B-188692, B-191319, B-191491, MAY 18, 1978

B-188692,B-191319,B-191491: May 18, 1978

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WHERE ISSUE RAISED IN PROTESTS AS TO PROPRIETY OF CERTAIN PROVISIONS OF IFB'S IS ALSO PRESENTED IN PROTESTER'S APPEAL OF PRIOR CONTRACT TERMINATION BEFORE ARMED SERVICES BOARD OF CONTRACT APPEALS. GAO WILL NOT CONSIDER PROTESTS ON MERITS. IS THE EXTENT TO WHICH THE AIR FORCE MAY ORDER PRODUCTS FROM A REQUIREMENTS CONTRACTOR PRIOR TO AND SCHEDULE DELIVERY AFTER EXPIRATION OF THE CONTRACT. UNION CARBIDE HAS MADE THE SAME ARGUMENTS TO THE ASBCA AS ARE PRESENTED IN THESE PROTESTS. THE FACT THAT THIS ISSUE IS BEFORE THE ASBCA PRECLUDES OUR REVIEW. ALLEGING THAT THERE WERE AMBIGUITIES IN THE IFB. ARE PROPERLY A MATTER FOR THE ASBCA TO DECIDE UNDER THE DISPUTES PROCEDURE. THESE TWO ISSUES WILL NOT BE CONSIDERED ON THE MERITS.

B-188692, B-191319, B-191491, MAY 18, 1978

WHERE ISSUE RAISED IN PROTESTS AS TO PROPRIETY OF CERTAIN PROVISIONS OF IFB'S IS ALSO PRESENTED IN PROTESTER'S APPEAL OF PRIOR CONTRACT TERMINATION BEFORE ARMED SERVICES BOARD OF CONTRACT APPEALS, GAO WILL NOT CONSIDER PROTESTS ON MERITS.

UNION CARBIDE CORPORATION:

THESE CASES INVOLVE PROTESTS BY UNION CARBIDE CORPORATION, LINDE DIVISION (UNION CARBIDE), WITH RESPECT TO INVITATIONS FOR BIDS (IFB'S) F41608-77-B- 0015 (-0015), F41608-77-B-0079 (-0079), F41608-77-B-0215 ( 0215), F41608- 78-B-0132 (-0132), AND F41608-78-B-0159 (-0159), ALL ISSUED BY THE DEPARTMENT OF THE AIR FORCE, SAN ANTONIO AIR LOGISTICS CENTER, TEXAS (AIR FORCE). THE SUBJECT IFB'S SOLICIT REQUIREMENTS CONTRACTS OF VARYING DURATION TO SUPPLY LIQUID NITROGEN (LIN) (IFB'S 0079, -0215, -0132, AND - 0159) AND GASEOUS NITROGEN (IFB -0015) TO CERTAIN AIR FORCE, NATIONAL AERONAUTICS AND SPACE ADMINISTRATION AND DEPARTMENT OF ENERGY INSTALLATIONS.

THESE PROTESTS PRESENT ONE BASIC ISSUE. THE ISSUE RAISED, GOING BOTH TO THE PROPRIETY OF PARTICULAR TERMS OF THE SOLICITATIONS AND THE LEGALITY OF THE RESULTING CONTRACTS, IS THE EXTENT TO WHICH THE AIR FORCE MAY ORDER PRODUCTS FROM A REQUIREMENTS CONTRACTOR PRIOR TO AND SCHEDULE DELIVERY AFTER EXPIRATION OF THE CONTRACT.

THE AIR FORCE HAS POINTED OUT, AND WE NOTED IN A PRIOR DECISION, UNION CARBIDE CORPORATION, B-188426, SEPTEMBER 20, 1977, 77-2 CPD 204, THAT THIS ISSUE HAS BEEN RAISED BY THE PROTESTER IN AN APPEAL TO THE ARMED SERVICES BOARD OF CONTRACT APPEALS (ASBCA) OF A TERMINATION FOR DEFAULT UNDER CONTRACT F41608-72-D-6710. THAT CONTRACT CONTAINED ESSENTIALLY THE SAME PROVISIONS AS THE IFB'S PROTESTED HERE, AND UNION CARBIDE HAS MADE THE SAME ARGUMENTS TO THE ASBCA AS ARE PRESENTED IN THESE PROTESTS.

THE FACT THAT THIS ISSUE IS BEFORE THE ASBCA PRECLUDES OUR REVIEW. THE RECENT CASE OF CHEMICAL TECHNOLOGY, INC., B-190074, APRIL 25, 1978, AN INCUMBENT CONTRACTOR PROTESTED A SOLICITATION FOR THE FOLLOW ON CONTRACT, ALLEGING THAT THERE WERE AMBIGUITIES IN THE IFB. AT THE SAME TIME, THE CONTRACTOR HAD SEVERAL CLAIMS FOR ADDITIONAL COMPENSATION UNDER ITS OLD CONTRACT BASED UPON THE SAME ALLEGED AMBIGUITIES PENDING BEFORE THE ASBCA. WE SAID:

"*** WE DO NOT BELIEVE THAT CTI SHOULD BE ALLOWED TO COLLATERALLY ARGUE ITS INTERPRETATION OF THESE PROVISIONS IN TWO FORUMS CONCURRENTLY. THE CORRECT INTERPRETATION OF THESE PROVISIONS, AS THEY RELATE SPECIFICALLY TO CTI, ARE PROPERLY A MATTER FOR THE ASBCA TO DECIDE UNDER THE DISPUTES PROCEDURE. ACCORDINGLY, THESE TWO ISSUES WILL NOT BE CONSIDERED ON THE MERITS. SEE COSMOS ENGINEERS, INC., B-187457, MARCH 31, 1977, 77-1 CPD 222; DELTA ELECTRIC CONSTRUCTION COMPANY, B-182820, MARCH 28, 1975, 75-1 CPD 188."

ALTHOUGH THE IFB'S PROTESTED HERE ARE NOT FOLLOW-ONES TO THE CONTRACT WHICH IS THE SUBJECT OF UNION CARBIDE'S ASBCA APPEAL, THEY DO CONTAIN ESSENTIALLY THE SAME PROVISIONS WHICH ARE DISPUTED BY UNION CARBIDE ON THE SAME BASES AT ISSUE IN THE ASBCA MATTER. FOR THIS REASON, WE BELIEVE THAT THIS CASE IS INDISTINGUISHABLE FROM CHEMICAL TECHNOLOGY, INC., SUPRA, AND THAT WE MUST DECLINE TO CONSIDER THE PROTESTS ON THE MERITS.

ACCORDINGLY, ALL OF UNION CARBIDE'S PROTESTS ARE DISMISSED.

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