BNUMBER:  B-270344; B-270344.2
DATE:  February 28, 1996
TITLE:  AT&T Corporation

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Matter of:AT&T Corporation

File:     B-270344; B-270344.2

Date:     February 28, 1996

Pamela G. Sauber, Esq., and Steven W. DeGeorge, Esq., for the 
protester.
Anthony L. Cogswell, Esq., for Sprint Communications Company, L.P., an 
intervenor. H. Jack Shearer, Esq., and Clifton M. Hasegawa, Esq., 
Defense Information Systems Agency, for the agency.
Katherine I. Riback, Esq., and Glenn G. Wolcott, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  Protest alleging that agency improperly terminated protester's 
contract is not for consideration as it concerns a matter of contract 
administration not within General Accounting Office bid protest 
function.  

2.  Protest against the sole-source award of a contract for 
telecommunications circuit is denied where the contracting agency 
reasonably determined that only the proposed awardee was capable of 
meeting the agency's urgent delivery requirement.

DECISION

AT&T Corporation protests the Defense Information Systems Agency, 
Defense Information Technology Contracting Office's (DITCO) 
termination for convenience of the firm's contract, for a 
point-to-point private line telecommunications circuit for an 
estimated 24-month period, and the agency's determination to reprocure 
this requirement under contract with Sprint Communications Company, 
L.P.  AT&T argues that DITCO's actions improperly deprived it of an 
opportunity to furnish the circuit, and constituted an unjustified 
sole-source procurement from Sprint.  

We deny the protest.

BACKGROUND

On September 7, 1995, DITCO received a telecommunications service 
order for a point-to-point telecommunications circuit between Fort 
McPherson, Georgia, and Fort Hood, Texas.  The service order required 
that service be established by October 16 and specified that the 
"service date is critical."  The circuit was to support an Advanced 
Research Projects Agency (ARPA) exercise involving more than 200 
personnel at various locations throughout the country.  DITCO was 
informed that failure to meet the scheduled delivery date would 
adversely impact the agency's ability to provide telecommunications 
connectivity for "live" traffic to be transmitted for the nationwide 
exercise, and jeopardize other circuit installation schedules around 
the United States.  

On September 14, the agency issued telecommunication service request 
(TSR)  
No. AO29AUG9500072/I on the DITCO Acquisition Bulletin Board to obtain 
competitive quotations for the circuit.[1]  The TSR identified a 
service date of "16 Oct 95," and stated that the "service date is 
critical."  Quoters were advised that award would be made to the 
responsible firm whose quote was most advantageous to the government 
and that the agency intended to award the contract without holding 
discussions. 

On September 26, DITCO received six quotes responding to the TSR.  
Sprint submitted the lowest quote, but stated that the service date 
would be "45 calendar days ARO [after receipt of order]."  Based on 
this limitation, the agency determined that Sprint's quotation did not 
meet its requirements and did not further consider Sprint for award at 
that time.  On September 28, DITCO issued a service order to AT&T, 
based on its submission of the second-low quotation.

On October 4, ARPA personnel expressed concern to DITCO that, due to a 
lack of facilities available to AT&T at Fort Hood, AT&T would be 
unable to provide the circuit by the required delivery date.  DITCO 
immediately relayed this concern to AT&T and was assured by AT&T that 
the required delivery date would be met.  The agency again discussed 
this matter with AT&T on October 5, October 10, and October 12; AT&T 
continued to assure the agency that it would meet the required service 
date.  

On Friday, October 13, AT&T informed the agency that, contrary to its 
prior representations, it would be unable to meet the required October 
16 service date due to its inability to obtain access to the necessary 
equipment and facilities at Fort Hood, Texas.  The contracting officer 
immediately contacted Sprint which stated that it could provide the 
required circuit by the October 16 service date, specifically noting 
that it had access to facilities at Fort Hood which were not available 
to AT&T.[2]  Additionally, Sprint offered to provide the circuit at 
the same price it had submitted in its September 26 quotation.

Based on AT&T's acknowledged inability to meet the October 16 delivery 
date, DITCO terminated AT&T's contract.  Then, pursuant to 10 U.S.C.  sec.  
2304 (c)(2) (1994) and Federal Acquisition Regulation (FAR)  sec.  
6.302-2(a) (2), the contracting officer determined that unusual and 
compelling urgency existed which required the use of other than full 
and open competition in order to procure the required circuit and, on 
October 13, placed a verbal order with Sprint.  A written service 
order was subsequently issued.    

Sprint did, in fact, install the circuit at Fort Hood by the required 
October 16 delivery date.  However, due to problems with the local 
exchange carrier at Fort McPherson, Sprint was unable to install the 
circuit at that location until October 21.[3]  On that date, the 
complete circuit became operational.     

DISCUSSION

AT&T first protests DITCO's termination of its contract on the basis 
of AT&T's acknowledged inability to meet the October 16 delivery date.  
AT&T complains that the termination was improper because Sprint also 
failed to meet the delivery date.  

AT&T's challenge to the termination of its contract involves matters 
of contract administration beyond the scope of our bid protest 
function.  Under the Competition in Contracting Act of 1984, our 
Office considers challenges to the award or proposed award of 
contracts.  31 U.S.C.  sec.  3552 (1994).  We do not generally review 
matters of contract administration, as they are within the discretion 
of the contracting agency and for review by a cognizant board of 
contract appeals or the Court of Federal Claims.  See Bid Protest 
Regulations, Section 21.5 (a), 60 Fed. Reg. 40,737, 40,742 (Aug. 10, 
1995) (to be codified at 4 C.F.R.  sec.  21.5(a)); Specialty Plastics 
Prods., Inc., B-237545, Feb. 26, 1990, 90-1 CPD  para.  228.  While we do so 
where it is alleged that a contract modification improperly exceeds 
the scope of the contract and therefore should have been the subject 
of a new procurement, CAD Language Sys., Inc., 68 Comp. Gen. 376 
(1989), 89-1 CPD  para.  364, or where an agency's basis for contract 
termination is that the contract was improperly awarded, Condotels, 
Inc. et al., B-225791; 225791.2, June 30, 1987, 87-1 CPD  para.  644.  
Neither situation is present here where the termination is based on an 
awardee's express admission that it will be unable to perform its 
contractual obligations.  Accordingly, AT&T's complaint regarding 
DITCO's termination of its contract is not for consideration by our 
Office.
            
AT&T next protests that DITCO's justification for the sole-source 
award to Sprint was not reasonably based.  Under 10 U.S.C.  sec.  
2304(c)(2), an agency may use noncompetitive procedures to procure 
goods or services where the agency's needs are of such unusual and 
compelling urgency that the government would be seriously injured if 
the agency were not permitted to limit the number of sources from 
which it solicits bids or proposals.  An agency using the urgency 
exception may limit competition to firms with satisfactory work 
experience which it reasonably believes can promptly and properly 
perform the work.  See FAR  sec.  6.302-2(a)(2); Jay Dee Militarywear, 
Inc., B-243437, July 31, 1991, 91-2 CPD  para.  105.  In these 
circumstances, the agency is not required to solicit an incumbent 
contractor if, in the agency's reasonable judgment, there is doubt, 
based on the incumbent's prior record, that the firm can perform 
acceptably.  E. Huttenbauer & Son, Inc., B-252320.2; B-252320.3, June 
29, 1993, 93-1 CPD  para.  499.  This is true whether or not the agency has 
formally found the incumbent to be nonresponsible under FAR  sec.  
9.103(b).  Atlanta Investigations, B-227980; B-227981, July 30, 1987, 
87-2 CPD  para. 121.  We will object to an agency's determination in this 
regard only when it lacks a reasonable basis.  See AT&T Info. Servs., 
Inc., 66 Comp. Gen. 58 (1986), 86-2 CPD  para.  447; Honeycomb Co. of Am., 
B-225685, June 8, 1987, 87-1 CPD  para.  579.  In this regard, a military 
agency's assertion that there is a critical need having an impact on 
military operations carries considerable weight.  Jay Dee 
Militarywear, Inc., supra.  

Here, the record shows that, based on the information reasonably 
available to the contracting officer at the time of award, the 
determination to award the contract to Sprint on a sole-source basis 
was adequately justified.  As indicated above, the circuit being 
acquired was needed to provide telecommunication support for an 
exercise being conducted by ARPA in connection with the $30 million 
Joint Precision Strike Demonstration (JPSD) program.  The exercise 
involved more than 200 personnel at various locations involving war 
fighting capabilities.  On Friday, October 13, the contracting officer 
was informed by AT&T that it would not be able to meet the October 16 
service date due to local access problems at Fort Hood, Texas.  Sprint 
then represented that it could meet the required delivery date because 
it had access to Fort Hood facilities not shared by AT&T.

The record contains no indication that either Sprint or the 
contracting officer knew, or should have known, that Sprint would, 
ultimately, be unsuccessful in meeting the required delivery date.  
Although AT&T's protest suggests that the contracting officer should 
have anticipated the problems Sprint encountered at Fort McPherson, 
AT&T offers no support for this assertion.  On the record here, we 
find no basis to question the good faith belief, at the time of award, 
of Sprint and the contracting officer that Sprint would be able to 
perform the contract as required.  See Aviation Sys. and Mfg., Inc., 
B-250625.3, Feb. 18, 1993, 93-1 CPD  para. 155. [4]  

AT&T next asserts that the agency's award to Sprint was based on an 
offer that failed to comply with the agency's stated requirements.  
This assertion is based on the premise that DITCO's award to Sprint 
was based on Sprint's September 26 quotation--which indicated 
noncompliance with the required delivery date. Again, the record 
contradicts AT&T's assertion.  On October 13, DITCO placed a verbal 
order with Sprint, based on Sprint's express representations that it 
would be able to meet the required delivery date.  That verbal order 
was followed by a written order confirming Sprint's representations.  
Specifically, the written order stated:  "Start service effective 16 
Oct 95 per your quote dated 26 Sep 95 and verbal between [the 
contracting officer] and [Sprint personnel] on Friday, October 13, 
1995."  Thus, the record demonstrates that the contract awarded to 
Sprint on October 13 was based on Sprint's express offer to comply 
with the agency's stated requirements, including the October 16 
service date.  

Finally, AT&T protests that it was improper for the agency to 
subsequently "waive" the October 16 delivery date for Sprint by 
accepting an October 21 service date.[5]  This portion of AT&T's 
protest merely challenges the agency's decisions in administering 
Sprint's contract.  As noted above, matters of contract administration 
are not for consideration under our bid protest function.  See Jasper 
Painting Serv., Inc., B-251092, Mar. 4, 1993, 93-1 CPD  para.  204. 

The protest is denied.

Comptroller General 
of the United States

1. A TSR contains information about a given procurement.  Quoters 
respond to the TSR by providing quotes containing rates and any 
exceptions concerning their ability to provide the requested service.

2. Sprint explains that when it submitted its September 26 quotation, 
it was unsure whether it would have access to facilities at Fort Hood, 
but subsequently determined that such facilities were available and 
would accommodate installation of the circuit there by October 16.  

3. Sprint states that it had earlier confirmed that Bell South had 
access into Fort McPherson.  However, on October 16, Bell South 
reported that it did not have that capacity.  On October 20, after 
further discussion, Bell South confirmed that the required capacity 
did exist into Fort McPherson, and the circuit was accepted by DITCO 
on October 21. 

4. In comments filed on December 22, AT&T, for the first time, asserts 
that the award to Sprint was improper because the length of the 
contract extended beyond the period of urgency.  This issue is 
untimely.  Under our Bid Protest Regulations, a protest not based on 
an apparent solicitation impropriety must be filed no later than 
14-calendar days after the protester knew, or should have known of the 
basis of protest, whichever is earlier.  Section 21.2(a) (2), 60 Fed. 
Reg. supra (to be codified at 4 C.F.R.  sec.  21.2(a) (2)).  Because this 
argument was first raised more than 
14-calendar days after AT&T knew, or should have known, of the issue, 
it will not be considered.  See Management Technology, Inc., 
B-257269.2, Nov. 8, 1994, 95-1 CPD  para.  248.   

5. Sprint subsequently agreed to provide the agency with 10 days of 
service at no charge, in part as compensation for delay in installing 
the circuit.