Essan Metallix Corporation
B-310357: Dec 7, 2007
- Full Report:
Essan Metallix Corporation protests the Department of the Army's failure to solicit it in the agency's reprocurement of British stainless steel tubes under solicitation No. W52H09-07-T-5765.
We deny the protest.
B-310357, Essan Metallix Corporation, December 7, 2007
DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective Order. This redacted version has been approved for public release.
The protester here was the awardee of the previous contract for the requirement, awarded on
After the termination of the protester's contract, the agency contacted all other producers of the tubes known to the agency at the time--Maher, Ltd., Essan's subcontractor under the terminated contract, and
Maher was issued a purchase order for the five-tube prove-out quantity on
Generally, the statutes and regulations governing federal procurements are not strictly applicable to reprocurements of defaulted requirements. Bluff Springs Paper Co., Ltd./R.D. Thompson Paper Prod.
In Montage, Inc., B-277923, B-277923.2,
Essan also asserts that the subject solicitation was for a different item than that to be supplied under the terminated contract and thus falls outside the agency's FAR sect. 12.402(c)(2) authority to acquire similar items from another contractor after a default. The agency argues that the specifications were essentially unchanged between the two procurements. We agree.
The record here reflects that the subject solicitation requires Maher's tubes to conform to revision B of drawing 922423. AR, Tab 4, Solicitation, at 20-21. This version of the drawing differs from revision A, used in the Essan contract, only in that revision B allows the option of producing tubes to an S or S1 condition, where revision A allowed only an S1 condition. Agency Supplement, at 4-5; Attach. 4, Revision B. However, the record also reflects that revision B of the drawing was created in July 2006, on Essan's request, and that the agency allowed Essan the option of producing tubes to the S condition under the terminated contract.
Essan's final argument is that Maher's price for the required tubes was unreasonable. Given our conclusion that the agency properly excluded Essan from the reprocurement, Essan is not an interested party to raise this issue, since, even if its protest were sustained on this issue, Essan would not be eligible to compete for the award. See 4 C.F.R. sect. 21.0(a)(1) (2007); Four Winds Servs., Inc., B-280714,
The protest is denied.
Gary L. Kepplinger
 The protester's terminated contract was a contract for commercial items and thus included the termination for cause clause specified by Federal Acquisition Regulation (FAR) part 12 for commercial item acquisitions (FAR sect. 52.212-4), rather than the standard termination for default clause (FAR sect. 52.249-8). Although Essan was terminated for cause under FAR part 12, Essan's termination resulted from its failure to comply with the delivery schedule in its contract, and Essan's termination is described, variously, as for cause or for default in the record. For consistency, we will refer to Essan's termination as for default throughout this decision.
 Essan was the only firm to submit a quotation for the terminated contract.
 For example, while, as noted above, FAR sect. 49.402-6(b) requires the agency to obtain competition to the maximum extent practicable, there is no parallel requirement in the FAR provisions relating to commercial item acquisitions.
 The S and S1 designations refer to hardness conditions required to allow the tubes to be bent into their final form. The S designation refers to the hardness condition required of a flow formed tube, while the S1 designation refers to the hardness condition required of an extruded tube. Essan attempted to produce tubes by both methods, while Maher [DELETED]. In its supplemental comments, Essan asserts that it was limited to only one production method under its contract while Maher's contract allows for three production methods. Supplemental Comments, Tab 1, Affidavit of Joseph Jankowski, at 5. We find no evidence in the record to support that assertion.
 Essan also argued that the reprocurement is for a different item due to slight differences in the allowable wall thickness variance and chemical composition requirements between the contracts. Essan did not raise these allegations in particular except in an affidavit attached to its supplementary comments. Further, Essan has not directed our attention to where the allegations are supported in the record, and has not explained how slight (and more restrictive) changes to the allowable tolerances render the tubes required under Maher's contract different items. Based on our review of the record, we see no evidence to suggest that the reprocurement is not for the same or similar items under FAR sect. 12.403(c)(2).