Protest Alleging Failure of Low Offeror To Make Site Inspection

B-200594: Jan 22, 1981

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A firm protested the award of a contract for custodial services. When notified of the intended award, the firm filed a protest with GAO arguing that it was entitled to the award since neither of the other two offerors had made a site visit as required by the request for proposals (RFP). The agency proceeded with the award despite the pending protest on the ground that a hazard to health and safety would occur if custodial services were interrupted. The firm protested this decision as well. In this case, the site inspection provisions in the RFP were only to warn offerors that site conditions could affect the cost of contract performance and thus offerors assumed the risk of any costs of performance due to observable site conditions. Even when a site inspection is mandatory, the failure to make such an inspection does not require the rejection of the bid or offer. The agency could have considered such a failure as a matter affecting the bidder's responsibility. However, the record indicated that the agency determined the awardee to be a responsible offeror. GAO does not review affirmative determinations of responsibility absent a showing of fraud or an allegation that definitive responsibility criteria have not been properly applied. Neither exception was present here. There was no basis to question the agency's decision to award the contract while the protest was pending. A contracting agency is authorized to make such an award when it is in the best interest of the Government to do so. Procedural deficiencies did not effect the validity of the award. The protester was not prejudiced by the agency's failure to follow questioned regulations. The director of the agency was notified that, in the future, the word " required" should not be used in a specification for site inspection if such inspection is only recommended. Accordingly, the protest was denied.

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