B-160004, NOV. 4, 1966
Highlights
YOU INDICATE IT TO BE YOUR FEELING THAT THE PROTEST OF THE FORD COMPANY WAS NOT WELL TAKEN BY THE ADMINISTRATIVE AGENCY CONCERNED AND THAT THIS PLACES IN THE HANDS OF CONTRACTING OFFICERS THE ABILITY TO AVOID REVIEW BY THE GENERAL ACCOUNTING OFFICE. THERE ARE REGULATIONS WHICH PROVIDE FOR THE ORDERLY HANDLING AND RESOLUTION OF PROTESTS. IF A TIMELY WRITTEN PROTEST IS SUBMITTED TO THE CONTRACTING OFFICER PRIOR TO THE MAKING OF AN AWARD NO AWARD SHOULD BE MADE UNTIL THE MATTER IS RESOLVED. AWARD MAY BE MADE WHILE A PROTEST IS PENDING IF THE CONTRACTING OFFICER DETERMINES IN WRITING THAT: (1) THE ITEMS TO BE PROCURED ARE URGENTLY NEEDED. (2) UNDUE DELAY WILL RESULT IN DELIVERY OR PERFORMANCE BY FAILURE TO MAKE PROMPT AWARD.
B-160004, NOV. 4, 1966
TO BARENBAUM AND BARENBAUM:
WE REFER TO YOUR LETTER DATED OCTOBER 24, 1966, WHICH MAKES FURTHER REFERENCE TO THE PROTEST OF F. W. FORD COMPANY AGAINST AWARD OF CONTRACT NO. DSA 100-66-NEG-2908 ISSUED BY THE DEFENSE SUPPLY AGENCY.
YOU INDICATE IT TO BE YOUR FEELING THAT THE PROTEST OF THE FORD COMPANY WAS NOT WELL TAKEN BY THE ADMINISTRATIVE AGENCY CONCERNED AND THAT THIS PLACES IN THE HANDS OF CONTRACTING OFFICERS THE ABILITY TO AVOID REVIEW BY THE GENERAL ACCOUNTING OFFICE. YOU STATE THAT "FAIRNESS REQUIRES AND THE PRESERVATION OF THE COMPETITIVE BIDDING SYSTEM DEMANDS THAT REGULATIONS PROVIDE FOR THE ORDERLY HANDLING AND RESOLUTION OF TIMELY PROTESTS.'
THERE ARE REGULATIONS WHICH PROVIDE FOR THE ORDERLY HANDLING AND RESOLUTION OF PROTESTS. A PROTESTING BIDDER MAY MAKE HIS COMPLAINT DIRECTLY TO OUR OFFICE OR HE MAY MAKE IT TO THE CONTRACTING OFFICER. IF A TIMELY WRITTEN PROTEST IS SUBMITTED TO THE CONTRACTING OFFICER PRIOR TO THE MAKING OF AN AWARD NO AWARD SHOULD BE MADE UNTIL THE MATTER IS RESOLVED. AWARD MAY BE MADE WHILE A PROTEST IS PENDING IF THE CONTRACTING OFFICER DETERMINES IN WRITING THAT: (1) THE ITEMS TO BE PROCURED ARE URGENTLY NEEDED; (2) UNDUE DELAY WILL RESULT IN DELIVERY OR PERFORMANCE BY FAILURE TO MAKE PROMPT AWARD; OR (3) A PROMPT AWARD WILL OTHERWISE BE ADVANTAGEOUS TO THE GOVERNMENT.
IF THE PREAWARD PROTEST IS MADE DIRECTLY TO OUR OFFICE THE CONTRACTING OFFICER MUST SEEK APPROVAL OF ANY AWARD PRIOR TO DECISION ON THE PROTEST BY US FROM HIGHER AUTHORITY WITHIN THE PROCURING AGENCY. IT IS NOT ABSOLUTELY NECESSARY THAT AWARD BE WITHHELD PENDING FINAL DISPOSITION OF THE PROTEST BY OUR OFFICE, HOWEVER, ADVICE SHOULD BE OBTAINED BY THE PROCURING AGENCY CONCERNING THE STATUS OF THE CASE PRIOR TO MAKING THE AWARD.
AUTHORITY FOR THESE PROCEDURES IS PROVIDED BY THE ARMED SERVICES PROCUREMENT REGULATION, PARAGRAPH 2-407.9.
PLEASE BE ASSURED THAT OUR OFFICE MAKES NO ATTEMPT TO JUSTIFY OR RATIONALIZE THE ACTIONS OF AN ADMINISTRATIVE AGENCY WHEN THAT AGENCY HAS FAILED IN ITS DUTY TO PROPERLY CARRY OUT CONTRACT PROCEDURES AS PRESCRIBED BY LAW AND REGULATION. IN THE PRESENT CASE THE MANNER IN WHICH THE CONTRACT WAS NEGOTIATED, AND AWARD MADE, HAVE BEEN SERIOUSLY CRITICIZED BY OUR OFFICE AND BROUGHT TO THE ATTENTION OF THE DIRECTOR, DEFENSE SUPPLY AGENCY.