B-224887, OCT 10, 1986, 86-2 CPD 425
Highlights
THERE IS NO BASIS ON WHICH TO PROHIBIT POTENTIAL OFFEROR FROM COMPETING UNDER SOLICITATION ISSUED TO REPROCURE SERVICES UNDER A CONTRACT TERMINATED FOR DEFAULT SINCE. THE GOVERNMENT IS NOT REQUIRED TO NEUTRALIZE COMPETITIVE ADVANTAGE ENJOYED BY ONE OFFEROR ABSENT EVIDENCE OF PREFERENTIAL TREATMENT OR OTHER UNFAIR ACTION BY THE GOVERNMENT. ELLIOTT STATES THAT THE RFP WAS ISSUED TO REPROCURE SERVICES CALLED FOR UNDER A PRIOR CONTRACT AFTER THE AWARDEE DEFAULTED. " WAS PERFORMED BY BWC TECHNOLOGIES AS A SUBCONTRACTOR FOR THE DEFAULTED CONTRACTOR. THERE IS NO REQUIREMENT THAT THE AGENCY AFTER DEFAULT REPROCURE FROM THE NEXT OFFEROR IN LINE FOR AWARD UNDER THE ORIGINAL SOLICITATION. THE CONTRACTING OFFICER IS REQUIRED TO OBTAIN COMPETITION TO THE MAXIMUM EXTENT PRACTICABLE WHEN REPROCURING AGAINST A DEFAULTING CONTRACTOR'S ACCOUNT.
B-224887, OCT 10, 1986, 86-2 CPD 425
PROCUREMENT - COMPETITIVE NEGOTIATION - CONTRACT AWARDS - DEFAULT TERMINATION - RESOLICITATION - COMPETITION ENHANCEMENT DIGEST: 1. IN VIEW OF REQUIREMENT TO MAXIMIZE COMPETITION TO THE EXTENT PRACTICABLE WHEN REPROCURING SERVICES AGAINST A DEFAULTING CONTRACTOR'S ACCOUNT, CONTRACTING OFFICER ACTED PROPERLY IN ISSUING A NEW SOLICITATION INSTEAD OF OBTAINING THE SERVICES FROM THE OFFEROR NEXT IN LINE FOR AWARD UNDER THE ORIGINAL SOLICITATION. PROCUREMENT - COMPETITIVE NEGOTIATION - COMPETITIVE ADVANTAGE - SUBCONTRACTORS - PRIOR CONTRACTS 2. THERE IS NO BASIS ON WHICH TO PROHIBIT POTENTIAL OFFEROR FROM COMPETING UNDER SOLICITATION ISSUED TO REPROCURE SERVICES UNDER A CONTRACT TERMINATED FOR DEFAULT SINCE, EVEN ASSUMING OFFEROR DERIVED COMPETITIVE ADVANTAGE FROM SUBCONTRACT WORK UNDER TERMINATED CONTRACT, THE GOVERNMENT IS NOT REQUIRED TO NEUTRALIZE COMPETITIVE ADVANTAGE ENJOYED BY ONE OFFEROR ABSENT EVIDENCE OF PREFERENTIAL TREATMENT OR OTHER UNFAIR ACTION BY THE GOVERNMENT.
UNITED TECHNOLOGIES, ELLIOTT SUPPORT SERVICES DIVISION:
UNITED TECHNOLOGIES, ELLIOTT SUPPORT SERVICES DIVISION (ELLIOTT) PROTESTS THE NAVY'S DECISION TO ISSUE REQUEST FOR PROPOSALS (RFP) NO. N00104-86-R- WH27. WE DISMISS THE PROTEST.
ELLIOTT STATES THAT THE RFP WAS ISSUED TO REPROCURE SERVICES CALLED FOR UNDER A PRIOR CONTRACT AFTER THE AWARDEE DEFAULTED. ACCORDING TO ELLIOTT, A PORTION OF THE WORK UNDER THAT CONTRACT, WHICH ELLIOTT REFERS TO AS "OPEN AND INSPECT REPORTS," WAS PERFORMED BY BWC TECHNOLOGIES AS A SUBCONTRACTOR FOR THE DEFAULTED CONTRACTOR.
ELLIOTT ARGUES THAT THE NEW RFP SHOULD BE CANCELED AND AWARD MADE TO ELLIOTT AS THE OFFEROR NEXT IN LINE FOR AWARD UNDER THE ORIGINAL SOLICITATION. WE DISAGREE. WHILE A CONTRACTING AGENCY MAY DO SO IN APPROPRIATE CIRCUMSTANCES, THERE IS NO REQUIREMENT THAT THE AGENCY AFTER DEFAULT REPROCURE FROM THE NEXT OFFEROR IN LINE FOR AWARD UNDER THE ORIGINAL SOLICITATION. SEE VCA CORP., B-219305.2, SEPT. 19, 1985, 85-2 CPD PARA. 308. ON THE CONTRARY, UNDER FEDERAL ACQUISITION REGULATION, 48 C.F.R. SEC. 49.402-6(B) (1985), THE CONTRACTING OFFICER IS REQUIRED TO OBTAIN COMPETITION TO THE MAXIMUM EXTENT PRACTICABLE WHEN REPROCURING AGAINST A DEFAULTING CONTRACTOR'S ACCOUNT, AND THE CONTRACTING OFFICER'S DECISION HERE TO ISSUE A NEW RFP IS CONSISTENT WITH THAT REQUIREMENT.
ELLIOTT ALSO ARGUES THAT BWC TECHNOLOGIES SHOULD NOT BE ALLOWED TO COMPETE UNDER THE NEW RFP BECAUSE ITS WORK AS A SUBCONTRACTOR UNDER THE PRIOR CONTRACT GIVES IT A COMPETITIVE ADVANTAGE OVER ELLIOTT. WE FIND THIS ARGUMENT TO BE WITHOUT MERIT. THE GOVERNMENT IS NOT REQUIRED TO NEUTRALIZE A COMPETITIVE ADVANTAGE ENJOYED BY ONE OFFEROR DUE TO ITS PRIOR EXPERIENCE UNLESS THERE IS EVIDENCE OF PREFERENTIAL TREATMENT OF THAT OFFEROR OR OTHER UNFAIR ACTION BY THE GOVERNMENT, WHICH IS NEITHER ALLEGED NOR EVIDENT HERE. ROSS BICYCLES, INC., B-217179, ET AL., JUNE 26, 1985, 85-1 CPD PARA. 722.
THE PROTEST IS DISMISSED.