B-232373.5, Jan 9, 1989, 89-1 CPD 12
Highlights
PROCUREMENT - Contract Management - Contract administration - Options - Use - GAO review DIGEST: A contractor may waive an agency's failure to provide timely written notice of its intent to exercise an option and once the condition of notice is waived. The option exercise was ineffective. When the condition of notice is waived. The contract is valid for the extended term. The protest concerning the split award is clearly untimely since it was filed several months after the awards were made. Split or multiple awards were. The protest is dismissed.
B-232373.5, Jan 9, 1989, 89-1 CPD 12
PROCUREMENT - Contract Management - Contract administration - Options - Use - GAO review DIGEST: A contractor may waive an agency's failure to provide timely written notice of its intent to exercise an option and once the condition of notice is waived, the exercise of the option results in a binding contract between the parties.
Ceredo Mortuary Chapel, Inc.:
Ceredo Mortuary Chapel, Inc. protests the exercise of an option to extend contract No. V581P-1526, issued by the Veterans Administration Medical Center, Huntington, West Virginia for ambulance services. Ceredo also questions the the contracting officer's May 1988 decision to make split awards for ambulance services and for hired car services under the original solicitation. We dismiss the protest.
Ceredo argues that because the contracting officer failed to give the required 60 days notice of the government's intent to exercise the option to the incumbent contractor, the option exercise was ineffective, requiring resolicitation of the services.
We do not agree. The notice requirement included in the contract protects the contractor and may be waived either expressly or by conduct. See 3A Corbin, Contracts Sec. 759 (1960). When the condition of notice is waived, a valid contract results. See generally Burroughs Corp., DOTCAB No. 1327, 83-1 BCA Para. 16,427 (1983); Fourth Street Estates, Inc., GSBCA No. 5813, 81-2 BCA Para. 15,299 (1981). Therefore, as the incumbent contractor apparently accepted the option exercise, the contract is valid for the extended term.
The protest concerning the split award is clearly untimely since it was filed several months after the awards were made. See 4 C.F.R. Sec. 21.2 (1988). In any event, we point out that the solicitation permits the government to award any item or group of items unless a bidder qualifies its bid by a specific limitation such as an "all or none" bid. Federal Acquisition Regulation Sec. 52-214-10. Split or multiple awards were, therefore, proper.
Accordingly, the protest is dismissed.