B-219428.3, B-219440.3, AUG 22, 1986, OFFICE OF THE GENERAL COUNSEL

B-219428.3,B-219440.3: Aug 22, 1986

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CONCERNS RELATING TO CONTRACTOR'S PERFORMANCE UNDER GOVERNMENT CONTRACT ARE MATTERS OF CONTRACT ADMINISTRATION AND ARE FOR CONSIDERATION BY THE PROCURING AGENCY. POSTAWARD CHANGE IN SIZE STATUS DOES NOT AFFECT VALIDITY OF AWARD TO BUSINESS WHICH WAS SMALL AT TIME OF A AWARD OF A CONTRACT UNDER A SMALL BUSINESS SET-ASIDE. YOU FURTHER ADVISE THAT THERE ARE NEWSPAPER REPORTS THAT A NUMBER OF DISPUTES HAVE ARISEN BETWEEN COASTAL AND THE NAVY CONCERNING COST OVERRUNS. IT IS YOUR BELIEF THAT THESE NEWSPAPER REPORTS. WOULD INDICATE THAT THE GOVERNMENT MAY HAVE MADE A MISTAKE IN ITS PREAWARD TECHNICAL AND COST EVALUATION OF COASTAL'S OFFER. WE ARE UNABLE TO CONSIDER THE ISSUES YOU RAISE. THE POSTAWARD CONCERNS YOU RAISE RELATING TO COASTAL'S CURRENT FINANCIAL CONDITION AND PERFORMANCE OF ITS CONTRACT ARE MATTERS OF CONTRACT ADMINISTRATION WHICH IS THE RESPONSIBILITY OF THE PROCURING AGENCY AND IS NOT ENCOMPASSED BY OUR BID PROTEST FUNCTION. 4 C.F.R.

B-219428.3, B-219440.3, AUG 22, 1986, OFFICE OF THE GENERAL COUNSEL

CONTRACTS - PROTESTS - AUTHORITY TO CONSIDER - CONTRACT ADMINISTRATION MATTERS DIGEST: 1. CONCERNS RELATING TO CONTRACTOR'S PERFORMANCE UNDER GOVERNMENT CONTRACT ARE MATTERS OF CONTRACT ADMINISTRATION AND ARE FOR CONSIDERATION BY THE PROCURING AGENCY, NOT GAO. CONTRACTS - SMALL BUSINESS CONCERNS - AWARDS - SIZE STATUS - TIME TO QUESTION 2. POSTAWARD CHANGE IN SIZE STATUS DOES NOT AFFECT VALIDITY OF AWARD TO BUSINESS WHICH WAS SMALL AT TIME OF A AWARD OF A CONTRACT UNDER A SMALL BUSINESS SET-ASIDE.

WILLIAM T. HARTH:

VICE PRESIDENT

PERTH AMBOY DRY DOCK CO.

FOOT OF COMMERCE STREET

PERTH AMBOY, NEW JERSEY 08862

WE REFER TO YOUR LETTER DATED AUGUST 13, 1986, TO OUR OFFICE CONCERNING THE NAVAL SEA SYSTEMS COMMAND'S (NAVSEA) CONTRACT WITH COASTAL DRY DOCK AND REPAIR CORPORATION (COASTAL) FOR THE ATLANTIC FLEET AE CLASS VESSELS PHASED MAINTENANCE PROGRAM. THE CONTRACT AWARDED UNDER REQUEST FOR PROPOSALS (RFP) NO. N00024-85-R-8511, A TOTAL SMALL BUSINESS SET-ASIDE, CALLS FOR COASTAL TO PERFORM MAJOR MAINTENANCE FOR THREE ATLANTIC FLEET VESSELS ON A PLANNED SCHEDULE BASIS THROUGH FISCAL YEAR 1990. DECISION, HOBOKEN SHIPYARDS, INC.; PERTH AMBOY DRY DOCK CO., B-219428, B-219440, OCT. 17, 1985, 85-2 CPD PARA. 416, WE DENIED, IN PART, AND DISMISSED, IN PART, THE PROTESTS OF THE PERTH AMBOY DRY DOCK COMPANY AND HOBOKEN SHIPYARDS, INC., CHALLENGING THE AWARD OF THIS CONTRACT TO COASTAL. WE AFFIRMED THIS DECISION IN HOBOKEN SHIPYARDS, INC.; PERTH AMBOY DRY DOCK CO.-- REQUEST FOR RECONSIDERATION, B-219428.2; B-219440.2, NOV. 21, 1985, 85-2 CPD PARA. 582.

YOU ALLEGE THAT COASTAL RECENTLY FILED FOR BANKRUPTCY AND THAT BATH IRON WORKS, A LARGE BUSINESS, MAY PURCHASE COASTAL. YOU INDICATED THAT COASTAL MAY THEN NO LONGER QUALIFY AS A SMALL BUSINESS. YOU FURTHER ADVISE THAT THERE ARE NEWSPAPER REPORTS THAT A NUMBER OF DISPUTES HAVE ARISEN BETWEEN COASTAL AND THE NAVY CONCERNING COST OVERRUNS, LATE DELIVERIES AND POOR PERFORMANCE BY COASTAL. IT IS YOUR BELIEF THAT THESE NEWSPAPER REPORTS, IF TRUE, WOULD INDICATE THAT THE GOVERNMENT MAY HAVE MADE A MISTAKE IN ITS PREAWARD TECHNICAL AND COST EVALUATION OF COASTAL'S OFFER. YOU ALSO SUGGEST THAT COASTAL'S FINANCIAL CONDITION AND POSSIBLE LOSS OF STATUS AS A SMALL BUSINESS MAY BE A BASIS FOR THE NAVY'S TERMINATING ITS CONTRACT WITH COASTAL. YOU ASK FOR OUR OPINION CONCERNING THESE DEVELOPMENTS.

WE ARE UNABLE TO CONSIDER THE ISSUES YOU RAISE.

THE POSTAWARD CONCERNS YOU RAISE RELATING TO COASTAL'S CURRENT FINANCIAL CONDITION AND PERFORMANCE OF ITS CONTRACT ARE MATTERS OF CONTRACT ADMINISTRATION WHICH IS THE RESPONSIBILITY OF THE PROCURING AGENCY AND IS NOT ENCOMPASSED BY OUR BID PROTEST FUNCTION. 4 C.F.R. SEC. 21.3(F)(1) (1986). TMS BUILDING MAINTENANCE, B-220588, JAN. 22, 1986, 65 COMP.GEN. ***, 86-1 CPD PARA. 68. OUR BID PROTEST FORUM IS RESERVED FOR CONSIDERING WHETHER AN AWARD OF A CONTRACT COMPLIES WITH STATUTORY, REGULATORY AND OTHER LEGAL REQUIREMENTS, NOT FOR MATTERS CONCERNING CONTRACT PERFORMANCE. FUGRO INTER, INC.-- RECONSIDERATION, B-219323.2, DEC. 13, 1985, 85-2 CPD PARA. 654.

WE FURTHER NOTE THAT THE POSTAWARD CHANGE IN COASTAL'S SIZE STATUS GENERALLY WOULD NOT AFFECT THE VALIDITY OF THE AWARD OF THE CONTRACT OR REQUIRE TERMINATION OF THE CONTRACT SINCE COASTAL WAS A SMALL BUSINESS WHEN OFFERS WERE INITIALLY SUBMITTED AND WHEN THE CONTRACT WAS AWARDED. SEE FEDERAL ACQUISITION REGULATION SUBPART 19.3 (FAC 84-12, JANUARY 20, 1986); LOGISTICAL SUPPORT, INC., B-205538, MAR. 10, 1982, 82-1 CPD PARA. 227.