B-167305, MAY 4, 1970

B-167305, MAY 4, 1970

CONTRACTS--DAMAGES--DELAYS--PENDING RESOLUTION OF PROTEST LOW BIDDER'S CLAIM FOR DAMAGES ALLEGEDLY INCURRED DURING TIME REQUIRED BY GAO TO DISPOSE OF PREAWARD PROTEST AGAINST ACCEPTANCE OF ITS BID FOR CUSTODIAL SERVICES AT FORT BRAGG, N.C; IS DENIED. GOVERNMENT CANNOT BE HELD LIABLE FOR DAMAGES WHICH ALLEGEDLY FLOWED FROM CLAIMANT'S FAILURE TO REQUEST DETAILED PROTEST INFORMATION OR FROM CLAIMANT'S ERRONEOUS RELIANCE ON CONTRACTING OFFICER'S JUDGMENT CONCERNING PROTEST'S LEGAL COMPLEXITY OR TIME NECESSARY TO RESOLVE IT, AND RECORD DOES NOT ESTABLISH THAT CLAIMANT WOULD HAVE OBTAINED HIGHER RATES FOR TEMPORARY SERVICES IT PERFORMED AND AWARD FOR REMAINDER OF FISCAL YEAR HAD IT RECEIVED FULL PROTEST INFORMATION EARLIER.

TO ROYAL SERVICES, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 30, 1970, AND SUBSEQUENT CORRESPONDENCE IN WHICH YOU CLAIM DAMAGES IN THE AMOUNT OF $16,394.57, ALLEGED TO HAVE BEEN INCURRED DURING THE TIME REQUIRED BY OUR OFFICE TO DISPOSE OF THE PRE-AWARD PROTEST OF BUILDING MAINTENANCE CORPORATION AGAINST ACCEPTANCE OF YOUR LOW BID UNDER INVITATION FOR BIDS (IFB) NO. DABC21-69-B-0100. THE IFB IN QUESTION WAS ISSUED BY FORT BRAGG, NORTH CAROLINA, ON MAY 26, 1969, FOR THE PROCUREMENT OF CUSTODIAL SERVICES AT THE INSTALLATION FOR THE PERIOD JULY 1, 1969 (OR DATE OF AWARD SUBSEQUENT THERETO) THROUGH JUNE 30, 1970.

YOU STATE THAT YOUR CONCERN HAD THE CONTRACT FOR THESE SERVICES AT THE FACILITY FROM JULY 1, 1968 TO JUNE 30, 1969, AT HIGHER RATES THAN YOU BID FOR THE SAME SERVICES UNDER THE IFB FOR THE FISCAL YEAR COMMENCING ON JULY 1, 1969; THAT THE CONTRACTING OFFICER NEGOTIATED AN AWARD TO YOUR CONCERN, EFFECTIVE JULY 1, 1969, TO PROVIDE THESE SERVICES FOR A ONE MONTH PERIOD WITH AN OPTION TO EXTEND FOR TWO MONTHS AT THE RATES YOU PROPOSED IN YOUR BID FOR THE CURRENT FISCAL YEAR, PENDING RESOLUTION OF THE PROTEST BY OUR OFFICE; AND THAT YOU WOULD NOT HAVE ENTERED INTO THE AGREEMENT AT THE LOWER RATES EXCEPT FOR THE ASSURANCES OF THE CONTRACTING OFFICER THAT "THE PROTEST WAS COMPLETELY BASELESS AND WOULD BE DENIED IN SHORT ORDER." YOU ALSO STATE THAT YOUR CONCERN EXECUTED ANOTHER NEGOTIATED CONTRACT ON OCTOBER 1, 1969, AT THE RATES SET FORTH IN YOUR BID FOR THE 1970 FISCAL YEAR SERVICES FOR A ONE MONTH PERIOD WITH AN OPTION TO EXTEND FOR TWO MONTHS, WHICH WAS EXERCISED IN OCTOBER 1969, AND THAT ON NOVEMBER 12, 1969, THE PROCURING ACTIVITY ADVISED YOU THAT NO AWARD WOULD BE MADE FOR THE SERVICES FOR THE REMAINDER OF THE FISCAL YEAR DUE TO A CURTAILMENT OF FUNDS.

YOU MAINTAIN THAT IF WE HAD REACHED A DECISION EARLIER, OR HAD ADVISED YOU OF THE CIRCUMSTANCES OF THE PROTEST PRIOR TO YOUR CONFERENCE WITH OUR OFFICE ON OCTOBER 13, 1969, YOU WOULD NOT HAVE ENTERED INTO THESE AGREEMENTS AT THE LOWER RATES PROVIDED IN YOUR BID, IN WHICH EVENT YOU WOULD HAVE OBTAINED AN AWARD FOR THE SERVICES FOR THE REMAINDER OF THE FISCAL YEAR.

THE ARMY INITIALLY ADVISED YOU OF THE PROTEST IN JUNE 1969 IN ACCORDANCE WITH THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) GOVERNING PROTEST PROCEDURES AT THAT TIME, ASPR 2-407.9 (B) (1), QUOTED AS FOLLOWS:

"(1) IN APPROPRIATE CASES, NOTICE OF A PROTEST WILL BE GIVEN TO BIDDERS AFFECTED THEREBY. FOR EXAMPLE, WHEN A PROTEST AGAINST THE MAKING OF AN AWARD IS RECEIVED AND THE CONTRACTING OFFICER DETERMINES TO WITHHOLD THE AWARD PENDING DISPOSITION OF THE PROTEST, THE BIDDERS WHOSE BIDS MIGHT BECOME ELIGIBLE FOR AWARD SHOULD BE INFORMED OF THE PROTEST AND REQUESTED, BEFORE EXPIRATION OF THE TIME FOR ACCEPTANCE OF THEIR BIDS, TO EXTEND THE TIME FOR ACCEPTANCE (WITH CONSENT OF SURETIES, IF ANY) IN ORDER TO AVOID THE NEED FOR READVERTISEMENT. IN THE EVENT OF FAILURE TO OBTAIN SUCH EXTENSION OF BIDS, THEN CONSIDERATION SHOULD BE GIVEN TO PROCEEDING WITH AWARD UNDER (3) BELOW."

WHILE YOU APPARENTLY WERE NOT FURNISHED DETAILED INFORMATION CONCERNING THE LEGAL AND FACTUAL ASPECTS OF THE PROTEST, YOU COULD HAVE REQUESTED THIS INFORMATION AT THAT TIME FROM EITHER THE PROCURING ACTIVITY OR THIS OFFICE. WE DO NOT BELIEVE THE GOVERNMENT CAN BE HELD LIABLE FOR THE DAMAGES WHICH ALLEGEDLY FLOWED FROM YOUR DEFAULT IN THIS REGARD, OR FROM YOUR ERRONEOUS RELIANCE ON THE JUDGMENT OF THE CONTRACTING OFFICER CONCERNING THE LEGAL COMPLEXITY OF THE ISSUES RAISED BY THE PROTEST, OR THE LENGTH OF TIME IT WOULD TAKE FOR THIS OFFICE TO REACH A DECISION IN THE MATTER.

WE ADVISED YOU OF THE DETAILS OF THE PROTEST ON SEPTEMBER 25, 1969, APPROXIMATELY TWO WEEKS PRIOR TO YOUR CONFERENCE WITH OUR OFFICE IN THE MATTER, AND GAVE YOU THE OPPORTUNITY TO PRESENT YOUR VIEWS IN ACCORDANCE WITH SECTION 20.2, TITLE 4, CODE OF FEDERAL REGULATIONS QUOTED AS FOLLOWS:

"SEC. 20.2 NOTICE OF PROTEST.

"WHEN IT APPEARS, UPON INITIAL CONSIDERATION, THAT THE PROTEST MAY REQUIRE ACTION BY THE GENERAL ACCOUNTING OFFICE WHICH WOULD ADVERSELY AFFECT THE INTERESTS OF (A) THE CONTRACTOR, OR OF (B) ANY BIDDERS OR OFFERORS WHO, IN THE OPINION OF THE GENERAL ACCOUNTING OFFICE, APPEAR TO HAVE A SUBSTANTIAL AND REASONABLE PROSPECT OF RECEIVING THE AWARD, NOTICE AND A REASONABLE OPPORTUNITY TO PRESENT VIEWS WILL BE GIVEN TO SUCH CONTRACTOR OR BIDDERS (OFFERORS) PRIOR TO REACHING A DECISION ON THE PROTEST UNLESS THE COMPTROLLER GENERAL OR THE ASSISTANT COMPTROLLER GENERAL CERTIFIES THAT TIME AND CIRCUMSTANCES DO NOT PERMIT. THE PARTY FILING A PROTEST, AND THOSE PARTIES ENTITLED TO THE ABOVE NOTICE, MAY REQUEST A CONFERENCE WITH THE GENERAL ACCOUNTING OFFICE ATTORNEY WHO HAS BEEN ASSIGNED PRIMARY RESPONSIBILITY FOR HANDLING THE PROTEST."

YOU WERE NOT ADVISED OF THE DETAILS OF THE PROTEST PRIOR TO THIS TIME BECAUSE WE HAD NOT DETERMINED THAT YOUR CONCERN'S INTEREST IN THE PROCUREMENT WOULD BE ADVERSELY AFFECTED BY OUR DECISION. THIS PRELIMINARY DETERMINATION WAS MADE WITHIN A MONTH AFTER RECEIPT OF THE ARMY'S FORMAL REPORT TO OUR OFFICE ON THE PROTEST, AND AFTER BUILDING MAINTENANCE HAD SUBMITTED ITS FINAL BRIEF IN CONNECTION WITH THE MATTER. WE DO NOT BELIEVE THAT THE TIME PERIOD NEEDED TO MAKE THIS EVALUATION CAN BE CONSIDERED UNREASONABLE, AND THE RECORD DOES NOT ESTABLISH THAT YOUR CONCERN WOULD HAVE OBTAINED HIGHER RATES FOR THE TEMPORARY SERVICES WHICH YOU PERFORMED HAD YOU RECEIVED FULL INFORMATION CONCERNING THE PROTEST AT AN EARLIER DATE.

WHILE THE TIME SPENT IN REACHING A FINAL DECISION ON THE SUBJECT PROTEST WAS BEYOND THE AVERAGE TIME REQUIRED BY OUR OFFICE FOR PROCESSING SUCH MATTERS, YOU CAN BE ASSURED THAT THE PREPARATION OF THIS DECISION WAS NOT PURPOSELY DELAYED BY OUR OFFICE FOR ANY REASON. CONVERSELY, IN CASES OF THIS TYPE WE MAKE EVERY EFFORT TO EXPEDITE THEIR HANDLING, FOR WE RECOGNIZE THAT UNDUE DELAYS CAN GREATLY IMPAIR THE EFFECTIVENESS OF OUR DECISIONS. IT SHOULD ALSO BE NOTED THAT OUR DECISION ON THIS PROTEST WAS DELAYED IN PART BECAUSE WE WERE FACED WITH THE PROBLEM OF DECIDING WHETHER TO OVERRULE AN EARLIER DECISION OF OUR OFFICE CONCERNING THE LEGAL ISSUES INVOLVED IN THE PROTEST, AN ACTION WHICH WE HESITATE TO TAKE WITHOUT CONSIDERABLE DISCUSSION AND DELIBERATION OF THE ISSUES. WHILE WE REGRET THE DELAY WHICH ATTENDED OUR CONSIDERATION OF THE PROTEST, WE MUST CONSIDER YOUR CLAIM FOR DAMAGES ARISING OUT OF SUCH DELAY AS PURELY SPECULATIVE. IN THIS CONNECTION, WE NOTE THAT YOUR RIGHT TO INSIST UPON A HIGHER PRICE FOR YOUR TEMPORARY SERVICES AT THE FACILITY WAS ABSOLUTE, AND WE ARE UNWILLING TO ACCEPT YOUR UNSUPPORTED STATEMENT THAT OUR DELAY IN THESE MATTERS WAS THE SOLE REASON FOR YOUR CONCERN'S FAILURE TO INSIST UPON, OR OBTAIN, ADDITIONAL COMPENSATION.

YOU ALSO STATE THAT YOU FAILED TO RECEIVE A COPY OF OUR OCTOBER 31 DECISION UNTIL THE MIDDLE OF NOVEMBER AND THAT YOU WOULD HAVE RECEIVED AN AWARD FOR THE REMAINDER OF THE FISCAL YEAR HAD YOU BEEN ADVISED OF OUR DECISION EARLIER. WHILE WE REGRET THE INADVERTENT FAILURE TO SUPPLY YOUR CONCERN WITH A COPY OF THE DECISION AT THE SAME TIME WE SENT THE DECISION TO THE DEPARTMENT, WE ARE UNABLE TO PERCEIVE HOW YOU CAN ALLEGE AND SHOW THAT YOU WOULD HAVE OBTAINED AN AWARD HAD YOU BEEN FURNISHED A COPY OF OUR DECISION EARLIER, SINCE IT WAS THE DEPARTMENT'S PREROGATIVE AT ALL TIMES TO PROCEED WITH AN AWARD OR CANCEL THE REQUIREMENT IN THE LIGHT OF OUR DECISION, AND YOUR CONCERN DID NOT HAVE ANY RIGHT TO INSIST UPON AN AWARD.