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[Protest of Army Contract Award for Transformer Removal]

B-256449 Published: Mar 15, 1994. Publicly Released: Mar 15, 1994.
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Highlights

A firm protested an Army contract award for transformer removal, contending that the awardee was not a regular dealer or a manufacturer. GAO held that it would not determine the legal status of the awardee, since that was a matter to be decided by the Army. Accordingly, the protest was dismissed.

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B-217302, MAR 19, 1985, 85-1 CPD 323

CONTRACTS - FEDERAL SUPPLY SCHEDULE - PURCHASES ELSEWHERE DIGEST: AGENCY ACTED IMPROPERLY IN PURCHASING TYPEWRITERS WHICH WERE NOT ON THE FEDERAL SUPPLY SCHEDULE. SINCE THE TYPEWRITERS HAVE BEEN DELIVERED, NO CORRECTIVE ACTION IS RECOMMENDED.

BCE CORPORATION:

BCE CORPORATION PROTESTS THE PURCHASE OF 188 FACIT ELECTRONIC TYPEWRITERS BY THE UNITED STATES INFORMATION AGENCY (USIA) ON THE GROUNDS THAT THE MODEL PURCHASED WAS NOT ON THE GENERAL SERVICES ADMINISTRATION FEDERAL SUPPLY SCHEDULE (FSS). USIA CONCEDES THAT THE TYPEWRITERS PURCHASED WERE NOT IN FACT ON THE FSS, BUT ARGUES THAT CORRECTIVE ACTION SHOULD NOT BE REQUIRED SINCE THE TYPEWRITERS IN QUESTION HAVE BEEN DELIVERED AND ACCEPTED.

WE SUSTAIN THE PROTEST, BUT AGREE WITH THE USIA THAT CORRECTIVE ACTION UNDER THE GIVEN CIRCUMSTANCES WOULD BE IMPRACTICAL.

THE AGENCY REPORTS THAT ON SEPTEMBER 25, 1984, IT PLACED TWO ORDERS IN THE AMOUNTS OF $74,745 AND $10,419, FOR 188 FACIT MODEL 7900 ELECTRONIC TYPEWRITERS IN THE MISTAKEN BELIEF THAT THEY WERE ON THE FSS. FACIT DOES HOLD AN FSS CONTRACT FOR TYPEWRITERS, BUT THE MODEL ORDERED WAS NOT ON IT. THE AGENCY CLAIMS THAT IT DID NOT LEARN OF THE ERROR UNTIL SEVERAL WEEKS LATER. THE MACHINES WERE DELIVERED AND DISTRIBUTED FOR USE BEFORE BCE'S PROTEST WAS FILED.

THE AGENCY ARGUES THAT DESPITE THE IMPROPRIETY OF ITS ACTIONS, THE PROCUREMENT SHOULD NOT BE DISTURBED SINCE PERFORMANCE HAS BEEN COMPLETED. FURTHER, THE AGENCY NOTES THAT IT IS TAKING APPROPRIATE ACTION TO AVOID A RECURRENCE OF SUCH AN INCIDENT IN THE FUTURE. THE AGENCY ALSO POINTS OUT THAT THE MACHINES IT ORDERED ARE CONSIDERABLY CHEAPER THAN THE PROTESTER'S COMPARABLE MODEL ON THE FSS. THE AGENCY CORRECTLY POINTS OUT THAT IN OTHER CASES INVOLVING IMPROPER PROCUREMENTS IN WHICH PERFORMANCE HAS BEEN COMPLETED OR SUBSTANTIALLY COMPLETED, OUR OFFICE HAS CONSISTENTLY HELD THAT, NOTWITHSTANDING THE MERITS OF OTHERWISE VALID PROTESTS, WE WILL NOT DISTURB SUCH PROCUREMENTS. A. B. DICK COMPANY, 63 COMP.GEN. 185 (1984), 84-1 CPD PARA. 135. HERE, SINCE THE TYPEWRITERS HAVE BEEN DELIVERED AND ACCEPTED, IT IS NOT PRACTICAL FOR US TO RECOMMEND CORRECTIVE ACTION.

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