Protest of Bid Rejection as Nonresponsive

A firm protested the rejection of its bid under an invitation for bids (IFB) issued by the Veterans Administration (VA) for failure to acknowledge an amendment to the solicitation changing the brand name model in the solicitation's brand name or equal description. The protester argued that it was allowed inadequate time to respond to the amendment and that the specification change only benefited the brand name manufacturer. In addition, the protester maintained that its original bid met the requirements of both the original and amended solicitations and that award should have been made to it on its original low bid. The protester's allegations that it did not have sufficient time to respond to the amendment and that the amendment benefited only the brand name manufacturer was untimely and will not be considered. To be timely, a protest must be filed before bid opening if it is based, as these contentions were, on alleged improprieties in the solicitation which are apparent prior to bid opening. The failure to acknowlege an amendment usually renders a bid nonresponsive. Nevertheless, acknowlegement of an amendment can be waived if the amendment clearly would have no effect or only a trivial effect on price, quality, quantity, or the relative standing of bidders. In a brand name or equal procurement, an agency has an obligation to inform bidders of the salient characteristics of the brand name product essential to the Government. Firms cannot compete on an equal basis when the solicitation merely lists brand name items which meet the agency's requirements but does not list the item's salient characteristics; bidders are left to guess which features of the brand name equipment the contracting agency considers necessary to meet its minimum needs. Unless the protester's offered equal product differerd signficantly from the brand name product, rejection of bid for failure to meet unspecified feature of brand name product was improper. Accordingly, the protest was sustained.