B-182092, DEC 17, 1974

B-182092, DEC 17, 1974

REFUSAL OF PROCURING ACTIVITY TO RENEW EDUCATIONAL SERVICES CONTRACT FOR ENSUING FISCAL YEAR ON A NONCOMPETITIVE BASIS WAS NOT IMPROPER IN VIEW OF STATUTORY REQUIREMENT FOR OBTAINING COMPETITION.

JUDY R. PARRISH:

JUDY PARRISH PROTESTED THE ALLEGEDLY ARBITRARY AND DISCRIMINATORY ACTION OF THE ARMY HEALTH SERVICES COMMAND IN ALLOWING CONTRACT DAGA01 74-C-0231 TO EXPIRE. UNDER THIS CONTRACT, AS AMENDED, SHE WAS EMPLOYED BY THE TRIPLER ARMY MEDICAL CENTER (CENTER) AS A RACE RELATIONS COORDINATOR FROM OCTOBER 1, 1973 UNTIL JUNE 30, 1974.

THE RECORD INDICATES THAT THE CONTRACT FOR RACE RELATIONS COORDINATOR FOR FISCAL YEAR 1975 WAS TO BE AWARDED ON THE BASIS OF COMPETITIVE BIDDING. THIS ACTION IS IN ACCORDANCE WITH THE APPLICABLE STATUTE, 10 U.S.C. SEC. 2304(A) (1970), AND ARMED SERVICES PROCUREMENT REGULATION SEC. 22-103 (1974 ED.). WE HAVE OBSERVED IN THE PAST THAT THE PRIMARY PURPOSE OF THE STATUTES REQUIRING COMPETITION IN PROCUREMENT IS TO GIVE ALL OFFERORS AN EQUAL OPPORTUNITY TO COMPETE FOR GOVERNMENT BUSINESS AND TO SECURE TO THE UNITED STATES THE BENEFITS OF FREE AND OPEN COMPETITION. THERE IS NO AUTHORITY FOR RENEWAL OF THE PROTESTER'S CONTRACT BEYOND THE END OF A FISCAL YEAR UNLESS THE SERVICES ARE SUCH THAT THEY CANNOT FEASIBLY BE SUBDIVIDED FOR SEPARATE PERFORMANCE IN EACH FISCAL YEAR. ASPR SEC. 22-107 (1974 ED.). WE HAVE NO EVIDENCE THAT THE PROTESTER'S CONTRACT WOULD FALL WITHIN THAT EXCEPTIONAL SITUATION.

THE PROTESTER HAS ALSO ALLEGED THAT SHE HAS SUFFERED GREAT FINANCIAL HARDSHIP WHEN HER CONTRACT WAS ALLOWED TO EXPIRE, BUT AS WE STATED IN 37 COMP. GEN. 251 (1957):

"ONE OF OUR PRIMARY PURPOSES IN THE FIELD OF PROCUREMENT IS TO MAINTAIN THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM. WE CANNOT LOOK WITH FAVOR UPON ANY CONTRAVENTION OF THE SYSTEM EVEN IN THOSE INSTANCES WHERE A MERITORIOUS AWARD WOULD THEREBY BE ACCOMPLISHED."

ABSENT ANY INDICATION THAT THE PROTESTER HAD AN OPTION FOR FY 1975 WHICH THE GOVERNMENT IMPROPERLY FAILED TO EXERCISE, OR OF ANY DISCREPANCY IN THE COMPETITIVE BIDDING PROCESS, WE ARE AWARE OF NO BASIS UPON WHICH WE WOULD BE WARRANTED IN OBJECTING TO THE AWARD AS VIOLATIVE OF PROCUREMENT STATUTES OR REGULATIONS.

THE PROTESTER ASSERTS THAT SHE WAS INFORMED BY THE COMMANDING GENERAL OF THE CENTER THAT THERE WOULD NOT BE A NONCOMPETITIVE RENEWAL OF HER CONTRACT AS THAT WOULD BE "ILLEGAL". SHE SUBSEQUENTLY OBTAINED AN OPINION FROM THE COMMAND INSPECTOR GENERAL THAT HER PRIOR CONTRACT, AS AMENDED, WAS "LEGAL AND BINDING." MRS. PARRISH ALSO HAS PROVIDED OUR OFFICE WITH A LETTER OF RECOMMENDATION WHICH SHE HAD RECEIVED FROM THE COMMANDING GENERAL. THE PROTESTER REGARDS AS INCONSISTENT, AND AS EVIDENCING A "PATTERN OF PERSONAL DISCRIMINATION," THE AGENCY'S UNWILLINGNESS TO RENEW A VALID CONTRACT UNDER WHICH THE PROTESTER APPARENTLY HAD PERFORMED SATISFACTORILY. WE CANNOT AGREE. EVEN IF IT IS ASSUMED THAT THE PROTESTER HAD SATISFACTORILY PERFORMED HER PRIOR CONTRACT, THE STATUTE AND REGULATION DISCUSSED ABOVE REQUIRE THAT THE CONTRACT FOR THE FOLLOWING FISCAL YEAR BE LET ON A COMPETITIVE BASIS.

IN VIEW OF THE FOREGOING, THE PROTEST IS DENIED.