Protest of Bid Rejection

A firm protested the rejection of its low bid and the proposed award of a contract to another bidder. The invitation for bids (IFB) provided for alternative bids, one including first-article testing and the other without first-article testing but requiring certain evidence of performance to be submitted. The protester submitted a bid only for performance without first-article testing, and the agency refused to waive such testing and rejected the bid. The protester asserted that it complied with the IFB requirements to submit the evidence required and, therefore, the agency could not properly reject its bid. The protester also suggested that it had been misled, because on a previous procurement it had allegedly been advised by the agency that, if it desired a first-article testing waiver, it should have submitted a bid only on that basis. Therefore, the protester asserted that the agency arbitrarily refused to waive first-article testing in this case. The agency stated that, because a previous procurement was defective and resulted in unusable products which had to be scrapped, the agency felt that it could not waive first-article testing. The decision to waive first-article testing for a particular bidder is essentially a discretionary one which GAO will not disturb unless it is clearly arbitrary. GAO could not conclude that the contracting officer's insistence on first article-testing was arbitrary or capricious. Advice to the protester with respect to a previous procurement could not compromise the discretion of the contracting officer in this case. Although GAO found the agency's decision requiring first-article testing to be reasonable, bids should have been invited solely on the basis of first-article testing. However, this did not constitute a compelling reason on which to recommend solicitation cancellation and reissuance. The urgent need for the supplies and the fact that all of the bidders were evaluated properly precluded such cancellation. The protester also contended that the low bidder was nonresponsive since it bid only for the initial quantity of items and did not acknowledge an amendment which increased the quantity. The agency had deleted this amendment after bid opening. Cancellation of a portion of a solicitation is permissible after bid opening if the Government needs less than the amount of items originally specified. GAO had no objection to the proposed award. Accordingly, the protest was denied.