B-182603, DEC 10, 1974

B-182603: Dec 10, 1974

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OBJECTIONS CONCERNING IMPROPRIETIES ATTENDING TERMINATION OF CONTRACT RELATE TO CONTRACT ADMINISTRATION AND ARE FOR RESOLUTION UNDER DISPUTES CLAUSE OF CONTRACT. OBJECTIONS ARE NOT FOR CONSIDERATION BY GENERAL ACCOUNTING OFFICE IN VIEW OF SUPREME COURT'S OPINION IN S&E CONTRACTORS. 406 U.S. 1 (1972) WHEN COURT HELD THAT THERE IS NOT ANOTHER TIER OF ADMINISTRATIVE REVIEW FOR COMPLAINTS RESOLVABLE UNDER DISPUTES CLAUSE. 2. COMPLAINTS THAT READVERTISED SOLICITATION WAS DEFECTIVE (FILED NEARLY 2 MONTHS AFTER BID OPENING) AND THAT AWARD UNDER READVERTISED SOLICITATION SHOULD HAVE BEEN MADE NO LATER THAN SEPTEMBER 23 (FILED ON NOVEMBER 5. 1974) ARE UNTIMELY BECAUSE NOT FILED IN ACCORD WITH 4 C.F.R. 20.2(A) (1974) WHICH PROVIDES THAT PROTEST REGARDING ANY DEFECT IN SOLICITATION MUST BE FILED PRIOR TO BID OPENING AND THAT ALL OTHER PROTESTS ARE TO BE FILED AT GAO WITHIN 5 WORKING DAYS AFTER BASIS OF PROTEST WAS KNOWN. 3.

B-182603, DEC 10, 1974

1. OBJECTIONS CONCERNING IMPROPRIETIES ATTENDING TERMINATION OF CONTRACT RELATE TO CONTRACT ADMINISTRATION AND ARE FOR RESOLUTION UNDER DISPUTES CLAUSE OF CONTRACT; THEREFORE, OBJECTIONS ARE NOT FOR CONSIDERATION BY GENERAL ACCOUNTING OFFICE IN VIEW OF SUPREME COURT'S OPINION IN S&E CONTRACTORS, INC. V. UNITED STATES, 406 U.S. 1 (1972) WHEN COURT HELD THAT THERE IS NOT ANOTHER TIER OF ADMINISTRATIVE REVIEW FOR COMPLAINTS RESOLVABLE UNDER DISPUTES CLAUSE. 2. COMPLAINTS THAT READVERTISED SOLICITATION WAS DEFECTIVE (FILED NEARLY 2 MONTHS AFTER BID OPENING) AND THAT AWARD UNDER READVERTISED SOLICITATION SHOULD HAVE BEEN MADE NO LATER THAN SEPTEMBER 23 (FILED ON NOVEMBER 5, 1974) ARE UNTIMELY BECAUSE NOT FILED IN ACCORD WITH 4 C.F.R. 20.2(A) (1974) WHICH PROVIDES THAT PROTEST REGARDING ANY DEFECT IN SOLICITATION MUST BE FILED PRIOR TO BID OPENING AND THAT ALL OTHER PROTESTS ARE TO BE FILED AT GAO WITHIN 5 WORKING DAYS AFTER BASIS OF PROTEST WAS KNOWN. 3. SINCE GENERAL ACCOUNTING OFFICE HAS DISCONTINUED PRACTICE OF REVIEWING AFFIRMATIVE RESPONSIBILITY DECISIONS EXCEPT FOR ACTIONS WHICH ARE TANTAMOUNT TO FRAUD, PROTEST QUESTIONING SOUNDNESS OF AGENCY'S RESPONSIBILITY DETERMINATION ON BIDDER OTHERWISE ELIGIBLE FOR AWARD IS NOT FOR CONSIDERATION.

SUNNY ACRES, INC.:

ON APRIL 23, 1974, SUNNY ACRES, INC., WAS AWARDED A FIVE-YEAR GARBAGE REMOVAL CONTRACT BY THE DEFENSE PROPERTY DISPOSAL REGION (COLUMBUS, OHIO) OF THE DEFENSE SUPPLY AGENCY (DSA) FOR THE PURCHASE AND REMOVAL OF GARBAGE FROM FORT LEONARD WOOD, MISSOURI.

ARTICLE E, SPECIAL SEALED BID-TERM CONDITIONS, SALE BY REFERENCE PAMPHLET, WHICH WAS MADE A PART OF THE CONTRACT, ALLOWED EITHER SUNNY ACRES OR DSA THE RIGHT TO TERMINATE THE CONTRACT "WITHOUT COST TO THE GOVERNMENT UPON 30 DAYS' WRITTEN NOTICE TO THE OTHER." IT IS ALSO OUR UNDERSTANDING THAT THE CONTRACT CONTAINED A DISPUTES CLAUSE WHICH SET FORTH ADMINISTRATIVE PROCEDURES FOR RESOLVING "ANY DISPUTE CONCERNING A QUESTION OF FACT ARISING UNDER THIS CONTRACT."

IN AUGUST 1974, DSA TERMINATED SUNNY ACRES' CONTRACT UNDER AUTHORITY OF ARTICLE E. THE STATED PURPOSE FOR THE TERMINATION WAS TO ALLOW DSA THE RIGHT TO READVERTISE THE PROPERTY BASED ON A BIDDING SCHEDULE WHICH WOULD LIST "GARBAGE AND GREASE *** AS SEPARATE ITEMS WITH ALL-OR-NONE BIDDING PERMITTED."

SUNNY ACRES AND ONE OTHER BIDDER SUBMITTED BIDS UNDER THE READVERTISEMENT ON SEPTEMBER 19, 1974. THE OTHER BIDDER, AN INDIVIDUAL NAMED DANIEL KOSTELAC, SUBMITTED THE HIGHEST BID FOR THE SALE ITEMS. IT IS OUR INFORMAL UNDERSTANDING THAT DSA CONSIDERS MR. KOSTELAC TO BE A RESPONSIBLE BIDDER AND OTHERWISE ELIGIBLE FOR AWARD.

IN ITS PROTEST LETTER (RECEIVED BY GAO ON NOVEMBER 5, 1974) SUNNY ACRES COMPLAINS THAT ITS APRIL 1974 CONTRACT WAS IMPROPERLY TERMINATED; THAT CERTAIN SPECIFICATIONS IN THE READVERTISED SOLICITATION WERE DEFECTIVE; THAT AWARD UNDER THE RESOLICITATION SHOULD HAVE BEEN MADE NO LATER THAN SEPTEMBER 23; AND THAT MR. KOSTELAC SHOULD NOT HAVE BEEN FOUND TO BE A RESPONSIBLE BIDDER.

CONSEQUENTLY, SUNNY ACRES REQUESTS THAT EITHER ITS APRIL 1974 CONTRACT BE REINSTATED FULLY, OR THAT IT BE DECLARED THE ONLY BIDDER ELIGIBLE FOR AWARD UNDER THE RESOLICITATION. FINALLY, SUNNY ACRES REQUESTS THAT THE RESOLICITATION BE CANCELED AND A NEW SOLICITATION BE ISSUED IF WE CANNOT GRANT EITHER REMEDY.

SUNNY ACRES' OBJECTIONS CONCERNING IMPROPRIETIES ATTENDING THE TERMINATION OF ITS APRIL CONTRACT RELATE TO CONTRACT ADMINISTRATION AND ARE FOR RESOLUTION UNDER THE DISPUTES CLAUSE OF THE CONTRACT. CONSEQUENTLY, THESE OBJECTIONS ARE NOT FOR GAO'S CONSIDERATION IN VIEW OF THE OPINION OF THE SUPREME COURT IN S&E CONTRACTORS, INC., V. UNITED STATES, 406 U.S. 1 (1972) WHEN THE COURT HELD THAT THERE IS NOT ANOTHER TIER OF ADMINISTRATIVE REVIEW FOR COMPLAINTS RESOLVABLE UNDER THE DISPUTES CLAUSE.

SUNNY ACRES' COMPLAINT THAT THE READVERTISEMENT CONTAINED DEFECTIVE SPECIFICATIONS IN UNTIMELY FILED SINCE IT WAS NOT LODGED PRIOR TO BID OPENING. SEE 4 C.F.R. 20.2(A) (1974). ITS COMPLAINT THAT AWARD UNDER THE READVERTISED SOLICITATION SHOULD HAVE BEEN MADE NO LATER THAN SEPTEMBER 23 IS ALSO UNTIMELY SINCE THE PROTEST WAS NOT RECEIVED BY GAO WITHIN 5 WORKING DAYS AFTER THE BASIS OF PROTEST WAS KNOWN ON SEPTEMBER 23. SEE ALSO 4 C.F.R 20.2(A) (1974).

GAO HAS DISCONTINUED THE PRACTICE OF REVIEWING AFFIRMATIVE RESPONSIBILITY DECISIONS EXCEPT FOR ACTIONS WHICH ARE TANTAMOUNT TO FRAUD. MATTER OF UNITED HATTERS, B-177512, JUNE 7, 1974, 53 COMP. GEN. . CONSEQUENTLY, SUNNY ACRES' COMPLAINT CONCERNING THE SOUNDNESS OF DSA'S RESPONSIBILITY DETERMINATION ON MR. KOSTELAC IS NOT FOR OUR CONSIDERATION.

BECAUSE OF THE ABOVE ANALYSIS, GAO WILL TAKE NO FURTHER ACTION ON THE PROTEST.