Protest Alleging That Agency Was Biased Toward Awardee

B-196100: May 23, 1980

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A firm protested the award of a contract to another firm. The protester contended that its technically acceptable proposal was significantly lower in price than the awardee's and that the agency erred in failing to conduct negotiations with the protester to clear up several minor questions, thereby denying the protester an opportunity to improve its proposal and itself the opportunity to save a significant amount of money. The protester also alleged that the agency acted in a fraudulent, arbitrary, and capricious manner and that it was biased toward the awardee. GAO held that the agency should have conducted discussions with all of the offerors within the competitive range in order to clarify any questions, thus obtaining a substantial advantage associated with a proposal which would be significantly lower in price. However, the record indicated that the procurement deficiency was not the result of fraudulent, arbitrary, or capricious action by the agency; rather the agency was mistaken in its belief that best and final offers could be requested without the necessity for conducting meaningful discussions. Since the contract was in an advanced status of performance, it would not have been in the best interest of the Government to terminate it. However, agency action was recommended to preclude a recurrence of the deficiency in the procurement. The protest was sustained.