Shields & Dean Concessions, Inc.--Reconsideration, B-292901.4, March 19, 2004

B-292901.4 Mar 19, 2004 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights The decision therefore is modified to recognize that NPS in fact does not concede that GAO has authority under CICA to review concession contract protests. 2. To disregard any cost or disruption from the proper termination of a contract where the statute's stay was overridden in the government's "best interest. " in the absence of a clause that would permit the government to unilaterally terminate a contract "for convenience" a successful protester's only remedy is reimbursement of proposal preparation and protest costs. The prospectus was issued pursuant to the competitive selection process for the award of concession contracts set out in the National Park Service Concessions Management Improvement Act of 1998. View Decision Shields & Dean Concessions, Inc.--Reconsideration, B-292901.4, March 19, 2004 DIGEST Attorneys DECISION Shields & Dean Concessions, Inc. (SHDE) asks that we reconsider the recommendation for corrective action in our decision in Shields & Dean Concessions, Inc., B-292901.2, B-292901.3, Feb. 23, 2004, 2004 CPD Para. ___. In the decision, we sustained SHDE's protest of the award of a 10-year concession contract to Global Golf Services, Inc. (GLGO) by the National Park Service (NPS), Department of the Interior, under prospectus No. GATE020-03 for the provision of visitor recreational services at two locations within the Jamaica Bay Unit of the Gateway National Recreation Area in Brooklyn, New York. We deny the reconsideration request. The prospectus was issued pursuant to the competitive selection process for the award of concession contracts set out in the National Park Service Concessions Management Improvement Act of 1998, 16 U.S.C. Sec. 5951 et seq. (2000). The agency selected GLGO in a close competition, and SHDE protested the evaluation of proposals, basically contending that the agency did not evaluate them in accordance with the terms of the prospectus. In response, we found that there indeed were flaws in the evaluation process, any of which could have changed the agency's selection decision. We therefore sustained the protest, stating (at 10-11): While our recommendation under these circumstances normally would be for the agency to reevaluate proposals, with a view to possibly awarding to a different firm, this remedy is not feasible here because the concession contract awarded to GLGO did not contain a termination for convenience clause.[/1/] Our Office has held that in the absence of such a clause, we will not recommend termination of an awarded contract, even if we sustain the protest and find the contract award improper. See, e.g., Peter N.G. Schwartz Cos. Judiciary Square Ltd. P'ship, B-239007.3, Oct. 31, 1990, 90-2 CPD Para. 353 at 11-12; SWD Assocs.--Costs, B-226956.3, Sept. 1, 1989, 89-2 CPD Para. 206 at 2. For this reason, we recommend that the agency reimburse SHDE for its proposal preparation costs as well as the reasonable costs of filing and pursuing the protest, including reasonable attorneys' fees. 4 C.F.R. Sec. 21.8(d) (2003). In requesting reconsideration, SHDE points out that our Office has indicated that it is because of the government's exposure to a potentially costly breach of contract action by the contractor that we will not recommend termination of a contract that does not have a termination for convenience clause. /2/ See Adelaide Blomfield Mgmt. Co., B-253128.2, Sept. 27, 1993, 93-2 CPD Para. 197 at 6. /3/ SHDE further points out that NPS was notified of the protest filing within 10 days after the November 6, 2003 award, and the Competition in Contracting Act of 1984 (CICA), 31 U.S.C. Secs. 3551-56 (2000), requires, in such case, that the agency suspend performance of the contract while the protest is pending, unless the head of the procuring activity finds that performance is in the government's "best interests," or urgent and compelling circumstances that significantly affect the government's interests will not permit waiting for our resolution of the protest. 31 U.S.C. Sec. 3553(d)(3)(B), (C). SHDE notes that NPS issued what was effectively a best interests override of the required performance suspension through a "Determination to Commence the Concession Contract," /4/ and that CICA provides that if a "best interests" finding was made, any recommendation by our Office to resolve the protest should be made "without regard to any cost or disruption from terminating, recompeting, or reawarding the contract." 31 U.S.C. Sec. 3554(b)(2). SHDE argues that the cost-exposure consideration behind our policy against recommending termination of contracts like this one "is not applicable nor authorized . . . due to NPS's decision to override the stay otherwise required by CICA." Recon.