B-215275.2, DEC 14, 1984

B-215275.2, DEC 14, 1984

CONTRACTS - AWARDS - ERRONEOUS - PERFORMANCE - COMPLETED DIGEST: GAO AFFIRMS CONCLUSION THAT NO REMEDY WAS POSSIBLE UNDER IMPROPERLY AWARDED CONTRACT WHERE CONTRACT HAD BEEN COMPLETED BEFORE OUR DECISION WAS ISSUED.

SCANRAY CORPORATION: P.O. BOX 5784 BETHESDA, MARYLAND 20814 ATTENTION: MR. DAVID PAUL WASHINGTON SALES AND SERVICE ENGINEER

GENTLEMEN:

YOUR LETTER OF OCTOBER 30, 1984, QUESTIONS OUR DECISION NOT TO RECOMMEND THE RESOLICITATION OF A CONTRACT AWARDED BY THE UNITED STATES INFORMATION AGENCY (USIA) FOR SECURITY SCREENING SYSTEMS EVEN THOUGH WE OTHERWISE SUSTAINED YOUR PROTEST AGAINST THAT AWARD. SCANRAY CORPORATION, B-215275, SEPT. 17, 1984, 84-2 CPD PARA. 299. WE DID NOT RECOMMEND RESOLICITATION BECAUSE THE CONTRACT HAD BEEN COMPLETED.

YOU STATE THAT "HAD THE USIA RESPONDED TO SCANRAY'S APRIL 4, 1984 PROTEST TO THAT AGENCY IN A TIMELY MANNER" AND THAT HAD "GAO ... ACTED IN SUCH A WAY AS TO REQUIRE A TIMELY RESPONSE BY USIA TO SCANRAY'S MAY 17 GAO PROTEST," OUR DECISION WOULD "LIKELY HAVE BEEN ISSUED PRIOR TO 'COMPLETION' OF THE CONTRACT." FURTHER, YOU NOTE THAT OUR DECISION WAS ISSUED 122 DAYS AFTER YOUR PROTEST WAS FILED WITH OUR OFFICE AND YOU ARGUE THAT THIS TIME PERIOD DOES "NOT REPRESENT TIMELY ACTION BY THE GAO, AND COULD HARDLY BE EXPECTED TO PRECEDE DELIVERY OF A CONTRACT SPECIFYING DELIVERY WITHIN 60 DAYS OF AWARD."

WE BELIEVE THAT THE PRIMARY REASON WHY WE COULD NOT RECOMMEND RESOLICITATION WAS THE 60-DAY DELIVERY SCHEDULE REQUIRED UNDER THE SOLICITATION. GIVEN THAT SCHEDULE (UNDER WHICH ITEMS WERE ORIGINALLY TO BE DELIVERED IN LATE MAY 1984, BUT, IN FACT, WERE DELIVERED IN AUGUST 1984) AND GIVEN THAT YOUR PROTEST WAS NOT "READY-TO-WORK" AT OUR OFFICE UNTIL MID-JULY 1984, WHEN YOUR COMMENTS ON USIA'S PROTEST WERE RECEIVED, IT WAS NOT POSSIBLE TO PROVIDE A FEASIBLE REMEDY, SINCE THE CONTRACT HAD BEEN COMPLETED.

WHILE IT IS TRUE THAT WE EXCEEDED THE 25-DAY GOAL STATED IN OUR PROCEDURE FOR ISSUING A DECISION AFTER THE RECORD IS CLOSED, IT DOES NOT APPEAR RESOLICITATION WOULD HAVE BEEN FEASIBLE HAD WE MET THIS GOAL. FURTHER, THE TIME IT TOOK (APPROXIMATELY 1 MONTH) FOR USIA TO TRANSMIT A REPORT TO US ON YOUR PROTEST WAS WITHIN THE 252-WORKING-DAY GOAL FOR TRANSMISSION OF PROCURING AGENCY PROTEST REPORTS TO OUR OFFICE. SEE 4 C.F.R. PARA. 21.3(C) (1984).

WITH REGARD TO OUR OFFICE'S ABILITY TO PROVIDE APPROPRIATE REMEDIES IN FUTURE CASES, WE POINT OUT THAT SUBTITLE "D" OF THE COMPETITION IN CONTRACTING ACT OF 1984, PUB. L. 98-369, EFFECTIVE JANUARY 15, 1985, PROVIDES THAT:

"(D)(1) IF A FEDERAL AGENCY RECEIVES NOTICE OF A PROTEST UNDER THIS SECTION AFTER THE CONTRACT HAS BEEN AWARDED BUT WITHIN 10 DAYS OF THE DATE OF THE CONTRACT AWARD, THE FEDERAL AGENCY (EXCEPT AS PROVIDED UNDER PARAGRAPH (2)) SHALL, UPON RECEIPT OF THAT NOTICE, IMMEDIATELY DIRECT THE CONTRACTOR TO CEASE PERFORMANCE UNDER THE CONTRACT AND TO SUSPEND ANY RELATED ACTIVITIES THAT MAY RESULT IN ADDITIONAL OBLIGATIONS BEING INCURRED BY THE UNITED STATES UNDER THAT CONTRACT. PERFORMANCE OF THE CONTRACT MAY NOT BE RESUMED WHILE THE PROTEST IS PENDING.

"(2) THE HEAD OF THE PROCURING ACTIVITY RESPONSIBLE FOR THE AWARD OF A CONTRACT MAY AUTHORIZE THE PERFORMANCE OF THE CONTRACT (NOTWITHSTANDING A PROTEST OF WHICH THE FEDERAL AGENCY HAS NOTICED UNDER THIS SECTION)--

"(A) UPON A WRITTEN FINDING--

"(I) THAT PERFORMANCE OF THE CONTRACT IS IN THE BEST INTEREST OF THE UNITED STATES; OR

"(II) THAT URGENT AND COMPELLING CIRCUMSTANCES THAT SIGNIFICANTLY AFFECT INTERESTS OF THE UNITED STATES WILL NOT PERMIT WAITING FOR THE DECISION OF THE COMPTROLLER GENERAL CONCERNING THE PROTEST; AND

"(B) AFTER THE COMPTROLLER GENERAL IS NOTIFIED OF THAT FINDING."

CONSEQUENTLY, IN THOSE CASES WHERE AWARD OR PERFORMANCE IS SUSPENDED PURSUANT TO THE ABOVE PROVISIONS, OUR OFFICE SHOULD BE IN A BETTER POSITION TO RECOMMEND ACTION IN CONTRACTS INVOLVING IMPROPER AWARDS EVEN WHERE A SHORT DELIVERY SCHEDULE IS INVOLVED.