Link: GAO Opinion
Agency: Department of the Army
Disposition: Protest denied.
1. Under brand name or equal solicitation, bid which offered similar furniture items, but with different dimensions than those listed in the solicitation, was properly rejected as nonresponsive.
2. Protest against requirements set forth in solicitation is untimely when filed after bid opening.
General Counsel P.C. Highlight:
SDV argues that the decision to reject its bid as nonresponsive was unreasonable because the true salient feature of the panels that the army was trying to obtain was the creation of seated privacy, which the protester contends its panels provide. The protester argues that the exact dimensions of the partition panels are irrelevant. GAO states that the test for responsiveness is whether a bid offers to perform the exact thing called for in an IFB, so that acceptance of the bid will bind a bidder to perform in accordance with all of the terms and conditions of a solicitation without exception. Strict compliance with the listed features of the brand name product is required.
With regard to the width requirement, the protester acknowledges that its panels are one half thinner than the specifications in the solicitation, but contends that they have a higher acoustic rating, and therefore accomplish better internal sound baffling, which, in the protester’s view, is the true salient feature of the specified panels. Therefore, the protester argues that the agency’s rejection of its offer as nonresponsive was improper. The partitions proposed by SDV did not meet the salient characteristics listed in the solicitation–they were seven inches too short vertically, two inches too long horizontally, and half an inch too thin. Because SDV’s partitions did not meet the solicitation’s salient characteristics, the protester’s bid was nonresponsive and ineligible for award.
To the extent that SDV protests that the solicitation’s requirement for the dimensions listed above exceeds the agency’s minimum needs, and is therefore restrictive of competition, this argument is clearly untimely. The Bid Protest Regulations provide that protests based upon alleged improprieties in a solicitation that are apparent prior to bid opening must be filed prior to that date. The protest is denied.