Matter of: Barrett and Blandford Associates, Inc. File: B-250926 Date: February 2, 1993
Highlights
Procurement Contract Management Contract administration Default termination Propriety GAO review General Accounting Office will not consider the propriety of a contracting agency's decision to terminate a contract for default. Since that is a matter to be resolved under the disputes clause of the contract. PROCUREMENT Contract Management Contract administration Default termination Resolicitation GAO review Agency had reasonable basis for limiting the competition in a reprocurement action to only one known source capable of producing the required items and in excluding protester where there was a shortage of the items being acquired and agency reasonably determined that protester's failure to deliver items under the prior contract (which necessitated the reprocurement) indicated that the protester could not currently satisfy the requirement.
Matter of: Barrett and Blandford Associates, Inc. File: B-250926 Date: February 2, 1993
Procurement Contract Management Contract administration Default termination Propriety GAO review General Accounting Office will not consider the propriety of a contracting agency's decision to terminate a contract for default, since that is a matter to be resolved under the disputes clause of the contract. PROCUREMENT Contract Management Contract administration Default termination Resolicitation GAO review Agency had reasonable basis for limiting the competition in a reprocurement action to only one known source capable of producing the required items and in excluding protester where there was a shortage of the items being acquired and agency reasonably determined that protester's failure to deliver items under the prior contract (which necessitated the reprocurement) indicated that the protester could not currently satisfy the requirement.
Attorneys
DECISION Barrett and Blandford Associates, Inc. protests the Army's failure to solicit it under request for proposals (RFP) No. DAAA09-92-R- 0401, issued by the Department of the Army for 1,500 head assemblies needed to repair M19/M19A1 infrared drivers periscopes for the M113 armored personnel carrier family of vehicles. The solicitation was issued as a partial reprocurement of the assemblies which were the subject of a contract held by the protester that was terminated for default.
We deny the protest.
The original contract for 2,848 of the head assemblies was awarded to Barrett and Blandford on January 17, 1990. According to that contract, 1,959 units were to be delivered in April 1991, and the remaining 889 were to be delivered in May 1991. Despite several extensions of the delivery schedule, Barrett and Blandford failed to deliver any of the required items; consequently, in July 1992, the agency terminated that firm's contract for default.
On August 7, 1992, the Army issued the RFP which is the subject of this protest, limiting the competition to Fraser-Volpe Corporation, which according to the agency, was the only known qualified source for the item. The RFP stated that the delivery of 500 items was required 270 days after award. An additional 500 items were to be delivered 300 days after award and the final 500 assemblies, 330 days after award. The RFP included an "urgency of delivery" clause which stated that no extension of the delivery date was considered possible. The agency awarded Fraser-Volpe the contract on September 18. The Army explains that Barrett and Blandford was not solicited for the reprocurement because the agency did not believe that the firm was technically capable of fulfilling the requirements by the required delivery dates.
Barrett and Blandford argues first it was unfair for the agency to exclude it from the competition based on its performance on the defaulted contract since, according to the protester, the agency had a contributory role in the delays associated with that contract. The protester argues that the agency knew that the firm was a potential source for the head assemblies and therefore should have allowed it to compete. Barrett and Blandford points out that after its contract was terminated, it has received orders from the agency and successfully supplied 250 assemblies on July 16, shortly after the termination, and an additional 200 units in December 1992. The protester asserts that it would have offered a substantially lower price for the items than the awardee.
To the extent that the protester is complaining about the propriety of the termination for default, the termination is a matter of contract administration within the jurisdiction of the contracting agency and the Armed Services Board of Contract Appeals (ASBCA) under the disputes clause of the protester's contract and, therefore, is not for resolution under our Bid Protest Regulations. See 4 C.F.R. Sec. 21.3(m)(1) (1992); Joseph L. DeClerk and Assocs., Inc., 68 Comp.Gen. 183 (1989), 89-1 CPD Para. 47. The protester has filed a complaint with the ASBCA regarding the termination.
As far as the current solicitation is concerned, generally, in the case of a reprocurement after default, the statutes and regulations governing regular federal procurements are not strictly applicable. Pacific Dry Dock & Repair Co., B-237611.2; B-237751, Mar. 19, 1990, 90-1 CPD Para. 302. Under the Federal Acquisition Regulation (FAR), if the repurchase is for a quantity not over the undelivered quantity terminated for default, the agency may use any terms and acquisition method deemed appropriate for the repurchase provided that the agency obtains (1) as reasonable a price as practicable; and (2) competition to the maximum extent practicable. Adaptive Concepts, Inc., B-243304, June 25, 1991, 91-1 CPD Para. 605; FAR Sec. 49.402-6. We review protests concerning reprocurements only to determine whether the agency acted reasonably under the circumstances. Id.
In our view, the agency's decision to limit the procurement was reasonable.
The RFP requires that the delivery commence within 270 days of the award because of a large number of backorders for those items due, in significant part, to the lack of deliveries under the protester's terminated contract. The items are needed at Red River and Mainz Army Depots and have been "on critical maintenance reports" from both these depots.
Concerning Barrett and Blandford's past performance, as stated above, more than 2 years after the required delivery of nearly 2,000 items, the firm failed to deliver any of the items under its contract. Moreover, after failing to provide any of the assemblies, by letter dated June 22, 1992, the protester advised the agency that it was having difficulty obtaining optical prisms and sealant, materials which it needed for production of the head assemblies. Based upon the need for the assemblies and Barrett and Blandford's performance failure under the prior contract, we find that the agency reasonably concluded that the protester would be unable to timely and consistently provide conforming head assemblies.
Finally, we are not persuaded by the protester's argument that because it delivered lesser quantities of head assemblies after the termination of its contract, it could be relied upon to deliver the items under a new contract. We agree with the agency that the fact that the protester could eventually deliver 450 of the items (less than 20 percent of the items originally required under the defaulted contract) does not demonstrate that the protester could supply 1,500 of the assemblies in accordance with the strict delivery schedule set forth in the new solicitation.
In sum, we do not think that the Army was required to assume the risk that Barrett and Blandford's performance as demonstrated under the original contract would improve dramatically in the short term, particularly in view of the strict delivery schedule necessitated by the shortage of the items. See Brown, Boveri-York Kaelte-und Klimatechnik GmbH, B-237202, Feb. 2, 1990, 90-1 CPD Para. 148.
The protest is denied.