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.