Protest of Army Contract Award

B-195091: Nov 20, 1979

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A firm protested the award of a contract by the Army to a competing firm. The firm contended that the awardee's product was not in compliance with the performance requirements of the specifications and that the product was never tested as required. Finally, it contended that the Army conducted unilateral negotiations with the awardee subsequent to the submission of the best and final offers. The Army contended that the awardee's submission of test data and information concerning the product's performance on previous contracts with other agencies was sufficient to safisfy the testing requirement. The Army admitted that it had communicated with the awardee after the submission of the best and final offers, but characterized the communications as permissible clarifications, not negotiations. It was held that since the specifications did not explicitly specify the time and manner of testing, the Army's acceptance of the awardee's test data was reasonable. However, it was held that the Army did improperly hold discussions with the awardee. After the submission of best and final offers, meaningful discussions may not be conducted with only one offeror. Meaningful discussions have been held if an offeror is afforded the opportunity to modify its proposal, such as occurred in this case. The protest was sustained. However, since the contract was nearly completed, its termination was not held to be in the best interests of the Government.

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