x-ray development chemicals. The company alleged that its bid was improperly rejected on the basis that only Kodak brand name chemicals were considered acceptable even though the solicitation actually called for a brand name or equal chemical. The company argued that it had supplied the hospital with non-Kodak chemicals under several previous solicitations for the same requirement, and agency personnel had indicated to the company that its offer of an equal chemical would be considered. Since the solicitation did not clearly express a brand-name-only restriction and the company could not have been aware of its basis for protest until after it received notice of the agency's rejection of its bid, the company's protest filed after bid opening was timely. The agency argued that the Kodak-only restriction was intended to reduce costs, standardize certain procedures, and improve quality. However, the agency adduced no evidence to support its position that the restrictive brand-name-only requirement was reasonably related to its actual needs. Accordingly, the protest was sustained. However, because the contract had been substantially completed, no remedial action was feasible.