Protest of Requirements-Type Contract Award

A bidder protested the award of a requirements-type contract to another bidder under a request for proposals (RFP). The procuring agency accepted the bid sample submitted by the successful bidder, although the sample did not exactly conform to the design requirements of the specifications, because the sample conformed to the necessary specifications for quality and workmanship. The protester contended that the bid sample should have been rejected and the bidder determined nonresponsive. The procuring agency did not comply with the intent of the procurement regulations when determining the sample to be responsive after the contract was awarded, because the regulations were intended to assist the agency in determining responsiveness prior to contract award. This constituted a procedural deficiency, and did not result in prejudice to other bidders/offerors. Prejudice is an essential element of a viable protest, and GAO will not disturb an award merely because some technical deficiency in the procurement process may have occurred. The award was not subject to question and the protest was denied.