Protest Alleging Contract Awarded Was Illegal

Met-Pro Water Treatment Corporation (Met-Pro) and Environmental Tectonics Corporation (ETC) protested the award of a contract, alleging that each alone was entitled to the benefit of waiver for testing of its sample equipment by the Government. The invitation for bid (IFB) provided for testing by the Government of samples of the contractor's product, but advised bidders that the contracting officer could waive the testing requirement for those firms which had previously produced an essentially identical item. The cost to be incurred by the Government in conducting the test was taken into consideration through a provision in the IFB which added for evaluation purposes a sum to each bid not qualifying for waiver. Prior to the issuance of the IFB, the contracting officer had information indicating that one potential bidder, Met-Pro, would qualify for waiver. After bid opening, technical advisors stated that because of a specification change, no essentially identical item had ever been produced, and therefore, no bidder was eligible for waiver of the testing requirement. Met-Pro would have been the low bidder if the testing requirement had been waived only for it. ETC withdrew its protest when it learned that a waiver would not be granted to either firm and that ETC was to be awarded the contract. After the award was made, Met-Pro filed suit in the U.S. District Court and obtained a temporary restraining order prohibiting the Government from proceeding with the contract. The order was vacated upon its expiration and the Court refused to grant a preliminary injunction. However, Met-Pro did not consider the protest moot. GAO believed that the inclusion of the waiver provision in the IFB did not provide a legal basis for questioning the validity of the award to ETC. It has been held that the decision whether or not to waive such testing is essentially an administrative function, and unless the contracting officer's determination that samples should not be waived is shown to be arbitrary, capricious, or without substantial basis in fact, GAO will not disturb that determination. Because of the specification requirements for performance, GAO could not conclude that no reasonablle basis existed for the contracting officer's decision to require the testing. Accordingly, the protest was denied.