B-156222, SEP. 30, 1965
Highlights
WE HAVE NO ALTERNATIVE BUT TO AFFIRM OUR PRIOR DECISION. YOU CONTEND THAT PETERSON-SHARPE WAS SUSPENDED FROM PERFORMING CONTRACT NO. BECAUSE THE CONTRACT SPECIFICATIONS WERE DEFECTIVE. THE AIR FORCE DETERMINED THAT ABOVEGROUND STRUCTURES WERE REQUIRED IN LIEU OF UNDERGROUND STRUCTURES AND. THE SPECIFICATIONS WERE REVISED ACCORDINGLY. THE RECORD FURTHER SHOWS THAT PETERSON-SHARPE WAS SUSPENDED FROM CONSTRUCTION PLACEMENT BUT THE PROCUREMENT OF STATESIDE CONTRACTOR-FURNISHED CONSTRUCTION MATERIAL WAS NOT SUSPENDED. PETERSON- SHARPE WAS NOTIFIED ON OCTOBER 14. YOU NEXT ALLEGE THAT THE GOVERNMENT IS INCURRING SUBSTANTIAL ADDITIONAL COSTS UNDER THE NEW PROCUREMENT WITH STOLTE. THE PROCUREMENT AGENCY REPORTS THAT THE GOVERNMENT IS PAYING $982.
B-156222, SEP. 30, 1965
TO LEWIS, MACDONALD AND VARIAN:
BY LETTER DATED JUNE 29, 1965, YOU REQUESTED THAT WE RECONSIDER OUR DECISION OF JUNE 4, 1965, WHEREIN WE DENIED THE PROTEST OF THE PETERSON- SHARPE ENGINEERING CORP. AGAINST THE AWARD MADE TO STOLTE, INC., UNDER REQUEST FOR PROPOSALS NO. ENG. 92-800-/NEG-65/-35, ISSUED ON JANUARY 18, 1965, BY THE U.S. ARMY ENGINEER DISTRICT, FAR EAST CORPS OF ENGINEERS.
A REPORT HAS BEEN RECEIVED FROM THE OFFICE OF THE CHIEF OF ENGINEERS ON THE CONTENTIONS RAISED IN YOUR LETTER AND, BASED ON SUCH REPORT, AND OUR FURTHER REVIEW OF THE FILE, WE HAVE NO ALTERNATIVE BUT TO AFFIRM OUR PRIOR DECISION.
SPECIFICALLY TURNING TO THE POINTS OF PROTEST RAISED IN YOUR LETTER, YOU CONTEND THAT PETERSON-SHARPE WAS SUSPENDED FROM PERFORMING CONTRACT NO. DA -92-800-ENG-869 FROM DECEMBER 7, 1963, TO THE DATE OF CONTRACT TERMINATION, OR MARCH 12, 1965, BECAUSE THE CONTRACT SPECIFICATIONS WERE DEFECTIVE. THE FACTS OF RECORD DO NOT SUPPORT YOUR ALLEGATION. RATHER, THE AIR FORCE DETERMINED THAT ABOVEGROUND STRUCTURES WERE REQUIRED IN LIEU OF UNDERGROUND STRUCTURES AND, FOR THIS REASON, THE SPECIFICATIONS WERE REVISED ACCORDINGLY. THE RECORD FURTHER SHOWS THAT PETERSON-SHARPE WAS SUSPENDED FROM CONSTRUCTION PLACEMENT BUT THE PROCUREMENT OF STATESIDE CONTRACTOR-FURNISHED CONSTRUCTION MATERIAL WAS NOT SUSPENDED. PETERSON- SHARPE WAS NOTIFIED ON OCTOBER 14, 1963, AND AGAIN ON DECEMBER 3, 1963, OF ITS FAILURE TO PROCURE TIMELY THESE CONSTRUCTION MATERIALS.
YOU NEXT ALLEGE THAT THE GOVERNMENT IS INCURRING SUBSTANTIAL ADDITIONAL COSTS UNDER THE NEW PROCUREMENT WITH STOLTE, INC. HOWEVER, THE PROCUREMENT AGENCY REPORTS THAT THE GOVERNMENT IS PAYING $982,398 LESS THAN THE PETERSON-SHARPE PROPOSAL FOR THE SAME WORK.
IN SITUATIONS WHERE AN ADMINISTRATIVE STATEMENT OF FACTS VARIES FROM FACTS ALLEGED BY A PROTESTANT TO A CONTRACT AWARD, IT IS OUR ESTABLISHED PRACTICE TO ACCEPT AS CORRECT THE ADMINISTRATIVE VERSION IN THE ABSENCE OF CONVINCING WRITTEN EVIDENCE CONTRAVENING THAT VERSION. SUCH IS THE CIRCUMSTANCE HERE AND WE FIND NO BASIS TO DISTURB THE ADMINISTRATIVE ACTIONS TAKEN.
RESPECTING YOUR REQUEST THAT YOU BE AFFORDED AN OPPORTUNITY TO REVIEW THE ADMINISTRATIVE FILE PERTINENT TO THE PROTEST, YOU ARE ADVISED THAT WE HAVE NOT BEEN AUTHORIZED BY THE OFFICE OF THE CHIEF OF ENGINEERS, WHICH IS THE OFFICIAL CUSTODIAN OF THE FILE, TO RELEASE THE FILE TO YOU FOR REVIEW AND EXAMINATION. WE, THEREFORE, CANNOT COMPLY WITH YOUR REQUEST.