Rejection of Schedule Contractor Under Negotiated Procurement Was Not Reasonable

B-190632: Aug 4, 1978

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A schedule contractor protested the selection of a competitor to receive orders under the competitor's contract. The protest was based on the reasonableness of the agency's finding that the protester was technically unacceptable because of failure to furnish a copy of a relevant contract modifications on time. The disappointed offerer in a negotiated procurement is considered an interested party and may file a protest. The protest was timely filed within 10 days after the basis of protest was known. A contention by the successful offerer that its ability to respond to the protest was hampered because correspondence was sent to the wrong office lacked merit since the error resulted from conflicting instructions by company representatives, and the company had the normal time to respond. Although the protester did not timely submit a copy of the contract modification, it adequately communicated its offer and the agency was obligated to make reasonable efforts to verify the modification. Requirement of the modification copy was a matter of form, and waiver by the government would not have prejudiced other offerers. Since there was no reasonable basis for rejecting the contractor for failure to submit the copy, the agency should either terminate existing orders and order its requirements under the protester's schedule contract or reopen negotiations.