Protest Alleging That Low Bids Were Nonresponsive

B-201873: Aug 17, 1981

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A company protested the General Services Administration's (GSA) award of contracts to two firms for Forest Green camouflage paint. Both awardees were low bidders for their respective contracts; however, the protester alleged that both bids were nonresponsive. Both solicitations specified Forest Green paint manufactured in accordance with specific military specifications. An amendment to the solicitations added a percentage of zinc phosphate to the pigmentation composition. However, no requalification was required at the time. A second amendment superseded the first but specifically retained the prior amendment's zinc phosphate requirement. Subsequently, manufacturers listed on the Qualified Products List (QPL) were notified that the QPL would be revised and that requalification of Forest Green paint would be required. Both awardees received conditional qualification, and the new QPL was not issued until much later. Both awardees used prior QPL numbers in their bids, which the protester contended were nonresponsive. GSA argued that, when bidders bid as manufacturers and omit QPL information but have properly qualified products which can be ascertained from the use of conjunctive information, failure to properly identify the product or QPL list number does not render bids nonresponsive. The awardees, however, did not omit QPL information, but rather they expressly identified QPL information. In neither bid was there any information which would have permitted the agency to determine that the bidders did not intend to offer the designated products. The record indicated that the products listed in the bids were materially different from the product called for by the solicitations. GAO recommended that both solicitations be canceled and that the procurements be resolicited. However, since the contracts had been performed, or substantially performed, no useful purpose would have been served by recommending corrective action. Accordingly, the protest was sustained.

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