Protest of Bid Rejection as Nonresponsive

B-202212: Jun 15, 1981

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A firm protested the rejection of its bid. The invitation for bids (IFB) listed salient characterisitcs of the brand name model that an equal product was to meet and required descriptive literature to show product equality. The protester stated that it took no exceptions to the IFB specifications, indicated by a clause in the literature which provided that if there were any discrepancy between the data contained in the literature and the IFB specification, the specification would prevail. The protester stated that its offered product met the specifications without exception and as a small business and the apparent low bidder was treated unfairly. The agency contended that the literature stating that the IFB specifications would prevail in the event of a discrepancy did not satisfy the firm's obligation. It was not possible from the bid to determine if the bid complied with the solicitation specifications so the bid was rejected as nonresponsive. Both the bid and the literature failed to establish if the product was the firm's standard, presently commercially available model or that it had been on the commercial market and in successful operation for the requisite period of time. Failure in this regard was also sufficient basis upon which to reject a bid as nonresponsive. Information contained in a post-bid opening telegram could not be considered a statement of compliance. GAO agreed with the agency that the bid was ambiguous. Where a bid is subject to two reasonable interpretations under one of which it is nonresponsive, the bid is considered nonresponsive and must be rejected. The protester's blanket statement of compliance was not sufficient to remove the ambiguity or make the bid responsive. Whether the protester's product was a standard commercially available item was academic. The protest was denied.