B-241542.2, Mar 13, 1991, 91-1 CPD ***

B-241542.2: Mar 13, 1991

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PROCUREMENT - Contract Management - Contract administration - Convenience termination - Administrative determination - GAO review PROCUREMENT - Bid Protests - Dismissal - Definition DIGEST Where agency terminated protester's contract for convenience and awarded new contract to lower bidder after determining that rejection of lower bid as nonresponsive was improper. General assertion that termination for convenience and subsequent award was improper is not a legally sufficient protest basis. Protest therefore is dismissed. CST alleges the Navy's corrective action was improper. The low bidder was permitted to withdraw its bid based on an alleged mistake. McLaughlin's bid subsequently was determined to be nonresponsive on the ground that it did not contain pledges of assets by the individual sureties on the required bid bond.

B-241542.2, Mar 13, 1991, 91-1 CPD ***

PROCUREMENT - Contract Management - Contract administration - Convenience termination - Administrative determination - GAO review PROCUREMENT - Bid Protests - Dismissal - Definition

DIGEST

Attorneys

CST Environmental, Inc.:

CST Environmental, Inc. protests the termination of its contract, and the award of a new contract to D.L. McLaughlin Company, Inc. under invitation for bids (IFB) No. N62474-90-B-6199, issued by the Navy for asbestos removal. The Navy terminated for convenience CST's contract under the solicitation and made award to McLaughlin in response to a protest McLaughlin filed in our Office; CST alleges the Navy's corrective action was improper.

We dismiss the protest.

At bid opening on July 26, 1990, McLaughlin submitted the second-low bid and CST submitted the third-low bid. The low bidder was permitted to withdraw its bid based on an alleged mistake. McLaughlin's bid subsequently was determined to be nonresponsive on the ground that it did not contain pledges of assets by the individual sureties on the required bid bond, and the Navy consequently made award to CST on September 24. McLaughlin protested the award on October 9, arguing that a pledge of a surety's assets is a matter of the surety's responsibility, not the responsiveness of the bid, and that, as such, it should have been given an opportunity to correct the defect prior to award. The Navy agreed, and on November 15 notified our Office that it would reconsider McLaughlin's bid and terminate CST's contract for convenience and make award to McLaughlin if it found McLaughlin's sureties acceptable. Since the agency granted the requested relief, we dismissed McLaughlin's protest as academic on November 20. CST learned on February 13, 1991, that its contract had been terminated for convenience, and learned of the award to McLaughlin on February 20. CST filed this protest challenging those actions on March 5.

CST correctly notes that an agency's decision to terminate a contract for the convenience of the government is a matter of contract administration which our Office generally does not review; we will review the propriety of a contract termination only where, as here, the termination is based on the agency's conclusion that the original contract award was improper, and the protester is challenging that conclusion. Amarillo Aircraft Sales & Servs., Inc., B-214225, Sept. 10, 1984, 84-2 CPD Para. 269. While CST generally asserts that the award to McLaughlin was improper, it presents no valid legal argument in support of this assertion. Specifically, CST does not allege that the initial award to it was legally correct or that the agency's subsequent determination that McLaughlin's bid was responsive was in error. We therefore have no basis to review the Navy's determination. Id.

CST does challenge the Navy's actions for reasons unrelated to the propriety of the original award decision. First, CST asserts that the award to McLaughlin "under a different contract number" amounted to an improper sole-source award because it was made without solicitation of bids. This argument is without merit. The award to McLaughlin is not sole source, but was made based on that firm's second-low bid under the IFB. The assignment of a different number to the contract is an administrative matter that has no bearing on the propriety of the award.

Second, CST alleges that corrective action was inappropriate since McLaughlin's original protest challenging the rejection of its bid was not timely filed. CST's assertion is incorrect; the record for McLaughlin's protest shows that the protest in fact was filed within 10 days of the date it learned of the rejection of its bid as nonresponsive. See 4 C.F.R. Sec. 21.2(a)(2) (1990). In any case, the fact that a protest of an improper award is untimely does not preclude the agency from taking corrective action to remedy the impropriety. See Amarillo Aircraft Sales & Servs., Inc., B-214225, supra.

Finally, CST argues that the Navy should not have suspended performance of its contract subsequent to McLaughlin's protest because the protest was not filed within 10 calendar days of award. However, while the Competition in Contracting Act of 1984, 31 U.S.C. Sec. 3553(d)(1) (1988), requires suspension of contract performance only where the agency is notified within 10 calendar days after award that a protest has been filed in our Office, it does not preclude the agency from suspending performance where warranted in other cases.

CST's allegations do not establish the likelihood that the termination of its contract and award to McLaughlin were improper; these allegations therefore do not constitute a legally sufficient protest basis as required by our Regulations. See 4 C.F.R. Sec. 21.1(c)(4); Professional Medical Prods., Inc., B-231743, July 1, 1988, 88-2 CPD Para. 2.

The protest is dismissed.