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B-218227.3 MAR 5, 1985, 85-1 CPD 275

B-218227.3 Mar 05, 1985
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CONTRACTS - DISPUTES - SETTLEMENT - ADMINISTRATIVE - UNDER DISPUTES CLAUSE DIGEST: CONCERNS REGARDING WHETHER AN AGENCY IS ACTING CONSISTENT WITH ITS DUTY TO MITIGATE DAMAGES RESULTING FROM A CONTRACT DEFAULT SHOULD BE PURSUED UNDER THE DISPUTES CLAUSE OF THE DEFAULTED CONTRACT. (THOSE TWO FIRMS HAVE PROTESTED THE REJECTION OF THEIR BIDS AS NONRESPONSIVE. SINCE OUR FORUM IS RESERVED FOR CONSIDERING THE PROPRIETY OF CONTRACT AWARDS AND PROPOSED AWARDS. IF THE CONTRACTOR (OR THE SURETY) IS CONCERNED THAT THE GOVERNMENT HAS ACTED IN A MANNER INCONSISTENT WITH ITS DUTY TO MITIGATE DAMAGES RESULTING FROM THE DEFAULT. THE PROTEST IS DISMISSED.

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B-218227.3 MAR 5, 1985, 85-1 CPD 275

CONTRACTS - DISPUTES - SETTLEMENT - ADMINISTRATIVE - UNDER DISPUTES CLAUSE DIGEST: CONCERNS REGARDING WHETHER AN AGENCY IS ACTING CONSISTENT WITH ITS DUTY TO MITIGATE DAMAGES RESULTING FROM A CONTRACT DEFAULT SHOULD BE PURSUED UNDER THE DISPUTES CLAUSE OF THE DEFAULTED CONTRACT.

CORBAN INDUSTRIES, INC:

CORBAN INDUSTRIES, INC., A DEFAULTED CONTRACTOR, PROTESTS THE FAILURE OF THE VETERANS ADMINISTRATION (VA) TO MITIGATE PROPERLY THE DAMAGES RESULTING FROM THE DEFAULT BY EITHER ACCEPTING THE COMPLETION CONTRACTOR OFFERED BY THE SURETY OR, IN THE ALTERNATIVE, ACCEPTING EITHER OF THE TWO LOWEST BIDS ON THE RESOLICITATION FOR THE REQUIREMENT. (THOSE TWO FIRMS HAVE PROTESTED THE REJECTION OF THEIR BIDS AS NONRESPONSIVE; THE VA APPARENTLY INTENDS TO AWARD A CONTRACT TO THE THIRD LOW BIDDER.)

WE DISMISS THE PROTEST.

WE DO NOT INDEPENDENTLY REVIEW AN AGENCY'S DECISION ON HOW BEST TO MITIGATE DAMAGES AFTER A DEFAULT, SINCE OUR FORUM IS RESERVED FOR CONSIDERING THE PROPRIETY OF CONTRACT AWARDS AND PROPOSED AWARDS. BID PROTEST REGULATIONS, SEC. 21.1(A), 49 FED.REG. 49,417, 49,419 (1984) (TO BE CODIFIED AT 4 C.F.R. SEC. 21.1(A)). IF THE CONTRACTOR (OR THE SURETY) IS CONCERNED THAT THE GOVERNMENT HAS ACTED IN A MANNER INCONSISTENT WITH ITS DUTY TO MITIGATE DAMAGES RESULTING FROM THE DEFAULT, THE MATTER SHOULD BE PURSUED UNDER THE DISPUTES CLAUSE OF THE DEFAULTED CONTRACT. RADIX II, INC., B-216635, DEC. 17, 1984, 84-2 CPD PARA. 676.

THE PROTEST IS DISMISSED.

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