only if made during the design stage, prior to the beginning of actual construction.

This leaves the question of what other action our Office could take in these circumstances. We could have recommended to the Secretary of the Navy that he investigate the feasibility of a renewal of competition and possible termination for convenience of the Towne contract. For the reasons already discussed, this would not have resulted in any effective remedy for Corbetta. We are unaware of any other recommendation in connection with this protest which would have been legally appropriate. See, in this regard, the discussion of Corbetta's request for reconsideration infra. Any possible relief for Corbetta, therefore, would result from its claim for proposal preparation costs, discussed infra, either in this Office or the Court of Claims.

Corbetta's request for reconsideration contends that the manner of Towne's performance of the contract requires a termination for default, and that this would be the preferred remedy for protection of the Government's interests. In support of this, Corbetta has submitted affidavits prepared by several of its employees who have inspected the worksite subsequent to September 12, 1975. It is alleged that these affidavits demonstrate in détail numerous failures by Towne to comply with the contract requirements, local building codes, professional society requirements and good construction practice.

Towne denies the existence of the performance defects cited by Corbetta. Moreover, Towne and NAVFAC have pointed out that under the applicable termination for default provisions (see ASPR § 7-602.5 (1974 ed.)), a contractor may be terminated for default for refusing or failing to diligently prosecute the contract work. Also, even if it were assumed that there are defects in Towne's performance, they would not necessarily be the basis for a default termination, since the contractor may be given an opportunity to explain the causes of delay and the time for performance may under appropriate circumstances be extended by the contracting officer. NAVFAC states that the contracting officer has caused the work to be examined, and that he has no cause to believe that Towne is refusing or failing to prosecute the work with such diligence as will insure its completion. NAVFAC states that, accordingly, no termination for default will be directed. We do not believe that this Office should become involved in considering whether to recommend terminations for default in situations of this kind. As pointed out in our September 12, 1975, decision in this matter, and in many other decisions of our Office, questions raised in a protest as to the adequacy of a contractor's performance are matters of contract administration, which is the function of the contracting agency, not this Office. The only relevance of a termination for

default to this matter is, as we stated in our earlier decision, that recommendations for corrective action such as those in the decision should not preclude the contracting agency from terminating the contract for default if the circumstances warrant. In view of NAVFAC's statements, supra, we take it that no termination for default is in the offing and, therefore, it is unnecessary to give further consideration to this point.

Corbetta has also suggested a number of remedies contingent upon Towne's contract being terminated for default, such as "assignment” of the contract to it with Towne performing as its subcontractor. In view of the discussion supra, it is unnecessary to consider these in detail. Another possibility raised by Corbetta is that it be reimbursed for certain costs in accordance with section 1B.14 of the RFP. This provision, however, is by its terms applicable only to recovery of costs pursuant to termination of the contract awarded under the RFP.

Corbetta's submission in regard to the reconsideration further contends that it should recover damages-principally proposal preparation costs-because of the Navy's "wanton and capricious action.” In our earlier decision we noted that Corbetta had made a similar claim in connection with its protest. Our decision stated that in view of the recommended remedy, it was unnecessary to give further consideration to Corbetta's claim at that time.

Prior to issuance of today's decision, we advised the parties that any consideration of Corbetta's claim which might be necessary would be undertaken not in this decision but at a future time, because while protests and request for reconsideration of protest decisions should be decided in a reasonably speedy manner, the need for a rapid decision is not as pressing in the case of claims. Since today's decision withdraws the remedy recommended in our September 12, 1974, decision, Corbetta may now renew its claim for whatever costs to which it believes it is entitled.

Corbetta's request brings up several factors which it believed created delay in the protest proceedings or otherwise adversely affected its opportunity to obtain a remedy. Corbetta, specifically, contends that it was prejudiced by NAVFAC's delay in furnishing the agency reports responding to the protest, because our Office's decision on the protest was thereby delayed. NAVFAC has replied that Corbetta itself was responsible for the delay in the protest proceedings, because it spent about 2 months after filing its protest in deciding whether it wanted to withdraw the protest and an additional month in clarifying its grounds for protest. We think this factor is basically irrelevant to the recommendation contained in our earlier decision. The only pertinent questions are whether Corbetta filed a timely protest (it did) and

whether NAVFAC took an unreasonable amount of time to furnish its reports (we cannot say that it did, in view of the reasons cited by NAVFAC, supra).

Corbetta also contends that it filed its protest (January 7, 1975) prior to the time an award to Towne was actually consummated. Corbetta believes that the notice of award issued to Towne, January 6, 1975, did not consummate the contract, because the certain formal contractual documents were not executed until later. It is argued that section 20.4 of our Interim Bid Protest Procedures and Standards (4 C.F.R. § 20.4 (1974)) and ASPR § 2-407.8 (1974 ed.) required NAVFAC to withhold the actual award until the protest was decided.

We find it unnecessary to decide when the award to Towne was consummated. The preamble to our Interim Bid Protest Procedures and Standards (see 36 Fed. Reg. 24791 (1971)) specifically notes that our Office has no authority to regulate the withholding of awards by contracting agencies. Where a before-award protest has been filed, the ASPR provisions do require the agency to make a determination, before proceeding with an award, that the items to be procured are urgently required; that performance will be unduly delayed by failure to make a prompt award; or that a prompt award will otherwise be advantageous to the Government. In the present case, even if it were assumed, arguendo, that Corbetta's protest was filed before award, we believe that NAVFAC's failure to make an appropriate determination under ASPR § 2-407.8, supra, would, at most, render the award to Towne voidable and not plainly or palpably illegal under the standards of 52 Comp. Gen. 215 (1972). Towne's contract was found to be voidable in our earlier decision, and at this late stage in the proceedings Corbetta's allegation that its protest was before award has become academic.

Another point to be considered is Corbetta's allegation that NAVFAC should have suspended performance under the contract while its protest was under consideration. NAVFAC has replied that, in its view, there was "no valid reason" to suspend performance and points out that such action could have given rise to disputes between itself and the contractor.

Our Office has taken the position that while suspension of performance during a protest is a desirable step, the question of whether this action should be taken is for the contracting agency to decide. The agency bears the responsibility of assuring that satisfaction of the Government's needs is not unreasonably delayed by suspension of work and must judge any risks inherent in such action. Legal authority to compel the agency to suspend the work rests with the Federal courts,

232-098 O - 77-65

and it is up to the protester to pursue this course of action if it so desires. In the present case, Corbetta did not do so.

CONCLUSION

In view of the foregoing, the recommendation made in our prior decision is withdrawn and the decision is otherwise affirmed.

Two final points must be discussed. The first concerns NAVFAC's recent disclosure, as noted supra, of documents containing its evaluators' detailed point-by-point scoring breakdown of the technical proposals. At the conference on the requests for reconsideration, October 10, 1975, Corbetta's representatives raised the question as to why they had been unable to obtain this information during the protest. NAVFAC's November 4, 1975, letter to our Office responded as follows:

At our meeting of 10 October 1975 we indicated to your representatives that the individual evaluations by the members of the evaluation team are in the Northern Division files and that in keeping with our policy these had not been made available to the protestor, the contractor, or anyone else. Indeed, the Navy policy remains firmly against release of these documents, for any other position would be to invite protest from unsuccessful proposers who would then seek to have the GAO or the courts, or both, review the subjective evaluations by each member of the evaluation team. Nevertheless, because the decision of your office dated September 12th tends to infer that the Navy has not acted in accordance with the governing regulations in effecting this procurement, we are attaching to this report * ** copies of the individual ratings prepared by the members of the evaluation team. ***

This statement leaves unanswered the question of why the record of the individual technical evaluations was not routinely furnished to our Office with NAVFAC's reports on the protest in April and May 1975. As noted supra, our Office received this information for the first time with NAVFAC's November 4, 1975, submission-10 months after the protest was filed.

In this regard, we note that where, as here, records which the contracting agency believes should not be disclosed are relevant to the issues raised in a protest, the proper course of action is to furnish these records to our Office with the report on the protest, along with an indication that they are believed to be exempt from disclosure under the Freedom of Information Act (5 U.S.C. § 552 (1970)) and should not be disclosed to the parties. Our Office will not disclose the records to the protester and interested parties under these circumstances. Rather, it is up to the protester and interested parties to pursue their disclosure remedies under the Freedom of Information Act if they choose to do so. See Unicare Health Services, Inc., B-180262, B-180305, April 5, 1974, 74-1 CPD 175; Dynalectron Corporation et al., 54 Comp. Gen. 1009 (1975), 75–1 CPD 341.

NAVFAC did not follow this procedure in the present case, but rather withheld these records from both the parties involved in the

protest and our Office. We view this action as a departure from the protest procedures contained in ASPR § 2-407.8 (a) (1974 ed.), which provide that agency protest reports should include, in addition to various other items, any agency documents which are relevant to the protest. Also, our Office has stated that it is imperative that agency reports responding to protests contain a full accounting of the relevant facts and circumstances. 45 Comp. Gen. 417, 418 (1966). By letter of today, we are calling this matter to the attention of the Secretary of the Navy with a recommendation that the procedure followed by NAVFAC in this case be fully reviewed and revised so as to prevent a recurrence of these circumstances in the future.

The second concluding point concerns our recommendations to the Secretary of the Navy for corrective action in our prior decision, made pursuant to the Legislative Reorganization Act of 1970, Public Law 91-510, 2 U.S.C. 72a note, and furnished to the congressional committees named in 31 U.S.C. § 1172 (1970). Pursuant to such recommendations, the Secretary is obligated to respond to the congressional committees named in the statute within a stated time as to the actions which are taken in response to the recommendations. See 31 U.S.C. § 1176 (1970). As noted supra, the recommended remedy in this case has now been withdrawn. However, since the actions taken by NAVFAC in this procurement led to an improper award, it is necessary that the Secretary cause a review of NAVFAC's actions in this procurement to be undertaken to ensure conformance with the requirements of applicable law and regulations in future negotiated turnkey housing procurements. Accordingly, in today's letter to the Secretary we are recommending this action.

[B-131836]

Family Allowances-Separation-Type 2-Ship Duty-Residence Location

Following the decision 52 Comp. Gen. 912, if a ship moves from its home port to another port within 50 miles (or 12 hours traveltime as provided in paragraph 30313, Department of Defense Military Pay and Allowances Entitlements Manual) of the home port, those members attached to the ship whose dependents do not reside in the area of the home port do not become entitled to family separation allowance (FSA), Type II.

Family Allowances Separation-Type 2-Ship Duty-Home Port Changes

Family separation allowance, Type II, if otherwise allowable may not be paid to naval personnel assigned to ships merely because the ship has moved from its home port but eligibility depends upon where the dependents actually reside. If they reside within 50 miles (or 11⁄2 hours traveltime) of the ship while at some other port, FSA may not be paid.