Department of the Navy--Modification of Remedy, B-274944.4,

B-274944.4 Jul 15, 1997 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights In the event Dynalantic was selected for award. The Navy requests modification of our recommendation on the ground that the recommendation is impracticable. It will be difficult for the agency to obtain access to the facility for use by another contractor. It will be required to terminate MSI's current contract. Will require MSI to remove the newly constructed facility. The Navy speculates that if Dynalantic is selected for award after the latest round of BAFOs. The Navy also asserts that any delay in procuring the simulator ship handling facility and associated services will "interfer[e] with. The agency generally is required to suspend contract performance while the protest is pending. 31 U.S.C. View Decision Matter of: Department of the Navy--Modification of Remedy File: B-274944.4 Date: July 15, 1997 DIGEST Attorneys DECISION The Department of the Navy requests modification of the remedy that we recommended in Dynalantic Corp., B-274944.2, Feb. 25, 1997, 97-1 CPD Para. 101, in which we sustained Dynalantic's protest against the award of a contract to Marine Safety International (MSI) under request for proposals (RFP) No. N00600-96-R-0749, issued by the Navy for ship handling simulation services. We deny the request. In our decision, we found that the Navy had improperly excluded Dynalantic's proposal from the competitive range. The solicitation called for the contractor to perform essentially four steps: (1) construct a ship handling facility on government-owned property within 9 months from contract award; (2) install and configure the simulator equipment and training stations; (3) provide all personnel and technical services necessary to run the ship handling simulator complex for a period of up to 10 years; and (4) "[u]pon completion or termination of the contract [be] responsible for the removal of the building and restoration of the grounds to original condition at no additional cost to the government." In sustaining Dynalantic's protest, we recommended that the Navy reinstate Dynalantic's proposal in the competitive range, conduct discussions, and solicit best and final offers (BAFO). In the event Dynalantic was selected for award, we recommended that the Navy allow MSI to complete its construction of the ship handling facility (which we understood to be nearly complete), and award the remainder of the procurement to Dynalantic. The Navy requests modification of our recommendation on the ground that the recommendation is impracticable. The Navy first argues that because the solicitation does not require the contractor to give the agency title to the ship handling facility, it will be difficult for the agency to obtain access to the facility for use by another contractor. The Navy also states that if it awards the non-facility portion of this requirement to Dynalantic, it will be required to terminate MSI's current contract, which, under the above-referenced "termination" clause, will require MSI to remove the newly constructed facility, resulting in great expense and delay to the government. In this regard, the Navy speculates that if Dynalantic is selected for award after the latest round of BAFOs, the total cost involved in terminating MSI's current contract; securing access to the constructed facility for the ship handling complex; and awarding the remaining portion of the ship handling services requirement to Dynalantic may be so high that the agency "may not be able to afford" to carry out our recommendation. The Navy also asserts that any delay in procuring the simulator ship handling facility and associated services will "interfer[e] with, and perhaps foreclos[e] the ability of the Navy to meet its mission of the safe and effective operation of ships." Under the Competition in Contracting Act of 1984 (CICA), as amended, if the procuring agency receives notice of a protest filed at this Office within 10 calendar days of the contract award, or 5 calendar days after the debriefing date, the agency generally is required to suspend contract performance while the protest is pending. 31 U.S.C. Sec. 3553(d)(3)(A), (d)(4) (1994). However, if an agency determines that notwithstanding the pending protest at our Office, performance of the contract is "in the best interests of the United States" or that "urgent and compelling circumstances that significantly affect interests of the United States will not permit waiting for the decision" of our Office on the protest, the agency may execute a written finding authorizing the awardee to proceed with contract performance and thereby override the CICA stay. 31 U.S.C. Sec. 3553(d)(3)(C)(i).