B-168136, FEB. 12, 1970

B-168136, FEB. 12, 1970

BID PROTEST--ERRONEOUS AWARDS DECISION TO LUTZ SUPERDYNE, INC. SUSTAINING DECISION OF JANUARY 9, 1970, CONCERNING REMEDY FOR THREE IMPROPERLY AWARDED CONTRACTS.

TO LUTZ SUPERDYNE, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 13, 1970, IN WHICH YOU CHARACTERIZE AS "PATENTLY UNFAIR" OUR DECISION B-168136, JANUARY 9, 1970. WE HAVE INTERPRETED YOUR LETTER AS REQUESTING RECONSIDERATION OF THAT DECISION.

IN OUR DECISION OF JANUARY 9, WE FOUND THAT THREE CONTRACTS WHICH SHOULD HAVE BEEN AWARDED TO YOU WERE AWARDED TO OTHER FIRMS AS THE RESULT OF IMPROPER EVALUATIONS OF BIDS. HOWEVER, WE CONCLUDED:

"* * * WE ARE ADVISED THAT ALL OF THE SUPPLIES TO BE DELIVERED UNDER THESE CONTRACTS HAD BEEN DELIVERED BEFORE THE DATE OF YOUR PROTEST TO THIS OFFICE. IN THESE CIRCUMSTANCES NO EFFECTIVE REMEDIAL ACTION APPEARS TO BE NOW AVAILABLE (SEE B-166779 (2), AUGUST 1, 1969; B-166555 (1), JUNE 4, 1969), BECAUSE CANCELLATION OF THE CONTRACTS AT THIS LATE DATE WOULD NOT BE PRACTICABLE OR IN THE BEST INTERESTS OF THE GOVERNMENT. SEE B-167399, SEPTEMBER 22, 1969; 41 COMP. GEN. 599 (1962); 41 COMP. GEN. 620 (1962)."

WITH RESPECT TO THIS CONCLUSION, YOU STATE THAT OUR OFFICE "DID NOT TAKE INTO PROPER CONSIDERATION THE FACT THAT THERE WAS NO WAY OF PROTESTING (BEFORE DELIVERY OF THE SUPPLIES) BECAUSE THERE WAS NO WAY OF KNOWING THAT THE CONTRACTS HAD BEEN LET. ALTHOUGH WE MADE MANY ATTEMPTS TO GET THIS INFORMATION WE NEVER DID RECEIVE IT UNTIL IT WAS TOO LATE."

THE REPORT FURNISHED OUR OFFICE BY THE DEFENSE SUPPLY AGENCY IN CONNECTION WITH YOUR PROTEST STATES IN REGARD TO INVITATION FOR BIDS (IFB) NO. DSA700-69-B-3795 (WHICH RESULTED IN CONTRACT NO. DSA700-69-C G966):

"PROTESTANT HAS ALLEGED THAT IT WROTE THE CONTRACTING OFFICER ON 26 JUNE 1969 CONCERNING THE AWARD OF THE SUBJECT SOLICITATION, AND A COPY OF THE LETTER SUPPLIED BY THE PROTESTANT IS INCLUDED HEREWITH * * *. THERE IS NO RECORD OF ITS RECEIPT IN THE OFFICIAL CONTRACT FILE. PROTESTANT APPARENTLY RECEIVED NO FORMAL REPLY TO ITS LETTER OF 26 JUNE 1969 AND MADE A SECOND INQUIRY BY LETTER DATED 6 OCTOBER 1969 * * *. THIS LETTER WAS ANSWERED INFORMALLY, AND PROTESTANT MADE A FORMAL PROTEST WHEREUPON THE MATTER CAME BEFORE THE GENERAL ACCOUNTING OFFICE."

SIMILARLY, WITH RESPECT TO IFB NO. DSA700-69-B-3746 (CONTRACT NO. DSA700- 70-G-0239), THE AGENCY'S REPORT RELATES:

"THE PROTESTANT HAS ALLEGED THAT IT WROTE THE CONTRACTING OFFICER ON 7 JULY 1969 IN REGARD TO THE AWARD OF CONTRACT DSA700-70-C-0239 AND HAS FURNISHED THIS CENTER A COPY OF THAT LETTER ALONG WITH A CERTIFIED MAIL RECEIPT SHOWING THAT IT WAS RECEIVED BY AN AUTHORIZED REPRESENTATIVE OF THIS CENTER ON 10 JULY 1969 * * *. THE LETTER DOES NOT APPEAR IN THE OFFICIAL CONTRACT FILE. THE SAME IS TRUE FOR PROTESTANT'S LETTER OF 19 AUGUST 1969, WHICH LETTER WAS RECEIVED AT THIS CENTER ON 21 AUGUST 1969 * * *. PROTESTANT'S THIRD LETTER IN REGARD TO THE AWARD OF THE SUBJECT CONTRACT WAS ITS LETTER OF 6 OCTOBER 1969 * * *. AS MENTIONED PREVIOUSLY, THIS THIRD LETTER WAS ANSWERED INFORMALLY ON 15 OCTOBER 1969, WHEREUPON THE MATTER CAME BEFORE THE GENERAL ACCOUNTING OFFICE ON 16 OCTOBER 1969."

FINALLY, OUR OFFICE WAS INFORMED BY THE AGENCY IN REGARD TO IFB NO. DSA700-69-B-3717 (CONTRACT NO. DSA700-70-C-0434):

"THE PROTESTANT HAS FURNISHED THIS CENTER WITH A COPY OF A LETTER HE SENT TO THIS CENTER ON 30 SEPTEMBER 1969 INQUIRING AS TO THE AWARD OF THE SUBJECT SOLICITATION * * *. IT DOES NOT APPEAR IN THE CONTRACT FILE. PROTESTANT AGAIN WROTE THIS CENTER ON 14 OCTOBER 1969 INQUIRING AS TO THE STATUS OF THE SUBJECT AWARD * * *, AND ITS INQUIRY WAS ANSWERED INFORMALLY. THE INFORMAL REPLY WAS APPARENTLY UNSATISFACTORY TO THE PROTESTANT, AND THE MATTER HAS NOW COME BEFORE THE GENERAL ACCOUNTING OFFICE."

THEREFORE, YOUR DIFFICULTIES IN OBTAINING INFORMATION FROM THE PROCURING ACTIVITY WERE A MATTER OF RECORD WHEN YOUR PROTEST WAS BEFORE US FOR DECISION. WHILE WE REGARD ANY SUCH FAILURES TO RESPOND TO YOUR INQUIRIES AS POOR PROCUREMENT PRACTICE, SEE ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-408.1, THE FACT REMAINS THAT ALL DELIVERIES HAD BEEN COMPLETED AT THE TIME OF YOUR PROTEST TO THIS OFFICE. SINCE THE CONTRACTS HAD BEEN SUBSTANTIALLY PERFORMED, WE CONCLUDED THAT CANCELLATION WOULD NOT BE IN THE BEST INTERESTS OF THE GOVERNMENT.

YOU FURTHER STATE THAT OUR DECISION OF JANUARY 9 "FAILED TO MENTION THAT ALTHOUGH ONE OF THE CONTRACTS HAD BEEN RECEIVED, IT HAD NOT BEEN ACCEPTED AND PAID FOR AS YET."

THE RECORD IN THE INSTANT CASE SHOWS THAT ON THE DATE OF YOUR PROTEST, OCTOBER 16, 1969, THE SUPPLIES UNDER CONTRACT NO. DSA700-70-C 0239 HAD BEEN DELIVERED, ACCEPTED BY THE GOVERNMENT AND PAID FOR IN FULL. THE SUPPLIES DELIVERED UNDER CONTRACT NO. DSA700-70-C-0434 HAD BEEN ACCEPTED AND PARTIAL PAYMENT THEREFOR HAD BEEN MADE. WITH RESPECT TO CONTRACT NO. DSA700-69-C-G966, THE SUPPLIES THEREUNDER HAD BEEN DELIVERED BUT HAD NOT BEEN ACCEPTED OR PAID FOR BY THE GOVERNMENT.

HOWEVER, IT HAS BEEN THE POSITION OF OUR OFFICE THAT THE DEGREE OF PERFORMANCE WHICH HAS OCCURRED IS THE DETERMINATIVE CONSIDERATION IN THESE MATTERS, NOT WHETHER ACCEPTANCE OF AND PAYMENT FOR THE SUPPLIES HAS BEEN MADE. FOR EXAMPLE, IN OUR DECISION B-159178, SEPTEMBER 6, 1966, WE CONCLUDED THAT THE PROCURING ACTIVITY HAD ERRONEOUSLY AWARDED A CONTRACT TO A FIRM WHOSE BID WAS NONRESPONSIVE. WE THEN STATED:

"HAD THIS CASE BEEN BROUGHT TO OUR ATTENTION PRIOR TO AWARD OR HAD A STOPORDER BEEN ISSUED SHORTLY THEREAFTER, OUR OFFICE WOULD HAVE CONCURRED IN THE RECOMMENDATION BY NASA THAT THE CONTRACT AWARDED * * * BE CANCELLED. HOWEVER, NASA HAS REPORTED TO US THAT THE SPECTRUM ANALYZER HAS BEEN DELIVERED AND IS BEING STORED WITHOUT INSPECTION OR ACCEPTANCE PENDING THIS DECISION. IN THE CIRCUMSTANCES, AND CONSIDERING THAT THE AWARD WAS MADE IN GOOD FAITH, WE DO NOT BELIEVE THAT THE BEST INTERESTS OF THE GOVERNMENT WOULD BE SERVED BY CANCELLING THE CONTRACT AT THIS TIME. CF. 43 COMP. GEN. 761 (1964) AND 40 ID. 160 (1960). * * *" SEE ALSO B- 161282, JULY 20, 1967.

WE FIND, THEREFORE, NO REASON TO MODIFY OUR PREVIOUS DECISION OF JANUARY 9, 1970.