B-218271, MAY 7, 1985, 85-1 CPD 510

B-218271: May 7, 1985

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CONTRACTS - PROFITS - ANTICIPATED DIGEST: NO LEGAL BASIS EXISTS TO ALLOW A PROTESTER TO RECOVER ANTICIPATED PROFITS OR TO AWARD A CONTRACT TO THE PROTESTER ON A SOLE-SOURCE BASIS WHEN COMPETITION IS AVAILABLE. THE PROTESTER CONTENDS THAT HE IS QUALIFIED TO PERFORM THE WORK AND ARGUES THAT AWARD TO ANOTHER ON A SOLE-SOURCE BASIS WAS IMPROPER. COMMERCE HAS DECIDED THAT THE CONTRACT SHOULD HAVE BEEN AWARDED USING COMPETITIVE PROCEDURES AND HAS TERMINATED THE CONTRACT FOR THE CONVENIENCE OF THE GOVERNMENT. THE PROTESTER MAINTAINS THAT HE IS EITHER ENTITLED TO THE AWARD OR TO HIS ANTICIPATED PROFIT FOR THE PORTION OF THE WORK WHICH WAS COMPLETED UNDER THE IMPROPERLY AWARDED CONTRACT AND ARGUES THAT INSTEAD OF TERMINATING THE CONTRACT ALMOST 1 MONTH AFTER THE PROTEST WAS FILED.

B-218271, MAY 7, 1985, 85-1 CPD 510

CONTRACTS - PROFITS - ANTICIPATED DIGEST: NO LEGAL BASIS EXISTS TO ALLOW A PROTESTER TO RECOVER ANTICIPATED PROFITS OR TO AWARD A CONTRACT TO THE PROTESTER ON A SOLE-SOURCE BASIS WHEN COMPETITION IS AVAILABLE.

PRESTON DAVIS RIDEOUT, JR.:

PRESTON DAVIS RIDEOUT, JR. PROTESTS THE AWARD BY THE DEPARTMENT OF COMMERCE OF CONTRACT NO. 50-SAAA-5-14901 ON A SOLE-SOURCE BASIS FOR DRAFTING DECISIONS AND ORDERS IN VARIOUS CASES CONCERNING OCEAN FISHING VIOLATIONS. THE PROTESTER CONTENDS THAT HE IS QUALIFIED TO PERFORM THE WORK AND ARGUES THAT AWARD TO ANOTHER ON A SOLE-SOURCE BASIS WAS IMPROPER. WE DISMISS THE PROTEST.

BASED ON THE PROTEST, COMMERCE HAS DECIDED THAT THE CONTRACT SHOULD HAVE BEEN AWARDED USING COMPETITIVE PROCEDURES AND HAS TERMINATED THE CONTRACT FOR THE CONVENIENCE OF THE GOVERNMENT. THE AGENCY PLANS TO COMPETITIVELY SOLICIT THE REMAINING PORTION OF THE REQUIREMENT, APPROXIMATELY 75 PERCENT OF THE TOTAL.

THE PROTESTER MAINTAINS THAT HE IS EITHER ENTITLED TO THE AWARD OR TO HIS ANTICIPATED PROFIT FOR THE PORTION OF THE WORK WHICH WAS COMPLETED UNDER THE IMPROPERLY AWARDED CONTRACT AND ARGUES THAT INSTEAD OF TERMINATING THE CONTRACT ALMOST 1 MONTH AFTER THE PROTEST WAS FILED, COMMERCE SHOULD HAVE IMMEDIATELY SUSPENDED PERFORMANCE PURSUANT TO THE COMPETITION IN CONTRACTING ACT OF 1984, PUB.L. NO. 98-369, TITLE VII, 98 STAT. 1175 (1984).

SINCE COMPETITION IS AVAILABLE, THERE IS NO LEGAL BASIS UPON WHICH TO BASE A SOLE-SOURCE AWARD TO THE PROTESTER FOR THE REMAINDER OF THIS REQUIREMENT. SIMILARLY, EVEN THOUGH THE CONTRACT WAS IMPROPERLY AWARDED THERE IS NO LEGAL BASIS THAT WOULD PERMIT THE RECOVERY OF THE PROTESTER'S ANTICIPATED PROFITS. SEE POWER SYSTEMS-CLAIM FOR COSTS, B-210032.2, MAR. 26, 1984, 84-1 CPD PARA. 344.

AS FAR AS THE AGENCY'S ALLEGED FAILURE TO FOLLOW THE COMPETITION IN CONTRACTING ACT IS CONCERNED, WE NOTE THAT THE DEPARTMENT OF JUSTICE IS CONTESTING THE CONSTITUTIONALITY OF THE PROVISION OF THE ACT IN QUESTION HERE, THE MATTER IS CURRENTLY IN LITIGATION, AND WE THEREFORE SEE NO NEED TO COMMENT FURTHER.

FINALLY, THE PROTESTER ASKS THAT IT BE PUT ON A BIDDER'S LIST OR BE SENT A COPY OF THE SOLICITATION ON ANY FURTHER PROCUREMENT OF THESE SERVICES. SUCH A REQUEST SHOULD BE MADE TO THE AGENCY RATHER THAN TO THIS OFFICE.

SINCE THE AGENCY HAS TERMINATED THE IMPROPERLY AWARDED CONTRACT, THE PROTEST IS DISMISSED.