Protest Alleging That Specifications Were Defective and Impossible To Meet

A firm protested the award of a contract for roof repairs on the grounds that the specifications listed in the invitation for bids (IFB) were defective and impossible to meet. The IFB required a 10-year warranty of materials by the contractor and the manufacturer. The protester claimed that the manufacturer refused to offer such a warranty, and contended that the low bidder was not able to meet the requirement. The protester stated that it submitted telegrams in advance of the bid opening advising the procuring activity of the alleged defects, but did not receive any response until more than 30 days after the bid opening. GAO Bid Protest Procedures require that protests based upon alleged improprieties in a solicitation which are apparent prior to bid opening be "filed" prior to bid opening. The term "filed" as used therein means receipt in the contracting agency or GAO, as the case may be. When the agency opened bids without changing the specifications, the protester was put on notice of adverse agency action and had 10 days from that time to file a protest with GAO. Since it failed to do this, the protest was held untimely, despite the fact that the initial protest with the agency may have been filed in a timely manner. No consideration was made of the allegation that the low bidder could not comply with the 10-year warranty required in the IFB, since this was a question of successful bidder responsibility. GAO does not review such questions unless fraud is alleged or the solicitation contains definitive responsibility criteria which allegedly have not been applied. Accordingly, the protest was dismissed.