Matter of: CTronics File: B-250731 Date: February 3, 1993

B-250731: Feb 3, 1993

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PROCUREMENT Bid Protests Dismissal Definition Protest raising same issue that was resolved in a recent decision on a protest by the same protester and involving the same agency is dismissed as no useful purpose would be served by further consideration of the matter. The CT scanners will be used to perform diagnostic examinations as part of patient care services at the VAMC. CTronics argues that the solicitation's liquidated damages provision is unduly restrictive. The solicitation was issued on August 10. Significant equipment downtime is that which exceeds . . . 10 hours/month. Records regarding downtime will be kept by the COTR and the maintenance contractor. The decision to exercise this alternative will reside exclusively with the [contracting officer].

Matter of: CTronics File: B-250731 Date: February 3, 1993

PROCUREMENT Bid Protests Dismissal Definition Protest raising same issue that was resolved in a recent decision on a protest by the same protester and involving the same agency is dismissed as no useful purpose would be served by further consideration of the matter.

Attorneys

DECISION CTronics protests the terms of request for proposals (RFP) No. 402-7-92, issued by the Department of Veterans Affairs for maintenance services of computerized tomography (CT) scanners at the Veterans Affairs Medical Center (VAMC) located in Togus, Maine. The CT scanners will be used to perform diagnostic examinations as part of patient care services at the VAMC. CTronics argues that the solicitation's liquidated damages provision is unduly restrictive.

We dismiss the protest.

The solicitation was issued on August 10, 1992, and contains the following liquidated damages provision, which provides in relevant part:

"A. Contractor shall be liable to the [g]overnment for [the agency's] losses of production due to significant equipment downtime. Significant equipment downtime is that which exceeds . . . 10 hours/month. Records regarding downtime will be kept by the COTR and the maintenance contractor.

"C. If downtime exceeds . . . 16 consecutive normal working hours, the [contracting officer] may exercise the option to hire an alternative source to resolve the problem. The decision to exercise this alternative will reside exclusively with the [contracting officer]. All fees generated by the alternate [c]ontractor(s) will be handled in accordance with the Default clause.

"D. Monies will be subtracted from the contract if the contractor fails to meet the up-time requirements using the following formula:

MONTHLY MONIES DOWNTIME [Percent]

10 - 12 hours/month 0 12 - 13 hours/month 20 14 - 15 hours/month 40 16 - 17 hours/month 60 18 - 19 hours/month 80 [Over 20] hours/month100."

CTronics contends that paragraph C of this provision is unduly restrictive since it renders the contractor potentially liable for reprocurement costs after only 16 hours of CT Scanner downtime; CTronics also challenges the cost percentages set forth at paragraph D as excessive.

These protest issues--and the challenged liquidated damages provision-- are identical to those in R Squared Scan Sys., Inc., B-249917 et al., Dec. 23, 1992, 92-2 CPD Para. ___. In that case, we found that paragraph C-- authorizing the contracting officer to resort to a replacement contractor, and thereby rendering the delinquent contractor liable for such reprocurement costs--was not unduly restrictive or otherwise excessive since procuring agencies are authorized to contractually provide for the recovery of excess reprocurement costs, and since the record demonstrated that the VAMC facilities could reasonably require alternate contract assistance at that stage. We also found the liquidated damages rates specified in paragraph D to be unobjectionable since they were reasonably related to the contemplated costs which the agency would incur as a result of the specified amounts of equipment downtime. Since the issues raised and the arguments made by CTronics are essentially the same as in the earlier protest which was resolved by decision of December 23, we see no useful purpose to be served by our further consideration of this protest. RMS Indus., B-247465; B-247467, June 10, 1992, 92-1 CPD Para. 506, aff'd, B-247465.2; B-247647.2, July 22, 1992, 92-2 CPD Para. 39.

The protest is dismissed.