Oral Protest Against Solicitation Deficiencies

B-194902: Feb 12, 1980

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A firm protested the award by the Army Corps of Engineers of a contract for maintenance and dredging of a section of the Connecticut River. It was determined that the protest was timely since it met the requirements for an oral protest of solicitation specifications prior to bid opening and a written protest was filed within 10 days of adverse agency action. The protester alleged numerous deficiencies in the solicitation relating to the description of the work to be done. Essentially, the protester contended that the invitation for bids (IFB) did not describe which shoals in the river were to be dredged and did not describe which disposal areas were available for disposal of dredged material. Solicitations must be drafted in a manner that informs all offerors in clear and unambiguous terms what will be required of them under the contract so that contractors who are unfamiliar with the work required can compete on an equal basis with incumbent and former contractors. However, the fact that shoals in the river were subject to shift and rapid formation made it impossible to identify accurately the locations of various dredging and disposal sites before performance was scheduled to begin. The procurement under consideration was similar to a requirements-type contract and fulfilled the requirement for that type of solicitation in that it contained a reasonable, estimated total quantity of materials to be handled for the information of prospective bidders. The awardee may have enjoyed a competitive advantage by virtue of its incumbency on the project; however, the Government is not required to equalize competition on a particular procurement. While the contract was found appropriate in view of the unusual circumstances, GAO felt that the provision of specifications based on "worst case" estimates for part of the work involved may have led to unusually high offers from all bidders other than the awardee. Thus, GAO agreed with the protester that the solicitation did not contain the best available information in all areas and sustained the protest on this point. Since the contract had already been performed, the Secretary of the Army was notified of the findings under the instant protest so that the improprieties noted here would not be repeated. Thus, the protest was denied in part and sustained in part.

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