GSA Contract Award Protest

B-200430.2: Oct 28, 1981

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A firm protested the award of a contract for a telephone system to another firm under a request for proposals (RFP) issued by the General Services Administration (GSA). The protester contended that: (1) the award was improper because, after initially determining that the awardee's offer was nonresponsive because it included a termination liability clause which conflicted with the Government's termination for convenience clause, GSA amended the RFP to permit such clauses; (2) the award was not in the best interest of the Government because the awardee had based its price on a rate structure for which an application for change was pending and which would be adjusted upward; and (3) GSA improperly waived its preaward contract clearance requirement. The record showed that, after the receipt of best and final offers, the contracting officer determined that the awardee's offer was nonresponsive because it contained a termination liability clause that was inconsistent with the Government's standard termination for convenience clause. However, in conformity with the ongoing policy of GSA of accepting termination liability clauses, GSA requested and was granted a deviation from the regulations. Consequently, the solicitation was amended to permit termination liability clauses, and negotiations were reopened with a new closing date. GAO held that the protester's complaint regarding the awardee's responsiveness is really a complaint against the amendment permitting termination liability clauses and, as such, it was untimely since it was not received by GAO until almost 3 months after the closing date for receipt of proposals. Additionally, GAO held that: (1) since the policy of GSA has always been to permit tariffed carriers to pass through tariff changes when they are approved, GSA acted properly in evaluating and accepting the awardee's prices; and (2) the requirement for contract clearance is an internal agency regulation which provides for waiver of the preaward contract clearance and substitution of a postaward clearance when an immediate award is necessary. Finally, GAO held that the submission of a third company as an interested party in the protest raised a number of issues which were not raised by the protester and which were untimely. Accordingly, the protest was dismissed in part and denied in part.

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