B-242029, Mar 15, 1991, 91-1 CPD 291

B-242029: Mar 15, 1991

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Protest is not rendered academic merely because extent of contract performance renders corrective action not feasible. Anacomp argues that only it has a GSA schedule contract for the item purchased and that the purchase from Canon was contrary to statute and regulation. DLA is a nonmandatory user of the FSS for this item. Believed that the agency's requirements were for the listed Canon product and that Canon held a current FSS contract for that item. The agency now admits that it had no basis to issue an order to Canon for the reader/printers since Canon was not the FSS contractor. The agency's needs were not limited to a Canon part number. It is also clear from the record that the agency's revised needs did not permit use of the small purchase procedures.

B-242029, Mar 15, 1991, 91-1 CPD 291

PROCUREMENT - Noncompetitive Negotiation - Contract awards - Sole sources - Propriety

DIGEST

Attorneys

Anacomp, Inc.:

Anacomp, Inc. protests the issuance of Defense Logistics Agency (DLA) delivery order No. DLA400-91-F-0107 to Canon U.S.A., Inc., under General Services Administration (GSA) Federal Supply Schedule (FSS) No. GS-00F- 1931A for microfiche reader/printers. Anacomp argues that only it has a GSA schedule contract for the item purchased and that the purchase from Canon was contrary to statute and regulation.

We sustain the protest.

On September 21, 1990, DLA issued request for quotations (RFQ) No. DLA400 -91-Q-J002 for 11 reader/printers, Canon P/N PC Printer 70, national stock number (NSN) 6730-01-171-5848 to three potential suppliers, using simplified small purchase procedures. The agency received two quotes. Canon submitted the low quote, which included a notation that its FSS contract No. GS-00F-1931A applied to the proposed purchase. DLA is a nonmandatory user of the FSS for this item.

At the agency's request, the awardee supplied a brochure concerning its FSS contract and the availability of the specified Canon printer under that contract. Next to the applicable product descriptions in the brochure, a Canon salesman typed in several national stock numbers, including NSN 6730-01-171-5848, to indicate for the agency which products might meet its requirements. Unknown to the agency, on July 1, Canon's FSS contract for printers, NSN 6730-01-171-5848, had expired, and the protester now had the FSS contract for that item. /1/

Subsequently, the agency's requirements increased beyond the point where the buyer could use small purchase procedures. Also, unknown to the buyer, the agency technical office revised the agency's item description to replace the reference to Canon P/N PC Printer 70 with a GSA item description. /2/ The buyer, however, believed that the agency's requirements were for the listed Canon product and that Canon held a current FSS contract for that item. On November 2, 1990, acting under a mistake both as to the terms of Canon's GSA contract and the agency's requirements, the buyer issued delivery order No. DLA400-91-F 0107 to Canon. This protest followed.

The agency now admits that it had no basis to issue an order to Canon for the reader/printers since Canon was not the FSS contractor, and the agency's needs were not limited to a Canon part number. It is also clear from the record that the agency's revised needs did not permit use of the small purchase procedures. Thus, DLA's actions here violated the Competition in Contracting Act of 1984 (CICA), 10 U.S.C. Sec. 2301 et seq. (1988), under which agencies must obtain "full and open" competition through the use of competitive procedures. DLA, in effect, made an improper sole-source award. We therefore sustain the protest.

The agency argues that the protest is academic and should be dismissed because it has already received delivery of the reader/printers, has shipped them off for use in the Desert Shield/Storm operations, and remedial action is impractical. We disagree. The fact that corrective action may not be feasible does not render a protest academic. typically view a protest as academic in situations where the agency has taken some appropriate corrective action, see, e.g., Maytag Aircraft Corp. -- Recon.; Claim for Protest Costs, 69 Comp.Gen. 83 (1989), 89-2 CPD Para. 457, or canceled the underlying solicitation. See, e.g., Billings Am. Indian Council, B-228989, B-228989.2, Dec. 29, 1987, 87-2 CPD Para. 639. In cases where no corrective action is feasible simply because of the extent of contract performance, we do not dismiss the protest as academic -- we sustain it and award costs as appropriate. See W.S. Spotswood & Sons, Inc., B-236713.2, Nov. 16, 1989, 89-2 CPD Para. 469.

Here, since the supplies have in fact been delivered and shipped to support ongoing military operations, termination of the order is not a practicable remedy. Accordingly, we made no recommendation for corrective action in this case. We find, however, that the protester is entitled to recover its costs of filing and pursuing its protest. /3/

By separate letter of today, we are advising the Director of the Defense Logistics Agency that Anacomp is entitled to recover its costs of filing and pursuing this protest, including reasonable attorneys' fees; Anacomp should submit its claims for such costs directly to the agency. 4 C.F.R. Sec. 21.6(e) (1990).

The protest is sustained.

/1/ The protester asserts that Canon intentionally misled the buyer about the terms of its FSS contract; the agency has found no evidence that this occurred, and the record does not establish otherwise. According to Canon, it indicated the national stock numbers in its brochure to show that the items offered were identical to other items currently on its schedule contract.

/2/ The GSA item description is generic in nature and is satisfied either by the Canon product or the protester's Micro Copy 1000 Reader/Printer.

/3/ The protester apparently has not incurred quote preparation expenses.