B-197371, OCT 15, 1980
Highlights
AWARD UNDER SOLICITATION REQUIRING COMMERCIAL PRODUCT MUST BE PRECEDED BY DETERMINATION THAT AWARDEE WILL FURNISH COMMERCIAL PRODUCT AND IT IS IMPROPER TO WAIVE SUCH REQUIREMENT. 2. EXTENT OF PERFORMANCE IS PROPER CONSIDERATION IN DETERMINING WHETHER IT IS IN BEST INTEREST OF GOVERNMENT TO TERMINATE FOR CONVENIENCE IMPROPER AWARD. IF AN AWARD IS IMPROPER ON ONE BASIS. THE OTHER BASES OF COMPLAINT ARE ACADEMIC TO THE PROTEST AND WILL NOT BE CONSIDERED. THE BLAST-IT-ALL CROSS-DRAFT GRIT BLAST ROOM IS NOT A STANDARD COMMERCIAL PRODUCT. WE HAVE HELD THAT AN AWARD UNDER A SOLICITATION REQUIRING A COMMERCIAL PRODUCT MUST BE PRECEDED BY A DETERMINATION THAT THE AWARDEE WILL FURNISH A COMMERCIAL PRODUCT AND THAT IT IS IMPROPER TO WAIVE A REQUIREMENT FOR THE FURNISHING OF A COMMERCIAL PRODUCT.
B-197371, OCT 15, 1980
DIGEST: 1. AWARD UNDER SOLICITATION REQUIRING COMMERCIAL PRODUCT MUST BE PRECEDED BY DETERMINATION THAT AWARDEE WILL FURNISH COMMERCIAL PRODUCT AND IT IS IMPROPER TO WAIVE SUCH REQUIREMENT. 2. EXTENT OF PERFORMANCE IS PROPER CONSIDERATION IN DETERMINING WHETHER IT IS IN BEST INTEREST OF GOVERNMENT TO TERMINATE FOR CONVENIENCE IMPROPER AWARD.
ZERO MANUFACTURING CO.:
ZERO MANUFACTURING CO. (ZERO) PROTESTS ON A NUMBER OF GROUNDS THE AWARD OF A CONTRACT FOR TEN CROSS-DRAFT GRIT BLAST ROOMS TO BLAST-IT ALL, INC., UNDER AIR FORCE REQUEST FOR PROPOSALS (RFP) NO. F41800-79 RA146.
THE AIR FORCE CONCEDES THAT ONE OF THE BASES OF PROTEST HAS MERIT AND WE CONCUR. IF AN AWARD IS IMPROPER ON ONE BASIS, THE OTHER BASES OF COMPLAINT ARE ACADEMIC TO THE PROTEST AND WILL NOT BE CONSIDERED.
THE RFP REQUIRES THE CROSS-DRAFT GRIT BLAST ROOM TO BE A STANDARD COMMERCIAL PRODUCT OF THE MANUFACTURER. HOWEVER, BLAST-IT-ALL NEVER MANUFACTURED A CROSS-DRAFT GRIT BLAST ROOM PRIOR TO THE IMMEDIATE PROCUREMENT. THEREFORE, THE BLAST-IT-ALL CROSS-DRAFT GRIT BLAST ROOM IS NOT A STANDARD COMMERCIAL PRODUCT.
WE HAVE HELD THAT AN AWARD UNDER A SOLICITATION REQUIRING A COMMERCIAL PRODUCT MUST BE PRECEDED BY A DETERMINATION THAT THE AWARDEE WILL FURNISH A COMMERCIAL PRODUCT AND THAT IT IS IMPROPER TO WAIVE A REQUIREMENT FOR THE FURNISHING OF A COMMERCIAL PRODUCT. COAST IRON & MACHINE WORKS, INC., 57 COMP.GEN. 478 (1978), 78-1 CPD 394.
NOTWITHSTANDING THE IMPROPRIETY, THE AIR FORCE PROPOSES TO ALLOW THE AWARD TO STAND FOR A NUMBER OF REASONS INCLUDING THE ADVANCED STATE OF THE PROCUREMENT. IN THAT CONNECTION, WE NOTE THAT THE LAST OF THE UNITS WAS SCHEDULED IN THE CONTRACT FOR DELIVERY IN SEPTEMBER.
EXTENT OF PERFORMANCE IS A PROPER CONSIDERATION IN DETERMINING WHETHER IT IS IN THE BEST INTEREST OF THE GOVERNMENT TO TERMINATE FOR CONVENIENCE AN IMPROPER AWARD. COAST IRON & MACHINE WORKS, INC., SUPRA. IN THE CIRCUMSTANCES, WE AGREE WITH THE AIR FORCE PROPOSAL.
THEREFORE, ALTHOUGH THE PROTEST IS SUSTAINED, NO CORRECTIVE ACTION ON THE AWARD IS RECOMMENDED.