Protest Alleging That Solicitation Unduly Restricts Competition

A firm protested a request for proposals (RFP) contending that the RFP was restrictive of competition because one specification described a manufacturer's equipment, and certain RFP terms limited the ability of regulated public utilities to compete. The protester complained that: (1) it was precluded from submitting a proposal because of the deficiencies in the original solicitation; (2) it had not received the amendment to the solicitation which it was promised; and (3) its request for a preproposal conference had not been honored. Shortly thereafter, the agency amended the solicitation and extended the date for receipt of proposals. The protester did not submit a proposal by the amended closing date. The contracting officer subsequently decided to award the contract despite the protest. The solicitation contained provisions for a fixed-price contract with fixed-price 1-year options, prohibited the assessment of termination or cancellation charges, and permitted the Government to assess penalties for equipment downtime. The protester contended that these provisions excluded regulated communications carriers from the competition since a tariffed communications carrier generally cannot be considered for the award of a fixed-price contract for services covered by tariffs. Fixed-price contracts are accorded a statutory preference under Federal regulations, and GAO would not take legal objection to their use in this case. The determination of the Government's minimum requirements and the best methods for accommodating them are properly the responsibility of the contracting agency. GAO will not substitute its judgment for that of the contracting agency unless it is shown that the judgment is unreasonable. GAO concluded that the provisions reflected legitimate agency needs. A protest concerning the Government's right to order optional equipment should have been advanced prior to the closing date for receipt of proposals. This protest was therefore untimely. GAO found that the protester did not meet its burden of proof as to a protest that a specification was unduly restrictive and that the protest was untimely since it was not advanced before the closing date for receipt of proposals. GAO will not question an agency's discretionary decision not to hold a preproposal conference. Finally, GAO did not believe that the protester was denied a meaningful opportunity to respond to the solicitation. Accordingly, the protest was dismissed in part and denied in part.