Contract Award Protest

B-201970: Oct 21, 1981

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A firm protested the award of a contract alleging that its low bid was improperly rejected. The protester contended that its product was equal to the brand name product specified in the invitation for bids. The solicitation called for brand name or equal products and listed a number of salient features deemed essential to the agency's minimum needs. The protester offered its own model as an equal product, but its bid was rejected because the agency determined that the offered product did not meet two salient features deemed essential to meet its minimum needs. The protester argued that literature submitted with its bid clearly indicated that its product met the specified minimum needs or was superior in performance. The protester stated that, in five recent procurements listing the identical list of salient characteristics, the agency accepted its products. The agency concluded that the protester met one of the specifications but did not meet the second. Where, as here, a contracting agency specifies particular features, such features must be presumed to have been regarded as material and essential to the needs of the Government. However, a solicitation which lists characteristics which are not essential is defective. The agency did not attempt to rebut the protester's information which indicated that the agency had previously found the protester's product acceptable. Thus, it appeared from the record that the agency knew or should have known that the purchase description used overstated its minimum needs. When specifications overstate an agency's needs, cancellation of the solicitation is the appropriate course of action. The action of the agency rejecting the protester's product, which it conceded would have met its minimum needs, and the awarding of the contract at a higher price to another bidder was clearly improper. Accordingly, the protest was sustained. Since the contract had been fully performed, GAO was unable to recommend any corrective action.