Protest of Bid Rejection as Unacceptable

B-194168: Nov 28, 1979

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A firm requested a review of the award of a contract for data processing services issued by the North Dakota Employment Security Bureau (NDESB). The procurement was conducted under a grant from the Department of Labor. Primarily, the firm contended that NDESB improperly rejected its bid without conducting any discussions with it. The firm contended its proposal contained sufficient information and that any deficiencies were inconsequential and could have been resolved in discussions. It contended that NDESB allowed the awardee to correct deficiencies in discussions, while it was not given this opportunity. Finally, the protester contended that an earlier NDESB proposal for the data processing services should not have been cancelled. NDESB contended that it evaluated the three proposals submitted and rejected the protester's bid because of its failure to meet several mandatory requirements of the Request for Proposals (RFP). The record indicated that the earlier proposal was rejected because NDESB believed that offerors misunderstood the grantee's requirements and that clearer specifications were needed. It has been held that the determination of whether an initial proposal is within the competitive range is a function of the contracting agency. The agency's determination will not be questioned unless it is clearly shown to have no reasonable basis. In this case, the NDESB decision to reject the protester's proposal was held to be reasonable, because the RFP repeatedly and specifically warned that informational deficiencies ran the risk of immediate rejection. It has been held that any opportunity to change a proposal constitutes negotiations; and if this opportunity is offered to one offeror, it must be offered to all offerors within the competitive range. However, in this case, the protester's bid was initially rejected as not being within the competitive range, so there was no obligation to negotiate with it. As to the firm's final contention, its objection to the earlier cancellation should have been submitted at the time of the cancellation, and not after the rejection of its bid under the second RFP. In any case, the decision to cancel that RFP was held to be within the norms of negotiated procurement. The complaint was denied.