B-181995, NOV 15, 1974

B-181995, NOV 15, 1974

GAO DECLINES TO RULE ON A PROTEST BY A DEFAULTED CONTRACTOR AGAINST THE SPECIFICATION CONTAINED IN A REPROCUREMENT SOLICITATION WHERE THE DEFAULTED CONTRACT CONTAINED THE SAME SPECIFICATION AND PROVIDED THAT THE GOVERNMENT COULD PROCURE SUPPLIES SIMILAR TO THOSE REQUIRED BY THE DEFAULTED CONTRACT IN THE EVENT OF A TERMINATION DEFAULT AND THAT THE CONTRACTOR WOULD BE LIABLE FOR ANY EXCESS COSTS RESULTING THEREBY.

BRY-AIR, INCORPORATED:

ON JUNE 21, 1973, BRY-AIR, INCORPORATED, (BRY-AIR) WAS AWARDED CONTRACT NO. DSA700-73-C-9480, BY THE DEFENSE SUPPLY AGENCY (DSA) TO SUPPLY 75 ROTARY DEHUMIDIFIERS IN ACCORDANCE WITH MILITARY SPECIFICATION MIL-D-24322 (SHIPS) AT A TOTAL PRICE OF $98,820. HOWEVER, THE CONTRACT WAS TERMINATED FOR DEFAULT ON MAY 15, 1974, BECAUSE THE AGENCY DETERMINED THAT THE DEHUMIDIFIERS BRY-AIR PROPOSED TO DELIVER CONTAINED DESICCANT CONTRACTOR WHEELS WHICH WERE NOT IN CONFORMANCE WITH THE APPLICABLE SPECIFICATION. BRY-AIR HAS APPEALED THE DEFAULT TERMINATION TO THE ARMED SERVICES BOARD OF CONTRACT APPEALS (ASBCA 19282 AND 19452) ON THE FOLLOWING GROUNDS; (1) THAT THE BRY-AIR DEHUMIDIFIER MEETS THE SPECIFICATION AND (2) IN THE ALTERNATIVE THAT THE SPECIFICATION IS UNDULY RESTRICTIVE. THE APPEAL IS NOW BEFORE THE BOARD.

RFP DSA700-75-R-0230 WAS ISSUED BY DSA FOR THE REPROCUREMENT OF THE ITEMS UNDER THE SAME SPECIFICATION. BY TELEFAX DATED AUGUST 7, 1974, BRY-AIR HAS PROTESTED THE SPECIFICATION CONTAINED IN THIS RFP ON THE BASIS THAT IT IS UNDULY RESTRICTIVE. SPECIFICALLY, IN ITS PROTEST TO THIS OFFICE BRY- AIR CONTENDS THAT:

"*** A SPECIFICATION CONTAINED IN THIS SOLICITATION IS UNDULY RESTRICTIVE, ANTI-COMPETITIVE AND LIMITS THE POTENTIAL BIDDERS TO ONLY ONE DOMESTIC MANUFACTURER OF DEHUMIDIFIERS. THE CRUX OF THE PROBLEM RELATES TO THE DESICCANT CONTRACTOR WHEEL, THE ROTATING MECHANISM CONTAINING THE CHEMICALS WHICH ABSORB THE MOISTURE FROM THE AIR. NEITHER BRY-AIR'S DESICCANT CONTRACTOR NOR THAT OF ANY OTHER DOMESTIC MANUFACTURER OF DEHUMIDIFIERS EXCEPT ONE COMPLIES WITH THE ABOVE SPECIFICATION (MIL-D- 24322 (SHIPS) DATED 2 FEBRUARY 1968) AS INTERPRETED BY THE DEFENSE SUPPLY AGENCY ('DSA')."

BRY-AIR'S PROTEST ESSENTIALLY CHALLENGES THE RIGHT OF THE GOVERNMENT TO PROCURE SUPPLIES AS REQUIRED UNDER THE DEFAULTED CONTRACT. HOWEVER, UNDER THE DEFAULT CLAUSE OF THAT CONTRACT BRY-AIR AGREED THAT IN THE EVENT OF A DEFAULT TERMINATION THE GOVERNMENT COULD PROCURE SUPPLIES SIMILAR TO THOSE REQUIRED UNDER THE DEFAULTED CONTRACT AND THAT THE CONTRACTOR WOULD BE LIABLE FOR ANY EXCESS COSTS RESULTING THEREBY. AS DSA STATES:

"A REPROCUREMENT UNDER A DEFAULTED CONTRACT IS, IN ESSENCE, AN EXTENSION OF THE DEFAULTED CONTRACT PROVIDED THE MATERIAL TERMS AND CONDITIONS OF THE REPROCUREMENT SOLICITATION DO NOT DIFFER FROM THOSE OF THE DEFAULTED CONTRACT. *** THE EFFECT OF ALLOWING BRY-AIR TO OBJECT TO THE SPECIFICATION AT THIS TIME, AND, BY OBJECTING, ATTEMPTING TO MODIFY THE REQUIREMENTS OF THE REPROCUREMENT, WOULD BE TO ABROGATE THE GOVERNMENT'S RIGHT TO ASSESS ANY EXCESS COSTS WHICH MAY RESULT."

ACCORDINGLY, WE MUST DECLINE TO RULE ON THE MERITS OF THE PROTEST.