B-211351, AUG 26, 1983
Highlights
DISPUTE CONCERNING TERMINATION FOR DEFAULT AND REPROCUREMENT IS A MATTER OF CONTRACT ADMINISTRATION WHICH IS FOR RESOLUTION BY CONTRACTING AGENCY. THE INVITATION EXPRESSLY STATED THAT "THIS SOLICITATION IS FOR THE REPURCHASE OF THE TERMINATION OF DLA100-82-C-4282. THE LOWEST OF WHICH WAS COAST'S AT A UNIT PRICE OF $818.32. WAS TERMINATED FOR DEFAULT. THE CONTRACT WAS AWARDED TO COAST. THE CONTRACT WAS TERMINATED IN ITS ENTIRETY. BECAUSE ITS BID IS "CLEARLY AND SUBSTANTIALLY THE LOWEST" AMONG THE THREE FIRMS. THE SOLICITATION IS NOT A PROPER REPURCHASE. ITS HIGHER BID IS JUSTIFIED. SINCE THIS WAS A REPROCUREMENT OF THE DEFAULTED CONTRACT. WE DECLINE TO CONSIDER COAST'S ARGUMENT THAT THIS IS NOT A REPROCUREMENT OF ITS DEFAULTED CONTRACT BECAUSE OF CHANGES IN THE SPECIFICATIONS SINCE THIS ARGUMENT CONSTITUTES A DISPUTE AS TO A MATTER OF FACT AND CONTRACT ADMINISTRATION WHICH IS FOR RESOLUTION BY THE ARMED SERVICES BOARD OF CONTRACT APPEALS.
B-211351, AUG 26, 1983
DIGEST: 1. DISPUTE CONCERNING TERMINATION FOR DEFAULT AND REPROCUREMENT IS A MATTER OF CONTRACT ADMINISTRATION WHICH IS FOR RESOLUTION BY CONTRACTING AGENCY, NOT GAO. 2. A REPURCHASE CONTRACT MAY NOT BE AWARDED TO THE DEFAULTED CONTRACTOR AT A PRICE GREATER THAN THE TERMINATED CONTRACT PRICE.
COAST CANVAS PRODUCTS II CO., INC.:
COAST CANVAS PRODUCTS II CO., INC. (COAST), PROTESTS THE AWARD OF A CONTRACT TO ANOTHER FIRM BY THE DEFENSE LOGISTICS AGENCY (DLA) UNDER INVITATION FOR BIDS (IFB) NO. DLA100-83-B-0481. THE INVITATION EXPRESSLY STATED THAT "THIS SOLICITATION IS FOR THE REPURCHASE OF THE TERMINATION OF DLA100-82-C-4282; COAST CANVAS PROD. II CO. INC." THREE FIRMS SUBMITTED BIDS, THE LOWEST OF WHICH WAS COAST'S AT A UNIT PRICE OF $818.32.
CONTRACT DLA100-82-C-4282, THE ORIGINAL CONTRACT, WAS TERMINATED FOR DEFAULT. THE CONTRACT WAS AWARDED TO COAST, AT A UNIT PRICE OF $797.33. DUE TO COAST'S FAILURE TO MEET THE DELIVERY SCHEDULE, THE CONTRACT WAS TERMINATED IN ITS ENTIRETY.
COAST ARGUES THAT IT SHOULD BE AWARDED THE CONTRACT UNDER DLA100-83 B- 0481, BECAUSE ITS BID IS "CLEARLY AND SUBSTANTIALLY THE LOWEST" AMONG THE THREE FIRMS. SINCE THE SOLICITATION CONTAINED CERTAIN CHANGES AND ADDITIONAL REQUIREMENTS, COAST CONTENDS THAT, AS A RESULT, THE SOLICITATION IS NOT A PROPER REPURCHASE, BUT AN ENTIRELY NEW PROCUREMENT AND, THEREFORE, ITS HIGHER BID IS JUSTIFIED.
WE DENY THE PROTEST.
SINCE THIS WAS A REPROCUREMENT OF THE DEFAULTED CONTRACT, AS EXPRESSLY STATED IN THE SOLICITATION, A REPURCHASE CONTRACT MAY NOT BE AWARDED TO THE DEFAULTED CONTRACTOR AT A PRICE GREATER THAN THE TERMINATED CONTRACT PRICE BECAUSE THIS WOULD BE TANTAMOUNT TO MODIFICATION OF THE EXISTING CONTRACT WITHOUT CONSIDERATION. AUTO SKATE COMPANY, B-208643, SEPTEMBER 7, 1982, 82-2 CPD 203. BECAUSE COAST BID A HIGHER PRICE ON THE REPURCHASE CONTRACT ($818.32) THAN THAT CONTAINED IN THE DEFAULTED CONTRACT ($797.33), IT MAY NOT BE AWARDED THE REPURCHASE CONTRACT.
WE DECLINE TO CONSIDER COAST'S ARGUMENT THAT THIS IS NOT A REPROCUREMENT OF ITS DEFAULTED CONTRACT BECAUSE OF CHANGES IN THE SPECIFICATIONS SINCE THIS ARGUMENT CONSTITUTES A DISPUTE AS TO A MATTER OF FACT AND CONTRACT ADMINISTRATION WHICH IS FOR RESOLUTION BY THE ARMED SERVICES BOARD OF CONTRACT APPEALS. SEE MARK A. CARROLL & SON, INC., B-198295, AUGUST 13, 1980, 80-2 CPD 114.