Matter of: Department of Health and Human Services-- Modification of Remedy File: B-254909.2 Date: July 22, 1994
Highlights
DIGEST Prior decision is modified to delete recommendation that awardee's contract be terminated for the convenience of the government where information provided by contracting agency subsequent to issuance of our decision shows that terminating the contract and recompeting the requirement is not practicable. SBA properly determine whether including the requirement in the 8(a) program would have an adverse impact on McNeil. We further recommended that if SBA concluded that acceptance of the requirement was inappropriate. HHS states that the contract awarded to KRA is a 2-year contract. The contractor's primary responsibility during the last year of the contract is to assist in closing down the program).
Matter of: Department of Health and Human Services-- Modification of Remedy File: B-254909.2 Date: July 22, 1994
DIGEST
Attorneys
DECISION
We sustained the protest based on a finding that SBA improperly failed to follow applicable regulations when it accepted the requirement into the 8(a) program. We recommended that consistent with its regulations, SBA properly determine whether including the requirement in the 8(a) program would have an adverse impact on McNeil, a small business. We further recommended that if SBA concluded that acceptance of the requirement was inappropriate, the requirement not be retained in the 8(a) program and the contract awarded to the KRA Corporation be terminated. By letter dated March 24, 1994, SBA informed our Office that a review of the matter in accordance with our recommendation revealed that acceptance of the requirement in the 8(a) program had an adverse impact on McNeil.
HHS requests that we modify our decision so as to delete the recommendation that the contract awarded to the KRA Corporation be terminated. HHS states that the contract awarded to KRA is a 2-year contract, without options, scheduled to be completed by September 1995. The effort represents the final work to be done under this program (i.e., the contractor's primary responsibility during the last year of the contract is to assist in closing down the program). As such, the agency states that there is a need for speed and efficiency in accomplishing all the necessary finalizing tasks within the time remaining on the contract. According to HHS, recompeting the last year of the effort would require approximately 6 months. The agency argues that it thus would be disruptive to the program to terminate the contract awarded to KRA, and compete the final months of the contract. The agency further states that McNeil will be afforded opportunities to participate in HHS' future procurements. The protester states that it does not object to KRA's performance of the remainder of the contract.
In determining the appropriate recommendation in cases where we find a violation of procurement laws or regulations, we consider all the circumstances surrounding the procurement, including the seriousness of the procurement deficiency, the degree of prejudice to other offerors, interested parties, the extent of performance, cost to the government, the urgency of the procurement, and the impact of the recommendation on the user or contracting agency's mission. See 4 C.F.R. Sec. 21.6(b) (1994); Science Applications Int'l Corp.; Department of the Navy--Recon., 71 Comp.Gen. 481 (1992), 92-2 CPD Para. 73. In view of the circumstances here, we agree that terminating the contract awarded to the KRA Corporation is not appropriate. See Bush Painting, Inc.-- Modification of Remedy, B-239904.2, Jan. 11, 1991, 91-1 CPD Para. 28. Accordingly, we revise our previous decision to delete the recommendation that HHS terminate the contract awarded to the KRA Corporation.