Exide Corporation, B-276988; B-276988.2, August 18, 1997

Exide Corporation, B-276988; B-276988.2, August 18, 1997 BNUMBER: B-276988; B-276988.2 DATE: August 18, 1997 TITLE: Exide Corporation, B-276988; B-276988.2, August 18, 1997 ********************************************************************** Matter of:Exide Corporation File: B-276988; B-276988.2 Date:August 18, 1997 James J. McCullough, Esq., Deneen J. Melander, Esq., and Catherine E. Pollack, Esq., Fried, Frank, Harris, Shriver & Jacobson, for the protester. John S. Pachter, Esq., Jonathan D. Shaffer, Esq., and Eun K. Chung, Esq., and Christina M. Pirrello, Esq., Smith, Pachter, McWhorter & D'Ambrosio, for East Penn Manufacturing Co., Inc., the intervenor. Vera Meza, Esq., and Wendy S. Saigh, Esq., Department of the Army, for the agency. Henry Gorczycki, Esq., and James A. Spangenberg, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Delivery order issued under an existing requirements contract for a quantity of batteries in excess of the maximum order limitation (MOL), and to be delivered after the expiration of the contract, is not beyond the scope of the contract where the contract permits orders in excess of the MOL, the total quantity ordered under the contract does not significantly exceed the estimated quantity, and the contract provides for delivery after the contract's expiration date. DECISION Exide Corporation protests delivery order No. 0037, issued by the Department of the Army, Tank-automotive and Armaments Command (TACOM), to East Penn Manufacturing Co., Inc. under East Penn's existing requirements contract No. DAAE07-92-D-J011, for dry-charged batteries. Exide alleges that the delivery order is beyond the scope of East Penn's contract. We deny the protest. The contract at issue in this protest was competed under request for proposals (RFP) No. DAAE07-92-R-S067 using full and open competition. The RFP contemplated the award of a 5-year requirements contract for three types of dry-charged batteries (2HN, 4HN, and 6TL). Both Exide and East Penn submitted proposals in response to the RFP and participated in negotiations with the Army. The Army awarded the contract to East Penn on May 12, 1992. The contract stated an expiration date of May 11, 1997. On July 23, 1996, the contract was modified by deleting the 6TL battery and replacing it with the 6TLFP battery at a unit price of $68.04.[1] The solicitation/contract stated that the estimated total requirement for the 6TL/6TLFP batteries was 1,134,000 units. It also stated that the agency expected individual delivery orders to be for quantities of one quarter of the annual requirement,[2] and stated the minimum and maximum order quantities between which the agency was required to place, and East Penn was required to honor, an order. The solicitation/contract stated that no order would be issued for quantities greater than the maximum order limitation (MOL)--which was 100,000 units for 6TLFP batteries--with the following exception: Notwithstanding [the MOL restriction] the Contractor shall honor any order exceeding the [MOL] unless that order (or orders) is returned to the ordering office within -5- days after issuance, with written notice stating the Contractor's intent not to ship the item (or items) called for and the reasons. Upon receiving this notice, the Government may acquire the supplies or services from another source. The Government is not obligated to issue orders under this contract for any quantity exceeding 310,000 for [6TLFP batteries] during any single contract year. Section H-2 stated that delivery orders may be issued from the date of contract through 5 years after date of award. Section H-4 of the solicitation contract stated: (f) Any order issued during the effective period of this contract and not completed within that period shall be completed by the Contractor within the time specified in the order. . . . The contract's delivery terms called for delivery to begin 150 days from the date of the delivery order and, in the case of 6TL/6TLFP batteries, delivery was to continue at the rate of 20,000 units per month until the order was completed. During the course of East Penn's contract, the Army determined that it would shift from using the 6TLFP battery to the 6TLMF battery--a refined version of the 6TL/6TLFP battery. On February 27, 1997, the Army issued a solicitation for proposals to supply 6TLMF batteries.[3] A Supply Control Study, dated March 26, 1997, determined that the agency will require 350,229 dry-charged 6TLFP batteries prior to the delivery of the new 6TLMF batteries.