TITLE:  Landmark Construction Corporation, B-281957.3, October 22, 1999
BNUMBER:  B-281957.3
DATE:  October 22, 1999
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Landmark Construction Corporation, B-281957.3, October 22, 1999

Decision

Matter of: Landmark Construction Corporation

File: B-281957.3

Date: October 22, 1999

Brian A. Darst, Esq., and Paralee White, Esq., Gadsby & Hannah, for the
protester.

William M. Simmons, Esq., Perkins, Smith & Cohen, for Master Builder
International Corporation, an intervenor.

John E. Lariccia, Esq., Sharon A. Jenks, Esq., and Gregory H. Petkoff, Esq.,
Department of the Air Force, for the agency.

Andrew T. Pogany, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Where award of indefinite-delivery, indefinite-quantity contract improperly
was made to large business, proposed corrective action is reasonable, and
warrants dismissing protest as academic, where agency will (1) allow
improperly awarded contract to expire, (2) place no new delivery orders
under the contract, but allow delivery orders already issued to be performed
pending recompetition and new award, and (3) promptly conduct recompetition,
with award to be made within 6 months.

DECISION

Landmark Construction Corporation protests the Department of the Air Force's
proposed corrective action in connection with Landmark's challenge to the
award of an indefinite-delivery, indefinite-quantity (IDIQ) contract to
Master Builder International Corporation (MBI) under request for proposals
(RFP) No. F05604-97-R7019, a section 8(a) set-aside for simplified
acquisition of base engineering requirements (SABER) at various locations in
the Midwest.

We dismiss the protest.

The RFP contemplated multiple awards for a base year and 4 option years. RFP
sect. F-32. Thirteen offerors submitted proposals by the June 2, 1998 date for
receipt of initial proposals. On January 14, 1999, the Air Force made awards
to MBI and another offeror, Martinez Construction and Development Company.
Contracting Officer's Statement at 1-2. Landmark, one of the unsuccessful
offerors, filed a size protest challenging MBI's status as a small business
on January 19, which the Air Force contracting officer forwarded to the
Small Business Administration's (SBA) Area V Office on January 21. The
contracting officer issued a stop work order suspending MBI's contract on
February 4. The Area V Office issued a determination on February 17 that MBI
was other than small and thus ineligible for award on the basis that MBI was
unusually reliant upon, and thus affiliated as a joint venture with, its
ostensible subcontractor. Agency Report, Tab 19, Size Determination
Memorandum. MBI appealed the size determination to SBA's Office of Hearings
and Appeals (OHA) on March 5. On May 5, OHA vacated the Area V Office size
determination because, under SBA's regulations applicable at that time,
Landmark did not have standing to file a size protest. [1] Agency Report,
Tab 22, OHA Decision. On May 12, the contracting officer lifted the stop
work order on MBI's contract.

On May 18, at the urging of Landmark, the SBA District Office filed a size
protest with the Area V Office (the contracting officer and SBA have the
right to file protests at any time without the filing being considered
untimely, 13 C.F.R. sect. 121.1004(b) (1999)). On May 28, the contracting
officer informed SBA that he would allow MBI's performance under the
contract to continue in the face of the protest. On June 30, the Area V
Office issued a size determination finding that MBI was other than small for
purposes of this procurement. Agency Report, Tab 26, Size Determination
Memorandum. MBI appealed that determination to OHA on July 21. On
September 9, OHA dismissed MBI's appeal as untimely filed. Protester's
Comments attach. 1.

In the meantime, on July 16, after the second size determination by SBA's
Area V Office, but before OHA's dismissal of the second appeal, Landmark
filed this protest seeking termination of MBI's contract on the basis that
SBA had determined that it was not a small business. In a letter to our
Office dated September 24, after the final OHA ruling, the Air Force stated
that it had decided to take corrective action that it believed rendered the
protest academic. In particular, the Air Force stated that it
will (1) stop issuing delivery orders to MBI under its contract; (2) allow
the contract to expire; and (3) promptly conduct a new competition by
issuing a new solicitation seeking a replacement contractor for these
services based upon requirements that mirror those found in the RFP-R7019 to
the extent that they remain valid.

Landmark objects to the proposed corrective action, maintaining that
immediate termination of the SABER contract and all uncompleted delivery
orders is required since MBI is not an eligible 8(a) concern. Protester's
Comments at 2. In support of its argument, Landmark cites Adams Indus.
Servs., Inc., B-280186, Aug. 28, 1998, 98-2 CPD para. 56. In that case, we
stated that, in the absence of countervailing reasons, we viewed it as
inconsistent with the integrity of the competitive procurement system and
the intent of the Small Business Act, 15 U.S.C. sect.sect. 631-657a (1994), for an
agency to permit a firm to continue to perform a contract where the firm was
determined after award to be a large business. We recommended that the
contract be terminated and that a purchase order be issued to the small
business protester--which was in line for the award--for completion of the
work. Landmark concludes that, unless there is a demonstrated urgency, MBI's
contract and outstanding delivery orders should be terminated immediately.

We disagree. In Adams, the protester was next in line for award, so that it
could step in and perform when the improperly awarded contract was
terminated; immediate termination of the contract thus was practicable.
Here, in contrast, Landmark is not next in line for award and there thus
would be no contractor in a position to step in and perform MBI's contract
if it were immediately terminated. [2] In decisions sustaining protests such
as Landmark's--that is, where it is alleged that the award was improper, but
award to the protester is not the appropriate remedy--as part of our
recommendation to the agency, we ordinarily will allow the contract to
remain in place to meet the agency's ongoing requirements until the
recompetition is completed and a new contract awarded. See, e.g., Technology
Servs. Int'l, Inc., B-276506, May 21, 1997, 97-2 CPD para. 113; H.J. Group
Ventures, Inc., B-246139, Feb. 19, 1992, 92-1 CPD para. 203 (SABER contract).
The agency's proposal to allow MBI's contract to expire, issue no new
delivery orders under MBI's contract, but allow MBI to complete performance
of the delivery orders already issued pending a recompetition and new award,
is consistent with our prior decisions, and thus constitutes appropriate
corrective action.

Landmark further objects that the proposed March 15, 2000 deadline for a new
award is not sufficiently prompt, and that, instead of a recompetition, the
original solicitation should be reopened. These arguments are unpersuasive.
First, there simply is no basis to conclude that allowing 6 months to
conduct a new competition for a $55 million procurement is other than
prompt. (We note that the initial procurement took about 9 months to
complete.) Further, conducting the recompetition under the original
solicitation would have the effect of precluding both new offerors and
MBI--which could become small by shedding its relationship with its
subcontractor--from competing. There is no basis for restricting the
competition in this manner. See The Hygenic Corp., May 24, 1984, 84-1 CPD para.
571 at 2.

We conclude that the corrective action proposed by the Air Force is
reasonable under the circumstances of this case, and that it renders the
protest academic.

The protest is dismissed.

Comptroller General
of the United States

Notes

1. On June 30, 1998, SBA issued regulations that significantly changed the
8(a) program. 63 Fed. Reg. 35726, 35767 (1998). The new regulations stated
that they would apply to solicitations issued on or after June 30, 1998; the
solicitation here was issued before that date. The previous regulations did
not give unsuccessful 8(a) offerors standing to file size protests. Under
the new regulations, Landmark would have standing to file a size protest. 13
C.F.R. sect. 121.1001(a)(2)(i) (1999).

2. Award was made without discussions, so the agency never constituted a
competitive range, conducted discussions or requested revised proposals.