OPA denies Kautz’s appeal

The Office of the Public Auditor has denied the appeal filed by a private company whose contract for typhoon shutter installation in certain schools had been cancelled by the Public School System earlier this year.

OPA analyst manager David Blake said the agency denied the appeal filed by Kautz Glass Co. because regulations allow PSS to cancel a contract after an award.

OPA did not have the authority to review the cancellation under the terms of the contract and the award of contractual damages in such instance was not within OPA’s purview, he added.

Kautz was one of the five companies that responded to PSS’ invitation for bid for typhoon shutter installation services. Based on the evaluation team’s recommendation, PSS executed and certified a contract, worth over $250,000, with Kautz on April 28, 2005.

In May 2005, PSS received protests from two other bidders: Eyun Ji Corp. and Carpet Masters regarding the IFB.

On May 25, 2005, PSS gave notice to Kautz that its contract was “terminated for PSS’ convenience under the clause entitled Section 13, Termination for Convenience of the Terms and Conditions.”

PSS sent another letter on the same day stating that Kautz did not submit the lowest responsive bid. According to PSS, Carpet Masters had the lowest bid price and would be awarded the contract.

Kautz filed a protest with the Education commission on May 26, but it was dismissed on June 1, 2005. Kautz, through attorney Brien Sers Nicholas, then appealed PSS’ decision to OPA.

Contrary to PSS’ argument, Kautz’s appeal was filed in a timely manner, OPA’s Blake said.

He also noted that, while Kautz stated that it was the most “responsive and responsible” bidder, the company gave no specific facts in its appeal supporting why Carpet Masters could not be or should not have been deemed responsible.

Furthermore, Blake said that PSS procurement regulations specifically provide the school system remedies if a solicitation or award of a contract was in violation of law or regulation.

“In this appeal, Kautz appears to have been terminated after the Carpet Masters Protest Decision by the commissioner. Although termination under [PSS procurement regulations] may have been permissible, the commissioner in her termination letter cited the termination for convenience provision of the Kautz contract,” Blake noted.

“OPA’s authority and powers are limited by the PSS procurement regulations and as such, has no authority to determine whether or not a termination under the terms of the contract was appropriate or not. As such, OPA cannot find reason to grant Kautz’s appeal on this issue,” he added.