Link: GAO Opinion
Agency: Defense Logistics Agency
Disposition: Protest dismissed.
Awardee’s challenge to the amount of its contract price to supply military fuel requirements is dismissed because it raises a matter of contract administration over which we do not have jurisdiction.
General Counsel P.C. Highlight:
On October 6, Petro Star filed an agency-level protest with DESC, which was dismissed as untimely. On February 17, 2009, Petro Star filed a protest with GAO alleging that under Clause I237.06, DESC should have permitted Petro Star to increase its proposed price for the set-aside portion to match BP’s higher price for the unrestricted portion. Clause I237.06 states that: “c) Set-Aside Award Procedure, (1) The price for the small business set-aside portion will be negotiated by the Contracting Officer based upon prices the Government would otherwise pay under this solicitation had there been no set-aside for supply of the location at which the set-aside is placed … . Awards will be made to the small business concern whose offer is determined by this evaluation to be low without further negotiations.”
What Petro Star seeks here is an increase in its contract price, that is, reformation of its contract. This is a matter of contract administration for which GAO does not have jurisdiction. GAO considers bid protest challenges to the award or proposed award of contracts. In exercising this authority, GAO does not review matters of contract administration (with exceptions not relevant here), which are within the discretion of the contracting agency and are, under the Contract Disputes Act of 1978, for review by a cognizant board of contract appeals or the Court of Federal Claims. The protest is dismissed.