Time. It’s a great Pink Floyd song. It’s also something that frequently trips up contractors filing protests before GAO. As one contractor recently discovered, a challenge to the salient characteristics of a brand name product is equivalent to challenging the terms of a solicitation, which carries a different protest deadline than evaluation challenges.
Unfortunately for the protester, its argument did not fair nearly as well as one of David Gilmour’s solos.
It’s a Sunday afternoon and instead of watching football, you’re shopping for a new refrigerator. You explain to the salesman your must-haves: a black refrigerator with a bottom-drawer freezer and an in-door water dispenser. But rather than showing you refrigerators that meet your criteria, he insists on showing you stainless steel models with the freezer on the side.
If the refrigerator doesn’t meet your needs (or your wants), odds are you won’t buy it. The federal government is no different: if it identifies salient characteristics in a solicitation, proposals that deviate from them likely aren’t going to win the award.
Imagine that you’re a manufacturer of appliances, and respond to a solicitation seeking one of your appliances (on a brand name basis). You, of course, propose to provide your appliance. But you lose out on an award to an offeror that submits an offer for a different appliance that admittedly does not comply with the solicitation’s minimum requirements.
In this situation, you’d probably be fairly upset. And as a recent GAO decision acknowledged, you’d likely have a successful basis of protest—that is, if you could establish that you were prejudiced by the government’s award decision, and if you understood what exactly the GAO means by “prejudice.”