Montage, Inc., B-277923.2, December 29, 1997

B-277923.2 Dec 29, 1997 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Those cases will not be followed. The statutes and regulations governing federal procurements are not strictly applicable to reprocurements of defaulted requirements. There have been no cases where our Office has sustained a protest against a contracting officer's failure to solicit the defaulted contractor. We have stated that a defaulted contractor may not automatically be excluded from a competition for the defaulted requirement because such an exclusion prior to the submission of bids or proposals would constitute an improper premature determination of nonresponsibility. We have concluded that whether a defaulted contractor should be solicited depends on the circumstances of each case and that the contracting officer has a wide degree of discretion in this regard. View Decision Matter of: Montage, Inc. File: B-277923.2 Date: December 29, 1997 DIGEST Attorneys DECISION Montage, Inc. protests the Department of the Navy's failure to solicit it in the agency's reprocurement of the replacement of the heating, air conditioning, and ventilation (HVAC) system in the PFC Curtis B. Schooley U.S. Army Reserve Center, Galax, Virginia. We deny the protest. On March 13, 1996, the Navy awarded to Montage contract No. N68925-96-C- A100, an indefinite delivery, indefinite quantity, multi-trade construction contract. On November 14, Montage received delivery order No. 0009 under this contract to replace the HVAC system at the Schooley Center within 180 days of the order. On June 12, 1997, the Navy terminated delivery order No. 0009 for default "due to [Montage's] failure to make progress in the work and for default in performance." On June 17, the Navy offered this requirement as a sole source to Capitol Contractors, Inc. through the Small Business Administration's section 8(a) program. After Montage protested this intended noncompetitive award to our Office, the Navy cancelled its request for a section 8(a) award and decided to obtain competition to the maximum extent practicable by soliciting three sources, but not Montage. Montage challenges its exclusion from the Navy's competition of the reprocurement and argues that limiting the competition to three sources does not satisfy the requirement that competition be obtained to the maximum extent practicable. Generally, the statutes and regulations governing federal procurements are not strictly applicable to reprocurements of defaulted requirements. E. Huttenbauer & Son, Inc., B-239142.2 et al., Aug. 17, 1990, 90-2 CPD para. 140 at 2. Rather, the contracting officer may use any terms and acquisition method deemed appropriate for the repurchase; however, the contacting officer must repurchase at as reasonable a price as practicable and must obtain competition to the maximum extent practicable. Federal Acquisition Regulation (FAR) sec. 49.402-6(a), (b). The FAR provision allows the agency to purchase needed supplies and services as expeditiously as possible while preserving the government's right to seek excess reprocurement costs from the defaulted contractor. There have been no cases where our Office has sustained a protest against a contracting officer's failure to solicit the defaulted contractor. However, we have stated that a defaulted contractor may not automatically be excluded from a competition for the defaulted requirement because such an exclusion prior to the submission of bids or proposals would constitute an improper premature determination of nonresponsibility. See PRB Uniforms, Inc., 56 Comp.Gen. 976, 978 (1977), 77-2 CPD para. 213 at 3. More recently, however, we have concluded that whether a defaulted contractor should be solicited depends on the circumstances of each case and that the contracting officer has a wide degree of discretion in this regard. For example, we have upheld a contracting officer's determination not to solicit the defaulted contractor where the defaulted contractor declined to perform the contract requirements, such that the contracting officer reasonably concluded that the defaulted contractor could not and would not perform the contract. E. Huttenbauer & Son, Inc., supra, at 3. Also, we have found that a contracting officer need not solicit a defaulted contractor where a competitive reprocurement was reasonably not conducted. See ATA Defense Indus., Inc., B-275303, Feb. 6, 1997, 97-1 CPD para. 61 at 3 (sole source order under the Federal Supply Schedule). Our earlier statement that the automatic exclusion of a defaulted contractor from a reprocurement constitutes an improper premature determination of nonresponsibility reflected the regulations then in effect, which generally provided for reprocurement competitions within the context of general procurement statutes and regulations. Specifically, Armed Services Procurement Regulation (ASPR) sec.