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B-156222, JUN. 4, 1965

B-156222 Jun 04, 1965
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YOU CONTEND THAT SINCE TWO OF THE AC AND W SITES ARE UNDER CONTRACT WITH PETERSON- SHARPE. DA-92-800-ENG-869 WAS AWARDED ON JUNE 21. THE CONTRACTOR WAS DIRECTED ON DECEMBER 18. THE REQUEST FOR PROPOSALS WAS ISSUED TO COVER A MUCH LARGER PROJECT WHICH INCLUDED WORK UNDER THE SUSPENDED CONTRACT BUT UNDER MATERIALLY DIFFERENT SPECIFICATIONS. INASMUCH AS IT HAD ALREADY BEEN DETERMINED THAT PETERSON-SHARPE WAS A NONRESPONSIBLE CONTRACTOR WHICH HAD FAILED TO PERFORM SATISFACTORILY UNDER A CURRENT CONTRACT THAT INCLUDED A PORTION OF THE WORK ENCOMPASSED BY THE REQUEST FOR PROPOSALS. PETERSON SHARPE WAS ADMINISTRATIVELY PRECLUDED FROM SUBMITTING A PROPOSAL. THIS ACTION WAS DICTATED. BY THE FACT THAT PETERSON-SHARPE HAD ALREADY DEMONSTRATED ITS INABILITY TO PERFORM CONTRACT NO. -869 WHICH WAS ONE- FIFTH THE MAGNITUDE OF THE WORK COVERED BY THE REQUEST FOR PROPOSALS.

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B-156222, JUN. 4, 1965

TO I. ROBERT ROZEN:

BY LETTER DATED MARCH 3, 1965, YOU PROTESTED, ON BEHALF OF THE PETERSON- SHARPE ENGINEERING RP., AGAINST THE AWARD OF ANY CONTRACT UNDER REQUEST FOR PROPOSALS NO. ENG 92-800-/NEG-65/-35 DATED JANUARY 18, 1965, ISSUED BY THE U.S. ARMY ENGINEER DISTRICT, FAR EAST CORPS OF ENGINEERS, FOR THE CONSTRUCTION OF FIVE AC AND W SITES IN THE REPUBLIC OF KOREA. YOU CONTEND THAT SINCE TWO OF THE AC AND W SITES ARE UNDER CONTRACT WITH PETERSON- SHARPE, THE CURRENT REQUEST FOR PROPOSALS VIOLATES THE PROCUREMENT STATUTES AND REGULATIONS.

CONTRACT NO. DA-92-800-ENG-869 WAS AWARDED ON JUNE 21, 1963, TO PETERSON- SHARPE FOR THE CONSTRUCTION OF THE TWO AC AND W SITES INCLUDED IN THE REQUEST FOR PROPOSALS. HOWEVER, BECAUSE OF ITS UNSATISFACTORY PROGRESS ON THE WORK, THE CONTRACTOR WAS DIRECTED ON DECEMBER 18, 1964, TO SUSPEND ALL PROCUREMENT AND DELIVERY TO THE JOB SITE OF CONTRACTOR-FURNISHED MATERIALS, TO DEMOBILIZE ALL EQUIPMENT AND PERSONNEL AND REDUCE TO THE ESSENTIAL MINIMUM OTHER NECESSARY COSTS, SUCH AS FOR PROTECTING MATERIAL. THEREAFTER, THE REQUEST FOR PROPOSALS WAS ISSUED TO COVER A MUCH LARGER PROJECT WHICH INCLUDED WORK UNDER THE SUSPENDED CONTRACT BUT UNDER MATERIALLY DIFFERENT SPECIFICATIONS. INASMUCH AS IT HAD ALREADY BEEN DETERMINED THAT PETERSON-SHARPE WAS A NONRESPONSIBLE CONTRACTOR WHICH HAD FAILED TO PERFORM SATISFACTORILY UNDER A CURRENT CONTRACT THAT INCLUDED A PORTION OF THE WORK ENCOMPASSED BY THE REQUEST FOR PROPOSALS, PETERSON SHARPE WAS ADMINISTRATIVELY PRECLUDED FROM SUBMITTING A PROPOSAL. THIS ACTION WAS DICTATED, IN PART, BY THE FACT THAT PETERSON-SHARPE HAD ALREADY DEMONSTRATED ITS INABILITY TO PERFORM CONTRACT NO. -869 WHICH WAS ONE- FIFTH THE MAGNITUDE OF THE WORK COVERED BY THE REQUEST FOR PROPOSALS. EVEN IF PETERSON-SHARPE HAD BEEN PERMITTED TO SUBMIT A PROPOSAL, IT WOULD HAVE BEEN REJECTED UNDER THE MANDATORY CRITERIA ESTABLISHED BY ASPR 1-903 FOR DETERMINING THE RESPONSIBILITY OF PROSPECTIVE CONTRACTORS. 37 COMP. GEN. 756.

AWARD WAS MADE TO STOLTE, INC., ON MARCH 11, 1965, AS THE LOWEST RESPONSIVE, RESPONSIBLE OFFEROR UNDER THE REQUEST FOR PROPOSALS. ON THE RECORD, WE FIND NO LEGAL BASIS TO QUESTION THE AWARD.

WE NOTE THAT CONTRACT NO. -869 WAS TERMINATED BY THE CONTRACTING OFFICER ON MARCH 8, 1965, AND THAT TERMINATION NEGOTIATIONS WILL BE, OR HAVE BEEN, CONDUCTED WITH PETERSON-SHARPE AND ITS LEGAL COUNSEL. WE BELIEVE THAT THE RECORD BEFORE US SUBSTANTIALLY SUPPORTS THE TERMINATION ACTION TAKEN, AND WE FIND NOTHING IN THE PROCUREMENT REGULATIONS OR THE PROCUREMENT STATUTES WHICH WOULD HAVE PRECLUDED THE PROCUREMENT AGENCY FROM TAKING SUCH ACTIONS AS WOULD PROTECT THE GOVERNMENT'S INTERESTS IN EFFECTING COMPLETION OF THE WORK COVERED BY THE TERMINATED CONTRACT AND THE ADDITIONAL WORK COVERED BY THE STOLTE CONTRACT.

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