[Requests for Reconsideration of Decision Sustaining Protest Under Navy IFB]

B-220327.2,B-220327.3: Apr 23, 1986

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The Navy and the awardee requested reconsideration of a decision sustaining a protest against the rejection of a low bid because the protester failed to acknowledge a solicitation amendment. GAO had found that the amendment was not material and recommended termination of the contract. In its request for reconsideration, the awardee contended that: (1) the initial decision was legally incorrect because GAO found that the unacknowledged amendment did not materially affect delivery requirements; (2) the protester's bid was inadequate because it did not include an alternative offer based on a waiver of first article testing; and (3) since the protester did not return the entire bid package, its bid should have been rejected as nonresponsive. In addition, the Navy requested a modification of the recommendation because: (1) of the extent of performance of the current contract; (2) there was no statutory requirement to suspend performance; and (3) it lacked sufficient funds to pay termination costs and to award a new contract. GAO held that: (1) it will not reverse or modify a decision unless the request for reconsideration specifies information not previously considered or demonstrates that errors of fact or law existed in the original decision; (2) a bid is responsive if it is submitted in such a form that acceptance would create a valid and binding contract and require the bidder to perform in accordance with all the material terms and conditions of the solicitation; (3) in similar circumstances, it has found that the advanced stage of a procurement and high termination costs support a finding that termination is not feasible; (4) where a protester was in line for award but was unreasonably excluded from the competition, regulations provide that the reasonable costs of filing and pursuing a protest may be recovered; and (5) anticipated profits may not be recovered even in the presence of wrongful government actions. Accordingly, the prior decision was affirmed and the recommendation for contract termination was withdrawn, and the protester should recover the costs of bid preparation and filing and pursuing its protests.

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