Protest of Specifications in IFB

B-202096: Sep 4, 1981

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A firm protested the specifications in an invitation for bids (IFB) which called for bids on a brand name or equal basis. During the pendency of the protest, the award was made to the brand name firm. The protester contended that the specifications were unduly restrictive because they provided salient characteristics which were without a valid functional basis, were oriented toward the product of one supplier, and called for an unsound product. The product manufactured by the protester did not meet the IFB specification requirements. The requirements were determined by the agency following a market survey with all manufacturers making this type of product and a 3-month test of the products of several firms. It was determined that several manufacturers had the capacity to meet the requirements. Because the awardee's product met these requirements, it was used in the brand name or equal provisions of the procurement. GAO does not substitute its judgment for that of the agency absent a clear showing of abuse of discretion or unless the agency's judgment is shown to be clearly in error. GAO found that the determination that the requirements set forth in the specifications were necessary to meet the minimal needs of the agency had a reasonable basis, except for one specification which could have been more clearly written. Using the protester's interpretation of this specification, the awardee's bid was technically nonresponsive. However, the protester was not prejudiced by this erroneous provision since it was not capable of satisfying other requirements. The protester also contended that the award of the contract violated Federal procurement regulations as it was prevented from protesting the award by a delayed notification. GAO held that this was a procedural defect which did not affect the validity of the award. Therefore, the protest was denied.

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