Matter of: Inter Pipe, Inc.--Reconsideration File: B-253669.2 Date: July 7, 1993

B-253669.2: Jul 7, 1993

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PROCUREMENT Bid Protests Dismissal Protest that award of a reprocurement contract is improper because it will prevent the defaulted contractor. A matter which is outside the scope of the bid protest process. That the focus of its protest to us is not the termination itself. Which it is pursuing through the appropriate contract appeal procedure. The reprocurement contract that was awarded subsequent to the default termination. The narrative identified reasons why the termination was inappropriate and why the protester would be adversely affected in the future by the allegedly improper default. To reprocure for the items that were the subject of default. Provided that competition to the maximum practicable extent is obtained and the repurchase price is reasonable.

Matter of: Inter Pipe, Inc.--Reconsideration File: B-253669.2 Date: July 7, 1993

PROCUREMENT Bid Protests Dismissal Protest that award of a reprocurement contract is improper because it will prevent the defaulted contractor, should it win its appeal of the default, from completing performance of the contract does not provide a valid basis for protest since a successful appeal of a default results in a termination for convenience, not a reinstatement of the contract.

Attorneys

DECISION Inter Pipe, Inc. requests reconsideration of our June 4, 1993, dismissal of its protest filed in connection with the termination for default of its contract with the Forest Service, U.S. Department of Agriculture.

We dismissed the protest as one raising issues of contract administration, a matter which is outside the scope of the bid protest process. Inter Pipe asserts, however, that the focus of its protest to us is not the termination itself--which it is pursuing through the appropriate contract appeal procedure--but the reprocurement contract that was awarded subsequent to the default termination.

We continue to read the original protest letter as a protest of the termination--although the letter referenced the reprocurement contract, the narrative identified reasons why the termination was inappropriate and why the protester would be adversely affected in the future by the allegedly improper default. Nonetheless, to the extent the letter can be read as a protest of the award of a reprocurement contract, it contains no valid basis for protest.

The Federal Acquisition Regulation (FAR) authorizes contracting officers, in accordance with contract default provisions, to reprocure for the items that were the subject of default, using any terms or acquisition method deemed appropriate, provided that competition to the maximum practicable extent is obtained and the repurchase price is reasonable. FAR Sec. 49.402 -6.

Protests of reprocurement actions therefore must involve a challenge to the acquisition method used or, where there is a competition, to the rules applicable to, and the overall fairness of, that repurchase competition. See, e.g., Tango Constr., Inc.; Neal & Co., Inc., 71 Comp.Gen. 55 (1991), 91-2 CPD Para. 425; Dr. Loyd J. Kiernan, B-250300, Dec. 30, 1992, 92-2 CPD Para. 455; A.R.E. Mfg. Co., Inc., B-246161, Feb. 21, 1992, 92-1 CPD Para. 210; Hadson Defense Sys., Inc.; Research Dev. Labs., B-244522; B-244522.2, Oct. 24, 1991, 91-2 CPD Para. 368.

Inter Pipe protests that the reprocurement will adversely affect it in that it will not be able to complete the contract if it wins the appeal of the default termination, and that this is inconsistent with its chapter 11 bankruptcy reorganization. This is not a basis for challenging a reprocurement award. As stated above, contracting officers have the right to reprocure when a contract is terminated for default. Should that default termination be overturned on appeal, the contractor does not get another opportunity to perform the contract--pursuant to the contract default clause, the default termination is simply converted to a termination for the convenience of the government. In other words, while such a conversion changes the respective rights of the parties to the contract, the contract itself remains terminated.

That being so, Inter Pipe's complaint provides no basis for review of the contracting officer's actions. Accordingly, we decline to reconsider the dismissal.