[Protest of Terms and Conditions in Army IFB]

B-212770: Dec 20, 1983

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An incumbent contractor protested the terms and conditions of an invitation for bids issued by the Army Communications-Electronics Command and the subsequent award of the contract to another firm. The protester contended that: (1) the quantity of equipment being purchased represented an uneconomical production quantity for any firm other than a current producer; (2) the solicitation's delivery schedule was unrealistically short for any firm other than a current producer; (3) the solicitation should not have been issued because the current contract contained an option clause which could have been exercised; (4) the solicitation improperly called for certain contractor-furnished test equipment which it had proven to be inadequate; (5) the contracting officer failed to insert an economic price adjustment provision in the solicitation; (6) bids were opened and an award was made in disregard of its protest; (7) the Army improperly refused to disclose certain documents which the protes considered necessary to pursue its protest; and (8) the awardee's bid was nonresponsive. GAO held that it would question neither an agency's quantity requirement nor its decision to procure an item competitively rather than on a sole-source basis. GAO stated that it would not consider: (1) an incumbent contractor's protest of allegedly restrictive delivery terms where it was not an interested party; (2) an incumbent contractor's contention that the agency should have exercised a contract option instead of issuing a new solicitation; or (3) an allegation that specifications should be more restrictive to meet the needs of the user agency. In addition, GAO determined that: (1) the use of an economic price adjustment clause was discretionary with the agency; (2) the award of a contract pending a protest was permissible under Defense Acquisition Regulations; and (3) it has no authority to determine what information must by disclosed by Government agencies. Finally, GAO found that the allegation of the awardee's nonresponsiveness was without legal merit. Accordingly, the protest was dismissed in part and denied in part.

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