[Protest of Rejection of Bid as Nonresponsive]

B-209707: Apr 22, 1983

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A firm protested the rejection of its bid as nonresponsive under a solicitation issued by the Army Corps of Engineers for the construction of a comfort station. The original solicitation contained 17 separate items and instructed bidders that they were required to bid on all items. Prior to bid opening, the Army issued an amendment which changed a number of specifications and revised the schedule. At bid opening, the contracting officer found that the protester had acknowledged the amendment and offered the lowest price; however, the contracting officer also discovered that the protester had submitted its bid on the original item schedule rather than on the revised one. The contracting officer concluded that the firm's failure to use the revised schedule rendered its bid nonresponsive, because he believed that the protester was not legally bound to furnish the Army the specific items solicited and that to allow the protester to change its bid after bid opening would be prejudicial to the other bidders. The protester conceded that it used the wrong schedule, but it argued that its failure to use the revised schedule was insignificant. GAO stated that the protester's low bid should not have been rejected as nonresponsive because of its failure to use the revised schedule. Since the firm expressly acknowledged the amendment, it was legally bound to perform without exception the exact thing called for by the amended invitation. Furthermore, a low responsive bid may be reduced after bid opening since it does not affect the relative standing of the bidders. Therefore, the protester's bid may be reduced by the amount bid for an item deleted under the revised schedule. Accordingly, the protest was sustained, and GAO recommended that the award be made to the protester.

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