B-225568, JAN 8, 1987, 87-1 CPD 38

B-225568: Jan 8, 1987

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PROCUREMENT - BID PROTEST - GAO PROCEDURES - PURPOSES - COMPETITION ENHANCEMENT DIGEST: GENERAL ACCOUNTING OFFICE WILL NOT REVIEW THE MERITS OF AN ALLEGATION THAT A PROCUREMENT SHOULD BE CONDUCTED ON A SOLE-SOURCE BASIS SINCE THE PURPOSE OF GAO'S ROLE IN REVIEWING BID PROTESTS IS TO ENSURE THAT THE STATUTORY REQUIREMENTS FOR FREE AND OPEN COMPETITION ARE MET. STA IS THE INCUMBENT LESSOR UNDER A 5-YEAR CONTRACT WHICH EXPIRED ON OCTOBER 31. GSA IS CURRENTLY LEASING THIS SPACE ON A HOLDOVER BASIS. GSA ADVISED THAT IT WAS CONTEMPLATING NEGOTIATING A SOLE-SOURCE SUCCEEDING LEASE WITH THE PROTESTER. WOULD CONSIDER RELOCATION IF OTHER OFFERS WERE RECEIVED. STATING THAT THE LEASE WAS "SUBJECT TO THE WRITTEN APPROVAL OF THE REGIONAL OFFICE OF PROJECT CONTROL AND OVERSIGHT AND SHALL NOT BE BINDING UNTIL SO APPROVED AND EXECUTED BY THE CONTRACTING OFFICER.".

B-225568, JAN 8, 1987, 87-1 CPD 38

PROCUREMENT - BID PROTEST - GAO PROCEDURES - PURPOSES - COMPETITION ENHANCEMENT DIGEST: GENERAL ACCOUNTING OFFICE WILL NOT REVIEW THE MERITS OF AN ALLEGATION THAT A PROCUREMENT SHOULD BE CONDUCTED ON A SOLE-SOURCE BASIS SINCE THE PURPOSE OF GAO'S ROLE IN REVIEWING BID PROTESTS IS TO ENSURE THAT THE STATUTORY REQUIREMENTS FOR FREE AND OPEN COMPETITION ARE MET.

STONE TRACT ASSOCIATES:

STONE TRACT ASSOCIATES (STA) PROTESTS THE CANCELLATION OF SOLICITATION NO. R11-86-059, ISSUED BY THE GENERAL SERVICES ADMINISTRATION (GSA) AS A SOLE-SOURCE PROCUREMENT OF A SUCCEEDING LEASE OF OFFICE SPACE FROM THE PROTESTER, AND THE PROPOSED COMPETITIVE RESOLICITATION OF THE REQUIREMENT. STA ALSO CLAIMS THE COSTS OF PURSUING ITS PROTEST, INCLUDING ATTORNEY'S FEES.

WE DISMISS THE PROTEST.

STA IS THE INCUMBENT LESSOR UNDER A 5-YEAR CONTRACT WHICH EXPIRED ON OCTOBER 31, 1986. GSA IS CURRENTLY LEASING THIS SPACE ON A HOLDOVER BASIS, AS PERMITTED UNDER THE CONTRACT. IN A COMMERCE BUSINESS DAILY NOTICE OF FEBRUARY 14, 1986, GSA ADVISED THAT IT WAS CONTEMPLATING NEGOTIATING A SOLE-SOURCE SUCCEEDING LEASE WITH THE PROTESTER, BUT WOULD CONSIDER RELOCATION IF OTHER OFFERS WERE RECEIVED. WHEN NO OTHER OFFERORS REPLIED WITHIN THE 5-DAY PERIOD PROVIDED UNDER THE NOTICE, THE GSA CONTRACTING ACTIVITY REQUESTED THE GSA REGIONAL ADMINISTRATOR'S PERMISSION TO CONDUCT SOLE-SOURCE NEGOTIATIONS WITH THE PROTESTER. PRIOR TO OBTAINING THIS APPROVAL, GSA ENGAGED IN NEGOTIATIONS WITH STA, AND ON JULY 31, THE PROCURING ACTIVITY MAILED STA DRAFT COPIES OF A LEASE, STATING THAT THE LEASE WAS "SUBJECT TO THE WRITTEN APPROVAL OF THE REGIONAL OFFICE OF PROJECT CONTROL AND OVERSIGHT AND SHALL NOT BE BINDING UNTIL SO APPROVED AND EXECUTED BY THE CONTRACTING OFFICER."

STA ASSERTS THAT THE REGIONAL OFFICE DID APPROVE THE CONTRACT ON OCTOBER 29, BUT THE LEASE WAS NEVER EXECUTED BY THE CONTRACTING OFFICER. INSTEAD, APPARENTLY BECAUSE IT DECIDED THAT OTHER FACILITIES MIGHT BE AVAILABLE, ON NOVEMBER 25, GSA ORALLY ADVISED STA THAT THE LEASE WOULD NOT BE EXECUTED, AND ON DECEMBER 3, GSA ADVISED STA IN WRITING THAT THE SOLE-SOURCE PROCUREMENT WAS BEING CANCELED BECAUSE IT COULD NOT BE LAWFULLY COMPLETED. STA THEN PROTESTED TO OUR OFFICE.

SINCE THE PURPOSE OF OUR ROLE IN RESOLVING BID PROTESTS IS TO ENSURE THAT THE STATUTORY REQUIREMENTS FOR FREE AND OPEN COMPETITION FOR GOVERNMENT CONTRACTS ARE MET, WE WILL NOT REVIEW A PROTEST THAT AN AGENCY SHOULD AWARD A CONTRACT ON A SOLE-SOURCE BASIS. NUCLEAR METALS, INC., 64 COMP.GEN. 290 (1985), 85-1 CPD PARA. 217; KOLLMORGEN CORP., B-221709.5, JUNE 24, 1986, 86-1 CPD PARA. 580; WHITTAKER CONTROLS, INC., B-222737, APR. 15, 1986, 86-1 CPD PARA. 370. THIS IS SUCH A PROTEST.

STA ALSO ASSERTS THAT THE CONTRACT WAS ACTUALLY AWARDED BECAUSE OF THE REGIONAL OFFICE'S APPROVAL. HOWEVER, THE JULY 31 NOTICE TO STA EXPRESSLY PROVIDED THAT THERE WOULD BE NO AWARD UNTIL EXECUTION OF THE LEASE BY THE CONTRACTING OFFICER, WHICH WAS NEVER DONE.

ACCORDINGLY, WE DISMISS THE PROTEST UNDER SECTION 21.3(F) OF OUR BID PROTEST REGULATIONS, WITHOUT OBTAINING A REPORT FROM GSA OR HAVING A CONFERENCE ON THE PROTEST, AS REQUESTED BY THE PROTESTER, BECAUSE IT IS CLEAR ON THE FACE OF THE PROTEST THAT IT IS WITHOUT MERIT, AND A CONFERENCE WOULD, THEREFORE, SERVE NO USEFUL PURPOSE. CONNIE HALL CO., B-223440, JULY 9, 1986, 86-2 CPD PARA. 52.

SINCE THE PROTEST IS DISMISSED, STA IS NOT ENTITLED TO RECOVER THE COSTS OF PURSUING THE PROTEST. DATAVAULT CORPORATION, B-223937; B-223937.2, NOV. 20, 1986, 86-2 CPD PARA. 594.