Protest of DLA Contract Award

B-203428,B-203643,B-204354: Oct 9, 1981

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A firm protested the award of three contracts for components to be used in equipment manufactured by a specific corporation. The protester was licensed by the corporation to manufacture the parts in question. The contract awardee was not a licensee. Thus, the protester argued that the awardee's proposals should have been rejected because it could not possibly possess the authentic drawings necessary to manufacture the requested parts. The request for proposals (RFP) provided that offerors could propose to furnish items which were equal in all material respects to the ones requested. However, if this was done, it was required that offerors submit sufficient technical data to enable the agency to evaluate the acceptability of the offered products. The agency accepted the low bids of a firm which offered its parts as alternate items and furnished technical data on its parts and the protester's parts so that the agency could evaluate the acceptability of the products offered. The protester argued that the proposals should have been rejected as nonresponsive since the awardee did not have access to its drawings. While a proposal in a negotiated procurement must ultimately conform to the solicitation, the fact that an initial proposal may not be in full accord with the RFP requirements is not a reason to reject the proposal if the deficiency is reasonably subject to being made technically acceptable through negotiations. Accordingly, this basis for protest was without merit. GAO does not review affirmative determinations of responsibility except where the protester alleges fraud on the part of the procuring officials or where the solicitation contains definitive responsibility criteria which allegedly have not been applied. Since neither exception was applicable, GAO had no basis to question the agency's determination. The agency concluded that the awardee's technical data were sufficient to prove the acceptability of its proposed items. GAO has held that such a determination is clearly a matter which falls within the contracting agency's administrative discretion and is not subject to GAO review unless clearly arbitrary or unreasonable. Therefore, GAO will not question the agency determination. Also, GAO will not adjudicate a dispute between private parties as to rights to proprietary data. Court action rather than a protest to GAO is the appropriate remedy. Accordingly, the protests were denied.