B-219676.4, MAR 24, 1986, 86-1 CPD 287
Highlights
CONTRACTS - PROTESTS - AUTHORITY TO CONSIDER - CONTRACT ADMINISTRATION MATTERS DIGEST: REQUEST FOR RECONSIDERATION IS DISMISSED WHERE CONTENTION RAISED ON RECONSIDERATION. IS A MATTER OF CONTRACT ADMINISTRATION WHICH GAO WILL NOT CONSIDER. THE RFP WAS RESTRICTED TO PLANNED PRODUCERS WHO HAVE INDUSTRIAL PREPAREDNESS PLANNING AGREEMENTS WITH DLA. THAT CINPAC'S PLANNED SUBCONTRACTOR IS ALLEGEDLY COMMITTED TO SUBSTANTIAL PRODUCTION ON OTHER CONTRACTS TO THE EXTENT THAT CINPAC SHOULD NOT HAVE BEEN CONSIDERED ELIGIBLE AS A PLANNED PRODUCER. WE POINTED OUT THAT DECISIONS AS TO HOW MANY PRODUCERS ARE TO BE INCLUDED IN THE MOBILIZATION BASE MUST BE LEFT TO THE DISCRETION OF THE MILITARY AGENCIES AND THAT OUR OFFICE QUESTIONS THOSE DECISIONS ONLY IF THE EVIDENCE CONVINCINGLY SHOWS THAT THE MILITARY AGENCY HAS ABUSED ITS DISCRETION.
B-219676.4, MAR 24, 1986, 86-1 CPD 287
CONTRACTS - PROTESTS - AUTHORITY TO CONSIDER - CONTRACT ADMINISTRATION MATTERS DIGEST: REQUEST FOR RECONSIDERATION IS DISMISSED WHERE CONTENTION RAISED ON RECONSIDERATION, THAT FIRM AWARDED CONTRACT CANNOT MEET PERFORMANCE OBLIGATIONS, IS A MATTER OF CONTRACT ADMINISTRATION WHICH GAO WILL NOT CONSIDER.
RIGHT AWAY FOODS CORP.-- RECONSIDERATION:
RIGHT AWAY FOODS CORP. (RIGHT AWAY) HAS REQUESTED RECONSIDERATION OF OUR DECISION IN RIGHT AWAY FOODS CORP., B-219676.2; B-219676.3, FEB. 25, 1986, 86-1 CPD PARA. ---, WHICH DENIED THE COMPANY'S PROTEST AGAINST AWARD TO CINPAC, INC. (CINPAC), UNDER REQUEST FOR PROPOSALS (RFP) NO. DLA13H-85-R- 8457, ISSUED BY THE DEFENSE LOGISTICS AGENCY (DLA) ON JUNE 25, 1985, FOR CASES OF COMBAT FIELD RATIONS. THE RFP WAS RESTRICTED TO PLANNED PRODUCERS WHO HAVE INDUSTRIAL PREPAREDNESS PLANNING AGREEMENTS WITH DLA.
RIGHT AWAY CONTENDED, AMONG OTHER THINGS, THAT CINPAC'S PLANNED SUBCONTRACTOR IS ALLEGEDLY COMMITTED TO SUBSTANTIAL PRODUCTION ON OTHER CONTRACTS TO THE EXTENT THAT CINPAC SHOULD NOT HAVE BEEN CONSIDERED ELIGIBLE AS A PLANNED PRODUCER.
WE POINTED OUT THAT DECISIONS AS TO HOW MANY PRODUCERS ARE TO BE INCLUDED IN THE MOBILIZATION BASE MUST BE LEFT TO THE DISCRETION OF THE MILITARY AGENCIES AND THAT OUR OFFICE QUESTIONS THOSE DECISIONS ONLY IF THE EVIDENCE CONVINCINGLY SHOWS THAT THE MILITARY AGENCY HAS ABUSED ITS DISCRETION. MARTIN ELECTRONICS, INC., B-219803, NOV. 1, 1985, 65 COMP.GEN. ---, 85-2 CPD PARA. 504. BASED ON OUR REVIEW OF THE RECORD, WE COULD NOT CONCLUDE THAT DLA HAD ABUSED ITS DISCRETION IN ACCEPTING CINPAC AS A PLANNED PRODUCER. SPECIFICALLY, WE CONSIDERED THAT RIGHT AWAY'S ALLEGATION ABOUT LACK OF CAPACITY OF CINPAC'S SUBCONTRACTOR WAS SPECULATIVE AT BEST UNDER THE CIRCUMSTANCES AND THAT, IN ANY EVENT, RIGHT AWAY OVERLOOKED THE POSSIBILITY THAT OTHER SUBCONTRACTORS-- ESTABLISHED FIRMS AS WELL AS CONCERNS NEW TO THE PROGRAM-- COULD BECOME AVAILABLE TO CINPAC IN THE FUTURE.
IN ITS REQUEST FOR RECONSIDERATION, RIGHT AWAY NOW CLAIMS THAT IT HAS LEARNED THAT THE FACILITIES OF CINPAC'S PROPOSED SUBCONTRACTOR WILL BE COMPLETELY UNAVAILABLE TO CINPAC AND THAT, THEREFORE, CINPAC CANNOT MEET ITS PERFORMANCE OBLIGATIONS UNDER THE CONTRACT AND SHOULD NOT NOW BE CONSIDERED AN ELIGIBLE PLANNED PRODUCER.
EVEN IF WE CONCEDE FOR THE PURPOSE OF ARGUMENT THAT RIGHT AWAY'S ASSERTION IS FACTUALLY CORRECT, RIGHT AWAY OVERLOOKS THE POSSIBILITY, AS NOTED IN OUR PREVIOUS DECISION, ABOVE, THAT OTHER SUBCONTRACTORS COULD ASSIST CINPAC IN PERFORMING THE CONTRACT.
MOREOVER, ONCE A CONTRACT HAS BEEN AWARDED, THE QUESTION OF WHETHER A CONTRACTOR ACTUALLY MEETS ITS CONTRACTUAL OBLIGATIONS IS A MATTER 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) (1985). NICOLET BIOMEDICAL INSTRUMENTS, B-219234, AUG. 28, 1985, 85-2 CPD 239; CENTRAL TEXAS COLLEGE SYSTEM, B-217491, JAN. 25, 1985, 85-1 CPD PARA. 102.
CONSEQUENTLY, WE DISMISS THE REQUEST FOR RECONSIDERATION.