B-179915, JAN 24, 1975
Highlights
WHERE CONTRACTOR ON NON-SET-ASIDE PORTION OF LABOR SURPLUS SET-ASIDE PROCUREMENT APPEALS DEFAULT TERMINATION TO ARMED SERVICES BOARD OF CONTRACT APPEALS GAO WILL NOT ASSUME JURISDICTION NOR PRECLUDE AGENCY FROM REPROCURING ITEMS COVERED BY TERMINATED CONTRACT. CONTRACTOR'S PROTEST AGAINST AWARD TO ANY OTHER FIRM ON SET-ASIDE PORTION OF PROCUREMENT WOULD APPEAR TO BE ACADEMIC SINCE THAT PORTION WAS CANCELED. WAS AWARDED CONTRACT NO. THIS CONTRACT WAS FOR THE PRODUCTION AND DELIVERY OF A QUANTITY OF 60 MM PROJECTILES AND CALLED FOR THE SUBMISSION OF FIRST ARTICLE SAMPLES. DAAA09-74-C-0128 WAS AWARDED UNDER INVITATION FOR BIDS (IFB) DAAA09-73-B-0149 AS THE NON-SET-ASIDE PORTION OF A LABOR SURPLUS SET-ASIDE PROCUREMENT.
B-179915, JAN 24, 1975
WHERE CONTRACTOR ON NON-SET-ASIDE PORTION OF LABOR SURPLUS SET-ASIDE PROCUREMENT APPEALS DEFAULT TERMINATION TO ARMED SERVICES BOARD OF CONTRACT APPEALS GAO WILL NOT ASSUME JURISDICTION NOR PRECLUDE AGENCY FROM REPROCURING ITEMS COVERED BY TERMINATED CONTRACT. ALSO, CONTRACTOR'S PROTEST AGAINST AWARD TO ANY OTHER FIRM ON SET-ASIDE PORTION OF PROCUREMENT WOULD APPEAR TO BE ACADEMIC SINCE THAT PORTION WAS CANCELED.
FINAST METAL PRODUCTS, INC.:
ON JUNE 18, 1974, FINAST METAL PRODUCTS, INC. (FINAST), WAS AWARDED CONTRACT NO. DAAA09-74-C-0128 BY THE UNITED STATES ARMY ARMAMENT COMMAND. THIS CONTRACT WAS FOR THE PRODUCTION AND DELIVERY OF A QUANTITY OF 60 MM PROJECTILES AND CALLED FOR THE SUBMISSION OF FIRST ARTICLE SAMPLES. OCTOBER 17, 1974, THE CONTRACTING OFFICER TERMINATED THE CONTRACT FOR DEFAULT ON THE GROUNDS THAT THE CONTRACTOR HAD FAILED TO DELIVER THE FIRST ARTICLE SAMPLES IN ACCORDANCE WITH CONTRACT REQUIREMENTS.
CONTRACT NO. DAAA09-74-C-0128 WAS AWARDED UNDER INVITATION FOR BIDS (IFB) DAAA09-73-B-0149 AS THE NON-SET-ASIDE PORTION OF A LABOR SURPLUS SET-ASIDE PROCUREMENT. WE ARE ADVISED THAT NO AWARD WAS MADE FOR THE SET-ASIDE QUANTITY, WHICH PORTION WAS SUBSEQUENTLY CANCELED ON NOVEMBER 11, 1974.
BY TELEFAX MESSAGE OF DECEMBER 18, 1974, FINAST PROTESTED THE AWARD BY THE DEPARTMENT OF THE ARMY FOR THE 60 MM PROJECTILES UNDER CONTRACT NO. DAAA09-74-C-128 TO ANY FIRM OTHER THAN FINAST, ALLEGING THAT THE CONTRACT WAS UNFAIRLY TERMINATED. FINAST ALSO PROTESTED AGAINST THE AWARD OF THE SET-ASIDE PORTION OF IFB DAAA09-73-B-149 TO ANY FIRM OTHER THAN FINAST ON THE BASIS THAT FINAST WAS THE LOW RESPONSIVE, RESPONSIBLE BIDDER FOR THAT PORTION OF THE IFB.
THE RECORD INDICATES THAT FINAST HAS FILED A TIMELY APPEAL FROM THE DEFAULT TERMINATION TO THE CONTRACTING OFFICER UNDER THE "DISPUTES" CLAUSE IN THE CONTRACT, AND THE APPEAL HAS BEEN DULY FORWARDED TO THE ARMED SERVICES BOARD OF CONTRACT APPEALS (ASBCA), THE PROPER FORUM FOR RESOLVING SUCH DISPUTES.
IT APPEARS THAT FINAST IS REQUESTING THAT WE PRECLUDE THE ARMY FROM PROCEEDING WITH ANY REPROCUREMENT OF THE REQUIREMENTS COVERED BY CONTRACT NO. DAAA09-74-C-0128 UNLESS THE PROCUREMENT IS FROM FINAST. WE ARE AWARE OF NO BASIS FOR RESTRICTING THE ARMY IN THIS MANNER. MATTER OF AMPLITRONICS, INCORPORATED, B-182179, NOVEMBER 1, 1974.
REGARDING THE DEFAULT TERMINATION, THAT IS A MATTER FOR THE ASBCA RATHER THAN THIS OFFICE. SEE MATTER OF AMPLITRONICS, INCORPORATED, SUPRA, AND MATTER OF ALLIED RESEARCH ASSOCIATES, INC., B-181092, JULY 5, 1974.
AS TO THE PROTEST AGAINST AWARD OF THE SET-ASIDE PORTION UNDER IFB DAAA09 -73-B-0149 TO ANY FIRM OTHER THAN FINAST, SINCE THAT PORTION OF THE PROCUREMENT HAS BEEN CANCELED AND WE ARE UNAWARE OF ANY PLANS FOR REPROCUREMENT OF THIS REQUIREMENT, THE ISSUE WOULD APPEAR TO BE ACADEMIC.
ACCORDINGLY, WE ARE UNABLE TO TAKE ANY ACTION ON THIS PROTEST AND WE ARE CLOSING OUR FILE ON THE MATTER.