B-225324, DEC 12, 1986, OFFICE OF THE GENERAL COUNSEL

B-225324: Dec 12, 1986

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IS IMPROPERLY PERFORMING THE CONTRACT. THE SOLICITATION WAS ISSUED FOR A CONTRACTOR TO REPAIR THE BERTSH FORMING MACHINE ROLLERS LOCATED ON THE U.S.S. KELLY ASSERTS THAT COX CANNOT MEET THE MANUFACTURER'S SPECIFICATIONS FOR THE ROLLERS BECAUSE THE FIRM IS WORKING ON THEM WITHOUT REMOVING THEM FROM THE SHIP. COX SHOULD NOT HAVE BEEN FOUND QUALIFIED TO PERFORM THE SERVICES IN QUESTION SINCE MR. COX IS A FULL-TIME ATTORNEY AND ONLY TWO PEOPLE WILL BE DOING THE WORK. WE ARE UNABLE TO CONSIDER THE MATTERS PRESENTED ON THE MERITS BECAUSE THEY WERE NOT TIMELY FILED WITH OUR OFFICE. IT IS APPARENT FROM MR. KELLY'S CORRESPONDENCE THAT HE WAS AWARE OF THE BASES FOR HIS PROTEST NO LATER THAN OCTOBER 27.

B-225324, DEC 12, 1986, OFFICE OF THE GENERAL COUNSEL

PRECIS-UNAVAILABLE

THE HONORABLE PAUL S. TRIBLE:

THIS RESPONDS TO YOUR LETTER OF NOVEMBER 21, 1986, ON BEHALF OF MR. BRUCE L. KELLY, VICE PRESIDENT OF ALCO WELDING AND MACHINE CO., INC. MR. KELLY COMPLAINS THAT COX AND COX MACHINE, THE AWARDEE UNDER DEPARTMENT OF THE NAVY SOLICITATION NO. N00189-86-R-0429, IS IMPROPERLY PERFORMING THE CONTRACT. YOU ASK FOR OUR FINDINGS AND VIEWS ON THE MATTER.

THE SOLICITATION WAS ISSUED FOR A CONTRACTOR TO REPAIR THE BERTSH FORMING MACHINE ROLLERS LOCATED ON THE U.S.S. PUGET SOUND. MR. KELLY ASSERTS THAT COX CANNOT MEET THE MANUFACTURER'S SPECIFICATIONS FOR THE ROLLERS BECAUSE THE FIRM IS WORKING ON THEM WITHOUT REMOVING THEM FROM THE SHIP; COX MUST BE REPAIRING THE ROLLERS INSTEAD OF RENEWING THEM AS REQUIRED BY THE SOLICITATION BECAUSE THE ROLLERS CANNOT BE RENEWED WITHOUT REMOVAL; COX CANNOT POSSIBLY MEET THE COMPLETION DEADLINE BECAUSE THE FIRM DID NOT ORDER REPLACEMENT PARTS ON TIME; AND COX SHOULD NOT HAVE BEEN FOUND QUALIFIED TO PERFORM THE SERVICES IN QUESTION SINCE MR. COX IS A FULL-TIME ATTORNEY AND ONLY TWO PEOPLE WILL BE DOING THE WORK.

TO THE EXTENT MR. KELLY'S LETTERS MAY BE INTENDED AS A PROTEST, WE ARE UNABLE TO CONSIDER THE MATTERS PRESENTED ON THE MERITS BECAUSE THEY WERE NOT TIMELY FILED WITH OUR OFFICE. IT IS APPARENT FROM MR. KELLY'S CORRESPONDENCE THAT HE WAS AWARE OF THE BASES FOR HIS PROTEST NO LATER THAN OCTOBER 27, 1986. MR. KELLY'S LETTERS, FORWARDED THROUGH YOUR OFFICE, WERE RECEIVED IN OUR OFFICE ON DECEMBER 2, MORE THAN 1 MONTH LATER. OUR BID PROTEST REGULATIONS PROVIDE THAT A PROTEST MUST BE FILED WITHIN 10 WORKING DAYS AFTER THE BASIS FOR PROTEST IS KNOWN IF IT IS TO BE CONSIDERED ON THE MERITS.

IN ANY EVENT, WE NOTE THE FIRST THREE OF MR. KELLY'S CONCERNS RELATE TO THE ADMINISTRATION OF COX'S CONTRACT, AN AREA IN WHICH PROCURING AGENCIES HAVE A GREAT DEAL OF DISCRETION. THE NAVY'S RESPONSE TO MR. KELLY'S LETTERS INDICATE THE NAVY IS AWARE OF MR. KELLY'S POSITION AND THAT IT FULLY INTENDS TO CERTIFY THE WORK PERFORMED BY COX ONLY IF IT SATISFIES THE TERMS OF THE CONTRACT. THE NAVY HAS CERTAIN REMEDIES AVAILABLE-- SUCH AS A DEFAULT TERMINATION-- IF IT ULTIMATELY DETERMINES THAT COX HAS NOT PERFORMED AS REQUIRED, ALTHOUGH WE EMPHASIZE THAT THE APPROPRIATENESS OF ANY PARTICULAR REMEDY IS A JUDGMENT TO BE MADE BY THE NAVY.

MR. KELLY'S POSITION THAT COX IS NOT QUALIFIED TO PERFORM AND THAT ANOTHER NAVY COMMAND MAY HAVE FOUND COX UNQUALIFIED CONCERNS THE NAVY'S DETERMINATION THAT COX IS A RESPONSIBLE CONTRACTOR, ANOTHER AREA IN WHICH THE AGENCY IS AFFORDED SUBSTANTIAL DISCRETION. IN VIEW OF THIS DISCRETION, THE POSSIBILITY THAT COX MAY HAVE BEEN FOUND NONRESPONSIBLE BY A DIFFERENT CONTRACTING AUTHORITY HAS NO BEARING ON THE DETERMINATION THAT COX WAS RESPONSIBLE TO PERFORM THE CONTRACT IN ISSUE HERE.

WE ARE RETURNING THE ENCLOSURES TO YOUR LETTER AS REQUESTED.