B-181092, JUL 5, 1974
Highlights
PROTEST BY DEFAULTED CONTRACTOR AGAINST ANY REPROCUREMENT AWARD TO ANY FIRM OTHER THAN ITSELF IS NOT FOR CONSIDERATION BY GAO. SINCE DEFAULT TERMINATION WAS APPEALED TO ARMED SERVICES BOARD OF CONTRACT APPEALS. WAS TERMINATED FOR DEFAULT ON APRIL 12. ALLIED'S PROTEST IS APPARENTLY DIRECTED TOWARD THE ANTICIPATED REPROCUREMENT OF THE RADAR. IT APPEARS THAT ALLIED IS ASKING THAT WE PRECLUDE THE ARMY FROM PROCEEDING WITH ANY REPROCUREMENT OF THE RADAR UNLESS THE PURCHASE IS MADE FROM ALLIED. WE ARE AWARE OF NO BASIS FOR RESTRICTING THE ARMY IN THIS MANNER. IT IS WELL SETTLED THAT CONTRACTING AGENCIES. THAT IS A MATTER FOR THE ARMED SERVICES BOARD OF CONTRACT APPEALS (TO WHICH ALLIED HAS APPEALED THE DEFAULT) RATHER THAN THIS OFFICE.
B-181092, JUL 5, 1974
PROTEST BY DEFAULTED CONTRACTOR AGAINST ANY REPROCUREMENT AWARD TO ANY FIRM OTHER THAN ITSELF IS NOT FOR CONSIDERATION BY GAO, SINCE NO REPROCUREMENT ACTION HAS BEEN TAKEN, SINCE REPROCUREMENT MAY BE ON TERMS DEEMED APPROPRIATE BY CONTRACTING OFFICER, AND SINCE DEFAULT TERMINATION WAS APPEALED TO ARMED SERVICES BOARD OF CONTRACT APPEALS.
TO ALLIED RESEARCH ASSOCIATES, INC.:
ALLIED RESEARCH ASSOCIATES, INC. (ALLIED), HAS PROTESTED ANY AWARD BY THE DEPARTMENT OF THE ARMY FOR THE AN/PPS-5A BATTLEFIELD RADAR TO A FIRM OTHER THAN ALLIED "ON THE BASIS THAT SUCH AN AWARD WOULD NOT BE IN THE BEST INTEREST OF THE GOVERNMENT, TAXPAYERS AND THE NATIONAL DEFENSE" AND WOULD "COMPROMISE" THE REVIEW BEING MADE OF THE DEFAULT TERMINATION OF ALLIED'S PRIOR CONTRACT FOR THE RADAR.
CONTRACT NO. DAAB05-73-C-1001, AWARDED TO ALLIED BY THE U.S. ARMY ELECTRONICS COMMAND, WAS TERMINATED FOR DEFAULT ON APRIL 12, 1974, AND ALLIED'S PROTEST IS APPARENTLY DIRECTED TOWARD THE ANTICIPATED REPROCUREMENT OF THE RADAR. HOWEVER, THE ARMY REPORTS THAT ALTHOUGH IT DOES INTEND TO REPROCURE THE DEFAULTED ITEMS, IT HAS NOT YET ATTEMPTED TO DO SO AND THAT "A REPROCUREMENT PLAN HAS NOT YET BEEN FORMULATED."
UNDER THESE CIRCUMSTANCES, IT APPEARS THAT ALLIED IS ASKING THAT WE PRECLUDE THE ARMY FROM PROCEEDING WITH ANY REPROCUREMENT OF THE RADAR UNLESS THE PURCHASE IS MADE FROM ALLIED. WE ARE AWARE OF NO BASIS FOR RESTRICTING THE ARMY IN THIS MANNER. IT IS WELL SETTLED THAT CONTRACTING AGENCIES, WHEN REPROCURING SUPPLIES FOR THE ACCOUNT OF A DEFAULTED CONTRACTOR, MAY DO SO "UPON SUCH TERMS AND IN SUCH MANNER AS THE THE CONTRACTING OFFICER MAY DEEM APPROPRIATE." ASPR 8.707; B 178885, NOVEMBER 23, 1973. FURTHERMORE, TO THE EXTENT ALLIED'S CONCERN INVOLVES THE DEFAULT TERMINATION, THAT IS A MATTER FOR THE ARMED SERVICES BOARD OF CONTRACT APPEALS (TO WHICH ALLIED HAS APPEALED THE DEFAULT) RATHER THAN THIS OFFICE. SEE S & E CONTRACTORS, INC. V. UNITED STATES, 406 U.S. 1 (1972).
ACCORDING, WE ARE UNABLE TO TAKE ANY ACTION ON THIS PROTEST AND ARE CLOSING OUR FILE ON THE MATTER.