Protest Against Contract Award

B-199578: Sep 2, 1980

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A firm protested the award of a contract issued by the District of Columbia (D.C.) for the procurement of fresh foods. The protester contended that: (1) the provision appearing in the invitation, bid, and contract form, which limited award to those certified as minority bidders, was unduly restrictive and was imposed by an unconstitutional law; (2) it should have received the award; (3) the awardee did not have the resources and specialized facilities necessary to comply with the specifications and conditions of the contract; and (4) it was led by certain D.C. Government representatives to believe its prior contract would be extended by 35 days and, as a result, purchased additional quantities of food. GAO held that: (1) the protest challenging the propriety of the solicitation provision was untimely since the protest was not filed prior to bid opening; (2) constitutional attacks on statutes are not generally considered by GAO, but are viewed as matters to be dealt with by the courts; (3) under the rules applicable to advertised bidding, award could not properly be made to the protester since the protester was not a certified minority bidder; (4) the matter of the awardee's responsibility would not be reviewed since neither fraud was alleged on the part of the procuring agency nor did the solicitation contain definitive responsibility criteria that had not been applied; (5) compliance with the specifications of the contract was a matter of contract administration; and (6) if the protester believed that it had a claim for a financial loss, the claim should be filed with the contracting officer. Accordingly, the protest was dismissed in part and summarily denied in part.