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FAR 15.206 (e):  Cancellation of solicitation

Comptroller General - Key Excerpts

New Henry's and Evergreen protest the agency's decision to cancel the solicitation. The protesters maintain that the agency had no reasonable basis to cancel the solicitation and that the cancellation was a pretext to avoid further protests. According to Evergreen, the evaluation errors it identified in its earlier protests could "easily" be addressed in "all of fifteen minutes" by deeming certain aircraft unacceptable and awarding a contract to Evergreen for its six aircraft. Evergreen Protest, May 5, 2017, at 23-24. We have considered all of the protesters arguments in support of their position, and find that none provides a basis to sustain the protest.

In a negotiated procurement, such as this one, an agency has broad authority to decide whether to cancel a solicitation, and to do so, need only establish a reasonable basis. VSE Corp., B-290452.2, Apr. 11, 2005, 2005 CPD ¶ 111 at 6. Thus, we have consistently explained that an agency need only establish a reasonable basis to support a decision to cancel a solicitation. See, e.g., AeroSage LLC, B-410648.2, B-410648.3, Mar. 20, 2015, 2015 CPD ¶ 111 at 3. A reasonable basis to cancel exists when, for example, an agency concludes that a solicitation does not accurately reflect its needs. WKF Friedman Enters., B-409892.2, Sept. 25, 2014, 2014 CPD ¶ 282 at 2.Moreover, an agency may properly cancel a solicitation regardless of when the information precipitating the cancellation first surfaces or should have been known. Daston Corp., B-292583, B-292583.2, Oct. 20, 2003, 2003 CPD ¶ 193 at 3.

However, where, as here, a protester has alleged that the agency's rationale for cancellation is but a pretext--that the agency's actual motivation is to avoid awarding a contract on a competitive basis or to avoid resolving a protest--we will closely examine the reasonableness of the agency's actions in canceling the acquisition. Inalab Consulting, Inc.; Solutions by Design II, LLC, B-413044 et al., Aug. 4, 2016, 2016 CPD ¶ 195 at 7; Miller, Davis, Marter & Opper, P.C., B-242933.2, Aug. 8, 1991, 91-2 CPD ¶ 176 at 4. Notwithstanding such closer scrutiny, and even if it can be shown that pretext may have supplied at least part of the motivation tocancel the procurement, the reasonableness standard applicable to cancellation of a solicitation remains unchanged. See Lasmer Indus., Inc., B-400866.2 et al., Mar. 30, 2009, 2009 CPD ¶ 77 at 4. Cancellation of a procurement is reasonable where the agency determines that it no longer has a requirement for the item solicited, or where the agency discovers an existing contract for its requirement would be more advantageous to the government than continuing with the procurement. Id.

As explained above, the agency first selected six firms for awards on December 15, 2016, more than 5 months before the first exclusive-use period was to begin. Several protests followed, culminating in a lengthy supplemental protest filed by Evergreen on April 17. In this filing, Evergreen raised numerous protest allegations challenging various aspects of the evaluation of most of the awarded aircraft, as well as DOI's evaluation of Evergreen's proposal and the agency's best-value award determination. The agency concedes that certain of these allegations had merit, and, consequently, it decided during the week of April 24--less than a month before the first exclusive use period was to begin--that some form of corrective action was warranted. COS at 3. The agency acknowledges that a reevaluation of the tens of aircraft proposed by the 15 offerors could have resulted in a different award decision. Id. However, as more fully discussed below, the agency maintains that it simply did not have sufficient time to conduct a reevaluation of proposals and make a new best-value determination prior to its need for SEAT aircraft at the start of the 2017 fire season. Because, according to the agency, a reevaluation was not feasible given the short timeframe, and another procurement vehicle was in place to fulfill its needs, the agency cancelled the solicitation. Id.

Thus, the record shows that impetus for the cancellation of the solicitation was Evergreen's supplemental protest. As a general rule, agencies have broad discretion to take necessary steps to ensure a fair and impartial competition. Northrop Grumman Info. Tech., Inc., B-404263.6, Mar. 1, 2011, 2011 CPD ¶ 65 at 3. Moreover, an agency's decision to cancel a solicitation in response to a protest is not per se unreasonable, nor does it demonstrate that the decision to cancel was made only to avoid the resolution of a protest, as the protesters suggests. See Lasmer Indus., Inc., supra; see generally JoaQuin Mfg. Corp., B-238169.2, May 16, 1990, 90-1 CPD ¶ 474 at 4. We will not find a cancellation of a solicitation to be unreasonable solely because it was prompted by a protest. See, e.g., Information Ventures, Inc., B-297815.2, Feb. 13, 2006, 2006 CPD ¶ 40 at 2 (finding the cancellation of a solicitation reasonable where a lack of funding justified the decision to cancel, even if decision to cancel was prompted by a protest). Thus, the question is not what the agency would have done absent a protest, as Evergreen insists, but rather, after consideration of the entirety of the agency's justification for the cancellation, whether the cancellation was reasonable.

Here, in deciding to cancel the solicitation, the agency explains that it could not afford to "sit on its hands" and wait for a reevaluation before it could begin issuing task orders and deploying aircraft to meet DOI's urgent firefighting needs. MOL at 6, 9. In this respect, the agency maintains that a second reevaluation would have pushed the exclusive-use contract start date well into fire season, which would have been an "unacceptable result." Id. at 7. The agency explains that it cancelled the solicitation because it had an "immediate need" to prepare aircraft for deployment and assign agency personnel to locations spread across the country to manage the aircraft for aerial fire suppression. COS at 3. Consequently, the agency made the decision to acquire its "urgent requirements" under a different available procurement vehicle--the on-call contracts--rather than take the risk that the exclusive-use contracts would be available on time. MOL at 9.

The agency further asserts that the exclusive-use procurement is no longer beneficial to the agency. MOL at 7. In this regard, as SEAT aircraft are deployed under the on-call contracts, less funding is available for aircraft under the exclusive-use contracts, and the agency's requirements are diminished. Id. at 6, 9. Significantly, as highlighted above, the exclusive-use procurement was structured such that the contracts required that DOI issue at least one order for each of the 33 aircraft for a full 100-day period, the first of which was to begin May 20. RFP at 35, 43. According to the agency, if the contracts could not be awarded and task orders issued in time for the initial exclusive-use period, then the minimum guarantee could not be met without either creating unnecessary additional overlap between exclusive-use periods, or having the exclusive-use periods extend beyond fire season, when SEAT services are not necessary. MOL at 9; COS at 4. As a result, the agency asserts that, given the delay in the start date, it no longer had a requirement for the guaranteed minimum under the exclusive-use contracts. MOL at 6, 9; COS at 4.

On this record, we find DOI's rationale for cancelling the solicitation to be justified, reasonable, and supported by the record. Evergreen's supplemental protest identified flaws in the procurement that warranted corrective action. Without sufficient time to perform a complete reevaluation of proposals, the agency chose to begin fulfilling its fire season requirements using a different contract vehicle. By the time any reevaluation could have been completed, the agency would no longer have a need for the guaranteed minimums under the exclusive-use contracts. Thus, while the cancellation was prompted by a bid protest, the agency has established that the exclusive-use solicitation no longer reflected its needs, which is a reasonable basis to support a decision to cancel a solicitation. See Tien Walker, B-414623.2, B-414623.3, July 10, 2017, 2017 CPD ¶ ___ at 3-4 (cancellation not a pretext to avoid resolving a protest where the agency's requirements were time dependent and had changed due to the pendency of the prior protest); VIRE Consulting, Inc., B-408148.2, Nov. 26, 2013, 2013 CPD ¶ 272 at 3 (cancellation of solicitation following corrective action is reasonable where the solicitation no longer reflected the agency's needs).

The protesters disagree with the agency as to whether a reevaluation would have been time-consuming and, consequently, time-prohibited. According to Evergreen, the agency had "ample time" to perform a reevaluation and make a new award determination. Evergreen Protest, May 5, 2017, at 24. Evergreen points out that the reevaluation conducted during the agency's earlier corrective action allegedly took less than a week. Evergreen Comments, June 16, 2017, at 20. The protester also highlights other contract-related activities that the agency had undertaken following its decision to cancel the solicitation. Id. at 23.

As noted above, the agency maintains that a reevaluation would have taken a "substantial amount of time" and was not feasible especially due to the onset of fire season. COS at 5. The agency asserts that the initial reevaluation (which it represents took more than a month) was "much simpler" than the reevaluation that would have been necessitated by Evergreen's supplemental protest. MOL at 7-8. The agency further explains that because mistakes were made in the first and second evaluation, the third evaluation would likely take more time "to get things right." Id. at 8.

The agency outlines what a reevaluation would have entailed: the geographically dispersed evaluation team members would have to meet in one location and review all 15 proposals again. COS at 3. The evaluators would then reassign technical strengths and weaknesses, ensuring consistency between offers, and thoroughly document the advantages and disadvantages of proposals justifying the ratings. Id.; MOL at 8. In light of Evergreen's protest allegations, the technical experts would have to recalculate the aircraft capacity for each of the more than 60 aircraft proposed. Id. Then, the evaluation team would need to document numerous trade-off analyses. MOL at 8. The reevaluation--which would have been the third for the acquisition--would have also required additional internal reviews, including a "lengthy" legal review as well as approval from DOI's Acquisition Process Advisory Council. COS at 3. Moreover, contrary to Evergreen's position, DOI could not simply make award to Evergreen for its six aircraft, and then ignore all of the other alleged evaluation flaws. See MOL at 8.

The agency further explains that by the time it decided to cancel the solicitation, members of the evaluation team were already busy preparing for the impending fire season. MOL at 6. In this respect, participants of the evaluation team have other primary responsibilities within their own organizations (i.e., serving as pilots and air attack supervisors) and would have needed management permission to participate in a reopened source selection process. COS at 3. The agency lays out a list of "essential" firefighting-related tasks that occupied the evaluators' time in the weeks preceding fire season. MOL at 6. The agency represents that these other responsibilities and tasks, some of which required significant travel across the country and significant overtime hours, made it impracticable for the evaluation team to meet and perform a reevaluation prior to the first exclusive-use period. Id.

In light of the detailed explanation provided by the agency, we have no basis to reject DOI's assertion that it was not in the government's interest to pull the evaluators from their "critical work" to perform the reevaluation. See id. at 7. While Evergreen believes that the evaluation errors it alleged in its protest could have been easily and quickly addressed by the agency, the agency explains why this was not the case. Simply put, we find convincing the agency's explanations that once fire season was active, it was not realistic to gather the evaluation team back from their primary duties to reanalyze and reevaluate proposals.

The protesters next assert that cancellation was unnecessary because the agency could have used both the exclusive-use and on-call contract vehicles during the 2017 fire season, relying on the on-call contracts in the short-term and switching to the exclusive-use contracts when the new awards were made. Henry's Protest, May 5, 2017, at 6-7. Here, too, the agency provides a reasonable response. DOI explains that once it issues task orders for a specific firefighting effort, it becomes impracticable for the agency to transfer those requirements to a different contractor. MOL at 9. The agency points to "significant duplication of costs" stemming from the mobilization and demobilization costs of multiple contractors. Id. at 10. In addition, the active firefighting aircraft (ostensibly procured under an on-call contract) would have to be replaced with a new crew (under the exclusive-use contract) that did not possess the "specific operational knowledge and experience" of the previous crew. Id. The agency would thus have to spend effort ensuring the new aircraft crews were "up to speed" and adequately prepared to safely respond to the fires. Id.

Given these considerations, we agree with the agency that the operational disruption of changing contract vehicles mid-operation would have been significant and not in the agency's interest. Moreover, as explained above, as agency funds were expended under the on-call contracts, the agency would not be able to fulfill the minimum guarantee under the exclusive-use contracts. COS at 4. Ultimately, a protester's disagreement with the agency's judgment concerning its needs and how to best accommodate them does not demonstrate that the agency's judgment was unreasonable. SeeGallup, Inc., B-410126, Sept. 25, 2014, 2014 CPD ¶ 280 at 5. We also have previously recognized that avoiding procuring duplicative services may reasonably support a decision to cancel a solicitation. Social Impact, Inc., B-412655.3, June 29, 2016, 2016 CPD ¶ 176 at 5.

We also find unpersuasive the protesters' assertion that the agency should be required to simply make new awards under the solicitation in time for the 2018 fire season, or that cancellation was unreasonable because the agency will still need fire suppression services throughout the IDIQ contracts' 5-year periods of performance. See Henry's Comments, June 16, 2017, at 3. First, the agency explains that the minimum guarantee was established based on the agency's budget and anticipated needs for the 2017 fire season, and that it obtained funding sufficient to meet the minimum guarantee in 2017. MOL at 10. DOI represents that while it will likely want exclusive-use SEAT services in upcoming summers, it does not yet know what its budget will be. In this respect, if it were to make a new award decision (when convenient) and delay performance until the 2018 fire season, then the agency would be obligating itself to procure 33 aircraft for 100 day periods for the 2018 fire season. Id. We recognize that the contractors would prefer this compromise; however, the agency understandably asserts that this is a "materially different bargain that the Agency does not wish to undertake." Id. We see nothing improper with the agency's explanation in this regard. In addition, as the agency notes, it was under no obligation to exercise the options or issue any orders above the mandatory minimum. The fact that the contracts, with all options exercised, would have covered a 5-year period does not demonstrate that the cancellation was not justified.

Lastly, to be clear, nothing in the record supports Evergreen's assertion that the cancellation was a pretext to avoid awarding the firm a contract. On the contrary, the contracting officer notes that Evergreen is considered a "capable, qualified contractor" and that the agency "would have been happy to make award to Evergreen if such an award were deemed to be in the government's best interests." COS at 3. The contracting officer further explains that the agency has worked with Evergreen for "many years" and DOI anticipates that Evergreen will receive orders under its on-call contract this summer. Id. Absent anything in the record to support Evergreen's charge, and given that government officials are presumed to act in good faith, we find that the allegation of animus or bias is unsupported and, thus, unmeritorious. See Inalab Consulting, Inc.; Solutions by Design II, LLC, supra, at 9.

In sum, the record confirms that the agency's decision to cancel the solicitation was prompted by Evergreen's supplemental protest. Nevertheless, in light of the time-sensitive nature of the required fire suppression support services, the RFP's restrictive minimum guarantee that would prove difficult for DOI to meet (if it were to conduct a reevaluation of proposals), and the fact that another contract vehicle was available for the agency to acquire SEAT aircraft for the 2017 fire season, we find that the cancellation was reasonable based on the justifications advanced by the agency.  (Henry's Aerial Service, Inc.; Evergreen Flying Services, Inc. B-414238.7, B-414238.9: Aug 10, 2017)


In a negotiated procurement, such as this one, a contracting agency has broad discretion in deciding whether to cancel a solicitation. SupplyCore Inc., B-411015.8, May 27, 2016, 2016 CPD ¶ 153 at 3. Thus, we have consistently explained that an agency need only establish a reasonable basis to support a decision to cancel a solicitation. See e.g., AeroSage LLC, B-410648.2, B-410648.3, Mar. 20, 2015, 2015 CPD ¶ 111 at 3; SMF Sys. Tech. Corp., B-292419.3, Nov. 26, 2003, 2003 CPD ¶ 203 at 3; Miller, Davis, Marter & Opper, P.C., B-242933.2, Aug. 8, 1991, 91-2 CPD ¶ 176 at 3. A reasonable basis to cancel exists when, for example, an agency concludes that a solicitation does not accurately reflect its needs. WKF Friedman Enters., B-409892.2, Sept. 25, 2014, 2014 CPD ¶ 282 at 2. Moreover, an agency may cancel a solicitation regardless of when the information precipitating the cancellation first arises. SMF Sys. Tech. Corp., supra. This is so, even when the cancellation occurs during the pendency of a protest. See e.g., AeroSage LLC, supra; Lasmer Indus., Inc., B-400866.2 et al., Mar. 30, 2009, 2009 CPD ¶ 77 at 3.

Where, as here, a protester argues that the agency's rationale for cancellation is but a pretext--that is, that the agency's actual motivation is to avoid awarding a contract on a competitive basis or to avoid resolving a protest--we will examine the reasonableness of the agency's actions in canceling the procurement. Miller, Davis, Marter & Opper, P.C., supra, at 4. Nevertheless, the reasonableness standard applicable to cancellation of a solicitation remains unchanged. Bluehorse, B-412494, B-412494.2, Feb. 26, 2016, 2016 CPD ¶ 64 at 4-5; Lasmer Indus., Inc., supra.

The DoS explains that, as a result of Tien Walker's earlier protest to our Office, the agency was required to stay contract award and performance, in accordance with applicable procurement regulations. Memorandum of Law (MOL) at 3, citing Federal Acquisition Regulation (FAR) § 33.104(b); COS at 3. Consequently, even if Tien Walker's earlier protest had been denied, the contractor would not be able to complete the first survey wave prior to Ramadan. COS at 3. As the contracting officer further explains,

[t]he government now has to re-examine its needs, since there is no value in conducting two waves of surveys between Ramadan and the beginning of the winter season. Winter weather conditions make face-to-face fieldwork more challenging from late October and onward. The Government typically conducts each [survey] wave six months [sic] apart. If we were to conduct the waves to [sic] close together, it is unlikely that the publics' [sic] attitudes have changed dramatically in such a short span with the exception of any major events.

Id. at 4.

We find that DOS's rationale for cancelling the solicitation was not a pretext to avoid awarding a contract on a competitive basis or to avoid resolving a protest, as Tien Walker surmises. Rather, the record reflects that Tien Walker's earlier protest--and the attendant stay of contract award and performance--caused the agency's requirements to change. Specifically, due to the challenge to the solicitation, the agency was unable to make a contract award in accordance with FAR § 33.104(b). Consequently, the contractor would not be able to complete the first wave of fieldwork prior to Ramadan, and two waves of fieldwork, properly spaced apart, prior to the Afghan winter season. In sum, as the agency's public opinion survey requirements could not be achieved in the necessary timeframe, and had therefore changed, the agency had a reasonable basis to cancel its solicitation.

Tien Walker contends that the agency cannot argue that the time has passed to satisfy the requirement (thereby justifying cancellation), but simultaneously also claim a need to resolicit for the same requirement. The protester alleges that such rationales are inconsistent and conflicting ones, and cites to our decision in Walker Development & Trading Group, Inc., B-413924, Jan. 12, 2017, 2017 CPD ¶ 21, in support thereof.

In Walker Development, we found the agency failed to produce a report that coherently addressed the agency's rationale for the cancellation of the solicitation, and therefore concluded that the record did not establish that the agency had a reasonable basis for its solicitation cancellation. We find Tien Walker's reliance on our Walker Development decision to be misplaced, as the facts in the current protest are inapposite to those in the cited decision. Here, there is nothing inconsistent or conflicting about the agency's rationale for the cancellation of the solicitation. As detailed above, DoS reasonably determined that its needs for a current Afghan public opinion survey could not be achieved in the necessary timeframe and had therefore changed. The agency also simultaneously decided to conduct market research to guide its future procurements for such services.[6] The "sources sought” notice is not itself a solicitation. See AR, Tab 5, DoS Source Sought Notice, May 3, 2017, at 2 ("This is not a solicitation announcement. No contract will be awarded from this announcement. This request for capability information does not constitute a request for proposals . . . ."). Likewise, the agency's decision to plan for possible future Afghan public opinion survey requirements does not alter the fact that the present Afghan public opinion survey requirement had changed. There is simply no requirement, as the protester suggests, that the agency amend a solicitation that no longer reflects its requirements, only so as to leave it open indefinitely for possible future needs.  (Tien Walker B-414623.2, B-414623.3: Jul 10, 2017)


In April 2017, the agency responded to the various protests, submitting individual reports addressing each protester’s assertions separately. Among other things, the agency reports included the technical evaluation report, price evaluation report, and best value tradeoff analysis that the agency represented as having been the basis for the SSA’s March 6 source selection decisions.

In the protesters’ comments, a question was raised as to whether the documents supporting the agency’s source selection decisions, filed with the agency reports (AR), had been prepared or revised after the March 6 decisions were made. Our Office requested that the agency respond to the comments.

In a letter to our Office dated May 1, agency counsel disclosed that, based on her review of the agency reports, she had “discovered that the price evaluation report . . . [is] incorrect” and that “some of the information provided in the AR . . . was prepared or changed after award.” Letter from DHS to GAO, May 2017, at 1. The agency’s post‑award changes to the original price evaluation documents included the insertion of a multi-page table, as well as the creation of several memoranda regarding the price realism evaluation methodology and findings. In the May 1 letter, agency counsel further disclosed that “[a]fter award, the agency revised the Technical Evaluation Report and [the] Best Value Tradeoff Analysis.” Id. at 2. With the May 1 letter, the agency provided what it asserted was the version of these documents that existed at the time of the source selection decisions. These newly-produced documents showed that the agency’s post-award alterations resulted in substantial changes to the total number of pages in each of the altered documents.

Following the agency’s disclosures, this Office consolidated all of the protests and conducted several conference calls with counsel for the parties, expressing concern regarding the agency’s submission of altered documents, and advising the parties that GAO intended to conduct a hearing to address various matters including the agency’s preparation and submission of the altered documents.

On May 25, we issued a Hearing Notice that stated, among other things:

GAO will conduct a hearing in connection with the above-referenced protests; that hearing will begin at 9:00 a.m. on Wednesday, May 31, 2017. . . .

In addition to addressing the agency’s post-award alteration of documents, and the submission of those documents to GAO, the hearing will address the following issues: 1) the agency’s best value determinations, and the cost/technical tradeoffs on which those determinations were based; 2) the agency’s price realism evaluation; and 3) the agency’s technical evaluation.

GAO Hearing Notice, May 25, 2017, at 1-2.

On May 26, the agency advised our Office that it intended to take corrective action by terminating all of the contract awards and cancelling the procurement. Email from DHS Counsel to GAO, May 26, 2017. In its notice of corrective action, the agency discussed its post-award alterations of the record, and the impact of those actions on the integrity of the procurement, as follows:

DHS has previously acknowledged that documents had been created after award, specifically additional price realism memoranda and a memorandum detailing the methodology it used to evaluate price realism, and changed documents after award, specifically the Technical Evaluation Report (TER) and BVTA. Given the additions and the changes to documents after award, which DHS had previously submitted to [the] Government Accountability Office (GAO) as representative of the record at the time of award . . . . DHS has determined that the evaluation process and documents do not meet DHS’ standards for award.

Agency Motion to Dismiss, May 27, 2017, at 1-2.

The agency further discussed other matters--including the solicitation’s failure to accurately reflect the agency’s needs, and flaws in the agency’s evaluation and source selection process--that led to the decision to take corrective action, stating:

DHS has determined that the evaluation criteria and adjectival ratings did not permit evaluators to reasonably evaluate the offerors and assign appropriate ratings based upon the evaluation criteria. DHS has also determined that the evaluation of the offerors may have resulted in unequal treatment of offerors’ weaknesses and risks. This is partially due to the adjectival ratings that were used, but also due to the evaluation process used to evaluate and assess offerors during the technical challenge exercises. DHS has identified issues in the price evaluation report (PER) and best value tradeoff analysis (BVTA) which do not adequately support its award decisions. The methodology by which the price evaluation team evaluated price realism is not identified in the PER. Nor is it evident in the PER itself what DHS reviewed and evaluated to determine whether prices were reasonable and realistic. DHS did not require offerors to provide sufficient information to assess whether the prices proposed were realistic to perform work on task orders at the Top Secret/Sensitive Compartmented Information (TS/SCI) level or provide the necessary information to assess whether the rates proposed met the requirements of FAR 52.222-46.

Within the BVTA, DHS has determined it did not conduct a reasonable tradeoff of offerors to determine which offerors represented a best value to DHS. . . .

In addition to the above, DHS has determined that substantial modifications to the requirements would need to be made to ensure that FLASH meets DHS’ evolving mission needs. Through the process of awarding FLASH, DHS has learned more about its needs and the ways that FLASH does not meet them. The FLASH requirements, while extensive, do not include services that DHS now sees as critical components for the success of this type of vehicle. The inclusion of these additional required services would require a significant change to what information offerors would be required to provide and how DHS would evaluate offerors.

DHS has determined that cancellation of the FLASH solicitation, HSHQDC-16-R-00118, is the only viable option to address the many issues that DHS has identified as problems with the requirement and the record.

Id.

When an agency terminates a contract and cancels the underlying solicitation, the agency’s actions render a protest challenging the contract award academic. See, e.g., Ferris Optical, B-403012.2, B-403012.3, Oct. 21, 2010, 2010 CPD ¶ 265 at 2. A reasonable basis to cancel a solicitation exists when, for example, an agency determines that the solicitation does not accurately reflect its needs. MedVet Dev. LLC, B-406530, June 18, 2012, 2012 CPD ¶ 196 at 2-3.

Here, we view the agency’s termination of the contract awards and cancellation of the underlying solicitation as rendering the protests academic. Accordingly, the protests are dismissed.   (EDC Consulting, LLC; Cybermedia Technologies, Inc.; Harmonia Holdings Group, LLC; Incentive Technology Group, LLC; Brillient Corporation; Citizant, Inc.; Ventera Corporation; BC Digital Services, LLC-JV; IntegrityOne Partners B-414175.10,B-414175.11,B-414175.12,B-414175.13, B-414175.14, B-414175.15, B-414175.16, B-414175.17, B-414175.18, B-414175.19, B-414175.20, B-414175.21, B-414175.22, B-414175.23, B-414175.24, B-414175.25, B-414175.26: Jun 9, 2017)


The protester recognizes that, in a negotiated procurement, an agency may cancel an existing solicitation where it has a reasonable basis for doing so, see, e.g., Blue Rock Structures, Inc., B-400811, Jan. 23, 2009, 2009 CPD ¶ 26 at 2, but argues that in this instance the agency lacked a reasonable basis for its decision to cancel. The protester also contends that the award of a contract to Railroad Cleaners, a firm which it contends always receives these laundry contracts, “foreclosed competition.” Protest at 5.

The agency initially argued that it cancelled the solicitation because the solicitation listed a minimum amount of $1,000,000 for the IDIQ contract to be awarded, and that Walker’s quotation was under that amount. Contracting Specialist Statement (Undated/Submitted Nov. 11, 2016.) The agency’s rationale for cancelling the solicitation changed somewhat in a later filing where the agency argued that “[a]s the minimum dollar setting was $2,500,000, we would not be able to make the award to any vendor that submitted a quote under that amount as we were guaranteeing the contractor that at least $2,500,000 would be spent that year.” Agency Supp. Filing (Dec. 7, 2016), Tab 4, Contract Specialist’s Statement (undated) (emphasis omitted). There is no additional explanation regarding the reasonableness of the cancellation.

We find that the agency failed to produce an agency report that coherently addressed the agency’s rationale for the cancellation of the solicitation. Rather, as stated above, the agency submitted undated statements from its contract specialist that provided conflicting rationales for the cancellation. Contracting Specialist Statement (Undated/Submitted Nov. 11, 2016; Agency Supp. Filing (Dec. 7, 2016), Tab 4, Contract Specialist’s Statement (undated). In addition, documentation provided by the agency does not indicate that the guaranteed minimum was $2,500,000.

Our Office afforded the agency numerous opportunities to provide its rationale for the cancellation, of which the agency failed to avail itself. In the absence of an adequate agency record to support its actions, and in the absence of any reasonable explanation for its actions, we are left with no option but to make an adverse inference in this matter. See Superlative Technologies, Inc., B-310489.4, June 3, 2008, 2008 CPD ¶ 123 at 12; see Myers Investigative and Security Services, Inc., B-287949.2, July 27, 2001, 2001 CPD ¶ 129 at 2. We therefore conclude that the record here does not establish that the agency had a reasonable basis for the cancellation of the solicitation and sustain the protest.

Regarding the alleged award of a contract to Railroad Cleaners, it appears that the agency was using FAR clause 52.217-8 to extend the performance period of a previously awarded contract. In essence, Walker is challenging the agency’s decision to extend Railroad Cleaners’ contract rather than issue a competitive solicitation, an agency decision which is appropriate for our review. Test Systems Associates, Inc., B-244007.6, March 29, 1993, 93-1 CPD ¶ 274 at 5. In this regard, the agency never addressed our concern that the solicitation number for the cancelled solicitation, and the solicitation number for the contract awarded to Railroad Cleaners, were identical. To date, the agency has provided no information regarding the contract with Railroad Cleaners, leaving the record unclear about what the agency did, or why. Therefore, we also sustain this basis of protest.

We sustain this protest because the record fails to demonstrate that the agency had a reasonable basis for cancelling the solicitation or for extending the period of performance for the contract of Railroad Cleaners. We recommend, if feasible, re‑instating the solicitation, recognizing that the agency may need to amend the solicitation in order to address concerns about the intended value of the anticipated contract. We further recommend that the agency terminate Railroad Cleaners’ contract once the new award has been made. We also recommend that Walker be reimbursed the reasonable costs of filing and pursuing the protest. 4 C.F.R. § 21.8(d)(1). The protester’s certified claim for costs, detailing the time spent and the costs incurred, must be submitted to the agency within 60 days after receipt of this decision. 4 C.F.R. § 21.8(f). (Walker Development & Trading Group, Inc. B-413924: Jan 12, 2017)


With regard to Medfinity’s challenge to the cancellation decision, our Office has held that a contracting agency need only establish a reasonable basis to support a decision to cancel an RFQ. Inalab Consulting, Inc.; Solutions by Design II, LLC, B‑413044 et al., Aug. 4, 2016, 2016 CPD ¶ 195 at 9. A reasonable basis to cancel exists when, for example, an agency determines that a solicitation has been drafted without sufficiently detailed evaluation criteria to permit a fair and equal evaluation of all quotations. See Kingdomware Techs., B-407389, Dec. 4, 2012, 2012 CPD ¶ 348 at 3; Progressive Servs. Corp., B-404183, B-404251.2, Jan. 11, 2011, 2011 CPD ¶ 18 at 3.

Where, as here, a protester alleges that the agency’s rationale for cancellation is a pretext, that is, that the agency’s actual motivation is to avoid awarding a contract on a competitive basis or to avoid deciding a protest on the merits, we will closely examine the reasonableness of the agency’s actions in canceling the acquisition. VIRE Consulting, Inc., B-408148.2, Nov. 26, 2013, 2013 CPD ¶ 272 at 3. Notwithstanding such closer scrutiny, however, and even if it can be shown that personal animus or pretext may have supplied at least part of the motivation to cancel the procurement, the reasonableness standard applicable to the cancellation of a solicitation remains unchanged. Lasmer Indus., Inc., B-400866.2 et al., Mar. 30, 2009, 2009 CPD ¶ 77 at 3.

Here, we find that HHS had a reasonable basis to cancel the solicitation in light of the RFQ’s failure to include detailed specifications that reflected the agency’s needs. Under FAR § 11.104, solicitations that are conducted on a brand-name-or-equal basis must include, in addition to the brand name, a “general description of those salient physical, functional, or performance characteristics of the brand name item that an ‘equal’ item must meet to be acceptable for award.” The RFQ at issue here, however, did not list salient characteristics for three out of the four equipment items being solicited and instead merely provided the brand name. See AR, Tab 4, RFQ Salient Characteristics. Additionally, with respect to the fourth item, the OCT system, the agency explained that the salient characteristics listed had simply been copied from a website without any consideration as to whether such characteristics reflected the agency’s needs. Memorandum of Law (MOL) at 7. Mirroring the lack of detail in the solicitation, the agency’s technical evaluation included no analysis of whether Medfinity’s proposed solution met the salient characteristics provided for in the RFQ. See AR, Tab 9, Medfinity Technical Evaluation. In reviewing this record following PROAIM’s protest, HHS determined that it needed to terminate Medfinity’s contract for convenience, “pending the development of salient and essential physical characteristics . . . in order to effectively develop a requirements package that adequately represents the Government’s need while also allowing for adequate competition.” AR, Tab 14, CO Agency-Level Protest Determination; Tab 15, Chief of Contracting Agency-Level Protest Determination.

Notwithstanding this stated rationale, Medfinity contends that the agency’s real reason for canceling the solicitation was to avoid having to award the contract on a competitive basis. In this regard, Medfinity points to an email sent by the contract specialist, which states that HHS would be using ECAT, a governmentwide acquisition contract, while HHS redefines its requirements. Comments at 1. Medfinity asserts that this establishes that the agency has no intention of resoliciting the requirement. Id.

We disagree with the protester’s contention that the contract specialist’s statement establishes that the agency’s real reason for canceling the solicitation was to avoid awarding a contract on a competitive basis. As discussed above, the evaluation record evidences that the salient characteristics for each equipment item were either missing or did not reflect the agency’s needs. In light of this, HHS was not able to use the existing RFQ to evaluate vendors in a fair or equal manner in order to meet its needs.

Accordingly, we cannot conclude that the decision to cancel the solicitation was unreasonable or was made on the basis of pretext.  (Medfinity LLC B-413450: Sep 9, 2016)


Inalab challenges the agency’s decision to cancel the procurement. The protester contends that the agency’s rationale for cancelling the RFP is a pretext to avoid resolution of the protest. Inalab also alleges that the cancellation is unreasonable because DOI has failed to demonstrate that in-house performance would result in cost savings and efficiencies as compared with award under the solicitation. Based upon our review of the record, we find that the agency’s cancellation was not unreasonable.

As a general rule, our Office does not review agency decisions to cancel procurements and instead perform the work in-house, since such decisions are a matter of executive branch policy. Mastery Learning Sys., B-258277.2, Jan. 27, 1995, 95-1 CPD ¶ 54 at 2. However, where, as here, a protester argues that the agency’s rationale for cancellation is but a pretext--that the agency’s actual motivation is to avoid awarding a contract on a competitive basis or to avoid resolving a protest--we will closely examine the reasonableness of the agency’s actions in cancelling the procurement. SMF Sys. Tech. Corp., B‑292419.3, Nov. 26, 2003, 2003 CPD ¶ 203; Griffin Servs. Inc., B-237268.2 et al., June 14, 1990, 90-1 CPD ¶ 558 at 3, recon. denied, General Servs. Admin.--Recon., B-237268.3 et al., Nov. 7, 1990, 90‑2 CPD ¶ 369 at 2.

Here, the agency states that, during the pendency of the protest, it determined that it could perform the requirement with government employees. In this respect, the agency explained that:

On or around May 11, 2016, FMD learned that a current GS-14 leveI employee had significant recent OBIEE experience gained from his duties at his former place of employment [. . . ].

On or around May 18, 2016,[6] FMD learned that consulting-type services from Oracle are available under previously-purchased [. . . ] software licenses. Through these available services, Oracle will provide advice regarding the best use and configuration of the licensed software within the FMD environment at no additional cost.

Once the in-house expertise and existing support from Oracle was discovered, FMD began exploring the potential benefits to performing the required need exclusively with in-house resources.

On or about May 23, 2016, the Agency preliminarily determined that existing resources could, in fact, be leveraged by utilizing the aforementioned GS-14 level employee full time, an existing GS-13 level employee full time, an existing GS-14 level employee part time and an existing GS-15 level employee as needed. In addition to the existing employees, FMD plans to hire one GS-15 level employee.

The existing government staff has been valued at $208,772 per year and the planned additional staff member is estimated to cost $143,009 per year.

The government estimate for the initially planned contracted effort as $821,066.22 which suggests that the government will save $469,285.80 by performing the work in-house instead of obtaining contractor support.

* * * * *

Leveraging the services available under the previously purchased Oracle licenses also allows FMD to eliminate some degree of waste by fully utilizing an existing resource that has already been paid for.

Third Req. for Dismissal, attach. 1, Decl. of Procurement Division Chief, June 10, 2016, ¶¶ 4-11.

Inalab challenges the underlying basis of the agency’s cancellation, asserting that DOI unreasonably concluded that in-house performance would result in a cost savings. Specifically, the protester questions “DOl’s last minute discovery of the purported capability to accomplish the required work using [a]gency resources,” asserting that “DOl has not shown that the cancellation would lead to cost savings, as it now claims, or that it will be able to accomplish the work.” Inalab Resp. to Third Req. for Dismissal, June 20, 2016, at 3.

The record shows that, in response to the protest, the agency began an internal inquiry for an alternate method of accomplishing the work. That inquiry led to the conclusion that the agency could accomplish at least some of the work through “consulting type services from Oracle [that] are available under previously-purchased OBIEE software licenses.” Third Req. for Dismissal, attach. 1, Decl. of Procurement Division Chief, June 10, 2016, ¶ 5.

A contracting agency need only establish a reasonable basis to support a decision to cancel an RFQ. Surgi-Textile, B-289370, Feb. 7, 2002, 2002 CPD ¶ 38 at 2. A reasonable basis to cancel exists when, for example, an agency determines that a solicitation does not accurately reflect its needs. Deva & Assocs. PC, B-309972.3, Apr. 29, 2008, 2008 CPD ¶ 89 at 3. Here, the agency has determined that at least some of the effort currently encompassed by the solicitation can be accomplished at no additional cost to the agency; this is sufficient for us to conclude that the agency’s cancellation of the solicitation is reasonable.

In any event, to the extent the protester argues that the newly-discovered in-house capability constitutes a new basis for cancelling the solicitation that was not identified until after the solicitation had been cancelled, our Office has held that a new or additional rationale justifying the cancellation of a solicitation provided by an agency during the development of a protest is acceptable so long as it would have supported cancellation had it been advanced originally. See Peterson-Nunez Joint Venture, B‑258788, Feb. 13, 1995, 95-1 CPD ¶ 73 at 5. In this regard, an agency may properly cancel a solicitation no matter when the information supporting the cancellation first surfaces or should have been known, even if the solicitation is not cancelled until after proposals have been submitted and evaluated, or even if discovered during the course of a protest. SEI Grp., Inc., B-299108, Feb. 6, 2007, 2007 CPD ¶ 35 at 3.

Our conclusion is not changed by Inalab’s assertion that the agency’s proffered rationales for cancellation are merely a pretext to avoid scrutiny of the agency’s actions. Government officials are presumed to act in good faith and, where a protester contends that contracting officials are motivated by bad faith, it must provide convincing proof; our Office will not attribute unfair or prejudicial motives to procurement officials on the basis of inference and supposition. Logistics Sols. Grp., Inc., supra, at 4; American Artisan Prods., Inc., B-292559, B-292559.2, Oct. 7, 2003, 2003 CPD ¶ 176 at 9. Although the agency did not discover its in-house capabilities until after the procurement was protested, the record does not provide convincing proof that that the agency acted in bad faith.

The protester claims that “the anticipated cost savings are illusory” and that the agency has underestimated the manpower required to perform the work in-house. Inalab Opp’n to Third Req. for Dismissal, at 5. While we agree that the agency’s savings estimate for personnel expenses may not account for all of the relevant costs, any calculation error does not diminish the fact that DOI has also identified a separate source of cost savings in the use of existing Oracle services. In sum, we find no basis to question the agency’s conclusion that in-house performance would result in some cost savings or provide other benefits. Accordingly, we find that the agency’s cancellation was reasonable. See Mastery Learning Sys., supra, at 3 (cancellation of the solicitation in order to perform the work in-house was not objectionable where the agency articulated a reasonable basis for its decision)  (Inalab Consulting, Inc.; Solutions by Design II, LLC B-413044, B-413044.2, B-413044.3: Aug 4, 2016)


In a negotiated procurement, such as this one, a contracting agency has broad discretion in deciding whether to cancel a solicitation, and need only establish a reasonable basis for doing so. KNAPP Logistics Automation, Inc.--Protest & Costs, B-404887.2, B-404887.3, July 27, 2011, 2011 CPD ¶ 141 at 3. A reasonable basis to cancel exists when, for example, an agency determines that a solicitation does not accurately reflect its needs. Zegler, LLC, B-410877, B‑410983, Mar. 4, 2015, 2015 CPD ¶ 168 at 3; Applied Resources, Inc., B‑400144.7, B‑400144.8, July 31, 2009, 2009 CPD ¶ 161 at 2. An agency properly may cancel a solicitation no matter when the information precipitating the cancellation first arises, even if it is not until offers have been submitted and evaluated. MetroStar Sys., Inc., B-408870.3, Sept. 5, 2014, 2014 CPD ¶ 268 at 4.

Where, as here, a protester alleges that the agency’s rationale for cancellation is a pretext, that is, that the agency’s actual motivation is to avoid awarding a contract on a competitive basis, we will closely examine the reasonableness of the agency’s actions in canceling the acquisition. VIRE Consulting, Inc., B-408148.2, Nov. 26, 2013, 2013 CPD ¶ 272 at 3. Notwithstanding such closer scrutiny, however, the reasonableness standard applicable to the cancellation of a solicitation remains unchanged. Id.; Lasmer Indus., Inc., B-400866.2 et al., Mar. 30, 2009, 2009 CPD ¶ 77 at 3. We find that the record reasonably supports the agency’s decision to cancel the RFP because it no longer accurately reflected the customer’s needs.  (SupplyCore Inc. B-411015.8: May 27, 2016)  (pdf)


Sealift asserts that the agency’s corrective action is overly broad and unreasonable given the prior protest allegations. In this regard, Sealift maintains that the agency’s corrective action fails to address the mishandling of the small business tiered evaluation under the original solicitation. The agency argues that its choice of corrective action (i.e., cancelling and reissuing the solicitation) was reasonable in light of its reason for taking corrective action (i.e., that the RFP was ambiguous about how the tiered evaluation of proposals would be performed).

As a general rule, agencies have broad discretion to take corrective action where the agency has determined that such action is necessary to ensure fair and impartial competition. MSC Indus. Direct Co., Inc., B-411533.2, B-411533.4, Oct. 9, 2015, 2015 CPD ¶ 316 at 5; Bannum Inc.--Protest and Recon., B-411074.2, B-411074.3, June 12, 2015, 2015 CPD ¶ 231 at 3. The details of implementing the corrective action are within the sound discretion and judgment of the contracting agency, and we will not object to any particular corrective action, so long as it is appropriate to remedy the concern that caused the agency to take corrective action. DGC Int’l, B-410364.2, Nov. 26, 2014, 2014 CPD ¶ 343 at 3; Northrop Grumman Info. Tech., Inc., B-404263.6, Mar. 1, 2011 2011 CPD ¶ 65 at 3.

Moreover, our review is generally limited to whether the agency’s corrective action is appropriate to remedy the flaw which the agency believes exists in its procurement process, see Onésimus Def., LLC, B-411123.3, B-411123.4, July 24, 2015, 2015 CPD ¶ 224 at 5--not whether the agency’s corrective action remedies the flaws alleged in an earlier protest where no decision on the merits was issued by our Office. Where an agency discovers that a solicitation is vague or ambiguous as to how the procurement will be conducted, a proper remedy is the cancellation and reissuance of the solicitation. See id.; FCS Const. Servs., Inc., B-283726.2, Jan. 3, 2000, 99-2 CPD ¶ 115 at 4; SMS Data Products Group, Inc., B-280970.4, Jan. 29, 1999, 99-1 CPD ¶ 26 at 3. Further, we have recognized that the possibility that a contract may not have been awarded based on a fair determination of the most advantageous proposal has a more harmful effect on the integrity of the competitive procurement system than does the possibility that the original awardee will be at a disadvantage in a reopened procurement because its price has been exposed. Northrop Grumman Info. Tech., Inc., supra.

On the record here, we see no basis to object to the agency’s corrective action. As a preliminary matter, as set forth above, our Office never determined the merits of Sealift’s earlier protest. Thus, our review here is limited to whether the Navy’s choice of corrective action is appropriate to remedy the flaw which the agency believes exists in the procurement process. Further, as Sealift was not the original awardee for this procurement and its price was not exposed, Sealift is not at a competitive disadvantage in the reopened procurement.

The agency explains how it determined that the RFP was ambiguous as to the tiered evaluation. In this regard, the agency intended that the tiered evaluation would only be conducted based on the initial proposals. Consequently, the agency did not relook its unrestricted competition decision after receipt of FPRs, even though there existed two or more small business proposals that were technically acceptable, and competitive in terms of price, quality, and delivery. The solicitation, however, was silent as to when and how the agency would conduct its tiered evaluation of offers. Having found that the procedures set forth in the RFP for making the tiered evaluation decision were ambiguous, the contracting officer determined that the solicitation required correction. In light of the passage of time--the RFP was issued in January 22, 2015, with a closing date of March 13--the contracting officer determined that the appropriate remedy was cancelling and reissuing rather than amending the earlier solicitation. Under the circumstances, we conclude that the agency reasonably determined that it should cancel the RFP and resolicit after clarifying its tiered evaluation process. In sum, although Sealift would undoubtedly prefer the Navy make award to it (as the highest rated, small business concern), or amend the prior solicitation and restrict competition to the initial offerors, we find Sealift’s disagreement with the agency’s rationale for cancelling and reissuing the solicitation does not provide a basis on which to sustain the protest.

The protest is denied.  (Sealift, Inc. B-412041.2: Dec 30, 2015)  (pdf)


The protester contends that the agency’s decision to cancel the RFQ was unreasonable. Relying on information presented in its debriefing, the protester claims that the agency miscalculated the dollar value of its prior contracts which led to the agency’s determination that it lacked sufficient experience to perform the solicited RFQ requirements. Precise Management also challenges the agency’s finding that its proposed price was unreasonably high.

A contracting agency need only establish a reasonable basis to support a decision to cancel an RFQ. Surgi-Textile, B-289370, Feb. 7, 2002, 2002 CPD ¶ 38 at 2; A-Tek, Inc., B-286967, Mar. 22, 2001, 2001 CPD ¶ 57 at 2-3. A reasonable basis for cancellation exists and cancellation is appropriate when none of the proposals received were evaluated as technically acceptable. See Knight’s Armament Co., B-299469, Apr. 7, 2007, 2007 CPD ¶ 85 at 3. Additionally, if an agency cannot purchase at a “fair and reasonable” price, as required by the Federal Acquisition Regulation (FAR), then cancellation is warranted. Bahan Dennis Inc., B-249496.3, Mar. 3, 1994, 94-1 CPD ¶ 184 at 3; see FAR §§ 13.106-3, 15.402 (price must be “fair and reasonable”). A determination of price reasonableness is a matter of agency discretion, involving the exercise of business judgment, which our Office will not question unless it is shown to be unreasonable. Selecta Corp., B‑252182, May 26, 1993, 93-1 CPD ¶ 421 at 2; Sletager, Inc., B-240789.6, Oct. 11, 1991, 91-2 CPD ¶ 328 at 2. In determining price reasonableness, an agency may consider a number of factors, including prior contract history and the government estimate. Vitronics, Inc., B-237249, Jan. 16, 1990, 90-1 CPD ¶ 57 at 2; see FAR §§ 13.106-3, 15.404-1(b). In this regard, we have found cancellations proper where the protester’s price exceeded the government estimate by as little as 7.2 percent. Nutech Laundry & Textiles, Inc., B‑291739, Feb. 10, 2003, 2003 CPD ¶ 34 at 4 (citing Building Maint. Specialists, Inc., B‑186441, Sept. 10, 1976, 76-2 CPD ¶ 233 at 4).

We find the cancellation here was reasonable. As discussed above, none of the proposals received were technically acceptable and therefore all were ineligible for award. We recognize that Precise Management generally disagrees with the evaluation of its proposal under the technical experience subfactor, nonetheless, we need not resolve this issue since the record reflects that the agency also found the proposed prices unreasonable.

Although the protester challenges the agency’s determination that its proposed price was unreasonably high, we have no basis to find the agency’s evaluation in this regard unreasonable. Precise Management essentially argues that its price could not have been unreasonable since it was lower than the incumbent’s price for pest control services at Fort Jackson, information which the protester obtained through a Freedom of Information Act request. Protest at 3, Protester’s Comments at 1-2.

The record, however, reflects that the protester’s comparison to the prior contract’s pricing is misplaced. The agency explains, and the protester does not dispute, that the incumbent contract was an indefinite‑delivery/indefinite-quantity (ID/IQ) contract with 24 different contract line items whereas the cancelled solicitation has only three fixed-price line items. In addition, the agency notes that the price cited by the protester for the incumbent contract reflected the IDIQ contract’s maximum dollar value; it did not represent the actual contract expenditures. According to the agency, many of the contract line items under the incumbent contract had maximum dollar values that were never utilized. Contracting Officer’s Statement at 4.

As previously explained, the agency compared the protester’s proposed prices to the government estimate and the current bridge contract pricing, i.e., current market climate, to determine the reasonableness of Precise Management’s proposed prices. According to the agency, the pricing under the bridge contract provided the best basis for determining price reasonableness since the bridge contract’s pricing structure was the same as the cancelled solicitation’s pricing structure and reflected the most recent historical prices for the same or similar services. Contracting Officer’s Statement at 2, 4. Given that the protester’s prices exceeded the most current bridge contract prices by a significant amount, we have no basis to conclude that the agency acted unreasonably when it concluded that the protester’s offered price was unreasonably high. See A. Hirsh, Inc., B-271829, July 26, 1996, 96-2 CPD ¶ 55 at 2.  (Precise Management, LLC B-411708: Oct 5, 2015)  (pdf)


Integirty argues that the VA’s cancellation was improper because it was in response to two untimely agency-level protests. The protester also contends that the agency‑level protests lacked merit because to the extent there were any questions regarding the square footage of the area to be cleaned under this RFQ, they were addressed in the Questions & Answers. Protester’s Comments (July 9, 2015) at 3. For the reasons discussed below, we find no basis to sustain the protest.

As a general rule, in a negotiated procurement the contracting agency need only demonstrate a reasonable basis to cancel a solicitation after receipt of proposals, as opposed to the “compelling reason” required to cancel an IFB after bids have been opened. See FAR § 14.404-1(a)(1); VIRE Consulting, Inc., B-408148.2, Nov. 26, 2013, 2013 CPD ¶ 272 at 3; CFM Equip. Co.--Recon., B‑251344.2, Aug. 30, 1993, 93-2 CPD ¶ 134 at 3. The standards differ because, in procurements using sealed bids, competitive positions are exposed as a result of the public opening of bids, while in negotiated procurements there is no public opening. CFM Equip. Co.--Recon., supra. Additionally, our Office has stated that cancellation of a solicitation other than an IFB is proper, even after one or more of the offerors’ prices have been revealed, where the agency has a reasonable basis to cancel, and the record contains plausible evidence or a reasonable possibility that a decision not to cancel the solicitation would be prejudicial to the government or the integrity of the procurement system. See Noelke GmbH, B-278324.2, Feb. 9, 1998, 98-1 CPD ¶ 46 at 3-4.

Here, we find that the VA had a reasonable basis to cancel the RFQ. The record shows that the agency is considering whether the cleaning and janitorial services required under the soliciation should have be procured from an AbilityOne vendor. Supp. Contracting Officer Statement at 1. Although it is not clear whether this rationale was part of the agency’s initial decision to cancel the soliciation, our Office has held that a new or additional rationale justifying the cancellation of a solicitation provided by an agency during the development of a protest is reasonable so long as it would have supported cancellation had it been advanced originally. TaxSlayer, LLC, B‑411101, May 8, 2015, 2015 CPD ¶ 156 at 9.

Additionally, the contracting officer states that the cancellation of the RFQ was reasonable because vendors were mislead by inaccurate information in the solicitation regarding the square footage required to be cleaned by the vendor. Supp. Contracting Officer Statement at 1. As stated above, the RFQ listed the square footage in “gross” terms, instead of “net.” The contracting officer states that the required square footage should have been listed in “net” terms in order for the vendors to accurately quote the requirements. Supp. Contracting Officer Statement at 1. Contrary to the protester’s contention, the contracting officer notes that this issue was not resolved by the site visit, as the vendors were not “shown the complete areas of the requirement.” Id.

Finally, to the extent that the protester contends that the agency’s action in cancelling the soliclitation was unreasonable because it was responding to untimely agency-level protests, our Office has consistently held that agencies may take corrective action in response to issues that were not raised in a protest, or in response to untimely protest issues, even if that is not until after proposals are submitted and the protester has incurred costs. See Optimum Mgmt. Sys., LLC, B‑299322.2, May 23, 2007, 2007 CPD ¶ 106 at 3; Jones Lang LaSalle Americas, Inc., B-406019.2, Feb. 14, 2012, 2012 CPD ¶ 98 at 4; Admiral Towing & Barge Co., B-245600, B‑245602, Jan. 16, 1992, 92-1 CPD ¶ 83 at 6. Here, we note that the record contains evidence that the integrity of the procurement system would be prejudiced if the RFQ were not cancelled. The agency has stated that “[i]f the solicitation had not been cancelled, the unfair environment would have tainted the integrity of the procurement and the VA would not have contracted for the services needed.” Supp. Contracting Officer Statement at 1.  (Integrity National Corporation B-411582: Sep 1, 2015)  (pdf)


TaxSlayer argues that the IRS’s stated rationale for canceling the RFP--that the agency “was unable to reach a proper source selection decision based on the solicitation provisions addressing software evaluation”--was unreasonable because it fails to explain how the RFP prevented the IRS from making a proper award decision, or how the RFP was otherwise flawed. Specifically, the protester contends that the cancellation decision was based solely on the agency’s inability to reach a proper source selection, which the protester asserts, did not stem from any RFP defect, and therefore, should have been resolved by a new evaluation. For the reasons discussed below, we conclude that the agency’s decision to cancel the solicitation was reasonable.

In a negotiated procurement such as this one, the contracting agency has broad discretion in deciding whether to cancel a solicitation and need only have a reasonable basis for doing so. A-Tek, Inc., B-286967, Mar. 22, 2001, 2001 CPD ¶ 57 at 2. A reasonable basis to cancel exists when, for example, an agency determines that a solicitation does not accurately reflect its needs. MedVet Dev. LLC, B-406530, June 18, 2012, 2012 CPD ¶ 196 at 2-3. A reasonable basis also exists when an agency determines it needs to revise evaluation standards in order to ensure a fair and equal competition. Progressive Servs. Corp., B-404183, B‑404251.2, Jan. 11, 2011, 2011 CPD ¶ 18 at 2. In addition, the prospect of increased competition (and the lower prices which often result) generally provides a reasonable basis for an agency to cancel a solicitation. Id. So long as there is a reasonable basis for doing so, an agency may cancel a solicitation no matter when the information precipitating the cancellation first arises, even if it is not until offers have been submitted and evaluated. A-Tek, Inc., supra at 2-3. Where the record reflects that there was a reasonable basis to cancel the solicitation, we will not find that the agency abused its discretion, even though it could have taken a different course by amending the solicitation. See Skyline ULTD, Inc., B-408961, Dec. 27, 2013, 2013 CPD ¶ 298 at 2.

TaxSlayer argues that the testimony provided by the contracting officer and TEP chair support the protester’s position that the agency’s asserted basis for canceling the RFP concerned evaluation issues, rather than a defect with the RFP. While the protester is correct that the contracting officer and TEP chair testified regarding the agency’s evaluation problems, the contracting officer and TEP chair, however, also testified that the RFP’s requirements and software evaluation criteria did not reflect the agency’s needs. Tr. at 60:1-6; 109:8‑12; 157:3-20; 158:8‑12.

As discussed above, the RFP stated that the agency would evaluate a vendor’s software to identify that the functionality and ease of use of the software are in accordance with the PWS’s software, operation, regulatory and security requirements, and that, based on this evaluation, the vendor’s software would be rated as: fully meets, mostly meets, partially meets, or does not meet. RFP at 85. As also discussed above, the contracting officer found that the agency’s initial usability testing failed to comply with the RFP’s requirements because it did not include consideration of whether the ease of use of the offerors’ software was in accordance with the PWS’s software, operation, regulatory and security requirements, and it did not rate the offerors’ software using the adjectival ratings contained in the RFP. See AR, Tab E.5, Email from CO to TEP Chair (Sept. 29, 2014), at 3.

The record also reflects that the contracting officer also expressed concerns regarding the validity of the agency’s subsequent evaluation of the ease of use of the offerors’ software, using the technical evaluation tool, even though the contracting officer believed that the evaluation tool complied with the evaluation requirements in the RFP. AR, Tab D-2i, Email from CO (Nov. 21, 2014), at 1. Specifically, in a statement submitted in response to the protest, the contracting officer explains, as relevant here, that after receiving the revised software evaluation results from the TEP, he remained concerned about “inconsistencies in the ratings of evaluations, and potential solutions for obtaining the requisite usability testing that complied with the terms of the solicitation.” CO Statement at 6.

In this regard, as explained during testimony provided by the contracting officer, the RFP failed to provide for a meaningful evaluation of usability. See Tr. at 166:19‑167:3; 173:19-174:5; 158:8-12. Specifically, the contracting officer and TEP chair testified that, while the RFP required the agency to evaluate whether the functionality and ease of use of the software are in accordance with the PWS’s software, operation, regulatory, and security requirements, the PWS requirements focused only on the functional capabilities of the software, and failed to capture the agency’s needs regarding ease of use. Tr. at 60:1-6; 109:8-12; 157:3-20; 158:8‑12. In this regard, the contracting officer and TEP chair explained that the agency’s ease of use needs with regard to the VITA program include, for example, whether a particular vendor’s software is easy to navigate or permits testers to transition between screens. Tr. at 109:8‑12; 156:16‑21. They also testified regarding the importance of the software’s ease of use to the VITA program in light of the program’s reliance on volunteers. Tr. at 109:8‑16; 159:21-160:4.

In addition, the agency’s deputy director, Office of Information Technology Acquisitions, who supervised the contracting officer for this procurement, testified during the hearing regarding the agency’s decision to cancel the solicitation. Specifically, the deputy director discussed the agency’s concerns regarding its inability to evaluate the usability of the software, stating that “[u]sability . . . is a matter of time and quality for completion of tax returns,” Tr. at 304:16‑20, and “was not addressed by our solicitation or evaluation factors.” Id. He explained that, “as written, we did not know that the solicitation and resulting contract would meet the IRS’s needs,” Tr. at 276:8‑10, and that the agency considered this to be a “material flaw in [the] solicitation.” Tr. at 306:5-12. To the extent the protester disagrees with the agency’s judgment concerning its needs and how best to accommodate them, such disagreement does not demonstrate that the agency’s judgment was unreasonable. See URS Fed. Support Servs., Inc., B‑407573, Jan. 14, 2013, 2013 CPD ¶ 31 at 4 (contracting agencies have broad discretion to determine their needs and the best way to meet them). Accordingly, based on this record, we find the protester’s argument is not supported by the record.

(sections deleted)

The record here supports the IRS’s contention that the RFP’s requirements and software evaluation criteria were not adequately structured to provide the agency with a meaningful basis to evaluate the ease of use of the software as necessary for the VITA program. We therefore conclude that the agency reasonably determined that the solicitation did not reflect the agency’s needs. In addition, the record indicates that the agency believed that revising the RFP and PWS may lead to increased competition, which is supported by the fact, as discussed above, that three of the five proposals originally received by the agency were deemed non‑responsive and excluded from the competition. CO Statement at 3-4. Under these circumstances, we find that the agency’s determination to cancel the solicitation was reasonable. See Global Solutions Network, Inc., B‑289342.4, Mar. 26, 2002, 2002 CPD ¶ 64 at 3 (where a solicitation no longer accurately reflects an agency’s requirements, and resolicitation could result in increased competition, cancellation of the solicitation is appropriate).

In sum, we find no basis to object to the agency’s cancellation of the RFP.  (TaxSlayer LLC B-411101: May 8, 2015)  (pdf)


CUI asserts that the cancellation of the RFP was a pretext to avoid making award to it, the only offeror. According to CUI, the Army had developed a “scheme” to disqualify competitors so that award could be made to another vendor. Protest at 2. The protester further asserts that “the only reason the solicitation was cancelled” was because its proposal was unreasonably evaluated. Id.

A procuring agency has broad authority to cancel an RFP and needs only a reasonable basis to do so. Trade Links Gen. Trading & Contracting, WLL, B‑405182, Sept. 1, 2011, 2011 CPD ¶ 165 at 2. The prospect of increased competition (and the lower prices which often result) generally provides a reasonable basis for an agency to cancel a solicitation. See, e.g., A-Tek, Inc., B‑286967, Mar. 22, 2001, 2001 CPD ¶ 57 at 2-3. A reasonable basis to cancel also exists when an agency determines that a solicitation does not accurately reflect its needs. See, e.g., Gordon & Soraya Diase Coffelt, B-408025, May 30, 2013, 2013 CPD ¶ 137 at 2-3; MedVet Dev. LLC, B-406530, June 18, 2012, 2012 CPD ¶ 196 at 2-3. Further, as long as there is a reasonable basis for doing so, an agency may cancel a solicitation no matter when the information precipitating the cancellation first arises, even if it is not until offers have been submitted and evaluated. Id. Where the record reflects that there was a reasonable basis to cancel the solicitation, we will not find that the agency abused its discretion, even though it could have taken a different course by amending the solicitation. See Skyline ULTD, Inc., B-408961, Dec. 27, 2013, 2013 CPD ¶ 298 at 2.

Where, as here, a protester has alleged that an agency’s rationale for cancellation is pretextual, that is, the agency’s actual motivation is to avoid awarding a contract on a competitive basis or to avoid resolving a protest, we will closely examine the basis for the agency’s actions. Superlative Techs., Inc., B-310489, B-310489.2, Jan. 4, 2008, 2008 CPD ¶ 12 at 7. Notwithstanding such scrutiny, however, the reasonableness standard applicable to cancellation of a solicitation remains unchanged. e-Management Consultants, Inc.; Centech Grp., Inc., supra, at 5.

Here, the contracting officer advises that she determined that “the solicitation was in fact too restrictive and it was in the public’s interest for this solicitation to be cancelled and the requirement to be re-solicited with a revised performance work statement.” COS at 2. In this regard, the contracting officer refers to a teleconference on October 30, after the closing date, in which the contracting officer, contract specialist, and agency program officials participated. COS at 2; see Agency Report (AR), Exh. 5, Teleconference Notes. The contemporaneous record indicates that the following points were made during the teleconference:

No award can be made based on the results of the solicitation.

Solicitation could receive more response if $8 million experience threshold lowered.

Phase-in period established on the PWS [Performance Work Statement] would assist new contractor in taking on new consolidated requirement.

Inclusion of workload data could assist offerors in contract pricing.

Number of years of experience for the various positions was excessive.

Id. Accordingly, a recommendation was made during the teleconference to cancel the RFP and reissue it with a revised PWS. Id.

We conclude that the Army’s decision to cancel the RFP was reasonable. As noted, the possibility of increased competition generally provides a reasonable basis for an agency to cancel a solicitation. See, e.g., A-Tek, Inc., supra, at 2-3. Here, the record indicates that the agency concluded that revision of certain solicitation requirements could lead to increased competition. COS at 2; Teleconference Notes, at 2. In particular, the record indicates that the Army recognized that some RFP requirements may have been “excessive,” and believed that lesser corporate and personnel experience requirements, the inclusion of a phase-in period, and furnishing workload data, may lead to increased competition beyond the single offer received under the current solicitation. Id. While the protester asserts that the cancellation was pretextual and was part of a scheme to steer the award of this requirement to a favored vendor, the fact that only a single proposal was received supports the agency concern that the solicitation may have been unduly restrictive of competition. Additionally, despite the protester’s claim, there is no convincing evidence that cancellation was motivated by bad faith, rather than concern with the extent of competition. See Career Innovations, LLC, B‑404377.4, May 24, 2011, 2011 CPD ¶ 111 at 7-9 (government officials are presumed to act in good faith, and a protester’s contention that procurement officials are motivated by bias or bad faith must be supported by convincing proof). In these circumstances, we conclude that the protester has not shown that cancellation of the RFP was improper. (Computers Universal, Inc. B-410790.2: Feb 25, 2015)  (pdf)


PBE asserts that the corrective action was unreasonable because it was based on the contracting officer’s erroneous belief that our Office had conducted outcome prediction favoring ADS. Protester’s Comments at 8, 19-21. PBE further asserts that the corrective action was unreasonable because it allegedly was not based on a reasoned assessment of the merits of ADS’s protest, but, rather, was taken as a pretext to avoid our Office’s resolution of that protest. Id.

Contracting officers in negotiated procurements have broad discretion to take corrective action where the agency determines that such action is necessary to ensure a fair and impartial competition. Major Contracting Servs., Inc., B-400737.2, Dec. 17, 2008, 2008 CPD ¶ 230 at 2; Main Bldg. Maint., Inc., B-279191.3, Aug. 5, 1998, 98-2 CPD ¶ 47 at 3. We generally will not object to the specific corrective action, so long as it is appropriate to remedy the concern that caused the agency to take corrective action. Major Contracting Servs., Inc., supra; Main Bldg. Maint., Inc., supra.

Where, as here, a protester has alleged that an agency’s rationale for cancellation of a solicitation is pretextual, that is, the agency’s actual motivation is to avoid awarding a contract on a competitive basis or to avoid resolving a protest, we will closely examine the bases for the agency’s actions. Superlative Techs., Inc., B‑310489, B-310489.2, Jan. 4, 2008, 2008 CPD ¶ 12 at 7; Gonzales-McCaulley Inv. Group, Inc., B-299936.2, Nov. 5, 2007, 2007 CPD ¶ 192 at 5. Notwithstanding such scrutiny, and even if it can be shown that pretext may have in part motivated the cancellation of the solicitation, the reasonableness standard applicable to cancellation of a solicitation remains unchanged. e-Management Consultants, Inc.; Centech Group, Inc., B-400585.2, B-400585.3, Feb. 3, 2009, 2009 CPD ¶ 39 at 5; Dr. Robert J. Telepak, B-247681, June 29, 1992, 92-2 CPD ¶ 4 at 4. Further, if a reasonable basis exists to cancel a solicitation, an agency may cancel the solicitation regardless of when the information first surfaces or should have been known, even if the solicitation is not canceled until after proposals have been submitted and evaluated, or even if discovered during the course of a protest. VSE Corp., B-290452.2, Apr. 11, 2005, 2005 CPD ¶ 111 at 6; Knight’s Armament Co., B‑299469, April 7, 2007, 2007 CPD ¶ 85 at 4.

In a memorandum to the file drafted one week after PBE filed its protest, the contracting officer states that the contracting office team was “prepared to provide a response to the GAO requested supplemental report due by 20 Aug 14,” but that on August 11, the headquarters attorney communicated that “GAO was ready to rule against us unless we pursued corrective action.” AR, Tab 20, Contracting Officer Memorandum to File (Aug. 28, 2014), ¶ 4. The contracting officer also states that the headquarters attorney required the contracting office team “to respond by [close of business] on 11 Aug 14 on the decision to take corrective action to re‑solicit on a total set-aside basis.” Id. Finally, the contracting officer states that “[u]nder these conditions,” she sent the e-mail at 6:33 p.m. on August 11 “concurring with corrective action.” Id. ¶ 5.

These statements are consistent with the contemporaneous intra-agency e-mails discussed above. See AR, Tab 22, Agency E-Mails (Aug. 11, 2014), at 1-2. Thus, it appears from the record that at the time that the contracting officer decided to take corrective action, her sole basis for doing so was her belief that our Office had informed the headquarters attorney through outcome prediction that the protest would be sustained. This belief, however, was not based in fact. Rather, it was based on incorrect information provided by the headquarters attorney. Since the sole basis for the contracting officer’s decision to take corrective action was incorrect information provided to her by the headquarters attorney, we cannot conclude that the decision to take corrective action was reasonable at the time that it was made. Nevertheless, for the reasons discussed below, we believe it is not appropriate to sustain this protest.

The record reflects that around the time of the corrective action decision, the agency conducted additional market research relating to whether the decision to withdraw the set‑aside was reasonable. See AR, Tab 17, Updated Market Research Rep. In this regard, the record reflects that the agency conducted a second round of market research, and it concluded from that research that there were two additional small businesses capable of producing the system’s hard armor component (bringing the total number of capable small business hard armor manufacturers to three). Id. ¶¶ 3‑4. As discussed above, the basis for the agency’s previous decision to withdraw the set‑aside was the belief that there was only one small business concern capable of producing the hard armor component. See AR, Tab 11, Withdrawal of Set-Aside Memorandum, ¶¶ 3.b - 3.d. Thus, the record reflects that as part its corrective action, the agency initiated a review into whether there was an error in the procurement--namely, whether the market research underlying the decision to withdraw the set-aside was inaccurate.

While the communication that apparently formed the basis of the contracting officer’s initial decision to take corrective action was not accurate, we conclude it would not be appropriate to sustain this protest because the record shows that after deciding to take corrective action, the agency investigated a possible error concerning its set-aside decision, and that the results of that investigation raise questions about the decision in that regard. Further, as stated above, the contracting officer has not yet made a decision about whether this procurement should be set aside, and the solicitation has not been reissued. COS/LM at 9. Under these circumstances, it is appropriate to deny PBE’s protest and let the agency’s analysis of whether this procurement should be set-aside run its course.  (Point Blank Enterprises, Inc. d/b/a Protective Products Enterprises, B-409940.3: Nov 26, 2014)  (pdf)


As an initial matter, WKF bases its protest on an incorrect standard with regard to cancelling an RFQ. Although an invitation for bids may only be cancelled after bid opening for compelling reasons, see FAR 14.404-1(a), a contracting agency need only establish a reasonable basis to support a decision to cancel an RFQ. National Conference Services, Inc. and Direct Marketing Productions, Inc. d/b/a Technology Forums, Inc., B-311137, Apr. 25, 2008, 2008 CPD ¶ 80 at 3. In this regard, so long as there is a reasonable basis for doing so, an agency may cancel an RFQ no matter when the information precipitating the cancellation first arises, even if quotations have been submitted and evaluated. Quality Tech., Inc., B‑292883.2, Jan. 21, 2004, 2004 CPD ¶ 29 at 2-3. A reasonable basis for cancellation exists and cancellation is appropriate when a solicitation does not accurately reflect the agency’s requirements. Skyline ULTD, Inc., B-408961, Dec. 27, 2013, 2013 CPD ¶ 298 at 2; Surgi-Textile, B-289370, Feb. 7, 2002, 2002 CPD ¶ 38 at 2. Here, as discussed below, we see no basis to object to the agency’s decision to cancel the initial RFQ in order to revise the RFQ to reflect the agency’s actual needs.

In response to the current protest, DLA states that, after WKF filed its protest, the agency determined that the RFQ as issued does not accurately reflect the agency’s needs. Specifically, DLA states that because the lower-priced quotations it received were for surplus parts, and because the parts quoted by WKF were 8 years old, the agency considered whether it needed to take into account the part’s shelf-life. In this regard, DLA’s policy requires that products delivered under contracts for material with shelf-life requirements specified in the item description have a minimum of 85% shelf-life remaining at the time of receipt by the Government. AR at 2; Tab 13, Defense Logistics Directive (DLAD). The agency therefore asked one of the manufacturers, Eaton, whether the part was made of materials subject to degradation. Eaton informed DLA that its approved hose assembly contains rubber hose and Nitrile couplings that degrade over time, and that the hose assembly had a shelf life of 32 quarters, or 8 years. AR at 2; Tab 12, Eaton E-Mail to DLA, July 7, 2014. Since the RFQ did not include the required DLAD clause 52.211-9024, Shelf-Life Items Manufacturing Restrictions, the agency decided to cancel the RFQ in order to resolicit with an item description that includes the requirement for a shelf‑life of eight years. AR at 2.

In response, WKF expresses several objections to the agency’s actions, without rebutting the reasonableness of the agency’s explanation. For example, WKF argues that the agency did not consider the shelf-life issue until after it had canceled the solicitation. We need not consider this issue, since an agency may cancel a solicitation no matter when the information precipitating the cancellation first arises; the issue remains whether agency had a reasonable basis to do so. See Quality Technology, Inc., supra., at 2-3.  (WKF Friedman Enterprises, B-409892.2: Sep 25, 2014)  (pdf)


The Coast Guard also contends that cancellation of the solicitation was proper because the SOW was so confusing that only an incumbent contractor would have been able to understand all of the requirements. AR at 3.

Under FAR subpart 8.4 procedures, an agency need only advance a reasonable basis to cancel a solicitation. See Daston Corp., B-292583, B-292583.2, Oct. 20, 2003, 2003 CPD ¶ 193 at 3. Where an agency concludes that cancellation is warranted on the basis of ambiguous or inadequate specifications, our Office will not disturb that determination unless it is shown to be arbitrary, capricious, or not supported by substantial evidence. Canadian Commercial Corp./Ballard Battery Sys. Corp., B-255642, Mar. 18, 1994, 94-1 CPD ¶ 202 at 4.

The record shows that the cancellation of the solicitation occurred under a very unusual set of facts. Although the protester alleges that the agency’s rationale for cancellation is but a pretext to formulate a solicitation where only the incumbent can prevail, see Comments at 24, we see no pretext here. See generally, SMF Systems Tech. Corp., B-292419.3, Nov. 26, 2003, 2003 CPD P 203. Rather, the record indicates that the agency intends to refine the SOW and the solicitation to increase the likelihood that vendors other than the incumbent can prevail in this competition. See CO’s Statement at 9.

Moreover, the facts here highlight the agency’s inability to reasonably assess the merits of respective offers under the solicitation. That is, the record demonstrates that the TET and the CO were unable to agree on an interpretation of the solicitation that would allow the agency to evaluate proposals. Three times the TET evaluated proposals and selected the incumbent. Each time, the CO disagreed with the judgments of the TET, despite replacing the majority of the TET for the third evaluation. Under the circumstances presented here, we cannot say that the CO’s decision to cancel the solicitation and to resolicit under an amended solicitation was unreasonable.  (Strategic Technology Institute, Inc. B-408005.2, Oct 21, 2013)  (pdf)


The protesters assert that the changes made to the solicitation by amendments 0008 and 0009 are so substantial that the agency must cancel the solicitation and issue a new one to afford all potential offerors, including them, an opportunity to compete for the contract. As discussed below, we find the agency reasonably decided to amend, rather than cancel and reissue, the solicitation.

Federal Acquisition Regulation (FAR) § 15.206(e) states that a contracting officer should cancel a solicitation under the following circumstances:

If, in the judgment of the contracting officer, . . . an amendment proposed for issuance after offers have been received is so substantial as to exceed what prospective offerors reasonably could have anticipated, so that additional sources likely would have submitted offers had the substance of the amendment been known to them, the contracting officer shall cancel the original solicitation and issue a new one, regardless of the stage of the acquisition.

Our review of agency decisions about whether an amendment to a solicitation requires cancellation is limited to whether the exercise of agency discretion is reasonable. See Government Contract Servs. Co., B-294367, Oct. 25, 2004, 2004 CPD ¶ 215 at 4; The New Jersey & H St. Ltd. P’ship, B-288026, B-288026.2, July 17, 2001, 2001 CPD ¶ 125 at 4.

The protesters assert that the changes made to the RFP and PWS by amendments 0008 and 0009 are so substantial[3] that the agency is required to cancel the solicitation. The protesters’ initial protest filings, however, consist of nothing more than catalog listings of the revisions made to the solicitation and PWS by amendment 0008. The protesters argue that the substantiality of these revisions are demonstrated by the fact that the amendment requires the resubmission of new technical and price volumes, not just changed pages, and replaces the previous PWS in its entirety with a new PWS.

The agency asserts that the changes are minor, and simply highlight or clarify requirements already in the original solicitation. In its response to the protests, the agency provides point by point refutations as to why the changes to the solicitation and PWS are not substantial. As discussed below, we agree with the agency that amendments 0008 and 0009 merely clarify the RFP’s original requirements, and do not constitute changes in scope that obligated the agency to cancel the solicitation. Although we do not address each change to the solicitation, we have reviewed all of the arguments raised by the protesters and find no basis to sustain the protest.

First, amendment 0008 clarified the basis of the price evaluation by stating that the agency would not use the weights listed in the RFP’s sample price table as part of its price evaluation. Prior to the issuance of the amendment, an offeror questioned whether the weights listed in the sample price table were used during the evaluation. The agency explains that it amended the RFP because it did not intend to use these weights during its evaluation. Latvian COS at 6; Solution COS at 6.

Similarly, amendment 0008 clarified the Army’s regulatory obligation to consider life cycle costs as part of its evaluation by adding life cycle costs as a fourth technical subfactor. The agency explains that this change is not substantial because the life cycle cost information was included in the original PWS requirements, and the Agency was required by regulation to consider it during its evaluation. Latvian COS at 7; Solution COS at 7. However, to clarify this issue, the agency amended the solicitation’s evaluation criteria to reflect its regulatory obligations in this regard. Id.

Next, with regard to the revisions to the PWS, the agency explains that it replaced the original October 25, 2012, PWS in its entirety with the revised PWS in order to avoid confusion by the offerors. Latvian COS at 8; Solution COS at 8. The agency explains that the changes to the PWS either involve clarifying or adding illustrative examples and references about requirements already included in the previous PWS. For example, the prior PWS required offerors to comply with all UFC requirements, while the revised PWS added references to specific UFC provisions to highlight an offeror’s responsibility to adhere to the particular requirements that applied to the RFP. See MIL-STD-3007F (Dec. 13, 2006).

As for the change in the minimum guaranteed dollar value, the agency explains that this adjustment was based on a change in the anticipated amount of two-story shelters to be delivered under Delivery Order 0001, from 120 shelters to 80 shelters. Latvian COS at 6-7; Solution COS at 6-7. The agency notes, however, that the RFP’s overall requirement has not changed from the initial solicitation--to deliver up to 230 two-story shelters and up to 50 single-story shelters. The agency contends that this change is insignificant as the offerors are not required to propose anything for Delivery Order 0001, and that, in fact, the anticipated amount of shelters to be delivered under Delivery Order 0001 is subject to change again based on the successful offeror’s proposal and shelter design. Id.

In response to the agency’s detailed point-by-point explanations, the protesters’ comments merely reiterate the catalogue of changes to the solicitation that were listed in their protests, and reassert generally that these changes must be substantial because the agency replaced the PWS and is requiring revised technical and price proposals. The protesters do not explain why any of the changes to the RFP and PWS were substantial, or even how the changes altered the requirement in any way. In this regard, the protesters fail to meaningfully refute the agency’s position or demonstrate that the agency’s position is unreasonable.

As discussed above, the FAR requires a contracting officer to consider whether the amendment is so substantial as to exceed what prospective offerors reasonably could have anticipated, so that additional sources likely would have submitted offers had the substance of the amendment been known to them. FAR § 15.206(e). Here, we conclude that the record supports the contracting officer’s decision that the amendment was not substantial. As the agency notes, amendments 0008 and 0009 merely clarify requirements already in the initial solicitation, and the magnitude of the changes are not beyond what reasonably could have been anticipated. While amendment 0008 required offerors to submit new technical and price proposals, and involved replacing the previous PWS with a revised PWS, as well as implemented other revisions, the fact of revision, in itself, is not the prerequisite under the regulation which requires cancellation of the solicitation and reprocurement. Rather, the magnitude of the change in relation to the original RFP governs whether a solicitation should be canceled and reissued. See Alamo Aircraft Supply, Inc., et al., B-278215.4, Mar. 11, 1998, 98-1 CPD ¶ 76 at 4-5 n.5 (discussing similar circumstances concerning a solicitation amendment and noting that the result would be the same under FAR § 15.206(e)).

In light of the Army’s reasonable judgments concerning the solicitation amendments, and the protesters’ failure to provide support for their arguments or otherwise meaningfully respond to the agency report, we find no basis to sustain the protests.  (Latvian Connection, LLC; Solution Managers International--USA, LLC, B-408182.3, B-408182.4, Aug 13, 2013)  (pdf)


After conducting discussions with vendors, including VSI, the agency requested the submission of final proposal revisions by March 7, 2013. On April 29, however, the agency notified Vinculum and other vendors that the solicitation was being cancelled, explaining the next day that the cancellation was “[d]ue to budgetary constraints.” Id.; AR, Tab 7, Email to Vendors Regarding Cancellation. Meanwhile, on April 26, the IRS issued a task order on a sole-source basis to BAH for support services for the EITC program office for a two-month base period with 2 one-month option periods. Id. Vinculum protests that the agency improperly cancelled RFTCP 4094 so that it could award the work to BAH.

In a negotiated procurement, the contracting agency has broad discretion in deciding whether to cancel a solicitation and need only have a reasonable basis for doing so. A-Tek, Inc., B-286967, Mar. 22, 2001, 2001 CPD ¶ 57 at 2. If a reasonable basis exists to cancel a solicitation, an agency may cancel the solicitation regardless of when the information first surfaces or should have been known, even if the solicitation is not cancelled until after proposals have been submitted and evaluated. See SEI Group Inc., B-299108, Feb. 6, 2007, 2007 CPD ¶ 35 at 3. Cancellation of a solicitation is appropriate where an agency finds that its needs are no longer accurately reflected by a request for proposals. Superlative Techs., Inc., B-293709.2, June 18, 2004, 2004 CPD ¶ 116 at 5.

Here, the record indicates that before the agency could issue an award under RFTCP 4094, agency personnel were told to look for ways to reduce costs in light of the budget sequestration, effective March 1, 2013, reducing available funding for the government. COS at 3. As a result, the agency decided to cancel RFTCP 4094 and instead perform the services in-house. Id. However, since the agency was not yet prepared to perform the services in-house, it issued an interim 4-month task order to BAH to perform the services while they were being transitioned. Id. In sum, the record indicates that budget constraints led the agency to determine that a different, less costly approach to providing the required EITC support services was necessary. In this regard, a contracting agency has the right to cancel a solicitation when sufficient funds are not available. Specialized Steel Contractors, Inc., B-408022, May 14, 2013, 2013 CPD ¶ 122 at 2; National Projects, Inc., B-283887, Jan. 19, 2000, 2000 CPD ¶ 16 at 4.

Vinculum argues that the agency did not have to cancel RFTCP 4094 based on budgetary reasons because it could have used the money that is funding the 4-month task order issued to BAH to fund a task order issued under RFTCP 4094 for the remainder of the fiscal year. RFTCP 4094, however, provided for issuance of a task order with a 1-year base period and 4 option years. Thus, it would have been improper for the agency to issue a task order under RFTCP 4094 with the intent of limiting performance to the end of the fiscal year, a period of just more than 5 months. Specifically, an agency may not award a contract or task order with the intent to materially alter it after award. PAI Corp., et al., B-244287.5 et al., Nov. 29, 1991, 91-2 CPD ¶ 508 at 4.  (Vinculum Solutions, Inc., B-408337, B-408337.2, Aug 5, 2013)  (pdf)


In a negotiated procurement, such as the one here, a contracting agency has broad discretion in deciding whether to cancel a solicitation and need only establish a reasonable basis for doing so. MedVet Development LLC, B-406530, June 18, 2012, 2012 CPD ¶ 196 at 2-3; WorldLink Aviation, LLC, B-403289.2, Oct. 27, 2010, 2010 CPD ¶ 267 at 4. A reasonable basis to cancel exists when, for example, an agency determines that a solicitation does not accurately reflect its needs. MedVet Development LLC, supra, at 3; Logistics Solutions Group, Inc., B-294604.7, B-294604.8, July 28, 2005, 2005 CPD ¶ 141 at 3. It is the responsibility of the contracting agency to determine its requirements, and our Office will defer to the agency’s judgment in that regard. MedVet Development LLC, supra; Safety Storage, Inc., B-280851.2, May 13, 1999, 99-1 CPD ¶ 93 at 2.

Here, the record supports GSA’s position that the solicitation did not accurately reflect its needs. As discussed above, the solicitation contemplated a lease for office space of 3,033 to 3,275 usable square feet. SFO at 5. As also discussed above, after the solicitation was issued, FPD reduced its space requirement to 2,153 usable square feet. AR, Exh. 15, FPD/GSA E-mail Correspondence (July 23 to Aug. 2, 2012) at 1-2; Amended Supp. Contracting Officer’s Statement ¶¶ 1-4; AR, Exh. 16, FPD Occupancy Agreement Planner (Feb. 25, 2013), at 1. Accordingly, the solicitation overstated FPD’s space requirement by a magnitude of 29 to 34 percent. Where space requirements decrease from those specified in an SFO, cancellation rather than award for the original amount of square footage under the SFO generally is appropriate. Denwood Props. Corp., B-251347.2, May 13, 1993, 93-1 CPD ¶ 380 at 3; 120 Church St. Assocs., B-232139.5, Feb. 28, 1990, 90-1 CPD ¶ 244 at 4. Based on the decrease in FPD’s space requirement, we find that GSA’s decision to cancel the solicitation was reasonable.

The Coffelts argue that GSA’s position that FPD’s space requirement decreased to 2,153 usable square feet is unsupported by the record, and, therefore, cancellation of the solicitation was improper. Comments on Agency Report at 17-18, 22-23; Comments on Supp. Contracting Officer’s Statement at 2-3, 14-15; Comments on Amended Supp. Contracting Officer’s Statement at 8.

The record shows that FPD decided to reduce its space requirement to 2,153 usable square feet, which, as discussed above, is significantly less than the 3,033 to 3,275 range of usable square feet listed in the solicitation. AR, Exh. 15, FPD/GSA E-mail Correspondence (July 23 to Aug. 2, 2012) at 1-2. The contemporaneous record does not include details of the precise reasons for the reduction in space. However, the contracting officer states that on or about July 25, 2012, an FPD representative informed her via telephone that the reduction was due to budgetary constraints. Amended Supp. Contracting Officer’s Statement ¶¶ 1, 5. The record supports this insofar as it shows that a conference call between the contracting officer and FPD representatives was scheduled for July 24, and that on July 25 the contracting officer sent an e-mail to an FPD representative requesting confirmation of the 2,153 usable square foot requirement. AR, Exh. 15, FPD/GSA E-mail Correspondence (July 23 to Aug. 2, 2012) at 2-5. The record also shows that after an FPD-internal e-mail exchange, the FPD representative sent an e-mail to the contracting officer on August 2 confirming the 2,153 usable square foot requirement. Id. at 1. Finally, after this protest was filed, FPD submitted to GSA a standard request-for-space worksheet that listed its space requirement as 2,153 usable square feet. AR, Exh. 16, FPD Occupancy Agreement Planner (Feb. 25, 2013), at 1. Thus, the record here, taken as a whole, adequately supports GSA’s position that FPD’s space requirement has substantially changed.

The Coffelts also argue that GSA canceled the solicitation to avoid contracting with them. Comments on Agency Report at 17-18; Comments on Supp. Contracting Officer’s Statement at 12-15; Comments on Amended Supp. Contracting Officer Statement at 2-7. In this regard, the Coffelts point out that FPD’s June 14 request to GSA for a new space cited “poor condition” of the existing facilities as a reason for seeking a new space, and that the June 14 request listed the space requirement as 2,903 usable square feet, rather than the subsequently agreed-to (and significantly lower) space requirement of 2,153 usable square feet. Comments on Agency Report at 18; Comments on Supp. Contracting Officer’s Statement at 13-15; Comments on Amended Supp. Contracting Officer Statement at 3-4, 6.

Where a reasonable basis exists to cancel a solicitation, an agency properly may cancel a solicitation no matter when the information precipitating the cancellation first surfaces or should have been known, even if the solicitation is not canceled until after proposals have been submitted and evaluated and protesters have incurred costs in pursuing the award. MedVet Development LLC, supra, at 2 n.3; Denwood Props. Corp., supra, at 4 n.2. As discussed above, the record shows that FPD reduced its space requirement such that cancellation of the solicitation was reasonable. Additionally, the record shows that the Coffelts’ office space is within the delineated area that GSA intends to use when it re-opens the competition under a new solicitation. Amended Supp. Contracting Officer’s Statement ¶ 19; AR, Exh. 14, GSA/FPD E-mail Correspondence, at 25-27. For these reasons, the Coffelts’ argument that GSA canceled the solicitation to avoid contracting with them furnishes no basis on which to sustain the protest.

The Coffelts also argue that the “special requirements” included in FPD’s June 14 request were either expressly included in the solicitation or were encompassed within the scope of the solicitation, and, therefore, these requirements do not support cancellation of the solicitation. Comments on Agency Report at 23-26; Comments on Supp. Contracting Officer’s Statement at 16-20; Comments on Amended Supp. Contracting Officer’s Statement at 9-11. The Coffelts also complain that although GSA asserts that the special requirements include compliance with the United States Marshals Service and United States Courts Design Guide publications, GSA is unable to cite any specific requirement within either publication that will apply to the leased space. Comments on Amended Supp. Contracting Officer’s Statement at 9-11.

GSA responds that the solicitation “only address[ed] GSA’s requirements in general terms” and that incorporation into the solicitation of FPD’s specific, special requirements is necessary to meet FPD’s security needs. Amended Supp. Contracting Officer’s Statement ¶¶ 8-11. GSA also states that FPD requires the United States Marshals Service and United States Courts Design Guide publications to be incorporated into the solicitation “to ensure the applicable sections are considered by the lessor’s architect during the design of the space.” Id. ¶ 8. In this regard, GSA explains that “[t]he determination as to which sections are applicable is based on the type of property selected, the location, building characteristics and statistics of the area which may influence using a less or more stringent design for the awarded space.” Id.

We agree that some of FPD’s special requirements were included in, or otherwise encompassed by, the terms of the solicitation. However, the solicitation did not include the specific details of a number of the security-related special requirements, and it did not incorporate the United States Marshals Service publication or the United States Courts Design Guide. Given that GSA and FPD, not the protesters, are in the best position to identify the government’s requirements, and in light of the deference afforded agencies in identifying their needs, MedVet Development LLC, supra, at 3; Safety Storage, Inc., supra, at 2, we view GSA’s asserted need to incorporate FPD’s special requirements into the solicitation, taken together with the reduction in FPD’s space requirement, as providing a reasonable basis for cancellation of the solicitation.  (Gordon and Soraya Diase Coffelt, B-408025, May 30, 2013)  (pdf)


Latvian initially asserted that the agency improperly failed to post the solicitation on the FedBizOpps website; provide offerors with drawings, specifications, and an opportunity for a site visit; and provide an adequate solicitation response time. Protest at 1, 8-10. As also stated above, after the agency cancelled the solicitation, Latvian asserted that the agency improperly cancelled the solicitation as a pretext to avoid resolution of the firm’s initial protest. Latvian E-Mail to GAO (Feb. 15, 2013) at 1; see also Comments at 5. Because, as discussed below, we find that the agency had a reasonable basis for canceling the solicitation, we need not address Latvian’s initial assertions regarding the solicitation itself.

A procuring agency has broad authority to cancel an RFP and needs only a reasonable basis to do so. Trade Links Gen. Trading & Contracting, WLL, B-405182, Sept. 1, 2011, 2011 CPD ¶ 165 at 2; A-Tek, Inc., B-286967, Mar. 22, 2001, 2001 CPD ¶ 57 at 2. The prospect of increased competition (and the lower prices which often result) generally provides a reasonable basis for an agency to cancel a solicitation. See, e.g., A-Tek, Inc., supra, at 3; FRC Int’l, Inc., B-260078, Apr. 10, 1995, 95-1 CPD ¶ 189 at 2. Further, where a valid basis for cancellation exists, an agency properly may cancel a solicitation no matter when the information precipitating the cancellation first surfaces or should have been known. Daston Corp., B-292583, B-292583.2, Oct. 20, 2003, 2003 CPD ¶ 193 at 3; Pemco Aeroplex, Inc., Aero Corp., B-275587.9 et al., June 29, 1998, 98-2 CPD ¶ 17 at 6.

Where a protester has alleged that an agency’s rationale for cancellation is pretextual, that is, the agency’s actual motivation is to avoid awarding a contract on a competitive basis or to avoid resolving a protest, we will closely examine the bases for the agency’s actions. Superlative Techs., Inc., B-310489, B-310489.2, Jan. 4, 2008, 2008 CPD ¶ 12 at 7; Gonzales-McCaulley Inv. Group, Inc., B-299936.2, Nov. 5, 2007, 2007 CPD ¶ 192 at 5. Notwithstanding such scrutiny, and even if it can be shown that pretext may have in part motivated the cancellation of the solicitation, the reasonableness standard applicable to cancellation of a solicitation remains unchanged. e-Management Consultants, Inc.; Centech Group, Inc., B-400585.2, B-400585.3, Feb. 3, 2009, 2009 CPD ¶ 39 at 5; Dr. Robert J. Telepak, B-247681, June 29, 1992, 92-2 CPD ¶ 4 at 4.

The record here shows that the agency’s cancellation of the solicitation was reasonable. The agency has demonstrated that the cancellation occurred after the agency identified flaws in the solicitation that reasonably could be expected to limit competition. More specifically, after Latvian filed its initial protest, the contracting officer concluded that the four-day period during which the solicitation was inaccessible may have prevented potential offerors from having sufficient time to respond to the solicitation and that the agency would be unable to process site visit registrations in time for the site visit. Contracting Officer Statement’s ¶ 11. Latvian itself argued in its initial protest that a longer solicitation response time and a site visit were necessary for adequate proposal preparation. Protest at 1, 8; Comments at 4. In sum, because the record reflects that the solicitation was inaccessible for four days and that conducting the site visit may have been impeded given the time needed to process registrations, we see no merit to Latvian’s allegation that the cancellation of the solicitation was merely a pretext by the agency to avoid resolution of the protest.  (Latvian Connection, LLC, B-407972, B-407972.2, May 2, 2013)  (pdf)


Kingdomware contends that cancellation of the RFQ was not reasonable, because the RFQ did provide the salient characteristics, which Kingdomware states it satisfies.

A contracting agency need only establish a reasonable basis to support a decision to cancel an RFQ, Surgi-Textile, B-289370, Feb. 7, 2002, 2002 CPD ¶ 38 at 2, and may cancel no matter when the information precipitating the cancellation first arises, even if it is not until quotations have been submitted and evaluated. A-Tek, Inc., B-286967, Mar. 22, 2001, 2001 CPD ¶ 57 at 2-3. Where an agency states its requirements in terms of “brand name or equal,” the solicitation must also set forth the salient characteristics to identify for prospective offerors the essential features of the product which will meet the agency’s functional requirements. Adams Magnetic Prods., Inc., B-256041, May 3, 1994, 94-1 CPD ¶ 293 at 4. Failure of a solicitation to list the salient characteristics of the desired item improperly restricts competition by precluding potential offerors of equal products from determining what characteristics are considered essential for its item to be accepted; hence, cancellation of the solicitation is warranted. See T-L-C Sys., B-227470, Sept. 21, 1987, 87-2 CPD ¶ 283 at 1.

Contrary to Kingdomware’s arguments, the RFQ did not identify salient characteristics, but only a general description of the requirements that the software should satisfy. In particular, the RFQ did not apprise vendors of VA’s requirement that the equal software be compatible with the brand name.

The protester contends that the agency’s requirement for compatibility is merely a pretext to avoid issuing the purchase order to Kingdomware and argues that its software will be compatible with the brand name. Kingdomware also contends that VA is biased in favor of the brand name such that other products will not be fairly considered. See Comments at 6-7. Kingdomware, however, does not contend that the agency does not, in fact, need its software to be compatible with that of the Navy’s clinics.

There is no merit to these arguments. Kingdomware’s quotation, which only generally described its ability to perform the required services and stated that it was equal to the Live Process system, does not address the compatibility of its software with the brand name, presumably because the RFQ failed to identify this requirement. To the extent that the protester alleges that the agency’s requirement is a pretext to avoid award to Kingdomware or that the agency is biased in favor of the brand name, government officials are presumed to act in good faith. A protester’s contention that contracting officials are motivated by bias or bad faith thus must be supported by convincing proof, which Kingdomware has not provided here. We will not attribute unfair or prejudicial motives to procurement officials on the basis of inference or supposition. Career Innovations, LLC, B-404377.4, May 24, 2011, 2011 CPD ¶ 111 at 7-8.

Because the RFQ failed to state salient characteristics that equal products must meet, VA had reasonable basis to cancel the solicitation.  (Kingdomware Technologies, B-407389, Dec 4, 2012)  (pdf)


The protester contends that the solicitation was an IFB that provided for award to the lowest-priced bidder. Kingdomware argues that the cancellation of the solicitation was improper because Kingdomware is ready and able to provide the services according to the material specifications of the solicitation. The Army responds that the solicitation was a RFQ that provided for award on a cost/technical tradeoff basis. Memorandum of Law at 2. The agency states that, because the solicitation did not provide details of the “specifics of the tradeoff source selection basis,” the agency was canceling the solicitation to clarify the basis for award. Contracting Officer’s Statement.

The standards for canceling a solicitation after receipt of bids or quotations differ. A contracting agency need only establish a reasonable basis to support a decision to cancel an RFQ. See Brian X. Scott, B-401960, Nov. 9, 2009, 2009 CPD ¶ 228 at 3. However, an agency must have a cogent and compelling reason to cancel an IFB after the receipt of sealed bids. See FAR § 14.404-1; General Projection Sys., B-241418.2, Mar. 21, 1991, 91-1 CPD ¶ 308 at 4.

Although the procurement here most closely resembles a negotiated competition, we conclude that cancellation of the solicitation was proper even under the more stringent standard applicable to cancellation of IFBs after bid opening. As the Army notes, the solicitation did not clearly apprise vendors whether the procurement was being conducted on a sealed bid or negotiated procurement basis. It also did not advise vendors of the basis upon which their submissions would be evaluated, which we have found to be a fundamental requirement. See Hyperbaric Techs., Inc., B-293047.2, B-293047.3, Feb. 11, 2004, 2004 CPD ¶ 87 at 5.

Since vendors were not properly apprised of these requirements in the original procurement, we conclude that the Army’s cancellation of the FedBid buy was reasonable.  (Kingdomware Technologies, B-406966.3, Nov 27, 2012)  (pdf)


With regard to the termination of the AMH’s contract, we generally decline to review challenges to the termination of contracts because such disputes are matters of contract administration that are for resolution by the boards of contract appeals and United States Court of Federal Claims under the Contract Disputes Act of 1978, 41 U.S.C. §§ 601-13. See Bid Protest Regulations, 4 .C.F.R. § 21.5(a) (2012). We will, however, review the propriety of a contract termination where it flows from a defect that the contracting agency perceived in the award process. In such cases, we examine the award procedures that underlie the termination action for the limited purpose of determining whether the initial award was improper and, if so, whether the corrective action taken is proper. See Optimum Servs., Inc., B-401051, Apr. 15, 2009, 2009 CPD ¶ 85 at 2-3; see also Norfolk Shipbuilding & Drydock Corp., B-219988.3, Dec. 16, 1985, 85-2 CPD ¶ 667 at 3 (termination of a contract is permissible where an agency discovers subsequent to award that the solicitation did not adequately reflect the government’s needs).

Here, GSA discovered after contract award that the RFP did not include a mandatory DFARS clause requiring the contractor to use a U.S.-flag vessel, and therefore the solicitation did not comply with the requirements of the Cargo Preference Act. Accordingly, the RFP did not adequately reflect the government’s needs. Although AMH contends that the agency should have waived the U.S.-flag vessel requirement under DFARS § 247.573-1(c)(3),[4] rather than terminate the firm’s contract and reopen the competition, the requirement was never included in AMH’s contract. The parties’ dispute as to whether or not this requirement should be waived concerns a matter of contract administration not subject to review by our Office. See 4 C.F.R. § 21.5(a); Hawker Eternacell, Inc., B-283586, Nov. 23, 1999, 99-2 CPD ¶ 96 at 3; Ingersoll-Rand, B-225996, May 5, 1987, 87-1 CPD ¶ 474 at 5. Disputes concerning application of the Cargo Preference Act and waiver of that Act are subject to the Contract Disputes Act of 1978, and are properly before boards of contract appeals and the United States Court of Federal Claims. See, e.g., Inter-Continental Equip., Inc., ASBCA No. 36897, Feb. 4, 1994, 94-2 BCA ¶ 26,708.  (American Material Handling, Inc., B-406739, Aug 14, 2012)  (pdf)


MedVet raises numerous arguments objecting to the cancellation of the SFO. Specifically, MedVet complains that the missing requirements in the SFO do not provide a reasonable basis for the cancellation because MedVet provided for these requirements in its proposal. MedVet also contends that the deficiencies in the SFO cited by the agency do not exist or constitute, at best, minor deficiencies. Protest at 9-10. MedVet argues that even if deficiencies exist in the SFO, the agency should have amended the SFO and not cancelled it.

In a negotiated procurement, a contracting agency has broad discretion in deciding whether to cancel a solicitation, and need only establish a reasonable basis for doing so. Trujillo/AHW, JV, B-403958.4, Oct. 13, 2011, 2011 CPD ¶ 218 at 3. A reasonable basis to cancel exists when, for example, an agency determines that a solicitation does not accurately reflect its needs. Logistics Solutions Group, Inc., B-294604.7, B-294604.8, July 28, 2005, 2005 CPD ¶ 141 at 3. It is the responsibility of the contracting agency to determine its requirements, and our Office will defer to the activity’s judgment. Id.; Peterson-Nunez Joint Venture, supra.

Here, the record supports the agency’s assertion that the SFO was not consistent with current GSA leasing regulations. AR, Tab 9, Memorandum of Rescission of Delegations of Authority to Lease Space, at 1. For example, GSA acquisition regulations (GSAR) require that leases for property in excess of 10,000 square feet (as here) must be publicized on the FedBizOpps website, see GSAR § 570.106, which was not done here. Agency’s Response to GAO Questions, May 30, 2012, at 4.

MedVet responds that the agency’s concerns in this regard are post hoc, and, citing to our decision in Optelec U.S., Inc., B-400349, B-400349.2, Oct. 16, 2008, 2008 CPD ¶ 192, contends that a failure to publicize a procurement on the FedBizOpps website is not a valid justification for cancelling a solicitation. MedVet’s Response, June 4, 2012, at 7-8. We find no merit to MedVet’s arguments.

It is a fundamental obligation under the Competition in Contracting Act of 1984 that agencies obtain full and open competition, both to ensure that a procurement is open to all responsible sources and to provide the government with the opportunity to receive fair and reasonable prices. See 41 U.S.C. §§ 3301 et seq. (2011). The GSAR requirement for publication of certain SFOs on the FedBizOpps website implements this statutory requirement. We find that the VA’s concern that it failed to comply with requirements for publishing notice of a solicitation and thus may not have obtained full and open and competition provide a reasonable basis for cancelling the SFO. Although the VA only fully explained the basis of this concern in response to our inquiries after the agency had filed its report in response to the protest, we do not agree with MedVet that this was not a valid concern.

We also find MedVet’s citation to Optelec inapposite. There, contrary to MedVet’s reading, the protest did not involve an agency’s failure to publicize a procurement on the FedBizOpps website; in that case, the agency did so. Furthermore, that case did not concern an agency’s cancellation of its solicitation.

The record also shows that the SFO did not adequately address a number of agency requirements. For example, the SFO was based upon a 2005 form (rather than the agency’s more current 2009 form for SFOs), which does not set forth the agency’s current sustainable design and energy efficiency for LEED-Silver equivalency. Similarly, the SFO did not include the agency’s most recent physical security criteria. See Agency’s Response to GAO Questions, May 30, 2012, at 2. MedVet does not assert that the SFO provided for LEED-silver equivalency or for the agency’s physical security requirements. See MedVet’s Reply to VA’s May 30 Response, June 4. 2012, at 3-4, 5. Rather, MedVet argues, as it has throughout its protest, that VA has no basis to cancel the SFO where the protester otherwise [deleted]. Id. The fact that MedVet may have [Deleted] misses the point. It is fundamental that offerors must be advised of the basis upon which their proposals will be evaluated. A solicitation that does not set forth a common basis for evaluating offers, which ensures that all offerors are on notice of the requirements for award and can compete on an equal basis, is materially defective. Rexon Tech. Corp.; Bulova Techs., Inc, B-243446.2, B-243446.3, Sept. 20, 1991, 91-2 CPD ¶ 262 at 5. Therefore, it is necessary for the sake of fair and equal treatment of all offerors that the solicitation contain the same requirements, so that their proposals are evaluated using the same criteria.

We conclude that the cancellation was reasonable, and that re-solicitation is justified.  (MedVet Development LLC, B-406530, Jun 18, 2012)  (pdf)


BCA protests the cancellation of the [request for task order proposals] RFTOP. According to the protester the agency has provided “no factual basis” for the cancellation and also has provided no evidence of budgetary constraints. Protester’s Comments at 3.

In a negotiated procurement such as this one, the contracting agency has broad discretion in deciding whether to cancel a solicitation and need only have a reasonable basis for doing so. A-Tek, Inc., B-286967, Mar. 22, 2001, 2001 CPD ¶ 57 at 2. If a reasonable basis exists to cancel a solicitation, an agency may cancel the solicitation regardless of when the information first surfaces or should have been known, even if the solicitation is not cancelled until after proposals have been submitted and evaluated. See SEI Group. Inc., B-299108, Feb. 6, 2007, 2007 CPD ¶ 35 at 3. Cancellation of a solicitation is appropriate where an agency finds that its needs are no longer accurately reflected by an RFP, such as when there is a significant reduction in the anticipated workload. Superlative Techs., Inc., B-293709.2, June 18, 2004, 2004 CPD ¶ 116 at 5.

Here, the record establishes a reasonable basis for the cancellation of the solicitation. The budget of NCCDPHP was significantly reduced for FY 2012. Additionally, the various programs within NCCDPHP that would be the users/customers of the information management services to be procured under the present RFTOP, also suffered deep budget reductions. Therefore, the agency reasonably determined that a reduced level of effort was necessary to support the program requirements, and that, therefore, the RFTOP no longer reflected the CDC’s needs. In addition, the agency states that greater reporting requirements and additional performance measures, such as response time, vacancy reports and customer service, are necessary and will be included in the new solicitation. While BCA disagrees and suggests that the cancellation was a pretext not to make award to BCA, the record shows that the agency had a reasonable basis for cancelling the RFTOP because of the significant reduction in level of effort based on the budget reductions and the other changes in its requirements. See id.; PAI Corp., et al., B-244287.5 et al., Nov. 29, 1991, 91-2 CPD ¶ 508 at 3-4; Source AV, Inc., B-241155, Jan. 25, 1991, 91-1 CPD ¶ 75 at 3-4.  (Business Computer Applications, Inc., B-406230.3, May 16, 2012)  (pdf)


A procuring agency has broad authority to cancel a solicitation issued under negotiated procedures and need only establish a reasonable basis for cancellation. Trade Links General Trading & Contracting, WLL, B-405182, Sept. 1, 2011, 2011 CPD ¶ 165 at 2; Bahan Dennis Inc., B-249496.3, Mar. 3, 1994, 94-1 CPD ¶ 184 at 3. If an agency cannot purchase at a fair and reasonable price, as required by the FAR, then cancellation is warranted. Id.; see FAR § 15.402 (price must be fair and reasonable). A determination of price reasonableness is a matter of agency discretion, involving the exercise of business judgment, which our Office will not question unless it is shown to be unreasonable. Selecta Corp., B-252182, May 26, 1993, 93-1 CPD ¶ 421 at 2; Sletager, Inc., B-240789.6, Oct. 11, 1991, 91-2 CPD ¶ 328 at 2. In determining price reasonableness, an agency may consider a number of factors, including prior contract history and the government estimate. Trade Links General Trading & Contracting, WLL, supra; Vitronics, Inc., B-237249, Jan. 16, 1990, 90-1 CPD ¶ 57 at 2; see FAR § 15.404-1(b). In this regard, we have found cancellations proper where the protester’s price exceeded the government estimate by as little as 7.2 percent. Nutech Laundry & Textiles, Inc., B-291739, Feb. 10, 2003, 2003 CPD ¶ 34 at 4 (citing Building Maint. Specialists, Inc., B-186441, Sept. 10, 1976, 76-2 CPD ¶ 233 at 4).

Here, the contemporaneous documentation reflects the CO’s performance of an in-depth analysis regarding the proposed price. More specifically, the CO considered both the government estimate and the agency’s prior contracting history, which included consideration of the price paid under the 2011 contract as well as the prices for prior contracts adjusted for inflation. Further, the contracting officer considered other factors that could affect the price of the services being procured, such as the location of the games and local prices for gasoline and driving services. As a result of his analysis, the contracting officer concluded that adequate price competition did not exist and that award could not be made at a reasonable price. Based on our review of the record, we conclude that the agency’s determination in this regard was was reasonable, and the protester’s assertions to the contrary are without merit.  (Estrategy Inc., B-406466, B-406467, May 4, 2012)  (pdf)


Contracting officials in negotiated procurements have broad discretion to take corrective action where the agency determines that such action is necessary to ensure fair and impartial competition. Major Contracting Servs., Inc., B-400737.2, Dec. 17, 2008, 2008 CPD ¶ 230 at 2. Where, as here, a protester alleges that an agency’s rationale for cancellation is but a pretext to avoid resolving a protest, we review the agency’s rationale to ensure that the agency has a reasonable basis for the cancellation. See Superlative Techs., Inc., B-310489, B-310489.2, Jan. 4, 2008, 2008 CPD ¶ 12 at 7.

Here, the agency explains that it was necessary to cancel the solicitation because the basis of award set forth in the solicitation did not reflect the agency’s intended procurement approach. Agency Report at 4, Agency Supplemental Statement (Oct. 14) at 1. In this regard, the agency explains that it intended to conduct the procurement on pass/fail basis with the award going to the low priced, technically acceptable offeror. Instead, with respect to proposal evaluation and award, the solicitation provided as follows:

52.212-2, EVALUATION--COMMERCIAL ITEMS

(a) The government will award a contract resulting from this solicitation to the offeror whose offer conforming to the solicitation will be most advantageous to the Government, price and other factors considered. The following factors shall be used to evaluate offers:

(i) technical capability of the item offered to meet the Government requirement; (ii) price in descending order of RFQ at 17.

We agree with the agency that the language used in the solicitation appears to indicate that the contract would be awarded on the basis of the best value to the government. Specifically, when a solicitation indicates that an award will be made based on what is most advantageous to the government, and lists factors in descending order of importance, it generally indicates that the agency plans to make award on a best value basis. See Federal Acquisition Regulation § 15.101-1; Curtis Center Ltd. Partnership--Recon., B-257863.3, Mar. 20, 1995, 95-1 CPD ¶ 147 at 2, n.2. Since the agency intended to award the contract on the basis of the lowest priced, technically acceptable offer, the agency had a reasonable basis to cancel the solicitation. In this regard, it is fundamental that vendors should be advised of the basis on which their offers will be evaluated. See C3, Inc., B-241983.2, Mar. 13, 1991, 91-1 CPD ¶ 279 at 3.  (NAS/CORP-TELMAH, Inc., B-405632, Dec 2, 2011)  (pdf)


NDA protests the agency’s “gross mismanagement” of the solicitation and “contract irregularities.” Protest at 1. Specifically, NDA argues that the cancellation of the solicitation and the award of a task order to BAH for a budget courses instructor were “improper.” Protest at 1; Comments at 3. NDA requests the agency terminate the contract with BAH and award a contract to small business offerors for that work. Id.

In a negotiated procurement, a contracting agency has broad discretion in deciding whether to cancel a solicitation, and need only establish a reasonable basis for doing so. Trujillo/AHW, JV, B-403958.4, Oct. 13, 2011, 2011 CPD ¶ 218 at 3; USA Elecs., B-283269.2, Oct. 5, 1999, 99-2 CPD ¶ 67 at 3. A reasonable basis to cancel exists when, for example, an agency determines that a solicitation does not accurately reflect its needs, Logistics Solutions Group, Inc., B-294604.7, B-294604.8, July 28, 2005, 2005 CPD ¶ 141 at 3, or where the agency determines that it no longer has a requirement for the item solicited. Peterson-Nunez Joint Venture, B-258788, Feb. 13, 1995, 95-1 CPD ¶ 73 at 4. Moreover, an agency may cancel a solicitation no matter when the information precipitating the cancellation first arises, even if it is not until proposals have been submitted and evaluated. Brian X. Scott, B-310970, B-310970.2, Mar. 26, 2008, 2008 CPD ¶ 59 at 3.

Here, the agency’s decision to cancel the solicitation was reasonable. The DIA mistakenly included in the RFP the SOW seeking an instructor to teach budget courses, and that requirement had already been met under a previously issued task order to BAH. Consequently, the agency no longer had a requirement for the work being solicited. Instead, the college needed an instructor with “vastly different education, experience, and subject matter qualifications” to teach cyber courses. AR at 3. In this regard, replacing the SOW was so substantial a change that it exceeded what potential offerors could have anticipated. See Federal Acquisition Regulation § 15.206(e). Indeed, the protester acknowledged the “dramatic change” and “substantial difference” between the two SOWs and advocated canceling the RFP. Comments at 3; Protest, Tab D, NDA Draft Protest Letter, at 1. Thus, on the record before us where the solicitation did not accurately reflect the agency’s needs, we find reasonable the agency’s decision to cancel the RFP.  (National Defense Advisors, Inc., B-405741, December 13, 2011)  (pdf)


The protester contends that the agency's decision to cancel the RFP was unreasonable. The protester also argues that it was unreasonable for the agency to compare the offerors' prices to the government estimate or the prior contract price because the agency did not offer a site visit and did not set forth facilities requirements in the RFP. Comments at 1. Therefore, the protester claims, offerors were lead to believe that only one facility, owned by National Aviation Services (NAS) could be used. Id.

A procuring agency has broad authority to cancel a solicitation issued under negotiated procedures and need only establish a reasonable basis for cancellation. Bahan Dennis, Inc., B-249496.3, Mar. 3, 1994, 94-1 CPD para. 184 at 3. If an agency cannot purchase at a "fair and reasonable" price, as required by the FAR, then cancellation is warranted. Id.; see FAR sect.15.402 (price must be "fair and reasonable"). A determination of price reasonableness is a matter of agency discretion, involving the exercise of business judgment, which our Office will not question unless it is shown to be unreasonable. Selecta Corp., B‑252182, May 26, 1993, 93-1 CPD para. 421 at 2; Sletager, Inc., B-240789.6, Oct. 11, 1991, 91-2 CPD para. 328 at 2. In determining price reasonableness, an agency may consider a number of factors, including prior contract history and the government estimate. Vitronics, Inc., B-237249, Jan. 16, 1990, 90-1 CPD para. 57 at 2; see FAR sect.15.404-1(b). In this regard, we have found cancellations proper where the protester's price exceeded the government estimate by as little as 7.2 percent. Nutech Laundry & Textiles, Inc., B‑291739, Feb. 10, 2003, 2003 CPDpara. 34 at 4 (citing Building Maint. Specialists, Inc., B‑186441, Sept. 10, 1976, 76-2 CPD para. 233 at 4).

Based upon our review of the record, there is no basis to find unreasonable the Air Force's determination that none of the prices were fair and reasonable. As noted above, the agency compared the offerors' prices to the government estimate and the prior contract price. Given that the lowest proposed price exceeded the government estimate by a significant amount, we think the agency could reasonably conclude that the offered prices were not reasonable and that the offerors did not clearly understand the requirements of the RFP.  (Trade Links General Trading and Contracting, WLL, B-405182, September 1, 2011)  (pdf)


First, KNAPP argues that VA should not have cancelled the solicitation, and should have instead awarded it the contract as the lowest-priced, technically acceptable offeror. Protest (B-404887.2) at 1-2. For the reasons discussed below, we conclude that the agency's corrective action was reasonable.

Contracting officers in negotiated procurements have broad discretion to take corrective action where the agency determines that such action is necessary to ensure a fair and impartial competition. Domain Name Alliance Registry, B-310803.2, Aug. 18, 2008, 2008 CPD para. 168 at 8. As a general matter, the details of corrective action taken in response to a protest are within the sound discretion and judgment of the contracting agency. Rockwell Elec. Commerce Corp., B-286201.6, Aug. 30, 2001, 2001 CPD para. 162 at 4. We generally will not object to the specific corrective action, so long as it is appropriate to remedy the concern that caused the agency to take corrective action. Networks Elec. Corp., B-290666.3, Sept. 30, 2002, 2002 CPD para. 173 at 3.

As discussed above, the agency stated that it would take corrective action by canceling the award to R/X and issuing a new solicitation. In response to the instant protest and request for costs, VA has provided additional information concerning its rationale for opting to cancel and resolicit. First, the agency concluded that R/X's proposal had improperly taken exception to the solicitation with regard to the payment terms. Agency Response to Request for Costs, June 3, 2011, at 3. For this reason, the agency contends that it properly took corrective action and terminated R/X's contract. Id. at 4. Second, the agency states that it concluded that cancellation of the solicitation was necessary because the agency intends to add additional requirements to the TCA system. Agency Response to Protest B-404887.2, May 26, 2011, at 2; Agency Response to Protest B-404887.2, June 15, 2011, at 1-2. In this regard, VA states that the agency currently uses a manual mail packaging system, and it intends to add the following additional requirements to the TCA procurement:

The new solicitation will encompass a fully automated packaging system that conveys completed prescription bottles directly from dispensing automation, prints, folds and inserts requisite patient literature and the prescription bottle into a pouch that meets the requirements of the [U.S.] Postal System for prescription mailing.

Agency Response to Protest B-404887.2, June 15, 2011, at 1.

In a negotiated procurement such as this one, a contracting agency has broad discretion in deciding whether to cancel a solicitation, and need only establish a reasonable basis for doing so. Applied Resources, Inc., B-400144.7, B-400144.8, July 31, 2009, 2009 CPD para. 161 at 2. A reasonable basis to cancel exists when, for example, an agency determines that a solicitation does not accurately reflect its needs, or where there is a material increase in the services needed to satisfy the agency's requirements; in such cases, cancellation of the solicitation and issuance of a revised solicitation is appropriate. Logistics Solutions Group., Inc., B-294604.7, B-294604.8, July 28, 2005, 2005 CPD para. 141 at 3.

Here, we think that VA's basis for canceling the solicitation was reasonable. In this regard, the corrective action addressed the protest argument that award to R/X was improper. Furthermore, the corrective action was based on the agency's determination that new requirements will require the agency to issue a revised solicitation and obtain new proposals, which precludes award to KNAPP based on its existing proposal. On this record, we conclude that VA's corrective action was reasonable.  (KNAPP Logistics Automation, Inc.--Protest and Costs, B-404887.2; B-404887.3, July 27, 2011)  (pdf)


KGL asserts that the agency's actual reason for canceling the solicitation is KGL's refusal to provide certified cost and pricing data. According to the protester, the agency's position that cancellation is warranted by the alleged uncertainty relating to DLA's requirements in the region is a pretext because the rationale was provided only after KGL had raised the possibility of protesting the request for certified cost and pricing data. The protester further asserts that the agency has a continuing need for the services. KGL requests that we recommend that the solicitation be reinstated and award made to it, or, in the alternative, that we recommend that it be reimbursed the costs of preparing its proposal, including the costs it incurred to acquire the material handling equipment.

We find no merit to KGL's protest. In a negotiated procurement, a contracting agency has broad discretion in deciding whether to cancel a solicitation and need only establish a reasonable basis for doing so. ESM Group, Inc., B-400298.2, Oct. 14, 2008, 2008 CPD para. 190 at 2. Moreover, even if an initial justification is unreasonable, that fact is immaterial, provided that another, proper, basis for the cancellation exists. Sunshine Kids Serv. Supply Co., B-292141, June 2, 2003, 2003 CPD para. 119 at 2.

Here, we find that the uncertainty surrounding the future need for the services provided a reasonable basis upon which to cancel the solicitation. In this respect, the record includes an affidavit prepared by DLA's Deputy Director of Logistics Operations in which he states:

I spoke with . . . [the] Director of Logistics, Third Army and the US Army Central Command (ARCENT) G4 and the Army Materiel Command Southwest Asia Commanding General Kuwait. [The Third Army Director of Logistics] discussed the Army's drawdown in Iraq and its relation to the Army's need for [the current requirement]. [The director of Logistics, Third Army ] indicated that there might not be a continuing need for [the services] beyond mid 2011 and that potentially all the remaining . . . stock could be moved to Army warehouses on Camp Arifjan in Kuwait.

* * * * *

I also reviewed data that indicates [the solicited] workload had been shrinking and that its current storage utilization had declined over the past several months to about 51 percent capacity and the need would be lower in future years.

* * * * *

At the same time, DLA and the military services were aware of the mission risks and extensive costs that would be incurred to move the [agency's] inventory to the KGL location, and taking those risks and incurring those costs might not make sense if the solicited requirement] will close or be substantially downsized soon after the move.

Affidavit of DLA's Deputy Director of Logistics Operations, at 1-2.

As noted by KGL, the record shows that the agency requires the solicited services in the near term. However, the protester has not shown, nor does the record indicate, that the agency's stated concern as to nature and extent of its longer term needs was unreasonable. On the contrary, the record clearly indicates the existence of considerable uncertainty regarding the agency's future needs. Cancellation is appropriate where an agency conducts a reassessment that suggests the solicitation may not reflect its needs, such that the agency is uncertain whether the requirement will exist in the future. Global Solutions Network, B-299424, Apr. 20, 2007, 2007 CPD para. 76 at 2. In these circumstances, we find no basis to question the agency's decision to cancel the solicitation rather than enter into a new long-term contract. (KGL Logistics, B-404340, January 26, 2011) (pdf)


PSC contends that DLA's rationale for canceling the two RFQs was a pretext to avoid these protests. PSC makes a number of arguments in support of its position, all of which we have fully considered, although we only address PSC's primary arguments in this decision.

Contracting officials in negotiated procurements have broad discretion to take corrective action where the agency determines that such action is necessary to ensure fair and impartial competition. Major Contracting Servs., Inc., B-400737.2, Dec. 17, 2008, 2008 CPD para. 230 at 2. Where, as here, a protester alleges that an agency's rationale for cancellation is but a pretext to avoid resolving a protest, we review the agency's rationale to ensure that the agency has a reasonable basis for the cancellation. See Superlative Techs., Inc., B-310489, B-310489.2, Jan. 4, 2008, 2008 CPD para. 12 at 7.

DLA explains that, as a result of PSC's protests, the agency began a review of the methodology it used to evaluate quotations, and realized that the RFQ did not adequately advise offerors as to how past performance would be evaluated. AR at 8. DLA further explained that it would resolicit the procurement after its review was complete. Id.

It is fundamental that vendors should be advised of the basis on which their quotations will be evaluated. See C3, Inc., B‑241983.2, Mar. 13, 1991, 91‑1 CPD para. 279 at 3 (involving proposals). The Competition in Contracting Act of 1984, 10 U.S.C. sections 2305(a)(2)(A)(i) and (ii) (2006), requires contracting agencies to set forth in a solicitation all significant evaluation factors and their relative importance. Id. Here, DLA recognized as a result of PSC's protest that the RFQs did not clearly state the evaluation criteria pertaining to past performance. In this regard, DLA in recent weeks has issued multiple solicitations for lumber that contain detailed evaluation criteria for past performance. See, e.g., RFQ ‑0251 at 3; RFQ ‑0246 at 3; RFQ -0306 at 3. Specifically, the new evaluation criteria state:

The past performance evaluation will include a consideration of the following:
1. Failure to deliver by the required delivery date,
2. Number of late orders partially delivered (per order),
3. Contractor requested purchase order cancellations,
4. Quality issues or rejected material, and
5. Missed or late appointment times at the depot or missed or late container pickups (any appointment change not coordinated four (4) working days prior to the original appointment time will be considered a late/missed appointment).

Id. Correcting this error to allow for a fair and equal competition provides a reasonable basis for canceling the solicitations. Accordingly, we do not find that the agency's cancellation of the RFQs was a pretext to avoid our review.  (Progressive Services Corporation, B-404183; B-404251.2, January 11, 2011)  (pdf)


Greentree contends that the Army should not have cancelled the solicitation. In response, the Army explains that the solicitation did not identify all of significant evaluation factors and their relative importance, which rendered the solicitation defective. AR at 2-3. The Army further explains that it found that the record did not contain any contemporaneous documentation of the rationale for making award to Greentree. Id. at 3. Greentree argues that the transportation officer should have documented the evaluation of the proposals, rather than canceling the solicitation.

Contracting officials in negotiated procurements have broad discretion to take corrective action where the agency determines that such action is necessary to ensure fair and impartial competition. Major Contracting Servs., Inc., B-400737.2, Dec. 17, 2008, 2008 CPD para. 230 at 2. Moreover, it is fundamental that offerors should be advised of the basis on which their proposals will be evaluated. C3, Inc., B‑241983, B‑241983.2, Mar. 13, 1991, 91‑1 CPD para. 279 at 3. The Competition in Contracting Act of 1984, 10 U.S.C. sections 2305(a)(2)(A)(i) and (ii) (2006), requires contracting agencies to set forth in a solicitation all significant evaluation factors and their relative importance. Id.

Here, the Army identified not only an issue with the documentation of the best value determination, but also a problem with the evaluation criteria in the solicitation. The solicitation stated that the factors were "based on but not limited to" the listed evaluation factors. This is inconsistent with the fundamental requirement that offerors be informed of all the significant evaluation factors and their relative importance. Correcting this error to allow for a fair and equal competition provides a reasonable basis for canceling the solicitation. As a general rule, in a negotiated procurement the contracting agency need only demonstrate a reasonable basis to cancel a solicitation after receipt of proposals. Rand & Jones Enters. Co., Inc., B‑296483, Aug. 4, 2005, 2005 CPD para. 142 at 3.

The protest is denied.  (Greentree Transportation Company, Inc., B-403556.2, December 7, 2010)  (pdf)


ASI argues that, because CAMSS's quotation was technically unacceptable, the agency should have issued an order to ASI (as the firm with the lowest-priced, technically acceptable quotation) for the items that had not yet been delivered. In this regard, ASI contends that a recompetition would delay delivery of these "urgently needed" items and improperly provide CAMSS with a "second chance" to submit a technically acceptable quotation. Protester's Comments at 8.

The agency responds that, in reviewing ASI's earlier protest, it concluded that the salient characteristics identified in the solicitation materially overstated the agency's requirements by specifying ASI's brand name products. The agency also states that the CAMSS products that were shipped prior to the issuance of the stop work order were found to satisfy the agency's needs. Contracting Officer's Statement at 2. The agency contends that recompeting the remainder of its requirements under specifications that reflect the agency's actual minimum needs will increase competition and ensure that the agency receives the lowest possible price. Id.

In negotiated procurements, agencies have broad discretion to take corrective action where they determine that such action is necessary to ensure fair and impartial competition. See MayaTech Corp., B-400491.4, B-400491.5, Feb. 25, 2009, 2009 CPD para. 55 at 3; Domain Name Alliance Registry, B-310803.2, Aug. 18, 2008, 2008 CPD para. 168 at 8. We will not object to the specific corrective action, so long as it is appropriate to remedy the concern that caused the agency to take corrective action. Networks Elec. Corp., B-290666.3, Sept. 30, 2002, 2002 CPD para. 173 at 3. In this regard, we have found unobjectionable an agency's cancellation of a negotiated procurement after receiving proposals where the agency determined that the solicitation overstated the agency's requirements and the agency would seek enhanced competition by relaxing its requirements. See Robertson Leasing Corp., B-275152, Jan. 27, 1997, 97-1 CPD para. 49 at 3-4.

We find reasonable the agency's decision to relax its requirements to seek enhanced competition for the remaining items. Although ASI concludes that the agency has not proven that its needs will be met by the relaxed efforts, the fact that the agency has evaluated its needs, found that the awardee's products would meet its needs, and further determined that the awardee's products were not compliant with the solicitation's salient characteristics, is sufficient to demonstrate the reasonableness of the agency's actions here. Moreover, where, as here, an agency determines that a relaxed specification will both meet its needs and afford enhanced competition for the goods or services being acquired, we will not object to the relaxation. See Virginia Elec. and Power Co; Baltimore Gas & Elec. Co., B‑285209, B‑285209.2, Aug. 2, 2000, 2000 CPD para. 134 at 7-8 (the role of our Office in reviewing bid protests is to ensure that the statutory requirements for full and open competition are met, not to protect any interest a protester may have in more restrictive specifications).  (Alaska Structures, Inc., B-402648.3,  August 10, 2010) (pdf)


Platinum Services asserts that the cancellations here were unreasonable because there is no basis for concluding that the solicitations as amended (and the resulting contracts) did not accurately reflect the agency's needs, or otherwise confused offerors. We disagree.

A procuring agency has broad authority to cancel an RFP, and needs only a reasonable basis to do so. A-Tek, Inc., B-286967, Mar. 22, 2001, 2001 CPD para. 57 at 2. Such a reasonable basis exists where a solicitation does not present a reasonably accurate representation of the agency's anticipated actual needs. Lederle-Praxis Biologicals Div., Am. Cyanamid Corp., B‑257104 et al., Aug. 22, 1994, 94-2 CPD para. 205 at 5. Further, where a valid basis for cancellation exists, an agency properly may cancel a solicitation no matter when the information precipitating the cancellation first surfaces or should have been known. Daston Corp., B-292583, B-292583.2, Oct. 20, 2003, 2003 CPD para. 193 at 3.

It is clear from the record that the solicitations, even as amended, did not present a reasonably accurate representation of the agency's anticipated actual needs. In this regard, Platinum's assertion that the cancellations were improper because amendment 5 corrected the original errors in the estimates ignores the fact that the agency received revised estimates in April 2010 showing that the amendment 5 estimates on which offers and the awards were based were substantially overstated. As reported by the contracting officer, amendment 5 "published estimated acceptable daily weight capabilities that were grossly overestimated." AR, CO Statement at 3. Further, the determination that the amendment 5 estimates were materially overstated is supported not only by the April revised estimates, which were substantially lower than the amendment 5 estimates on which the awards were based, but also by the "actual" weights provided by the CO in her August 24 supplemental statement, which likewise are substantially lower than the amendment 5 estimates. AR, CO Supplemental Statement, Aug. 24, 2010, at 3.

Since the risks associated with a variance between actual and estimated purchase quantities are borne by the contractor, the government is obligated to use its best information in preparing quantity estimates so that offerors can appropriately assess and apportion risk and other contract performance costs into their prices. Where award is made on the basis of estimates that vary significantly from the agency's actual requirements, the contractor is in the untenable position of performing contract work of a magnitude significantly different from the solicited work, posing a risk to both the contractor and the government that the contractor will be unable to perform as required. News Printing, Inc., B-274773.2, Feb. 11, 1997, 97-1 CPD para. 68 at 3. Here, we conclude that the significantly overstated estimates in amendment 5 provided a reasonable basis for cancellation.

Noting that the agency has determined that even the April 2010 estimates are flawed, Platinum questions whether the revised solicitations will have estimates better than those contained in amendment 5. This concern is premature since the agency has not yet issued a revised solicitation. Norfolk Shipbuilding and Drydock Corp., B‑219988, B-219988.3, Dec. 16, 1985, 85-2 CPD para. 667 at 3.  (Platinum Services Inc., B-402718.2; B-402923, August 27, 2010) (pdf)


JER recognizes that in a negotiated procurement, an agency may cancel an existing solicitation where it has a reasonable basis for doing so, see, e.g., Blue Rock Structures, Inc., B-400811, Jan. 23, 2009, 2009 CPD para. 26 at 2, but argues that the agency lacked a reasonable basis for its decision to cancel here. The protester contends that the agency decided to cancel after it became apparent that Lincoln would be unable to perform and that award to the next-in-line offeror, i.e., JER, would therefore be required. The protester maintains that GSA sought to avoid awarding it a lease because EPA did not want to move into its proposed building, despite the fact that its offered space meets all of the SFO's stated requirements.

In response, the agency maintains that JER's offer was ineligible for award because the protester's proposed building failed to meet critical solicitation requirements. Specifically, the agency asserts that the offer failed to demonstrate compliance with the guidance in the SFO that "space within the ceiling cavity should be sufficient (in no case less than 18") to provide ample room for the necessary services without the need for bulkheads or beam breaks," SFO at 41, and with the requirement in the POR that no occupiable floor space be more than 50 feet from perimeter windows.

As noted above, the agency failed to produce a technical evaluation report endorsed by the evaluation panel members in its response to the protest here; thus, the record lacks documentation as to the technical evaluation panel's conclusions regarding strengths, weaknesses, deficiencies, or risks in the protester's offer. Moreover, none of the versions of the technical evaluation report produced by the agency, or the SSA's source selection decision, includes a finding that the protester's offer had been determined technically unacceptable. That is, while all versions of the report include findings of noncompliance with the guidance pertaining to required space in the ceiling cavity, in none is it indicated that the noncompliance rendered the offer technically unacceptable; on the contrary, in all versions of the report, the protester's offer was assigned a score of [deleted], corresponding to a rating of [deleted], under the building design/systems evaluation factor. Likewise, while the SSA found that the protester had failed to comply with the guidance pertaining to the ceiling cavity and that this posed a risk to the government, he did not find that JER's offer was technically unacceptable as a result; his rationale for selecting Lincoln for award was that its proposal was superior to the proposals of the other offerors, not that Lincoln had offered the only acceptable proposal. AR, Exh. 10, SSA Decision, Nov. 23, 2009, at 15. In sum, the record here does not establish that either the technical evaluators or the SSA considered the protester's proposal to be technically unacceptable and thus ineligible for award.

We turn then to the agency's second justification for canceling and resoliciting--i.e., that there has been a recent increase in the inventory of buildings available for rental in San Francisco, and, as a result, the agency can expect to receive offers for space [deleted] at lower rates than the rate proposed by Lincoln. We have reviewed the "market research" relied on by the contracting officer in reaching the foregoing conclusion, and fail to see how it supports a finding that offers of space comparable in quality to the Lincoln building at rates in the [deleted] may be anticipated. In addition, while we have recognized that the potential for cost savings provides a reasonable basis for cancellation, RN Expertise, Inc., B-401020, Mar. 27, 2009, 2009 CPD para. 63 at 4, GSA has not established--or even conjectured--that it will receive prices more favorable than the protester's if it resolicits; its position is simply that it can expect to receive prices more favorable than Lincoln's.

In our view, the record fails to demonstrate that the agency had a reasonable basis for canceling the SFO. We recommend that the agency reinstate the cancelled solicitation and proceed with the source selection process, which process, we recognize, may include further consideration of the technical acceptability of the offers, in light of the concerns expressed by the agency in response to the protest regarding, in particular, the protester's compliance with the ceiling cavity and window distance specifications. We also recommend that JER be reimbursed the reasonable costs of filing and pursuing the protest, including reasonable attorneys' fees. 4 C.F.R. sect. 21.8(d)(1) (2010). The protester's certified claim for costs, detailing the time spent and the costs incurred, must be submitted to the agency within 60 days after receipt of this decision.

The protest is sustained.  (JER 370 Third Street, LLC, B-402025.2; B-402541, June 1, 2010) (pdf)


KAES asserts that the cancellation was improper. In a negotiated procurement, a contracting agency has broad discretion in deciding whether to cancel a solicitation, and need only establish a reasonable basis for doing so. USA Elecs., B-283269.2, Oct. 5, 1999, 99-2 CPD para. 67 at 3. A reasonable basis to cancel exists when, for example, an agency determines that a solicitation does not accurately reflect its needs. Logistics Solutions Group, Inc., B-294604.7, B-294604.8, July 28, 2005, 2005 CPD para. 141 at 3 n.1.

FEMA has set forth a facially reasonable basis for cancellation--that its technical needs have changed, increasing beyond what the contract award would have provided, and that the statement of work (SOW) also no longer reflects the government's needs. KAES does not dispute the agency's specific factual assertions regarding the cancellation; that is, it does not assert that the agency's needs have not changed or that the original SOW will meet the agency's needs. Thus, there is no basis for us to question the agency's justification for the cancellation, and since cancellation of an RFP is permissible where the agency's needs have changed, we have no basis to object to the cancellation here.

KAES asserts that the cancellation decision lacked credibility and was a "pretext" to avoid having to make award to KAES and to "avoid resolution of the protest." Protest at 3-4. Procurement authorities are presumed to act in good faith, however, and in order for our Office to conclude otherwise, the record must show that procuring officials intended to injure the protester. Cycad Corp., B-255870, Apr. 12, 1994, 94-1 CPD para. 253 at 5. The protester's general assertion of bad faith notwithstanding, there is no evidence of such intent here. KAES cites the timing of the cancellation--it followed shortly the December 8 conference--as evidence of bad faith. However, since a solicitation properly may be canceled whenever the information precipitating the cancellation first surfaces or should have been known, Daston Corp., B-292583, B‑292583.2, Oct. 20, 2003, 2003 CPD para. 193 at 3, the timing of the cancellation, by itself, in no way evidences agency bad faith.

KAES asserts that it will be prejudiced by the cancellation because its prices presumably have been exposed. However, there is no evidence or reason to believe that KAES's prices have been exposed. There also is no indication that KAES was otherwise prejudiced by the cancellation to an extent greater than other offerors. As discussed at the December 8 ADR conference, if the protest were sustained on the issue identified by GAO--exclusion of KAES's proposal from the competitive range without consideration of its price--the probable recommended corrective action would have been for the agency to reassess KAES's exclusion considering price. Thus, there was no assurance that KAES would have been included in the competitive range but for the cancellation, and there certainly is no basis to assume that it would have had a greater chance of receiving the award than other offerors.

KAES asserts that the cancellation is inconsistent with the corrective action recommended by GAO during the ADR conference. However, the GAO attorney did not recommend corrective action at the conference; rather, he advised the parties of the likely recommendation if we issued a decision sustaining the protest. In any case, even had the GAO attorney provided such a recommendation, that would not have precluded the agency from canceling the RFP upon subsequently determining--properly, we have found--that the RFP did not meet its current needs. We conclude that there is no basis for us to object to the cancellation of the RFP.  (KAES Enterprises, LLC--Protest and Costs, B-402050.4, February 12, 2010)  (pdf)


On August 20, before the due date for receipt of proposals, the agency canceled the RFP. The cancellation notice stated that cancellation was “due to the unresolved issues attending parity of small business programs, and conflicting guidance from GAO [Government Accountability Office] and OMB [Office of Management and Budget] regarding priority of the HUBZone program relative to SBA’s [Small Business Administration’s] 8(a) Business Development Program.” Agency Report at 1; RFP amend. 5.

In this regard, as noted by the agency, our Office has interpreted the applicable statutes authorizing the HUBZone and 8(a) programs to require an agency to set aside a solicitation for HUBZone small business concerns where the standards of that program are satisfied prior to setting aside the solicitation for 8(a) small business concerns. As stated in our decisions, the plain language of the statute authorizing the HUBZone program is mandatory and requires that an agency set aside a procurement when certain criteria are met, whereas the plain language of the authorizing statute for the 8(a) program leaves the agency with discretion to set aside the procurement. See Mission Critical Solutions, B-401057, May 4, 2009, 2009 CPD para. 93 at 3-8, recon. denied, Small Business Admin.--Recon., B‑401057.2, July 6, 2009, 2009 CPD para. 148 at 5. In contrast, the SBA has taken the position that all small business programs are co‑equal in status and one does not take priority over another--that is, the SBA asserts that there is “parity” in the programs.

On July 10, OMB advised agencies that the Executive Branch (through the Department of Justice (DOJ)) was undertaking a “review of the legal basis underlying the GAO’s decisions.” OMB reminded agencies that GAO decisions “are not binding on Federal agencies,” and stated that our decisions in this area “are contrary to regulations promulgated by the [SBA] that provide for ‘parity’ among . . . small business programs.” OMB directed that agencies “should not, as a result of GAO’s decisions, be compelled to prioritize HUBZone small businesses over [other small business programs].” OMB Memorandum, July 10, 2009, at 1-2.

On August 21, DOJ issued a “Memorandum Opinion” stating that it disagreed with GAO’s decisions and concluded that the Small Business Act “does not compel SBA to prioritize the HUBZone Program in the manner GAO determined to be required.” DOJ Memorandum Opinion, Aug. 21, 2009, at 2. DOJ instructed that “the SBA’s regulations . . . are reasonable [and are] binding on all Executive Branch agencies, notwithstanding any GAO decisions to the contrary,” and reminded agencies that GAO decisions are not binding on the Executive Branch. Id. at 13.

Thereafter, the agency was contacted by the SBA, OMB, and senior officials in the Department of the Army, who expressed the view that setting aside the requirement for HUBZone contractors was in “direct violation of OMB guidance.” Agency Memorandum on Supplemental Protest at 1. The agency also was contacted by an attorney representing an 8(a) firm who suggested that the firm might seek injunctive relief to prevent the agency from awarding the contract under the current RFP. Id. Because of the threat of litigation and the “unresolved issues attending parity of small business programs,” the agency decided to cancel the RFP and consider other vehicles to procure Army combat shirts. Contracting Officer’s Statement para. 1. On September 9, the agency issued a delivery order for a portion of the quantity included in the RFP to the National Industries for the Blind (NIB), in accordance with the Javits-Wagner-O’Day Act, 41 U.S.C. sections 46-48c (2006), and the rules of the Committee for Purchase from People Who are Blind or Severely Disabled, 41 C.F.R. ch. 51 (2009). Contracting Officer’s Statement para. 7.

ASA contends that the agency’s decision to cancel the solicitation was unreasonable. In a negotiated procurement, such as the one here, a contracting agency has broad discretion in deciding whether to cancel a solicitation and need only establish a reasonable basis for doing so. ESM Group, Inc., B-400298.2, Oct. 14, 2008, 2008 CPD para. 190 at 2. For example, we have found the cancellation of an RFP to be reasonable where the agency determines that it no longer has a requirement for the item solicited, Peterson-Nunez Joint Venture, B-258788, Feb. 13, 1995, 95-1 CPD para. 73 at 4, where the agency discovers that an existing contract for its requirement would be more advantageous to the government than continuing with the procurement, Brian X. Scott, B-310970, B-310970.2, Mar. 26, 2008, 2008 CPD para. 59 at 3, or where, as a result of questions by cognizant officials, the agency reasonably determines that it needs to further review its requirements before proceeding with the planned procurement. Kenco Assocs., Inc.; Air Prods. and Chems., Inc., B‑297503, B-297503.2, Jan. 25, 2006, 2006 CPD para. 24 at 2-5.

Here, the agency has advanced a reasonable basis for canceling the RFP. Given the conflicting views expressed in GAO’s legal decisions and the Executive Branch directives, the threat of litigation from competing small business interests, and the availability of another procurement vehicle to meet at least some of the agency’s requirements while it decides how to procure the remaining items, we find nothing improper in the agency’s decision to cancel the RFP here.  (All Seasons Apparel, Inc., B-401805; B-401805.2, November 4, 2009)  (pdf)


The Army received proposals from four offerors by the RFP’s January 24, 2008 closing date. Upon completing its evaluation, the Army notified ARI in April 2008 that it intended to make award to El Poco Enterprises. ARI subsequently filed a protest with the Small Business Administration (SBA) challenging El Poco’s size status; ARI also filed a protest with our Office challenging the Army’s evaluation and selection decision. The SBA determined that El Poco did not qualify as a small business and therefore was ineligible for award. In July 2008, the Army informed our Office that it intended to terminate El Poco’s award and we dismissed ARI’s protest as academic. Approximately 6 months later, on January 13, 2009, the Army made award to Will Technology, Inc. (WTI), which was identified as next in line for award under the solicitation. ARI then filed a protest challenging the Army’s second award decision. In its protest, ARI argued that WTI’s proposal was not in compliance with the rules regarding limitations on subcontracting by small business concerns, i.e., the “50 percent rule.” The Army took corrective action for a second time on March 31, 2009, representing that it intended to terminate WTI’s contract. We dismissed ARI’s protest as academic on April 3, 2009. Thereafter, rather than making award to ARI, the next in line offeror, the Army decided to cancel the solicitation and issue a new solicitation at a future date. While TETRA1 prepares to issue the new solicitation, it is obtaining contractor support services through a delivery order awarded by the Defense Intelligence Agency, Missile and Space Intelligence Center, under an existing ID/IQ contract, and is also receiving support from Air Force Reservists and government interns.

(sections deleted)

Here, the Chief of TETRA has represented that since the time the solicitation was issued in December 2007, “TETRA’s mission has evolved to become focused on threat resource adequacy” and, as a consequence, TETRA “will require more technical support . . . rather than the programmatic support as solicited in 2007.” Declaration of Chief of TETRA, Aug. 21, 2009. In addition, TETRA explained that it needed to reassess its support requirements in light of in-sourcing efforts, which include the augmentation of TETRA’s permanent workforce with “interns and Air Force Flight 199 [Reservists] with up to 2 [full time equivalents].” Id. Based on the change in requirements, TETRA withdrew funding from the Army for the solicitation to allow TETRA time to develop new requirements, which will be issued under a new solicitation at a future date.

In response, ARI, as a general matter, challenges the notion that TETRA’s mission has “evolved” to focus more on “threat resource adequacy.” In this regard, ARI identifies specific instances dating to 2007 where the term “adequacy” has been associated with TETRA’s mission as it relates to “test adequacy” and the solicitation’s use of the broader term “resource analysis” which, in ARI’s view, encompasses “resource adequacy.” ARI also contends that the fallacy of TETRA’s position is evidenced by the fact that TETRA has hired a support contractor pending reissuance of the solicitation; ARI alleges that the contractor is performing the tasks identified under the cancelled solicitation. Given that TETRA, not ARI, is in the best position to identify its requirements, and in light of the deference afforded agencies in identifying their needs, Safety Storage, Inc., B-280851.2, May 13, 1999, 99-1 CPD para. 93 at 2, we view ARI’s reliance on the agency’s use of the term “adequacy,” coupled with its own beliefs regarding the nature of the agency’s requirements, to be an inadequate basis for our Office to question the agency’s representations regarding its changed needs. Moreover, we do not find the activities performed by TETRA’s temporary support contractor, while TETRA redrafts its requirements, to be relevant indicia of whether TETRA’s needs have changed since the issuance of the original solicitation in December 2007, given that TETRA is still in the process of crafting a new solicitation to reflect its changed requirements.

Assuming that TETRA’s mission has in fact changed, ARI alternatively argues that the cancelled solicitation could have been used to meet the agency’s changed requirements since the solicitation required flexibility by the contractor, generally informing offerors that “[i]n a constantly changing environment, TETRA requires flexible support, agile and capable performance, and aggressive pursuit of satisfying new requirements.” RFP at 5. ARI’s reliance on general undefined statements regarding contractor flexibility in the RFP misses the point--TETRA was not required to make award under a solicitation which it maintains was fundamentally inconsistent with its needs and on the possibility that broad statements in the RFP would be sufficient for the agency to satisfy its changed needs.

As a final matter, ARI maintains that the Army could have readily awarded ARI task orders for those mission area functions requiring support until TETRA completes its reassessment and issues the new solicitation. According to ARI, the agency has instead unreasonably decided to have its support services needs met using government personnel and a task order issued under a separate ID/IQ contract. In this regard, ARI asserts that award under the solicitation would have been a “less expensive approach.” ARI’s Comments, July 24, 2009, at 2. ARI’s assertion regarding cost, however, is unpersuasive; it is based entirely on ARI’s own comparison of the cost of the support contractor and ARI’s cost for performance as the incumbent contractor, not ARI’s proposed cost under the cancelled solicitation. We therefore have no basis to conclude that the agency acted unreasonably in deciding to cancel the solicitation.  (Applied Resources, Inc., B-400144.7; B-400144.8, July 31, 2009)  (pdf)

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1. Test & Evaluation Threat Resource Activity


Following the receipt of revised proposals, DPW requested verification of available funding to make the award, see Agency Report (AR), Tab 9, DPW Email to Budget Office, May 5, 2009, and was informed that there was not sufficient funding to make the award. Contracting Officer’s Statement at 3-4. Subsequently, DPW's request for approval to award this services contract was disapproved. AR, Tab 8, Request for Services Contract Approval, May 15, 2009, at 1. The RFP was cancelled, and offerors were notified "that the solicitation has been cancelled in its entirety due to change in the Government's requirements." AR, Tab 12, Contracting Officer's Letter to VetPride, May 27, 2009. This protest followed.

VetPride complains that the Army cancelled the solicitation after 5 months of negotiations and contends that the agency acted unreasonably in "stringing along all the contractors who were found to be in a competitive range." Comments at 1. VetPride disputes that the Army does not have sufficient funds to procure these services. The protester argues that the record establishes that the agency has a continuing need for these services, given the agency's use of federal employees for work reception and management services. Id. at 2.

In a negotiated procurement such as this one, the contracting agency has broad discretion in deciding whether to cancel a solicitation and need only have a reasonable basis for doing so. A-Tek, Inc., B-286967, Mar. 22, 2001, 2001 CPD para. 57 at 2. If a reasonable basis exists to cancel a solicitation, an agency may cancel the solicitation regardless of when the information first surfaces or should have been known, even if the solicitation is not cancelled until after proposals have been submitted and evaluated. See SEI Group, Inc., B-299108, Feb. 6, 2007 CPD para. 35 at 3; VSE Corp., B-290452.2, Apr. 11, 2005, 2005 CPD para. 111 at 6; Daston Corp., B-292583, B‑292583.2, Oct. 20, 2003 CPD para.193 at 3. An agency's lack of funding for a procurement is a reasonable basis for cancellation, as agencies may not award contracts that exceed available funds. Quality Support, Inc., B-296716, Sept. 13, 2005, 2005 CPD para. 172 at 2; First Enter., B-292967, Jan. 7, 2004, 2004 CPD para. 11 at 3-4; James M. Carroll--Recon., B-221502.3, Mar. 24, 1986, 86-1 CPD para. 290 at 3.

Here, the record establishes a reasonable basis for the cancellation of the solicitation. In response to our request, the Army provided the declaration of the Deputy to the Garrison Commander of the Installation Management Command at Fort Polk, who stated that he was responsible for, among other things, management of Garrison staff, coordination of services at the installation, and resource planning and execution. He stated that, as a result of his office's review, it was determined that "[t]he option to award a separate work reception contract was simply unaffordable and could not be exercised in light of the lack of funding. I therefore directed that the solicitation of this (SAF) contract be stopped." Declaration of the Deputy to the Garrison Commander, June 30, 2009, at 2. The deputy also described how the Army could satisfy the reception services by "directly absorbing work reception into the available government staffing through a combination of hiring against vacant authorizations and reassigning tasks of existing staff as needed." Id.

With regard to VetPride's contention that the agency has a continuing need for these services and its disagreement that the agency lacks the funding to procure these services, we agree that the record establishes the agency's continuing need. That is why the agency was required to consider other alternatives such as reorganizing its existing staff when it learned that it would not have sufficient funding to procure the services under the contract. Although VetPride disagrees that the agency lacked sufficient funds for this procurement, it does not show that the agency's decision concerning how it would allocate its available funds was unreasonable. In that regard,

it is not our role to question the unavailability of funds. The management of an agency's funds generally depends on the agency's judgment concerning which projects and activities should receive increased or reduced funding and a contracting agency has the right to cancel a solicitation when, as a result of its allocation determinations, sufficient funds are not available.  First Enter., supra, at 3. Accordingly, the protest is denied.  (VetPride Services, Inc., B-401435, July 28, 2009)  (pdf)


On June 27, QSSI filed an agency-level protest challenging the cancellation of its task order issued under RFQ‑23247. HUD denied its protest, and QSSI then filed this protest with our Office asserting that the cancellation was improper.

In its report responding to the protest, HUD states that, because it had not first followed the required regulatory procedures for obtaining a deviation from the citizenship requirements of HUDAR sect. 2452.239-70 (see HUDAR sect. 2401.403), its offeror question response--that the agency would consider granting waivers of the HUDAR sect. 2452.239-70 citizenship requirements on an exceptional basis--introduced an ambiguity into RFQ‑23247 regarding whether or not offerors would be able to propose non-U.S. nationals. The agency concludes that this created an unfair competitive environment that rendered the selection of QSSI improper. QSSI disagrees that the solicitation was defective.

It is evident from the record that, whether or not ambiguous, RFQ‑23247 did not accurately reflect the agency's minimum needs, but instead was more restrictive of competition than necessary. In this regard, where an agency issues a purchase order to a firm based on a solicitation that does not accurately reflect the agency's minimum needs, the purchase order should be canceled and the procurement reopened to allow competing firms an opportunity to respond to the agency's actual requirements. See Freedom Graphic Sys., Inc., B-277305, Sept. 22, 1997, 97-2 CPD para. 82 at 2; Budney Indus., B-252361, June 10, 1993, 93-1 CPD para. 450 at 3-4.

Here, the amended bridge solicitation (RFQ-23317) unambiguously expanded the categories of contractor employees who may have access to HUD information systems to include not only U.S. citizens or nationals, but also aliens lawfully admitted to be employed in the U.S., eliminating the prior requirement that an offeror could only propose such non-U.S. national employees on an exceptional basis (i.e., where it could demonstrate that no other employee who meets the citizenship requirements could perform the work for which the non-U.S. national employee was proposed). It is clear from this RFQ that HUD has determined that non-U.S. national employees may have access to HUD information systems, so long as the government is able to obtain sufficient background information to complete a background investigation for the employee, without the requirement for a showing of exceptional circumstances that was called for under RFQ‑23247.

Since QSSI's task order was issued under a solicitation that did not accurately reflect the agency's minimum needs, but instead was more restrictive of competition than necessary, and thus may have deterred some firms from competing or submitting a more advantageous quotation, we conclude that HUD properly terminated QSSI’s order.  (Quality Software Services, Inc., B-400206.2, November 19, 2008)  (pdf)


The RFP, issued on June 16, 2008, contemplated the award of an indefinite-delivery/indefinite-quantity contract with a 1-year base period plus four 1-year options for ecological restoration services within Everglades National Park. For each year, the RFP included a contract pricing schedule, which set forth contract line item numbers (CLIN) for specific tasks. For each CLIN, offerors were required to propose fixed prices for identified minimum and maximum estimated order quantities. The RFP provided that the government would order, at a minimum, $2 million worth of services under the contract; the total dollar value per order would not exceed $24 million; the total dollar value of all orders for the base year would not exceed $24 million; and the total dollar value of orders for each option year would not exceed $26 million. RFP at 5.

(sections deleted)

NPS has identified three reasons why the solicitation should be cancelled. First, cancellation is proper because NPS failed to mitigate the unfair competitive advantage Optimum derived as a consequence of learning Westwind's price information during its debriefing. Second, NPS claims that the solicitation needs to be revised to address "unclear and/or confusing" language regarding the agency's evaluation of offerors' past performance and experience. AR at 5. Third, the agency maintains that as a consequence of a significant reduction in funding (approximately 50 percent), it needs to lower the estimated maximum order quantities for the CLINs as well as reduce the maximum order dollar values stated in the solicitation for the base period and each option period to $10 million, from $24 million and $26 million, respectively. Contracting Officer's Statement at 4.

(sections deleted)

In a negotiated procurement, contracting agencies enjoy broad discretion in determining whether to cancel a solicitation, and need only have a reasonable basis for doing so. ESM Group, Inc., B-400298.2, Oct. 14, 2008, 2008 CPD para. 190 at 2. Here, we need not review the agency's first two justifications for cancellation since the agency's third justification establishes a reasonable basis for its decision to cancel the RFP. We have held that a reasonable basis for cancellation exists where the solicitation does not accurately reflect the agency's requirements. Blue Rock Structures, Inc., B-400811, Jan. 23, 2009, 2009 CPD para. 26 at 2. Due to reduced funding levels, the agency here recognized that the solicitation did not accurately reflect its requirements given that the maximum estimated order quantities for the CLINs were overstated, as were the maximum order dollar values for the base and option periods.

The protester contends that changes to the solicitation's maximum values are immaterial because the government is only obligated under the solicitation to order the stated minimum order value ($2 million), which remain unchanged. We disagree. Both the maximum estimated quantities for the CLINs and the maximum order values during each ordering period are provided to help offerors make informed judgments when proposing their unit prices; they could directly affect offerors' pricing strategy. Moreover, we have recognized that reducing maximum quantities can allow further competition from firms unable to perform at the originally stated quantities, but with the ability to perform at lower quantities. See, e.g., Cadre Tech., Inc.; Hubbard Assoc. of Florida, Inc., B-221430, B-221430.2, 86-1 CPD para. 256 at 2. Given the magnitude of the changes to these material aspects of the solicitation, the agency acted reasonably in concluding that the solicitation did not accurately state the agency's requirements and deciding to cancel the solicitation so that it could issue a new solicitation based on the revised estimates.  (Optimum Services, Inc., B-401051, April 15, 2009) (pdf)


With regard to competitive negotiated acquisitions, Federal Acquisition Regulation (FAR) sect. 15.305(b) provides that "[t]he source selection authority may reject all proposals received in response to a solicitation, if doing so is in the best interest of the Government." We have consistently held that an agency has broad authority to decide whether to cancel a solicitation issued under competitive negotiated procedures, and to do so need only establish a reasonable basis. We have recognized that the potential for cost savings provides a reasonable basis for cancellation. Business Commc'ns Sys., Inc., B-218619, July 29, 1985, 85-2 CPD para. 103 at 3. If a reasonable basis exists to cancel a solicitation, an agency may cancel the solicitation regardless of when the information first surfaces or should have been known, even if the solicitation is not canceled until after proposals have been submitted and evaluated, or even if discovered during the course of a protest. SEI Group, Inc., B‑299108, Feb. 6, 2007, 2007 CPD para. 35 at 3; VSE Corp., B‑290452.2, Apr. 11, 2005, 2005 CPD para. 111 at 6.

RN Expertise argues that: (1) acquiring the services under the interagency agreement is actually more expensive than under a contract awarded to RN Expertise under the canceled RFP; (2) the services called for under the RFP are outside the scope of the contract to be used to obtain the services pursuant to the interagency agreement, thereby rendering the contemplated orders non-competitive and contrary to law; (3) the agency failed to consider "best value" as provided in the canceled solicitation when it decided to utilize the interagency agreement; and (4) use of the interagency agreement is improper because the Navy has not complied with necessary policies and procedures to have its collection requirements met under the interagency agreement, including the requirements established under the Economy Act, 31 U.S.C. sect. 1535 (2006) and FAR subpart 17.5. We find the protester's challenges to be without merit.

As an initial matter, there is nothing in the record to suggest that utilizing the interagency agreement will be more expensive than award to RN Expertise under the canceled solicitation. The agreement expressly provides for charging DOD agencies two fixed rates, a rate for CONUS collections and a separate rate for OCONUS collections. These rates, when multiplied by the estimated number of tests identified in the solicitation, support the cost savings identified by the agency. The protester's challenge to the cost savings is based not on these fixed rates, but on a calculated composite collection rate which the protester derives from prices of actual orders issued pursuant to the agreement. This composite rate, however, is based in part on orders for other than collection services. As a consequence, the protester's arguments in this regard do not cast reasonable doubt on the agency's findings.

Regarding the additional challenges raised by the protester, they are unsupported or irrelevant. Specifically, the protester fails to provide any explanation of its allegation that the Navy's requirements are outside the scope of the DOI contract to be used in connection with the interagency agreement. To the contrary, while the statements of work for the solicitation and the DOI contract may not be identical, they are in fact similar in material respects. Absent any concerns regarding material differences between the scope of the solicitation and the DOI contract, we see no basis to conclude that the agency acted unreasonably in finding that "[t]he required services under both vehicles are the same or equal." AR, Tab 16, Declaration of Navy Drug Program Coordinator.

In addition, the protester's "best value" concern and its challenge to the legality of the interagency agreement are misplaced. Regarding the "best value" issue, the protester suggests that it was improper for the agency to consider solely cost savings in deciding to cancel the solicitation since the solicitation established the agency's intent to obtain the "best value" through a price/technical tradeoff process, with technical factors being more important than price. This argument is misplaced because, as noted above, an agency need only have a reasonable basis to cancel a solicitation, and the reasonable possibility of achieving cost savings provides such a basis. Because the "best value" issue relates to the intended award under the canceled solicitation and the protester has failed to explain how the award provisions of the canceled solicitation are relevant to our consideration of the reasonableness of the agency's cost savings findings and cancellation decision, we have no basis to question the agency's decision to cancel the RFP.

Finally, the protester's concerns regarding the Navy's failure to comply with certain administrative procedures, including those established by the Economy Act and the FAR, are misplaced since the procedures and policies identified concern internal administrative matters for the agency, or they concern the Navy's compliance with requirements associated with ordering under the agreement. As a consequence, they do not involve the propriety of the cancellation decision and do not provide a basis to challenge the reasonableness of the Navy's actions.  (RN Expertise, Inc., B-401020, March 27, 2009) (pdf)


First, with regard to e-Management's and Centech's protests challenging the agency's decision to cancel the solicitation, we note that the Federal Acquisition Regulation (FAR) provides:

Government business shall be conducted in a manner above reproach and, except as authorized by statute or regulation, with complete impartiality and with preferential treatment for none. Transactions relating to the expenditure of public funds require the highest degree of public trust and an impeccable standard of conduct. The general rule is to avoid strictly any conflict of interest or even the appearance of a conflict of interest in Government-contractor relationships.

FAR sect. 3.101-1.

Further, in a negotiated procurement, an agency has broad authority to cancel a solicitation, and needs only a reasonable basis to do so. See, e.g., A-Tek, Inc., B‑286967, Mar. 22, 2001, 2001 CPD para. 57 at 2. In this regard, an agency may properly cancel a solicitation no matter when the information precipitating the cancellation first surfaces or should have been known. See, e.g., Daston Corp., B-292583, B‑292583.2, Oct. 20, 2003, 2003 CPD para. 193 at 3. Where a protester has alleged that an agency's rational for cancellation is pretextual, that is, the agency's actual motivation is to avoid awarding a contract on a competitive basis or to avoid resolving a protest, we will more closely examine the bases for the agency's actions. See, e.g., Superlative Tech., Inc., B-310489, B-310489.2, Jan. 4, 2008, 2008 CPD para. 12 at 7; Gonzales‑McCaulley Inv. Group, Inc., B-299936.2, Nov. 5, 2007, 2007 CPD para. 192 at 5. Notwithstanding such closer scrutiny, the reasonableness standard applicable to cancellation of a solicitation remains unchanged.

Here, as noted above, the CIO was the COTR under e-Management's prior contract, had an undisclosed personal relationship with e-Management's president, and was the primary author of this solicitation's statement of work and evaluation factors. In response to e-Management's second protest, the agency provided additional documentation regarding the CIO's activities during the source selection process. For example, early in the evaluation process, the agency's evaluation panel had ranked the third offeror's proposal as the most highly rated, but that ranking was changed following criticism by the CIO. Agency Report, Nov. 24, 2008, at 6-7. Finally, the agency has produced a copy of the IG's interim report for this Office's in camera review. We understand the IG has not yet closed its investigation regarding this matter; accordingly, we will not further discuss that report.

Based on our review of the record, we do not question the reasonableness of the agency's determination to cancel the solicitation and to subsequently issue a new solicitation for this procurement. More specifically, here, the agency obtained information following contract award indicating that the terms of the solicitation, including the statement of work and evaluation factors, may not have been written with complete impartiality and objectivity. Further the record provides a reasonable basis for the agency's concern that, as a result of the potential bias, the agency's consideration of all offerors' proposals may have been compromised. In such circumstances, the approach taken by NHTSA appears to be a prudent course of action. e-Management's and Centech's assertions that cancellation of the solicitation was unreasonable and pretextual are without merit.  (e-Management Consultants, Inc.; Centech Group, Inc., B-400585.2; B-400585.3, February 3, 2009)  (pdf)


As in its agency-level protest, Blue Rock contends that the cancellation was improper and violated FAR sect. 14.404.1(a)(3). It also argues that the cancellation was discriminatory towards HUBZone small business concerns and the HUBZone small business program because, in Blue Rock's view, the expanded project will no longer be appropriate for a HUBZone small business set-aside.

As explained in the agency's response to the agency-level protest, an agency, in a negotiated procurement, has broad authority to decide whether to cancel a solicitation, and needs only a reasonable basis to do so. A reasonable basis for cancellation exists when a solicitation does not accurately reflect the agency's requirements, particularly where cancellation of the solicitation and the issuance of a revised solicitation would present the potential for increased competition, efficiencies or cost savings. If a reasonable basis exists to cancel a solicitation, an agency may cancel the solicitation regardless of when the information first surfaces or should have been known, even if the solicitation is not canceled until after proposals have been submitted and evaluated. Rice Servs., Inc.; Watson Servs., Inc., B-293861 et al., June 15, 2004, 2004 CPD para. 167 at 4.

In its report in answer to this protest, the agency advises that it cancelled this solicitation because the current RFP no longer reflects its requirements, and because a substantially revised RFP is being developed, which is expected to result in greater competition and in lower overall cost. The agency reports that the pool construction project was originally planned to include both the Rescue Swimmer Training Facility and the Dunker Facility, but the agency decided to delay construction of the Dunker Facility because of a lack of funding. AR, Tab 22, Declaration of CO at 2. The agency explains that these plans have changed because Congress has now made funds available for both projects. Thus, the agency explains that it will be more efficient to build the entire complex as one project within one building, rather than adding the second feature later. In this regard, the agency states that the efficiencies of combining the two projects include, among other things: single site mobilization and demobilization, better coordinated building design, better coordinated construction, reinstatement of certain of the deleted original scope requirements for the swimmer training facility, and a reduction in the overall construction time. Id. at 3.

Here, we have no basis to question the agency's determination that having one facility to house its water training requirements results in a more efficient training operation. The increased scope of work associated with combining these training requirements in one facility means that the current RFP does not reflect the agency’s requirements. For these reasons, we find that the agency reasonably decided to cancel this RFP.

To the extent that the protester argues that the "bundling" of the two projects will likely result in the new procurement not being set aside for HUBZone business concerns, we note that this argument is speculative, as the new solicitation has not been released. Nonetheless, the agency reports that based on its market research, it has a reasonable expectation that offers will be obtained from at least two responsible HUBZone small business concerns and has determined that the new combined acquisition will again be set aside for HUBZone small business concerns. CO Letter, December 2, 2008.

Blue Rock finally maintains that its protest should be sustained because the agency’s report was untimely filed with our Office. Our Bid Protest Regulations, 4 C.F.R. sect. 21.3 (c), require the contracting agency to file a report within 30 days and the agency’s failure to comply with the prescribed time limits may result in resolution of the protest without consideration of the untimely submission. See Price Waterhouse, B-220049, Jan. 16, 1986, 86-1 CPD para. 54 at 5. We note that the report was filed with our Office 1 day after the required due date. That said, Blue Rock cannot claim it was prejudiced by the delay, and we believe the facts presented by the agency, which demonstrate that the protest is without merit, may be considered. Land Mark Realty, Inc., B-224323, Dec. 1, 1986, 86-2 CPD para. 620 at 2.  (Blue Rock Structures, Inc., B-400811,  January 23, 2009) (pdf)


In response to the protest and prior to submitting its agency report regarding the propriety of its actions, the Army notified our Office and the parties that it would take corrective action by terminating the current award, issuing a new solicitation that clarified the requirement, receiving new proposals, and making a new award decision. We found that the Army's corrective action rendered academic MCS's protest of the award to Vantex, and dismissed MCS's protest.

MCS complains that the Army has no reasonable basis for canceling the RFP and resoliciting the requirements because the contracting officer "stated that there was no reason to believe that [the] Protester could not meet the requirements of the intended Contract" and the protester submitted the lowest priced offer. Comments at 1.

Contracting officials in negotiated procurements have broad discretion to take corrective action where the agency determines that such action is necessary to ensure fair and impartial competition. Patriot Contract Servs. LLC et al., B‑278276.11 et al., Sept. 22, 1998, 98-2 CPD para. 77 at 4. We will not object to the specific proposed corrective action, so long as it is appropriate to remedy the concern that caused the agency to take corrective action. Networks Elec. Corp., B‑290666.3, Sept. 30, 2002, 2002 CPD para. 173 at 3.

Here, the Army agrees with the protester that the RFP did not request or require offerors to submit technical proposals. The agency explains, however, "that it needs each offeror to submit a technical proposal that describes how that offeror intends to meet the requirement" in order "[t]o ensure that the Army's requirements are properly and effectively met." Agency Report at 4. In addition, the agency explains that its proposed corrective action will ensure a full and open competition by allowing all interested offerors to submit proposals.

We find no basis to object to the Army's proposed corrective action. Although the RFP informed offerors that the agency would evaluate, among other things, the offerors' ability to meet the contract specifications, the agency's ability to make such an assessment was hindered by the failure of the solicitation to require the submission of technical proposals. Under the circumstances, we conclude that the agency reasonably determined that it should cancel the RFP and resolicit after clarifying its requirements.  (Major Contracting Services, Inc., B-400737.2, December 17, 2008) (pdf)


In a negotiated procurement such as this one, a contracting agency has broad discretion in deciding whether to cancel a solicitation, and need only establish a reasonable basis for doing so. A-Tek, Inc., B-286967, Mar. 22, 2001, 2001 CPD para. 57 at 2. An agency may properly cancel a solicitation no matter when the information precipitating the cancellation first surfaces or should have been known, even if the solicitation is not canceled until after offers have been submitted and evaluated. Daston Corp., B-292583; B-292583.2, Oct. 20, 2003, 2003 CPD para. 193 at 3. In this regard, we have found the cancellation of an RFP to be reasonable where the agency determines that it no longer has a requirement for the item solicited, Peterson-Nunez Joint Venture, B-258788, Feb. 13, 1995, 95-1 CPD para. 73 at 4, or where the agency discovers an existing contract for its requirement would be more advantageous to the government than continuing with the procurement. Brian X. Scott, B-310970; B‑310970.2, Mar. 26, 2008, 2008 CPD para. 59 at 3. Where, as here, a protester has alleged that an agency’s rationale for cancellation is but a pretext, that is, the agency’s actual motivation is to avoid awarding a contract on a competitive basis or to avoid resolving a protest, we will closely examine the reasonableness of the agency’s actions in canceling the solicitation. Gonzales-McCaulley Inv. Group, Inc., B‑299936.2, Nov. 5, 2007, 2007 CPD para. 192 at 5.

While the record here is not a model of clarity, the agency has affirmatively represented that it no longer has a need for the magnesium powder, specifically stating that “the Agency has no requirement or plans to procure magnesium powder in the near future.” AR at 1-2. With regard to the protester’s challenge to the veracity of this representation, we note that Government officials are presumed to act in good faith and a protester’s claim that contracting officials are motivated by bias or bad faith must be supported by convincing proof. Our Office will not attribute unfair or prejudicial motives to procurement officials on the basis of inference or supposition. Brian X. Scott, supra, at 4. The protester has not provided such convincing proof. In this regard, we do not view the fact that the customer notified the procuring activity on July 14 that it no longer needed the magnesium powder, and the procuring activity’s cancellation of the solicitation by amendment on July 14 and notification of our Office of the cancellation on July 15 on a different basis, as convincing proof that the agency was not truthful in its statement that it no longer needed the magnesium powder. This is so given that these different reasons were advanced during the same time frame by different elements within the agency. Nor do we view the agency’s statement that the requiring activity “is obtaining the magnesium powder through an existing DLA contract” to be proof of bias or bad faith, given that the discovery of an existing contract to satisfy its needs may in itself provide a reasonable basis for a cancellation, and in the alternative, that according to the protester, the contract has now expired. In sum, we simply cannot find, as asserted by the protester, that the Army’s statement that it no longer has a need for the magnesium powder is “demonstrably false.” See Protester’s Comments at 12. Since an agency has reasonable basis to cancel a solicitation where it determines that it no longer has a requirement, we find based upon our review of the record here that the agency’s cancellation of the solicitation is unobjectionable. See Peterson-Nunez Joint Venture, supra.  (ESM Group, Inc., B-400298.2, October 14, 2008) (pdf)


DBE argues that FEMA’s cancellation of the year 3 (Task Order Proposal Request) TOPR resulted in an improper extension of the year 2 task order. Specifically, DBA contends that the extension of the year 2 task order denies the protester a fair opportunity to compete for the agency’s requirements. FEMA contends that it had a reasonable basis for canceling the solicitation and extending the year 2 task order. We agree with the agency.

A contracting agency need only establish a reasonable basis to support a decision to cancel an RFQ. Deva & Assoc. PC, B-309972.3, Apr. 29, 2008, 2008 CPD para. 89 at 3. A reasonable basis to cancel exists when, for example, an agency concludes that a solicitation does not accurately reflect its needs, or the agency determines that a new solicitation presents the potential for new competition or savings. Logistics Solutions Group, Inc., B-294604.7, B-294604.8, July 28, 2005, 2005 CPD para. 141 at 3; Para Scientific Co., B-310903, B-310742.2, Feb. 14, 2008, 2008 CPD para. 46 at 3.

Here, FEMA concluded that cancellation of the year 3 TOPR was warranted because the agency’s requirements had changed. As discussed above, FEMA states that it will not place new orders against the ID/IQ contract, and will instead issue four new contracts to address the agency’s revised requirements. The agency states that the new contracts will allow the government to address redefined requirements for the services, debundle the requirements, reduce costs to the government, and to improve performance as compared to the current overlapping contracts. Contracting Officer (CO) Statement at 2. On this record, we think the agency had a reasonable basis to cancel the year 3 TOPR.  (added to decision)  (Doug Boyd Enterprises, LLC, B-400390, October 2, 2008) (pdf)


Federal Acquisition Regulation (FAR) sect. 15.305(b) provides, with regard to competitive negotiated acquisitions, “[t]he source selection authority may reject all proposals received in response to a solicitation, if doing so is in the best interest of the Government.” We have consistently recognized that an agency has broad authority to decide whether to cancel a solicitation issued under competitive negotiated procedures, and to do so need only establish a reasonable basis. We have recognized that a reasonable basis for cancellation exists and cancellation is appropriate when a solicitation does not accurately reflect the agency’s requirements, particularly where cancellation of the solicitation and the issuance of a revised solicitation would present the potential for increased competition. If a reasonable basis exists to cancel a solicitation, an agency may cancel the solicitation regardless of when the information first surfaces or should have been known, even if the solicitation is not canceled until after proposals have been submitted and evaluated, or even if discovered during the course of a protest. SEI Group, Inc., B‑299108, Feb. 6, 2007, 2007 CPD para. 35 at 3; VSE Corp., B‑290452.2, Apr. 11, 2005, 2005 CPD para. 111 at 6.

Here, the contracting officer’s decision to cancel this RFP was reasonable. First, the agency determined that the solicitation did not adequately meet its needs. As explained above, the SSEB determined that the solicitation had major omissions and ambiguities that would require substantial changes to correct. Specifically regarding subfactor (1B), because of omissions in the RFP, the SOPs that offerors submitted did not have enough information for the SSEB to properly assess the potential offerors’ technical capabilities. Subfactor (2B) was found not to encompass all elements that were necessary to ensure that quality control inspections could be met. Where, as here, a solicitation no longer accurately reflects an agency’s requirements, and resolicitation could result in increased competition, cancellation of the solicitation is appropriate. See Global Solutions Network, Inc., B‑289342.4, Mar. 26, 2002, 2002 CPD para. 64 at 3.

Moreover, the contracting officer also determined that it did not appear that some of the present offerors had the capability to satisfy the 90-day transition requirement, and the agency reasonably believed that an increase in the period for the new awardee to transition to providing the required services from 90 days to 120 days, or possibly 180 days, could potentially result in increased competition. An agency may cancel a solicitation where it materially overstates the agency’s requirements and there is a potential enhanced competition if the requirements are relaxed. Labatt Food Serv., Inc., B-259900, May 3, 1995, 95‑1 CPD para. 229 at 3-4. Here, while the protesters assert that there is no likelihood of additional competition, the record shows that five small business firms attended the pre‑proposal conference under the predecessor solicitation, yet only three proposals were ultimately evaluated. Thus, based on the record, the contracting officer had a reasonable belief that more small businesses could submit satisfactory proposals if the requirement was revised to include a longer transition period.

Under the circumstances, particularly given that none of the proposals received were satisfactory, the agency acted reasonably in canceling rather than amending the RFP to make material changes in the solicitation requirements and in order to possibly obtain more competition.

The protesters argue that the agency cancellation was a pretext to avoid further competition among small business offerors and to continue the contract with the incumbent, a large business. The record does not support the protesters’ speculation Indeed, the contracting officer has clearly expressed her intention to issue the new solicitation as a small business set-aside. Supp. AR, attach. 1, Declaration of Contracting Officer (Mar. 26, 2008). Until the contracting officer issues a new solicitation or extends the incumbent’s contract, any assertion that the Army is not going to set this procurement aside for small businesses is premature. Ystueta Inc., B-296628.4, Feb. 27, 2006, 2006 CPD para. 46 at 2. (North Shore Medical Labs, Inc.; Advanced BioMedical Laboratories, LLC, B-311070; B-311070.2, April 21, 2008) (pdf)


The protesters contend that the cancellation was improper because the agency did not disclose to potential private sector offerors that agency officials had requested cancellation of the A-76 competition. In the protester’s view, it was unfair to ask private sector offerors to expend resources to respond to the RFP while the agency was actively seeking to cancel the ongoing cost comparison study. Protest at 2-5; Protesters’ Comments at 2, 5.

Where an agency determines that a solicitation does not accurately reflect its needs, cancellation is appropriate. Rice Servs., Ltd., B-284997.5, Mar. 12, 2002, 2002 CPD para. 59 at 4. A contracting agency need only establish a reasonable basis to support a decision to cancel an RFP; this authority extends to the cancellation of solicitations used to conduct A-76 cost comparisons. IT Corp., B-289517.3, July 10, 2002, 2002 CPD para. 123 at 3. So long as a reasonable basis exists to exercise this authority, an agency may cancel a solicitation regardless of when the information first arises or should have been known, even if the solicitation is not canceled until after proposals have been submitted and evaluated, or even if discovered during the course of a protest. Glen/Mar Constr., Inc., B-298355, Aug. 3, 2006, 2006 CPD para. 117 at 2; Global Solutions Network, Inc., B-289342.4, Mar. 26, 2002, 2002 CPD para. 64 at 3.

As discussed above, the record shows that due to the agency’s increased mission demands caused by the future addition of two military units, the agency determined that the solicitation no longer reflected its actual needs. Given that the additional military units will significantly increase the total population at WSMR, which would then impact the scope of base operating and logistics services required at the garrison, we find that the agency has demonstrated a reasonable basis for its decision to cancel this procurement. See Satellite Servs., Inc., B-288848.3, Apr. 28, 2003, 2003 CPD para. 88 at 14.

We also find no basis to grant the protesters’ request to recover their costs for competing in this procurement. The Competition in Contracting Act of 1984, 31 U.S.C. sect. 3554(c)(1) (2000), and our implementing regulations, 4 C.F.R. sect. 21.8(d) (2008), provide for our Office to recommend reimbursement of proposal preparation costs only where we determine that “a solicitation, proposed award, or award does not comply with statute or regulation.” The fact that the agency was seeking permission to cancel the procurement, while simultaneously conducting it, does not render unreasonable an otherwise appropriate basis for canceling. Since the cancellation here was proper, and there is no other reason to conclude that the agency has acted contrary to statute or regulation, we have no basis to recommend the recovery of proposal preparation costs. See Bahan Dennis Inc., B-249496.3, Mar. 3, 1994, 94-1 CPD para. 184 at 6. (Zia Engineering & Environmental Consultants, LLC; Garrison Engineering & Maintenance Services, LLC, B-400127, August 7, 2008) (pdf)


Deva asserts that the agency’s decision to cancel the original RFQ lacks a reasonable basis. In the protester’s view, the SOW encompassed the agency’s requirements for credit reform work under both TOs, and there is no evidence of any significant change in the agency’s requirements.

A contracting agency need only establish a reasonable basis to support a decision to cancel an RFQ. Surgi-Textile, B-289370, Feb. 7, 2002, 2002 CPD para. 38 at 2. A reasonable basis to cancel exists when, for example, an agency determines that a solicitation does not accurately reflect its needs, or where there is a material increase in the services needed to satisfy the agency’s requirements; in such cases, cancellation of the solicitation and issuance of a revised solicitation is appropriate. Logistics Solutions Group, Inc., B-294604.7, B-294604.8, July 28, 2005, 2005 CPD para. 141 at 3.  The agency’s decision to cancel the RFQ was reasonable because the record shows that its requirements have changed. While the original SOW encompassed credit reform work, it was specifically described only under TO No. 2, and the RFQ provided for issuance of a task order for the credit reform work to a separate vendor. However, the agency states that it now recognizes that “it would be unacceptable for the Department to revert to the practice of using two different contractors . . . because of the possibility of increased time and cost involved in monitoring the activities of each contractor to ensure the smooth exchange of information and cooperation between the two contractors.” Financial Management Operations (FMO) Director Declaration 3, para. 10. In addition to combining its requirements under a single task order, the agency explains that its quantity requirements for financial statement and credit reform tasks have materially changed since it first issued the RFQ. In this regard, under the original TO No. 1, the agency estimated a need for 25,500 hours to perform financial statement preparation, analysis, and reconciliation services, and only 1,000 hours for credit reform work under TO No. 2, a total of 26,500 hours. Under its planned resolicitation, the agency anticipates a combined total of only [deleted] to [deleted] hours for both sets of tasks in each of 4 years, with credit reform making up an increasing percentage of the work. For example, under the original RFQ, credit reform work represented less than 4 percent of the total estimated hours under TO Nos. 1 and 2. Under the resolicited TO, the agency estimates that [deleted] hours ([deleted] percent of the total) will be devoted to credit reform tasks in the first year, rising to [deleted] hours ([deleted] percent of the total) in the third and fourth years.[2] In our view, the significant increase in credit reform work and decrease in financial statement work represent material changes in the agency’s requirements and form a reasonable basis for canceling the original RFQ.

Deva asserts that credit reform work is within the scope of TO No.1 and that the agency should simply negotiate its “minor modifications” with the firm. Specifically, it notes that TO No. 1 includes assistance with correcting reportable conditions identified in independent financial statements, that credit reform reporting has been a reportable condition for the agency since 2003, and that the bridge contractor has performed credit reform work, identified as OCFO management support, under TO No. 1. Initial Comments at 4; First Supplemental Comments at 5. We disagree. The credit reform reporting tasks under the original TO No. 2 encompass tasks not covered by TO No. 1, including assisting the agency in improving the analytical tools used in the loan estimation process; ensuring that the tools reconciled with one another; assisting in the documentation of programs written to develop assumptions for the Student Loan Model; assisting in the development of detailed operating procedures for the loan estimation process; and assisting in efforts to more fully implement cohort reporting. RFQ app. 1, at 6. Further, the agency states that the new solicitation will include a new requirement to develop periodic informational reports that capture key highlights of the student loan programs. FMO Director Declaration 1, para. 11. While Deva notes that its revised quotation refers to its personnel’s “extensive knowledge” and being “well qualified” to assist, implement, and comply with provisions of federal financial management legislation including the Credit Reform Act of 1990, its quotation for TO No. 1, as revised, does not otherwise address the credit reform requirements of TO No. 2. [3] In any case, while Deva asserts that the agency should negotiate with it as the sole, remaining vendor under TO No. 1, it ignores the agency’s legitimate plan to seek competition among small business vendors. See VSE Corp., B‑290452.2, Apr. 11, 2005, 2005 CPD para. 111 at 6 (agency’s decision to cancel and resolicit is reasonable where it presents the potential for increased competition). Here, the agency has identified some 21 local small business FSS vendors, including Deva, who could be solicited. In our view, since the agency’s new SOW will include performance of credit reform tasks not included in Deva’s quotation and, as discussed above, will include significantly more hours devoted to those tasks, the agency’s changes represent more than “minor modifications,” and thus justify cancellation of the initial RFQ.  (RFQ under MAS)  (Deva & Associates PC, B-309972.3, April 29, 2008) (pdf)


A contracting agency need only establish a reasonable basis to support a decision to cancel an RFQ; in this regard, so long as there is a reasonable basis for doing so, an agency may cancel a RFQ no matter when the information precipitating the cancellation first arises, even if it is not until quotations have been submitted and evaluated. Quality Tech., Inc., B-292883.2, Jan. 21, 2004, 2004 CPD para. 29 at 2-3; DataTrak Consulting, Inc., B-292502 et al., Sept. 26, 2003, 2003 CPD para. 169 at 5. DISA maintains that it canceled the RFQ to co-sponsor the conference with AFCEA because it was in the best interest of the government to continue its relationship with AFCEA. DISA explains that the purpose of the conference is to promote a technical exchange between government and industry, to inform the government of industry initiatives and their possible relevance to the DISA mission, and to discuss with industry the agency’s plans and concerns regarding its existing programs. DISA contends that its relationship with AFCEA is beneficial because the functions of the AFCEA organization are directly related to DISA’s mission and because the large AFCEA membership includes both corporations and individuals that have an interest in the agency’s mission. DISA also states that AFCEA can bring a level of technical expertise to the planning of the conference that a support contractor cannot provide. Under the RFQ, a vendor would help select a conference site and hotel, and would provide conference management support necessary to implement the conference. In contrast, the Memorandum of Agreement (MOA) between DISA and AFCEA anticipates that AFCEA will be involved in substantive aspects of the conferences, to include development of the conference program, as well as matters of scope, theme, agenda and speakers. As a result, DISA argues that co-sponsorship of the conference with AFCEA enhances the quality of the conference for both government and non-government attendees. Finally, the agency maintains that the JER provides the agency with authority to enter into co-sponsorship arrangements for conferences with recognized scientific, technical, educational or professional organizations. We have reviewed the record here and we see no basis to question the agency’s decision that its conference needs would be better satisfied by continuing its co-sponsor relationship with AFCEA. Moreover, we note that the JER anticipates this kind of relationship and recognizes that such co-sponsors can add to the substance of the event and also provide substantial logistical support. JER, DOD 5500.7-R, sect. 3-206. (National Conference Services, Inc. and Direct Marketing Productions, Inc. d/b/a Technology Forums, Inc., B-311137, April 25, 2008) (pdf)


In a negotiated procurement, an agency has broad authority to decide whether to cancel a solicitation, and to do so need only establish a reasonable basis. The Borenstein Group, Inc., B-309751, Sept. 26, 2007, 2007 CPD para. 174 at 3. We have found a reasonable basis for the cancellation of an RFP exists where an agency discovers an existing contract for its requirement that would be more advantageous to the government than continuing with the procurement. See Astronautics Corp. of Am., B-222414.2, B-222415.2, Aug. 5, 1986, 86-2 CPD para. 147 at 2-3. So long as there is a reasonable basis, an agency may cancel a solicitation no matter when the information precipitating the cancellation first arises, even if it is not until proposals have been submitted and evaluated. Daston Corp., B-292583, B-292583.2, Oct. 20, 2003, 2003 CPD para. 193 at 3.  Mr. Scott contends that the I-BIZ executive agent services are outside the scope of the BBA-SME contract. Specifically, the protester contends that the BBA-SME contract provides for only “expert and advisory services, with no responsibility for nothing, not for Executive Agents, who are responsible for program success.” Protester’s Supplemental Comments at 9.  We disagree with Mr. Scott that the executive agent services solicited by the RFP are not within the scope of the BBE-SME contract. As noted above, the RFP sought a bilingual individual with a secret security clearance and experience to provide expert advice, assistance and guidance with respect to establishing I-BIZ initiatives. In addition, the RFP described the executive agent’s services as including “recommend[ing] policy and at the direction of [Multi-National Forces - Iraq], initiate Iraqi First and I-BIZ requirements to address theater wide economic issues.” RFP, SOW, para. 4.1. Similarly, the BBA-SME contract sought bilingual, experienced subject matter experts, most of which were required to have a secret or interim secret clearance to “assess, advice, and assist commanders in developing and implementing action plans for specific tasks.” BBA‑SME Contract, SOW, at 2. The contracts identified the areas in which possible tasks could be performed as including economic development and commerce; business development/contracting; and urban planning/infrastructure engineering. Id. at 9-11. We find from our review that the fairly broad scope of the BBA-SME contract statement of work includes the advice and assistance services sought by the RFP here.  We also find reasonable the agency’s conclusion that it would be more advantageous to obtain the executive agent services under the existing BBA-SME contract rather than continuing with its procurement under this RFP. As noted above, the agency found that the protester’s and the other offeror’s proposals were deficient, and in particular that Mr. Scott’s proposal did not demonstrate that he would satisfy the RFP’s experience, Arabic language, and security clearance requirements. See Contracting Officer’s Statement at 2. Although Mr. Scott disagrees with the agency’s evaluation, he does not establish that the agency’s concerns with his and the other offeror’s proposals did not provide the agency with a reasonable basis to conclude it would be more advantageous to use its existing contract to satisfy these requirements. In addition, the agency concluded that obtaining these services from the BBA-SME contract, rather than under the RFP, could result in cost savings and would relieve the agency of having to administer two contracts.  (Brian X. Scott, B-310970; B-310970.2, March 26, 2008) (pdf)


After Para Scientific challenged issuance of the order under that solicitation, the contracting officer reviewed the entire contract file and determined that there were significant problems with the solicitation that warranted cancellation. AR at 7. The contracting officer determined that the agency had (1) neglected to develop a sole source justification memorandum, (2) included technical evaluation criteria in the solicitation but had intended an award based solely on price, (3) included language in the solicitation that could suggest that “or equal” products would be considered even though the solicitation was issued as brand-name only, and (4) failed to permit a split-award where two disparate items were being solicited. Id. In light of these issues and Para Scientific’s offer of “or equal” products, the contracting officer decided to cancel the solicitation, perform additional market research, and if a brand name or equal solicitation were warranted, issue a new solicitation including salient characteristics and all appropriate contract clauses. Id. at 8. After conducting this comprehensive review of solicitation No. N00259-07-T-0361, the contracting officer realized that the same serious concerns existed with regard to solicitation No. N00258-08-T-0005. SAR at 6. The contracting officer therefore cancelled solicitation No. N00258-08-T-0005 based on the same rationale: that it was prudent to investigate whether the specifications could be less restrictive, and if a brand name or equal solicitation were warranted, issue a new solicitation including salient characteristics and all appropriate contract clauses. Id. at 6-7. Para Scientific asserts that the reasonable course of action for the agency was not to cancel the solicitations, but rather to issue orders to Para Scientific on the basis of its lowest priced quotations of technically equal alternative products. Para Scientific argues that it is being “shunned for being creative” in offering more economical “or equal” products where other firms merely offered the brand-name products. Protest, Nov. 9, 2007, at 2. In response, the agency asserts that it could not have properly issued orders to Para Scientific under the solicitations as written, and argues that its decision to cancel the solicitations was reasonable in view of the contracting officer’s determination that each solicitation materially overstated the agency’s requirements and that the agency could obtain enhanced competition by relaxing the requirements. We agree.

A contracting agency need only establish a reasonable basis to support a decision to cancel an RFQ, Surgi-Textile, B-289370, Feb. 7, 2002, 2002 CPD para. 38 at 2, and may cancel no matter when the information precipitating the cancellation first arises, even if it is not until offers (or, as here, quotations) have been submitted and evaluated. A-Tek, Inc., B-286967, Mar. 22, 2001, 2001 CPD para. 57 at 2-3. A reasonable basis to cancel exists when a new solicitation presents the potential for increased competition or cost savings. Robertson Leasing Corp., B-275152, Jan. 27, 1997, 97-1 CPD para. 49 at 3. Therefore, cancellation of a solicitation is proper where the solicitation materially overstates the agency’s requirements and the agency desires to obtain enhanced competition by relaxing the requirements. Id. Here, Para Scientific’s own argument that its alternative products were technically equal to the agency’s requirements supports the reasonableness of the agency’s decision to cancel the solicitations, given that the solicitations were written as brand-name only requirements. Because the record reflects that the solicitations’ brand-name only requirements may have been overly restrictive, and because the agency identified multiple other flaws in the two solicitations, we find that the agency’s decision to cancel the solicitations was proper. (Para Scientific Company, B-310742.2; B-310903, February 14, 2008) (pdf)


SuperTec protests, among other things, that the agency’s cancellation of RFQ No. 2007Q-025 was merely a pretext to avoid conducting a competitive procurement and resolving a potential bid protest. Because we find, based on the specific facts presented, that the cancellation was improper, we sustain the protest on this basis. We recognize that contracting agencies generally enjoy broad discretion in determining whether to cancel a solicitation, and need only have a reasonable basis for doing so. See, e.g., Surgi-Textile, B-289370, Feb. 7, 2002, 2002 CPD para. 38 at 2; Encore Management, Inc., B-278903.2, Feb. 12, 1999, 99-1 CPD para. 33. In this regard, a contracting agency’s determination that the integrity of a procurement has been compromised may form a reasonable basis for cancellation. See Federal Acquisition Regulation (FAR) sect. 3.104-7. Nonetheless, where a protester has alleged that an agency’s rationale for cancellation is but a pretext, that is, the agency’s actual motivation is to avoid awarding a contract on a competitive basis or to avoid resolving a protest, we will closely examine the reasonableness of the agency’s actions in canceling the acquisition. Gonzales-McCaulley Inv. Group, Inc., B‑299936.2, Nov. 5, 2007, 2007 CPD para. 192 at 5; SMF Sys. Tech. Corp., B-292419.3, Nov. 26, 2003, 2003 CPD para. 203 at 4-6; Miller, Davis, Marter & Oper, P.C., B-242933, B‑242933.2, Aug. 8, 1991, 91-2 CPD para. 176 at 4. Further, in considering a protest raising that concern, we view an agency’s discretion, though broad, as not unfettered. In that regard, the overarching guidance of the FAR has direct relevance:

Government business shall be conducted in a manner above reproach and, except as authorized by statute or regulation, with complete impartiality and with preferential treatment for none. Transactions relating to the expenditure of public funds require the highest degree of public trust and an impeccable standard of conduct. The general rule is to avoid strictly any conflict of interest or even the appearance of a conflict of interest in Government-contractor relationships.
FAR sect. 3.101-1.

Based on the record here, we conclude that the agency did not have a reasonable basis for canceling the RFQ. Specifically, as explained above, the COTR disclosed information to ManTech that she believed may have provided ManTech with an “unfair advantage.” Thereafter, the agency cancelled the procurement citing concerns about “the integrity of the pending procurement,” “potential organizational conflicts of interest,” and “a possible bid protest”--but then awarded a sole-source contract for the canceled requirements to a contracting team that included ManTech. Further, the sole-source award was based on a ManTech-developed proposal that was substantially similar to the earlier ManTech proposal for which the COTR suggested ManTech had obtained an “unfair advantage.” Nothing in the record indicates that the agency gave any consideration to whether its contract award to the TMR/ManTech team complied with statutory or regulatory requirements regarding procurement integrity or OCIs.[16] See, e.g., 41 U.S.C. sect. 423 (2000); Federal Acquisition Regulation (FAR) sect. 3.104; FAR Subpart 9.5. More importantly, in light of the integrity concerns expressed by the agency itself, the cancellation and subsequent sole-source award to the TMR/ManTech team did nothing to address, much less remedy, those concerns. In fact, the events, viewed as a whole, support the protester’s allegation that the solicitation was cancelled to, in effect, avoid further review of the issues raised. On this record, the agency did not have a reasonable basis for canceling the solicitation.

The protest is sustained.

RECOMMENDATION

We recommend that the agency rescind the cancellation notice regarding RFQ No. 2007Q-025, and document its consideration of the procurement integrity and/or OCI issues presented by the COTR’s disclosure of information, as contemplated by the procurement integrity provisions of the Office of Federal Procurement Policy Act, 41 U.S.C. sect. 423, and FAR sect. 3.104, and the OCI requirements of FAR Subpart 9.5. In this regard, the agency’s actions should include, but not necessarily be limited to, determining what information was disclosed and to whom, whether ManTech or any other offeror should be disqualified from the competition, and/or whether a level playing field can be established by disclosing the information provided to ManTech to all offerors. Following that consideration, the agency should conduct a competitive procurement for the requirements under the original RFQ, if otherwise appropriate. We also recommend that SuperTec be reimbursed its costs of filing and pursuing its protest, including reasonable attorneys’ fees. SuperTec should submit its certified claim for costs, detailing the time expended and costs incurred, directly to the agency within 60 days of receipt of this decision. 4 C.F.R. sect. 21.8(f)(1) (2007). (Superlative Technologies, Inc., B-310489; B-310489.2, January 4, 2008) (pdf)


Shortly after receiving GMIG’s comments, HHS requested dismissal of the protest based on a discovery that the acquisition had been conducted under a delegation of GETA authority that was not effective as to HHS-U. As previously stated, on April 14, 2003, the Deputy Assistant Secretary for Program Support in charge of PSC delegated to the Director of the Human Resources Service the authority to approve and acquire training through HHS-U under the GETA acquisition authority. AR, Sept. 10, 2007, Tab 3, Memorandum, Deputy Assistant Secretary for Program Support. However, by notice of November 23, 2001, PSC had ceased to be an OPDIV. 66 Fed. Reg. 58,740 (Nov. 23, 2001). Therefore, according to HHS, because the authority to redelegate GETA acquisition authority was based on PSC’s status as an OPDIV, the Deputy Assistant Secretary for Program Support did not, in 2003, have the authority to redelegate the approval or acquisition of training under GETA to the Director of the Human Resources Service. Thus, the agency asserted that HHS-U lacked the authority to conduct this acquisition. Because of this, it rescinded the selections and cancelled this solicitation. On August 7, our Office dismissed GMIG’s protest as academic due to the solicitation’s cancellation.  On August 8, GMIG protested that the GETA authority was operational at the time of GMIG’s selection and, alternatively, that the agency’s decision to cancel the solicitation was solely for the purpose of having its protest dismissed. In response, the agency argued that its decision to cancel was reasonable because the acquisition was unauthorized as it was conducted under an invalid delegation of acquisition authority and that the reason for cancellation was not pretextual. A contracting agency need only establish a reasonable basis to support a decision to cancel a request for quotations. SMF Sys. Tech. Corp., B-292419.3, Nov. 26, 2003, 2003 CPD para. 203 at 4. So long as there is a reasonable basis for doing so, an agency may cancel a solicitation, no matter when the information precipitating the cancellation first arises, even if it is not until quotations have been submitted and evaluated. Id. As here, however, where a protester has alleged that the agency’s rationale for cancellation is but a pretext to avoid awarding a “contract” on a competitive basis or to avoid the resolution of a protest, we will closely examine the reasonableness of the agency’s actions in canceling the solicitation. Id.; Griffin Servs., Inc., B-237268.2 et al., June 14, 1990, 90-1 CPD para. 558 at 3, aff’d, General Servs. Admin.--Recon., B-237268.3 et al., Nov. 7, 1990, 90-2 CPD para. 369. In cases where we conclude that the agency’s rationale for cancellation is merely a pretext, we will recommend appropriate corrective action. See Griffin Servs., Inc., supra, at 3-4; Miller, Davis, Marter & Opper, P.C., B-242933, B-242933.2, Aug. 8, 1991, 91‑2 CPD para. 176 at 4. Here, it appears from the record that HHS is correct in its assertion that the GETA acquisition authority had not been validly delegated to HHS-U. We believe that this lack of authority would ordinarily provide a reasonable basis to cancel a solicitation. However, based on our review of HHS’s actions here, we conclude that the cancellation of this solicitation was pretextual. The record shows that this was the only acquisition, out of the hundreds that had been conducted by HHS-U without properly delegated authority, that was cancelled when HHS became aware of the lack of authority, even though a number of the other HHS‑U acquisitions were ongoing. See AR, Oct. 12, 2007, Declaration of HHS Director, Division of Acquisition Policy, at 5. We recognize that HHS asserted in its response to our Office’s inquiry that it “expect[ed] and intend[ed] that HHS-U would cancel all outstanding requests for quotations for training services,” but that it apparently had not “adequately communicated [this] expectation” to HHS-U. Id. However, whether expected or not, this did not occur. Thus, we find on this record that HHS’s cancellation appears to be, as the protester contends, essentially a pretext to avoid further scrutiny and review of its protest. (Gonzales-McCaulley Investment Group, Inc., B-299936.2, November 5, 2007) (pdf)


In a negotiated procurement, an agency has broad authority to decide whether to cancel a solicitation, and to do so need only establish a reasonable basis. VSE Corp., B-290452.2, Apr. 11, 2005, 2005 CPD para. 111 at 6. A reasonable basis for the cancellation of an RFP exists when an agency discovers an existing contract for its requirement that would be more advantageous to the government than continuing with the procurement. See Astronautics Corp. of Am., B-222414.2, B-222415.2, Aug. 5, 1986, 86-2 CPD para. 147 at 2-3. In this case, OCAR discovered that an existing contract encompassed its requirements, determined that the existing contract was more advantageous than continuing with the planned negotiated procurement, and on that basis cancelled the RFP. We conclude that OCAR’s decision had a reasonable basis. Although it is unfortunate that an apparent lack of coordination at OCAR prevented this RFP from being cancelled earlier, an agency properly may cancel a solicitation no matter when the information precipitating the cancellation first surfaces or should have been known, even if the cancellation occurs after proposals have been submitted. Daston Corp., B-292583, B-292583.2, Oct. 20, 2003, 2003 CPD para. 193 at 3. (The Borenstein Group, Inc., B-309751, September 26, 2007) (pdf)


The Bureau of the Public Debt awards and administers contracts on behalf of Treasury’s FedSource branch offices, which operate as part of the agency’s franchise fund. The franchise fund primarily provides contracting services (including administrative and financial services) to federal agencies on a reimbursable basis. The RFP, issued on May 30, 2006, contemplated multiple awards of indefinite‑delivery/indefinite-quantity contracts for a base period, with 5 option periods, for support services to be provided under FedSource’s Administrative/ Clerical and Light Industrial business line. Work under the RFP was to be obtained through task orders that would specify the task, location, service to be provided, period of performance, and performance measures. RFP at 2. Cancellation is appropriate where an agency conducts a reassessment that suggests the solicitation may not reflect its needs, such that the agency is uncertain whether the requirement will exist in the future. Peterson-Nunez Joint Venture, B‑258788, Feb. 13, 1995, 95-1 CPD para. 73 at 4-5. This is the case here. BPD’s review brought into question whether it would continue to support FedSource; since this uncertainty could be resolved in favor of discontinuing the relationship--in which case the services covered by the RFP would no longer be required--it provided a reasonable basis for the agency to cancel the solicitation. While, as the protester argues, the services that would be provided under this contract will still be needed by customer agencies in the future, it is BPD’s need for these services to support the FedSource program--not the government’s needs as a whole--that is controlling for purposes of determining whether the cancellation was permissible. Again, since, based on BPD’s review, it was questionable whether the agency would continue to need the services under the RFP, the agency had a sufficient basis to cancel the solicitation. Id.; Dr. Robert J. Telepak, B‑247681, June 29, 1992, 92-2 CPD para. 4 at 4. (Global Solutions Network, Inc., B-299424, April 20, 2007) (pdf)


In a negotiated procurement, where one or more of the offerors’ prices have been revealed, an agency may properly cancel a solicitation where the record contains plausible evidence or reflects a reasonable possibility that a decision not to cancel would be prejudicial to the government or the integrity of the procurement system. Noelke GmbH, B-278324.2, Feb. 9, 1998, 98-1 CPD para. 46 at 3-4. Here, we conclude that the agency’s decision to cancel the solicitation was proper. First, the record shows that the agency’s needs had changed because it could no longer make good use of the phase-in and readiness provisions so late in the hurricane season and that any amendment to the solicitation to delete these requirements would have been so substantial that offerors could not have reasonably anticipated the changes. An agency has a reasonable basis to cancel a solicitation where, as here, it determines that a solicitation does not accurately reflect its needs. Logistics Solutions Group, Inc., B-294604.7, B-294604.8, July 28, 2005, 2005 CPD para. 141 at 3. Second, the agency states that, by waiting to reissue the solicitation to coincide with the start of the 2007 hurricane season, it could avoid paying start-up costs for base camps that would have seen limited use in the 2006 hurricane season. Cost savings through a restructuring of the agency’s requirements also constitute a reasonable basis to cancel a negotiated procurement, even after the agency has entered into negotiations with the potential awardee. Capitol Gateway Assocs. Ltd. P’ship, B-255587, Jan. 24, 1994, 94-1 CPD para. 37 at 2-3. Third, the agency asserts that its plan to eliminate the requirement that the offerors be prepared to operate five base camps simultaneously will increase competition by fostering the involvement of smaller firms capable of performing contracts of a more limited scope. The ability to enhance competition is a reasonable basis to justify the cancellation of the solicitation. Id. at 3. In fact, as the agency notes, when “an amendment proposed for issuance after offers have been received is so substantial as to exceed what prospective offerors reasonably could have anticipated,” and competition would be enhanced if the contacting officer canceled the solicitation and issued a new one, the agency is required to cancel the solicitation. Federal Acquisition Regulation sect. 15.206(e). In summary, the record supports the agency’s assertions that its decision to cancel rather than amend the solicitation will assist the agency in controlling costs and fostering competition through a solicitation that more accurately reflects the agency’s needs; each of these reasons supports a finding that the agency’s cancellation decision was proper. (SEI Group, Inc., B-299108, February 6, 2007) (pdf)


A contracting agency need only establish a reasonable basis to support a decision to cancel an RFP. In this regard, so long as there is a reasonable basis for doing so, an agency may cancel a solicitation no matter when the information precipitating the cancellation first arises, even if it is not until proposals have been submitted and evaluated. Glen/Mar Constr., Inc., B-298355, Aug. 3, 2006, 2006 CPD para. 117 at 2. Here, given that, as explained below, the agency was required to purchase the indicator control subassemblies from FPI, the agency acted reasonably in canceling the RFP. Agencies are required to purchase supplies manufactured by FPI where, after conducting market research, the agency determines that supplies produced by FPI are comparable to those of the private sector in terms of price, quality, and time of delivery. FAR sect. 8.602(a)(1), (3). While the record reflects that the agency did not consider FPI as a source for the indicator control subassemblies prior to issuance of the RFP, and thus did not conduct market research in advance of the RFP, upon realizing that FPI was a potential source for the indicator control subassemblies, the contracting officer properly took steps required by the FAR to determine whether FPI’s item was comparable to that of the private sector in terms of price, quality, and time of delivery. Upon concluding that they were comparable, the contracting officer was required to purchase the subassemblies from FPI and cancel the RFP. To the extent the protester argues that the RFP should have been issued as a HUBZone set-aside, the argument is without merit. FAR sect. 8.602(a)(3) specifically provides that where an FPI item is determined to be comparable, the agency “shall . . . purchase the item from FPI.” An agency may only acquire an item produced by FPI using “competitive procedures,” including the HUBZone set-aside procedures set forth under FAR Subpart 19.13, where the agency determines that the FPI item is not comparable in one or more of the areas of price, quality, and time of delivery. FAR sect. 8.602(a)(4); FAR sect. 19.1304(a)(1) (stating that the HUBZone provisions do not apply to requirements that can be satisfied through award to FPI). Since the contracting officer’s market research indicated that FPI’s subassemblies were comparable in all respects, setting aside the requirement for HUBZone small business concerns was not an option for procuring the items.  (Management Solutions, L.C. d/b/a EssTech Engineering, B-298883; B-298883.2, December 13, 2006) (pdf)


Starlight Corporation, Inc. protests that the Department of the Air Force improperly canceled request for proposals (RFP) No. FA4479-05-R-0001, for aircraft services at McChord Air Force Base, Washington. The agency now concedes that the solicitation could be read as requiring this experience, even though it did not intend this to be the case. The agency states that so long as the offeror demonstrated in its proposal that it had the capability of performing these services it should be considered technically acceptable. In this regard, the agency expresses concern that given the emphasis on experience in the solicitation, offerors without experience may have been discouraged from submitting proposals, even though they may have otherwise been able to submit technically acceptable proposals. As indicated by the above discussion, our review of the record confirms the agency’s conclusion that the solicitation was either ambiguous with regard to whether experience was required, or overstated the agency’s minimum needs by requiring experience, when, in fact, what the agency intended to require was for the offeror to demonstrate in its proposal that it had the capability of performing these services in order to be found acceptable.[4] While the protester states that there is no evidence that competition was inhibited by the potential requirement that certain experience was required given the large number of proposals submitted, the record evidences that Empire may have prepared its proposal with the belief that the competition was with offerors who had this experience, and we, therefore, find the competition may have been prejudiced by this ambiguity. (Starlight Corporation, Inc., B-297904.2, April 14, 2006) (pdf)


Regarding the firm’s challenge to the agency’s cancellation of the procurement, in a negotiated procurement, such as here, a contracting agency need only establish a reasonable basis to support a decision to cancel an RFP. PBSI Corp., B-227897, Oct. 5, 1987, 87-2 CPD para. 333 at 2. It is well established that an agency’s lack of funding for the procurement provides a reasonable basis for its cancellation, as agencies cannot award contracts which exceed available funds. Quality Support, Inc., B-296716, Sept. 13, 2005, 2005 CPD para. 172 at 2. Here, the agency explains that the protester’s proposed price substantially exceeds the agency’s funding for the project.[2] Accordingly, the cancellation clearly was reasonable, since an award was not possible within available agency funds. See First Enter., B-292967, Jan. 7, 2004, 2004 CPD para. 11 at 3. (Ystueta Inc., B-296628.4, February 27, 2006) (pdf)


A contracting agency need only establish a reasonable basis to support a decision to cancel a request for quotations. Quality Tech., Inc., B-292883.2, Jan. 21, 2004, 2004 CPD para. 29 at 2. An agency’s lack of funding for a procurement provides a reasonable basis for cancellation, as agencies may not award contracts that exceed available funds. Quality Support, Inc., B-296716, Sept. 13, 2005, 2005 CPD para. 172 at 2. Here, the agency states that funds for the procurement at issue have been withdrawn and the solicitation has been cancelled, and has submitted documents showing that the funds are no longer available. Under these circumstances, we have no basis to object to the cancellation. IVI contends that the lack of funding is a pretext and in fact the agency cancelled the solicitation in order to avoid addressing the issues in IVI’s initial protest. In this regard, we recognize that the notice posted on the FedBizOpps website announcing the cancellation states that the solicitation was cancelled “due to protest.” Even assuming, however, that the agency’s decision to withdraw funding and cancel the solicitation was triggered by the initial protest, we fail to see any basis to conclude that the cancellation was improper. The management of an agency’s funds generally depends on the agency’s judgment concerning which projects should receive funding and a contracting agency has the right to cancel a solicitation when, as a result of its allocation determinations, funds are no longer available. First Enters., B-292967, Jan. 7, 2004, 2004 CPD para. 11 at 3. In the absence of a showing of bad faith on an agency’s part in connection with a funding decision (which is neither alleged nor otherwise evident here), there is no basis to require an agency to go forward with a procurement which it has decided not to fund, even if the decision to cancel was prompted by a protest concerning the solicitation. See James M. Carroll—Recon., B-221502.3, Mar. 24, 1986, 86-1 CPD para. 290 at 3. Regarding the protester’s argument that funding for the requirement was withdrawn after--and thus could not have resulted in--cancellation of the solicitation, the order in which the two events occurred is irrelevant given that we will not recommend that an agency proceed with an acquisition for which no funding is available. See Greenway Enters., Inc., B-238943.2, May 4, 1990, 90-1 CPD para. 454 at 2. (Information Ventures, Inc., B-297815.2, February 13, 2006) (pdf)


As noted, a reasonable basis to cancel exists where a solicitation does not accurately reflect the agency’s requirements. The fact that NASA found that the RFP may not accurately reflect its requirements, and that it needed to fully consider and resolve questions regarding its LN2 requirements that were not considered at the time the RFP was issued, constituted a reasonable basis to cancel the RFP. While the protesters attack NASA’s motives as merely capitulating to political pressure on behalf of a particular constituent, we find nothing questionable about NASA responding appropriately to the concerns expressed by representatives of Congress, which has oversight authority. Based on our review of the record, NASA has established that it has legitimate reasons for reviewing its requirements before proceeding with this procurement and thus a reasonable basis to cancel the RFP while it does so. See Global Solutions Network, Inc., B-290107, June 11, 2002, 2002 CPD para. 98 at 3-5. Nevertheless, Kenco and Air Products question the timing of the agency’s decision to cancel, given that it was made after each had expended considerable resources to address the RFP, and because no mention was made to the offerors of the SCAP prior to the cancellation, and because all the agency’s prior studies concluded that building a LN2 plant was in the government’s best interest. The protesters argue that they should at least be entitled to recover their proposal preparation costs, given the agency’s actions. However, as long as an agency has a reasonable basis to cancel, it may properly cancel a solicitation no matter when the information precipitating the cancellation first surfaces or should have been known. See The Potomack Partnership, B-252860, Aug. 3, 1993, 93-2 CPD para. 75 at 4 (cancellation after receipt but without evaluating proposals); see also Global Solutions Network, Inc., supra (cancellation prior to receipt of proposals). Given that NASA promptly canceled the RFP when it learned that there were reasons for questioning its requirements, we have no reason to question the agency’s actions here. (Kenco Associates, Inc.; Air Product and Chemicals, Inc., B-297503; B-297503.2, January 25, 2006) (pdf)


While the agency has asserted several reasons for canceling the RFQ, it is well established that an agency’s lack of funding for a procurement provides a reasonable basis for cancellation, as agencies cannot award contracts which exceed available funds. First Enter., B-221502.3, Mar. 24, 1986, 86-1 CPD para. 290 at 3. While the VA concedes that the procurement was flawed and that there was a misunderstanding between the contracting officer and the program office as to this procurement, as discussed above, the record shows that there are no funds available for this requirement. Moreover, the contracting officer reports that, based on his discussions with the program office, it is not clear that the VA had any definite requirements for conferences at the time it issued the RFQ. The contracting officer states that he has again discussed this matter with the program office and the program office has confirmed that, in addition to a lack of funding, there is no current requirement for the conference planning and support services solicited under the RFQ. Supplemental Agency Report at 6. While we do not condone the program office’s apparently erroneous decision to prepare a procurement request that led to the issuance of this RFQ, nonetheless, the record does support the contracting officer’s decision to cancel the RFQ. (Quality Support, Inc., B-296716, September 13, 2005) (pdf)


The Air Force indicates here, however, that an MOA, which is an internal Air Force document, would not necessarily state every requirement stated in the RFP’s statement of work. In this regard, the Air Force advises that the Bandit Dining Facility where the 28th SVS Squadron serves the meals is a hardened facility, and that the Squadron is required to observe the Air Force’s own training and quality assurance requirements that are consistent with the RFP’s Statement of Work requirements. As noted above, the estimate for the hardened facility is expressly included in the government estimate. Moreover, Cattlemen’s has not rebutted the agency’s explanation or shown that any incremental quality assurance and training costs are not included in the government estimate. In addition, the Air Force indicates that the requirement that a private-sector contractor provide its own hardened facility, including electrical capacity, was necessary because the Bandit Dining Facility is a military facility currently in use for other operations, such that a contractor cannot use them to satisfy these RFP requirements, and because the safety factors related to wind velocity exceeding 60 miles per hour, with gusts between 80 and 90 miles per hour, in South Dakota require a hardened facility. Supplemental Agency Report at 1‑2. Thus, the protester’s reference to the omitted requirements in the MOA does not demonstrate that the government estimate was other than realistic and fair, or that the comparison of the estimate with the protester’s proposal was unequal or improper. In addition, we note that Cattlemen’s has not questioned any of the specific elements in the government estimate as understated, and on this record we have no basis to find that the estimate was other than realistic and fair. Under the circumstances, we believe the agency reasonably determined that the protester’s proposed price, as compared to the government estimate, was excessive, and that the agency therefore had a reasonable basis to cancel the RFP in order to obtain the services in-house.  (Cattlemen's Meat Company, B-296616, August 30, 2005) (pdf)


A contracting agency need only establish a reasonable basis to support a decision to cancel an RFQ; in this regard, so long as there is a reasonable basis for doing so, an agency may cancel a solicitation no matter when the information precipitating the cancellation first arises, even if it is not until quotations have been submitted and evaluated. Quality Tech., Inc., B-292883.2, Jan. 21, 2004, 2004 CPD para. 29 at 2-3; DataTrak Consulting, Inc., B-292502 et al., Sept. 26, 2003, 2003 CPD para. 169 at 5. It is well-established that lack of funding for a procurement provides a reasonable basis for cancellation, as agencies cannot award contracts which exceed available funds. First Enter., B-292967, Jan. 7, 2004, 2004 CPD para. 11 at 3-4; James M. Carroll--Recon., B‑221502.3, Mar. 24, 1986, 86-1 CPD para. 290 at 3. Further, an agency may properly cancel a solicitation due to funding limitations regardless of any challenge to the validity of the agency’s underlying cost estimate which, as in this case, served as the basis for the funding amount; as stated above, agencies simply cannot create obligations that exceed available funds. See National Projects, Inc., B‑283887, Jan. 19, 2000, 2000 CPD para. 16 at 4. Accordingly, given that all the quotations received here exceeded available funding for the work, we see no basis to question the propriety of the agency’s decision to cancel the RFQ. (Firetech Automatic Sprinkler, B-295882, May 4, 2005) (pdf)


Here, the record contains no evidence, or even argument, that the government or the integrity of the procurement system would be prejudiced if the RFP were not cancelled and award were made thereunder. VA’s only asserted basis for cancellation is that the RFP did not contain evaluation factors. However, where, as here, a negotiated procurement does not provide technical evaluation factors, award is to be made to the responsible offeror with the lowest-priced, technically acceptable offer. See Omatech Serv. Ltd., B-254998, B-254998.2, Dec. 17, 1993, 93‑2 CPD para. 329 at 3. Thus, the competition for award under the RFP was solely based on price. The agency does not assert that it will change any of its requirements but will issue an IFB, under which the sole basis for award is price, for the same requirements. Thus, since the basis for award under the RFP and IFB would be the same, the agency lacks a reasonable basis to cancel the RFP. Moreover, not only is neither the government nor the integrity of the competitive procurement system prejudiced by not cancelling the RFP here, but Rand & Jones, whose low competitive price for this same requirement has been been publicly disclosed, would be prejudiced if this requirement were recompeted on the basis of price. (Rand & Jones Enterprises Company, Inc., B-296483, August 4, 2005) (pdf)


Since it is apparent from the record that the agency's requirements have changed substantially from those solicited, we find the Army's decision to cancel and resolicit was reasonable. The protester's mere disagreement with the agency's otherwise reasonable bases for cancellation provides no basis to question the propriety of that cancellation. Nor is there any evidence in the record supporting the protester's contention that the proffered rationale for cancellation is merely a pretext by the agency to manipulate the procurement process because, as part of the October 21, 2004 corrective action, the agency had agreed to reevaluate proposals. Government officials are presumed to act in good faith and, where a protester contends that contracting officials are motivated by bad faith, it must provide convincing proof, since our Office will not attribute unfair or prejudicial motives to procurement officials on the basis of inference and suppositions. American Artisan Prods., Inc., B-292559, B-292559.2, Oct. 7, 2003, 2003 CPD paragraph 176 at 9; Chenega Mgmt., LLC, B-290598, Aug. 8, 2002, 2002 CPD paragraph 143 at 4. Here, other than innuendo, Logistics has provided no support for its bad faith allegation. In any event, an agency may cancel a solicitation no matter when the information precipitating the cancellation first arises. DataTrak Consulting, Inc. , B-292502 et al. , supra , at 5. To the extent Logistics argues that the Army should have amended rather than cancel the original solicitation, this argument is without merit. See Protester's Comments at 4-5. Federal Acquisition Regulation Section 15.206(e) requires the contracting officer to cancel the original solicitation and issue a new one, if an amendment would be so substantial as to exceed what prospective offerors reasonably could have anticipated. On the basis of the record before us, we think the changes in the agency's current minimum needs fall within this provision. See VSE Corp. , B-290452.2, Apr. 11, 2005, 2005 CPD paragraph 111. (Logistics Solutions Group, Inc., B-294604.7, B-294604.8, July 28, 2005) (pdf)


Here, we find that the record demonstrates that the agency reasonably decided to cancel this RFP. The reduced scope of work associated with severing certain requirements to avoid possibly improper bundling and the removal of the requirement to provide a storage facility, due to the GOCO, meant that the current RFP did not reflect the agency's requirements. In addition, because of the time which has elapsed from the initial issuance of the solicitation in March 2000 until the cancellation in December 2004, and the numerous changes made to the RFP during that period, we find that the agency's assumption that additional firms may well be interested in participating in a competition based on a solicitation reflecting the agency's current requirement, with the result that competition may be increased, is reasonable. Where, as here, a solicitation no longer accurately reflects an agency's requirements, and resolicitation could result in increased competition, the cancellation of the solicitation is appropriate. See Global Solutions Network, Inc. , supra . As detailed above, the CBP found that cancellation of the RFP was more feasible than issuing another amendment because it was still trying to resolve its responsibilities, as well as to determine the best method for procuring the requirement, given its reorganization and its failure to resolve with the TEOAF how this evolving requirement should be procured. Although VSE suggests otherwise, the numerous prior amendments to the RFP do not preclude the CBP from canceling the RFP. The only pertinent inquiry here is whether there existed a reasonable basis to cancel, since an agency may cancel at any time when such a basis is present. Since the record here reflects that there was a reasonable basis to cancel the RFP, we do not find that the agency abused its discretion, even though it may have taken a different course by further amending the RFP. See PBSI Corp., B-227897, Oct. 5, 1987, 87-2 CPD 333 at 2. In this regard, the CBP advises that it initially believed the changes could be addressed via amendments . . . since CBP and the offerors had already put so much effort into the solicitation but instead of continuing to try to force the agency's developing needs into the old solicitation with the full knowledge that scope-changing modifications and/or a termination for convenience are inevitable, the agency decided to cancel and re-evaluate the work. See Agency Report at 24-25. In any case, Federal Acquisition Regulation (FAR) 15.206(e) specifically advises that if, in the judgment of the contracting officer, based on market research or otherwise, an amendment proposed for issuance after offers have been received is so substantial as to exceed what prospective offerors reasonably could have anticipated, so that additional sources likely would have submitted offers had the substance of the amendment been known to them, the contracting officer shall cancel the original solicitation and issue a new one, regardless of the stage of the acquisition. Consistent with this regulation, and in light of the many significant amendments since initial proposals were obtained, the agency's decision to cancel and resolicit was the appropriate course to take. (VSE Corporation, B-290452.2, April 11, 2005) (pdf)


Here, we find that the cancellation of the RFQ was entirely appropriate. It is undisputed that the drawings upon which Supreme would rely in producing the light plates is at a lower revision level--level "AK"--than the level currently specified for this item. Although Supreme argues that the difference in revision level does not affect "fit, form or function," DCSR states that it does not know the impact, if any, of the difference in revision levels. In this regard, there is no information in the record regarding the difference between the two revision levels. Also, the RFQ failed to include the required DLA clause that instructs vendors offering alternate products to provide information and/or data to show that its product is interchangeable with the exact item specified in the solicitation. Under these circumstances, we find the agency reasonably cancelled the solicitation. Cancellation of the solicitation provides Supreme with an opportunity to determine whether it can offer the exact part sought by the agency--that is, a part manufactured to revision level "AL"--or to qualify an alternate part. (Supreme Edgelight Devices, Inc., B-295574, March 4, 2005) (pdf)


Here, we see no basis for GSA's decision to cancel the SFO. The agency has been unable to articulate how the alleged difference between the "price" and "percentage" methodologies supports its position that Greenlee may not have submitted the lowest price under this SFO. The two analyses GSA has provided in the record were both so flawed as to provide no support for the agency's position. First, GSA apparently relied on an analysis applying the offerors' base year discounts to a single8.63 item under partition work. That analysis was not representative of the work to be performed because it was based only on base year discounts and ignored the asbestos work required under the SFO. GSA's second analysis relied on a split between the partition and asbestos work that was grossly inconsistent with the split specified in the SFO. Even if we assume that there is a difference between a price-based methodology and a percentage-based one under the SFO, the agency has not furnished a reasonable price analysis to support the conclusion that the protester was not the lowest-priced offeror under either of those methodologies. Since the agency justified cancellation only on a claim that the two methodologies generated different results, and that claim was unsupported, the agency has failed to provide any basis for the cancellation. (Greenlee Construction, Inc., B-294338, October 26, 2004) (pdf)


Under FAR 15.206(e), where a contracting officer determines that an amendment to a solicitation requirement after offers have been received is so substantial as to exceed what prospective offerors reasonably could have anticipated, so that additional sources likely would have submitted offers had the substance of the amendment been known to them, the solicitation must be canceled and all interested firms given an opportunity to respond to the changed requirement. See The New Jersey & H St. Ltd. P'ship , B-288026, B288026.2, July 17, 2001, 2001 CPD 125 at 3-4. Our review of the record confirms that the challenged amendment falls outside of this provision as it is neither substantial nor beyond that which prospective offerors reasonably could have anticipated. (Government Contract Services Company, B-294367, October 25, 2004) (pdf)


To the extent that the protester is arguing that cancellation of the RFP is improper because the agency still intends to procure new equipment fielding services, its argument ignores the essence of the agency's justification for cancellation, which is that, in light of recent developments, including the shift to modularity, the agency's needs will not be met by contracting for new equipment fielding services separately from force modernization planning, unit set fielding, and configuration management services. In other words, the agency's justification for cancellation is not that new equipment fielding services are no longer required; it is that it has determined that its needs require the award of a single contract for a range of services rather than separate contracts for each type of service. According to the agency:

Fieldings, reconfiguration, [and] modernization will occur at many points in the [expeditionary] cycle and will not be the linear process as currently designed. That is why the separate functions of fielding, planning, management, configuration management, force modernization, and unit set fielding must be integrated under a single organization that provides unified command and control of the contractor assets and maximizes [the agency's] flexibility in shifting expertise across this spectrum of requirements. The synchronization of these efforts with installation, infrastructure, training, logistics, personnel and other key enablers will also be essential -- and is much broader than the vertical stove-pipe fielding only solution offers.

Contracting Officer's Statement, Sept. 14, 2004, at 2. Where, as we believe is the case here, an agency reasonably determines that an RFP does not accurately describe its needs, cancellation of the solicitation is appropriate. Source AV, Inc. , B-241155, Jan. 25, 1991, 91-1 CPD 75 at 3. (ELEIT Technology, Inc., B-294193.2, September 30, 2004) (pdf)


Here, we find that the Coast Guard had a reasonable basis to cancel the solicitation. As explained by the agency, and apparently conceded by the protesters, while the Coast Guard sought the submission by offerors of 12 different training meal menus, each consisting of breakfast, lunch and dinner, the solicitation did not clearly provide for this. Accordingly, the solicitation was flawed in this regard. Additionally, although the Coast Guard sought proposals that included detailed nutritional information for the food items comprising the menus in order for the agency to ensure that the nutritional needs of Coast Guard personnel would be met by the selected offeror, the agency reasonably concluded based upon its review of the RFP, and in light of the proposals received, that the RFP failed to adequately convey this to the offerors. We note that the agency's conclusion in this regard is consistent with the position of Watson and Rice in their initial protests to our Office, where they argued that the agency, in downgrading proposals that did not include specific nutritional information, was improperly imposing a requirement that was not set forth in the solicitation. Rice Protest, B-293861, at 4; Rice Protest, B-293861.3, at 3; Watson Protest, B293861.2, at 11. In sum, the solicitation failed to adequately set forth the agency's needs with regard to training meal menus and nutritional information regarding the menu items proposed, and the agency's cancellation of the solicitation is thus unobjectionable. In reaching this conclusion, we have considered Watson's argument that the cancellation of the solicitation was only a pretext, that is, that the agency's motivation in fact was to avoid awarding a contract on a competitive basis. Watson Comments at 4-5. We have closely examined the reasonableness of the agency's actions and, as set forth above, find the cancellation to be reasonable in light of the provisions of the solicitation that were, as conceded by Watson, ambiguous or requiring clarification. Id. at 10-14; see SMF Sys. Techs. Corp. , B292419.3, Nov. 26, 2003, 2003 CPD 203 at 4. For example, in arguing that the agency's evaluation of its proposal under the food/menus/table service evaluation subfactor was unreasonable, the protester comments that [o]nce again, the Agency is penalizing Watson for its own inability to clearly draft a Solicitation which elicits the same response from all offerors. Watson Comments at 13-14. Further, the fact that the Coast Guard discovered the above-noted deficiencies in the RFP after the SBA found Wolf ineligible for award, and did not assert that these deficiencies justified the cancellation of the solicitation until it filed its agency report in response to the protests, does not preclude cancellation of the RFP. An agency may properly cancel a solicitation regardless of when the information precipitating the cancellation arises. Admiral Towing and Barge Co. , B-245600; B-245602, Jan. 16, 1992, 92-1 CPD 83 at 6; see Rice Servs., Ltd. , supra , at 8 (the tardiness of the agency's determination that a solicitation should be cancelled does not alter the overriding principle that an agency should not proceed with a procurement when it reasonably believes that the resulting contract will fail to meet the agency's requirements). (Rice Services, Inc.; Watson Services, Inc., B-293861; B-293861.2; B-293861.3; B-293861.4, June 15, 2004) (pdf)


Asserting contract avoidance, promissory estoppel, and quantum meruit , the protester essentially argues that the agency's decision to cancel the RFQ was arbitrary and capricious. [2] A contracting agency need only establish a reasonable basis to support a decision to cancel an RFQ. DataTrak Consulting, Inc. , B-292502 et al. , Sept. 26, 2003, 2003 CPD 169 at 5. So long as there is a reasonable basis, an agency may cancel a solicitation no matter when the information precipitating the cancellation first arises, even if it is not until offers (or, as here, quotations) have been submitted and evaluated. Id. In this case, the USTDA indicates that it canceled the RFQ because it decided to perform the analysis, grant, and audit services in-house and, as a result, there was no longer a need for a contractor to perform the services. Our review of the record provides no basis for us to question the reasonableness of the agency's decision in this regard. Id. (denying protest of solicitation cancellation where the agency indicated that the services were no longer needed because they would be performed in-house). (SKJ & Associates, Inc., B-294219, August 13, 2004) (pdf)


The agency, however, indicates that the FedSource-Denver solicitation will not meet its needs because the aggregate dollar ceiling of250 million is not sufficient to satisfy the requirements for all nine FedSource offices for a base year, which the agency estimates to be approximately $300 million annually for both fiscal years 2004 and 2005, or for the 5-year period from fiscal year 2005 through 2009, which the agency estimates as more than $2 billion. Global argues that the government's estimate for fiscal year 2004 is overstated and maintains that the agency could use the subject solicitation to meet its requirements for a base-year period by issuing task orders for the entire $250 million in that year. [5] Other than the protester's speculation, however, there simply is nothing in the record that casts material doubt on the agency's estimates of its requirements. Moreover, even assuming that the current solicitation was capable of meeting the agency's requirements for a base year, the agency has indicated that it requires a support service contract capable of servicing the nine FedSource offices on a consolidated basis for the next 5 years, with a dollar ceiling in excess of2 billion, and that the agency expects to issue such a solicitation within the next few months. [6] The protester does not argue or suggest that the subject solicitation is capable of meeting such a requirement. Since the agency's consolidated needs for a base year plus option years clearly exceed the scope of the current solicitation, the agency reasonably canceled the RFP in favor of a solicitation that is consistent with the agency's contract consolidation effort and with the magnitude of the combined requirement. See id. ; USA Elecs. , B-283269.2, Oct. 5, 1999, 99-2 CPD 67 (holding that agency reasonably canceled solicitation where the agency's requirements had increased). (Global Solutions Network, Inc., B-294054; B-294054.2, August 10, 2004) (pdf)


As previously noted, the contracting officer cites two bases for his decision to cancel: (1) his recognition that the RFP did not furnish sufficient guidance as to required staffing levels, leading many offerors to propose staffing numbers (for individual categories of support and/or for overall performance) that the evaluators judged inadequate, resulting in downgrading of the proposals’ ratings under the technical approach subfactor; and (2) notification from the user activity of a significant reduction in its staffing requirement. With regard to the first basis, we agree with the protester that the agency’s argument that the solicitation failed to furnish sufficient guidance to offerors by failing to state the minimum acceptable staffing level for each category of support is undercut by the fact that the RFP, as re-issued, also fails to include these numbers; while the draft version of the revised SOW, dated March 23, 2004, included “minimum coverage” staffing numbers, the final version included in the re-issued RFP does not. The record nonetheless demonstrates that there were ambiguities regarding required staffing coverage in the cancelled solicitation that had an impact on the evaluation of proposals and thus provide a reasonable basis for cancellation. In this regard, the existence of an ambiguity affecting the competition under an RFP furnishes a reasonable basis for cancellation of the solicitation. A-Tek, Inc., B-286967, Mar. 22, 2001, 2001 CPD ¶ 57 at 2-4. Notification from the user activity as to a significant reduction in its staffing requirement furnished a second reasonable basis for cancellation. Cancellation of a solicitation is appropriate where an agency finds that its needs are no longer accurately reflected by an RFP, such as when there is a significant reduction in the anticipated workload. PAI Corp. et al., B-244287.5 et al., Nov. 29, 1991, 91-2 CPD ¶ 508 at 4; Dynalectron Corp., B-216201, May 10, 1985, 85-1 CPD ¶ 525 at 4. In sum, the revised RFP reflects a change in required hours of coverage for these 10 categories from between 1,048 and 1,248 hours per week in the canceled RFP, to 840 hours per week in the revised SOW; this reduction in hours (between 208 and 408 hours per week) translates to a reduction of between 5 and 10 employees (out of a total in all 14 categories of at most 39 employees). In our view, a reduction of that magnitude cannot be characterized as minimal. (Superlative Technologies, Inc., B-293709.2, June 18, 2004) (pdf)


Cancellation is proper where award under the solicitation would not meet the government’s actual needs, and the agency properly may cancel a solicitation no matter when the information precipitating the cancellation first surfaces or should have been known, even if the cancellation occurs after proposals have been submitted. See Encore Mgmt., Inc., B‑278903.2, Feb. 12, 1999, at 3. (Daston Corporation, B-292583; B-292583.2, October 20, 2003) (pdf)


The record reflects that the agency canceled the initial RFQ and made the decision to resolicit its requirements under a revised solicitation after the project manager’s review of the acquisition and her conclusion that the Ft. Berthold Service Unit/Minnetohe IHS clinic’s needs had changed. Specifically, the agency reports that its primary reason for canceling and resoliciting this requirement was the agency’s determination that the requirement for electronic claim filing using a clearinghouse for billing third parties was no longer needed because these services would be performed in-house. Agency Dismissal Request at 2. In response, DataTrak asserts that the agency “did not have a justifiable change in its needs that would support this action.” Supplemental Protest (B-292503.2) at 14. Rather, the protester alleges, the revised RFQ is for the same effort and scope of work as the initial RFQ and DataTrak insists that the agency simply issued the revised RFQ to change the evaluation criteria and thus avoid making award to DataTrak whose quotation in response to the initial RFQ was fully responsive. Id. at 14-16; Protester’s Comments at 9-13.  Our review of the record provides no basis for us to question the reasonableness of the agency’s cancellation of the initial RFQ.  (DataTrak Consulting, Inc., B-292502; B-292502.2; B-292503; B-292503.2, September 26, 2003)  (pdf)


As noted, the agency initially canceled the RFP after concluding that SKSS's price was unreasonable, and that there thus were no acceptable HUBZone offers. The contracting officer's conclusion was based in significant part on a comparison of SKSS's price with the agency's estimate--SKSS's price exceeded the estimate by 8.2 percent. The protester asserts that such a small percentage does not support a finding of price unreasonableness. We are inclined to agree with the protester, since the agency has not provided an explanation as to why this arguably modest price difference was significant enough to render SKSS's price unreasonable. However, the validity of the price reasonableness determination is not dispositive in this case, and we thus need not address it, since the record supports the agency's conclusion--reached during its consideration of the agency-level protest--that SKSS's proposal was technically unacceptable. In this regard, a contracting agency's initial reliance on an improper reason for canceling a solicitation is not significant if the record establishes that another proper basis for the cancellation exists. Peterson-Nunez Joint Venture, B‑258788, Feb. 13, 1995, 95-1 CPD ¶ 73 at 5; SEI Info. Tech.--Recon. B‑219668.2, Apr. 23, 1986, 86-1 CPD ¶ 393 at 3. An agency properly may cancel a solicitation no matter when the information supporting the cancellation first surfaces or should have been known. Pike Creek Computer Co., Inc., B‑290329, June 21, 2002, 2002 CPD ¶ 106 at 2.  (Sunshine Kids Service Supply Company, B-292141, June 2, 2003)  (pdf)


We believe that determinations of this kind must be left in the first instance to the sound judgment and discretion of responsible agency officials, subject to objection upon review only if clearly shown to be without a reasonable basis. See Federal Leasing, Inc.; DPF, Inc., B-182534, Apr. 18, 1975, 75-1 CPD ¶ 236 at 7-8. After a review of the record in the present case, we cannot conclude that the Army lacked a reasonable basis to cancel the solicitation at the time it did so.  In reaching this conclusion, we take note of the evidence in the record that the PWS workload has changed over the lengthy period of time since the study commenced; of the recent restructuring and reorganization of the way the Army manages installation support operations and the inevitable but uncertain impact this will have on the garrison's organization and its components, including the three components at issue in the solicitation; and of the garrison's concerns about funding. In an appropriate case, each of these factors may be sufficient to justify the cancellation of a solicitation. Printz Reinigung GmbH, B-241510, Feb. 8, 1991, 91-1 CPD ¶ 143 (cancellation of solicitation justified because of agency concerns about inaccuracy of the RFP's stated workload due to recent organizational changes and potential for cost savings through consolidation); Source AV, Inc., supra (cancellation of A-76 solicitation was reasonable where agency based its decision on uncertainty regarding budgetary constraints and likelihood that a reduction in the workload would materialize after a planned agency reorganization); Mercury Consolidated, Inc., B-218182, June 17, 1985, 85-1 CPD ¶ 687 (cancellation of A-76 solicitation justified based on substantial changes in the government's needs and the long period of time between the original solicitation and necessary revisions). While we find that the Army failed to provide sufficient support to justify the cancellation of the solicitation on any one of these factors alone, in our view, when the implications of these factors are combined with the uncertainty raised by the pending exemption requests and their potential impact on the scope of this procurement, we cannot conclude that the cancellation decision was clearly unreasonable.  (Satellite Services, Inc., B-288848.3, April 28, 2003)  (pdf)


In the final analysis, the process for selecting topics involves consideration by numerous DOD component activities, and the protester has not identified any basis for our Office to conclude that DOD, as the acquiring activity, improperly or inaccurately determined that its actual needs did not include the subject topic.  While it is unfortunate that this deliberative process took the amount of time ultimately required, this delay does not provide a basis for finding the cancellation improper.  See PAI Corp., et al., B-244287 et al., Nov. 29, 1991, 91-2 CPD ¶ 508 at 4-5 (cancellation proper no matter when the information precipitating the cancellation is known or should have been known, even if solicitation is not canceled until after proposals are submitted and protesters have incurred costs in pursuing the award).  (Pike Creek Computer Company, Inc., B-290329, June 21, 2002  (pdf)  (STTR Program))


Where an agency determines that a solicitation does not accurately reflect its needs, cancellation is appropriate. Digicon Corp., B-256620, July 7, 1994, 94-2 CPD ¶ 12 at 2.  Further, in a negotiated procurement, an agency has broad authority to decide whether cancellation is appropriate, and this authority extends to the cancellation of solicitations used to conduct A-76 cost comparisons. Lackland 21st Century Servs. Consol., B-285938.7, B-285938.8, Dec. 4, 2001, 2002 CPD ¶ 197 at 5. Finally, provided an agency has a reasonable basis for doing so, it may cancel a solicitation regardless of when the information precipitating the cancellation first surfaces. Id.  (Rice Services, Ltd., B-284997.5, March 12, 2002)


Where cancellation of a solicitation is justified, the fact that a particular offeror otherwise would have been in line for award does not provide a basis for precluding the agency from canceling. See Tender Loving Care Ambulance & Ambulette Co., Inc., B-276571.2, July 17, 1997, 97-2 CPD para. 25 (only small business remaining in competition is not entitled to award under small business set-aside where procuring agency had a reasonable basis to cancel request for proposals); HBD Indus., Inc., supra (sole remaining acceptable offeror is not entitled to award where agency has a legitimate basis to cancel procurement).  We have found that a reasonable basis to cancel an RFP exists where changes to the solicitation are expected to result in increased competition or lower prices. Robertson Leasing Corp., B-275152, Jan. 27, 1997, 97-1 CPD para. 49 at 3. We have also specifically found that a required change in a construction schedule meets the stricter compelling reason standard necessary to support cancellation of an invitation for bids, where that change likely will result in changed prices. Cedar Valley Corp., B-225475, B-225723, Feb. 24, 1987, 87-1 CPD para. 211 at 3. Goode does not argue that the construction schedule does not need to be changed, or that the proposed change will not result in lower contractor costs, more competition, and a potentially lower cost to the government.  (Goode Construction, Inc.--Protest and Costs, B-288655.4; B-288655.5; B-288655.6, January 28, 2002)


In a negotiated procurement, an agency has broad authority to decide whether to cancel a solicitation; there need be only a reasonable basis for the cancellation. Safety Storage, Inc., B-280851.2, May 13, 1999, 99-1 CPD para. 93 at 2. This broad grant of authority extends to the cancellation of solicitations used to conduct A-76 cost comparisons. Source AV, Inc., B-241155, Jan. 25, 1991, 91-1 CPD para. 75 at 3; Cantu Servs., Inc., B-219998.8, B-233697, Mar. 27, 1989, 89-1 CPD para. 306 at 2. So long as an agency has a reasonable basis for doing so, it may cancel a solicitation regardless of when the information precipitating the cancellation first surfaces or should have been known, even if the solicitation is not canceled until after proposals have been submitted and evaluated, Peterson-Nunez Joint Venture, B-258788, Feb. 13, 1995, 95-1 CPD para. 73 at 4; Nomura Enter. Inc., B-251889.2, May 6, 1993, 93-1 CPD para. 490 at 3-4; after contract award, see Atlantic Scientific & Tech. Corp., B-276334.2, Oct. 27, 1997, 97-2 CPD para. 116 at 5; or, as here, after the announcement of a different course of action in response to a GAO protest. Id. at 1-2.  (Lackland 21st Century Services Consolidated, B-285938.7; B-285938.8, December 4, 2001)


Cancellation of request for quotations (RFQ) for 1 year of janitorial and grounds maintenance services, with 4 option years, on the basis that the services had to be procured pursuant to the Javits-Wagner-O'Day (JWOD) Act, was improper where only services for 240 days or fewer had to be acquired under the statute. Related RFQ to cover a shorter term properly was canceled, however, since a reasonable basis existed for cancellation.  (Aleman & Associates, Inc., B-287275.2; B-287356.2, July 2, 2001)


More importantly, the record reflects that the solicitation was either ambiguous with regard to the time allowed for installation of the UPS system, or overstated the agency's minimum needs by continuing to mandate a 45-day installation period, and that the agency may obtain enhanced competition by amending the solicitation to clearly reflect its needs in this regard. Accordingly, we find that the agency's decision to cancel the solicitation to revise the source selection criteria and specifications to better reflect the agency's actual requirements, and seek enhanced competition, was reasonable.  (A-Tek, Inc., B-286967, March 22, 2001)


A contracting agency need only establish a reasonable basis to support a decision to cancel an RFQ. Shasta Transfer & Storage, B-261172, July 28, 1995, 95-2 CPD para. 48 at 2; Tony Ingoglia Salami and Cheese, Inc., B-244452, Sept. 23, 1991, 91-2 CPD para. 268 at 3. A reasonable basis to cancel exists when there is a material increase in the quantity needed to satisfy the agency?s requirements, Switlik Parachute Co., Inc., B-275539, Mar. 3, 1997, 97-1 CPD para. 113 at 3, or when a new solicitation presents the potential for cost savings. Eastman Kodak Co., B-271009, May 8, 1996, 96-1 CPD para. 215 at 4, recon. denied, B-271009.2, Oct. 7, 1996, 96-2 CPD para. 136.  (USA Electronics, B-283269.2, October 5, 1999)


The record shows, and D&K does not rebut, that it was noncompliant with regard to the bulk storage, countertops and also failed to fully explain its position concerning the double-walled storage tank. The record shows that these matters were the subject of both oral and written discussions, and that the protester?s final revised proposal remained noncompliant. In these circumstances where the agency conducted several rounds of oral and written discussions, and the protester?s proposal still remained noncompliant with the RFP SOW, we see no basis to object to the contracting officer?s decision to cancel. See Concepts Bldg. Sys., Inc., B-281995, May 13, 1999, 99-1 CPD para. 95.2.  (D&K Construction Company, Inc., B-281244.3, October 1, 1999)

Comptroller General - Listing of Decisions

For the Government For the Protester
New Henry's Aerial Service, Inc.; Evergreen Flying Services, Inc. B-414238.7, B-414238.9: Aug 10, 2017 EDC Consulting, LLC; Cybermedia Technologies, Inc.; Harmonia Holdings Group, LLC; Incentive Technology Group, LLC; Brillient Corporation; Citizant, Inc.; Ventera Corporation; BC Digital Services, LLC-JV; IntegrityOne Partners B-414175.10,B-414175.11,B-414175.12,B-414175.13, B-414175.14, B-414175.15, B-414175.16, B-414175.17, B-414175.18, B-414175.19, B-414175.20, B-414175.21, B-414175.22, B-414175.23, B-414175.24, B-414175.25, B-414175.26: Jun 9, 2017  (Based on termination of awarded contracts)
Tien Walker B-414623.2, B-414623.3: Jul 10, 2017 Walker Development & Trading Group, Inc. B-413924: Jan 12, 2017
Medfinity LLC B-413450: Sep 9, 2016 JER 370 Third Street, LLC, B-402025.2; B-402541, June 1, 2010 (pdf)
Inalab Consulting, Inc.; Solutions by Design II, LLC B-413044, B-413044.2, B-413044.3: Aug 4, 2016 Superlative Technologies, Inc., B-310489; B-310489.2, January 4, 2008 (pdf)
SupplyCore Inc. B-411015.8: May 27, 2016  (pdf) Gonzales-McCaulley Investment Group, Inc., B-299936.2, November 5, 2007 (pdf)
Sealift, Inc. B-412041.2: Dec 30, 2015  (pdf) Rand & Jones Enterprises Company, Inc., B-296483, August 4, 2005 (pdf)
Precise Management, LLC B-411708: Oct 5, 2015  (pdf) Greenlee Construction, Inc., B-294338, October 26, 2004 (pdf)
Integrity National Corporation B-411582: Sep 1, 2015  (pdf) Aleman & Associates, Inc., B-287275.2; B-287356.2, July 2, 2001
TaxSlayer LLC B-411101: May 8, 2015  (pdf)  
Computers Universal, Inc. B-410790.2: Feb 25, 2015  (pdf)  
Point Blank Enterprises, Inc. d/b/a Protective Products Enterprises, B-409940.3: Nov 26, 2014  (pdf)  
WKF Friedman Enterprises, B-409892.2: Sep 25, 2014  (pdf)  
Strategic Technology Institute, Inc. B-408005.2, Oct 21, 2013  (pdf)  
Latvian Connection, LLC; Solution Managers International--USA, LLC, B-408182.3, B-408182.4, Aug 13, 2013  (pdf)  
Vinculum Solutions, Inc., B-408337, B-408337.2, Aug 5, 2013  (pdf)  
Gordon and Soraya Diase Coffelt, B-408025, May 30, 2013  (pdf)  
Latvian Connection, LLC, B-407972, B-407972.2, May 2, 2013  (pdf)  
Kingdomware Technologies, B-406966.3, Nov 27, 2012  (pdf)  
American Material Handling, Inc., B-406739, Aug 14, 2012  (pdf)  
MedVet Development LLC, B-406530, Jun 18, 2012  (pdf)  
Business Computer Applications, Inc., B-406230.3, May 16, 2012  (pdf)  
Estrategy Inc., B-406466, B-406467, May 4, 2012  (pdf)  
NAS/CORP-TELMAH, Inc., B-405632, Dec 2, 2011  (pdf)  
National Defense Advisors, Inc., B-405741, December 13, 2011  (pdf)  
Trade Links General Trading and Contracting, WLL, B-405182, September 1, 2011  (pdf)  
KNAPP Logistics Automation, Inc.--Protest and Costs, B-404887.2; B-404887.3, July 27, 2011  (pdf)  
KGL Logistics, B-404340, January 26, 2011 (pdf)  
Progressive Services Corporation, B-404183; B-404251.2, January 11, 2011  (pdf)  
Greentree Transportation Company, Inc., B-403556.2, December 7, 2010  (pdf)  
Alaska Structures, Inc., B-402648.3,  August 10, 2010 (pdf)  
Platinum Services Inc., B-402718.2; B-402923, August 27, 2010 (pdf)  
KAES Enterprises, LLC--Protest and Costs, B-402050.4, February 12, 2010  (pdf)  
All Seasons Apparel, Inc., B-401805; B-401805.2, November 4, 2009  (pdf)  
Applied Resources, Inc., B-400144.7; B-400144.8, July 31, 2009  (pdf)  
VetPride Services, Inc., B-401435, July 28, 2009  (pdf)  
Quality Software Services, Inc., B-400206.2, November 19, 2008  (pdf)  
Optimum Services, Inc., B-401051, April 15, 2009 (pdf)  
RN Expertise, Inc., B-401020, March 27, 2009 (pdf)  
e-Management Consultants, Inc.; Centech Group, Inc., B-400585.2; B-400585.3, February 3, 2009 (pdf)  
Blue Rock Structures, Inc., B-400811,  January 23, 2009 (pdf)  
Major Contracting Services, Inc., B-400737.2, December 17, 2008 (pdf)  
ESM Group, Inc., B-400298.2, October 14, 2008 (pdf)  
Doug Boyd Enterprises, LLC, B-400390, October 2, 2008 (pdf)  
North Shore Medical Labs, Inc.; Advanced BioMedical Laboratories, LLC, B-311070; B-311070.2, April 21, 2008 (pdf)  
Zia Engineering & Environmental Consultants, LLC; Garrison Engineering & Maintenance Services, LLC, B-400127, August 7, 2008 (pdf)  
Deva & Associates PC, B-309972.3, April 29, 2008 (pdf)  
National Conference Services, Inc. and Direct Marketing Productions, Inc. d/b/a Technology Forums, Inc., B-311137, April 25, 2008 (pdf)  
Brian X. Scott, B-310970; B-310970.2, March 26, 2008 (pdf)  
Para Scientific Company, B-310742.2; B-310903, February 14, 2008 (pdf)  
The Borenstein Group, Inc., B-309751, September 26, 2007 (pdf)  
Global Solutions Network, Inc., B-299424, April 20, 2007 (pdf)  
SEI Group, Inc., B-299108, February 6, 2007 (pdf)  
Management Solutions, L.C. d/b/a EssTech Engineering, B-298883; B-298883.2, December 13, 2006 (pdf)  
Starlight Corporation, Inc., B-297904.2, April 14, 2006 (pdf)  
Ystueta Inc., B-296628.4, February 27, 2006 (pdf)  
Information Ventures, Inc., B-297815.2, February 13, 2006 (pdf)  
Kenco Associates, Inc.; Air Product and Chemicals, Inc., B-297503; B-297503.2, January 25, 2006 (pdf)  
Quality Support, Inc., B-296716, September 13, 2005 (pdf)  
Cattlemen's Meat Company, B-296616, August 30, 2005 (pdf)  
Firetech Automatic Sprinkler, B-295882, May 4, 2005 (pdf)  
Logistics Solutions Group, Inc., B-294604.7, B-294604.8, July 28, 2005 (pdf)  
VSE Corporation, B-290452.2, April 11, 2005 (pdf)  
Supreme Edgelight Devices, Inc., B-295574, March 4, 2005 (pdf)  
Government Contract Services Company, B-294367, October 25, 2004 (pdf)  
ELEIT Technology, Inc., B-294193.2, September 30, 2004 (pdf)  
Rice Services, Inc.; Watson Services, Inc., B-293861; B-293861.2; B-293861.3; B-293861.4, June 15, 2004 (pdf)  
SKJ & Associates, Inc., B-294219, August 13, 2004 (pdf)  
Global Solutions Network, Inc., B-294054; B-294054.2, August 10, 2004 (pdf)  
Superlative Technologies, Inc., B-293709.2, June 18, 2004 (pdf)  
Daston Corporation, B-292583; B-292583.2, October 20, 2003 (pdf)  
DataTrak Consulting, Inc., B-292502; B-292502.2; B-292503; B-292503.2, September 26, 2003  (pdf)  
Sunshine Kids Service Supply Company, B-292141, June 2, 2003  (pdf)  
Satellite Services, Inc., B-288848.3, April 28, 2003  (pdf)  (A-76 issue)  
IT Corporation, B-289517.3, July 10, 2002  (pdf)  (A-76 solicitation)  
Pike Creek Computer Company, Inc., B-290329, June 21, 2002  (pdf)  (STTR Program)  
Global Solutions Network, Inc., B-290107, June 11, 2002 (pdf)    
Global Solutions Network, Inc., B-289342.4, March 26, 2002  (PDF Version)  
Rice Services, Ltd., B-284997.5, March 12, 2002  (pdf)  
Surgi-Textile, B-289370, February 7, 2002  (Pdf version)  
Goode Construction, Inc.--Protest and Costs, B-288655.4; B-288655.5; B-288655.6, January 28, 2002 (HUBZone) (print pdf)  
Flowlogic, B-289173, January 22, 2002  
Lackland 21st Century Services Consolidated, B-285938.7; B-285938.8, December 4, 2001  (A-76 issue)  
Holiday Inn; Baymont Inn & Suites, B-288099.3; B-288099.4, September 20, 2001  
A-Tek, Inc., B-286967, March 22, 2001  
USA Electronics, B-283269.2, October 5, 1999  (Simplified Acquisition Procedure)  
D&K Construction Company, Inc., B-281244.3, October 1, 1999  
Safety Storage, Inc., B-280851.2, May 13, 1999  

U. S. Court of Federal Claims - Key Excerpts

There are two issues presented by plaintiff: (1) whether the procurement is prejudicially tainted by bias, and (2) whether the agency was otherwise irrational in its decision to cancel the award on the basis of its purported revision of its need vis-a-vis MACCS and GovNet support. We find it unnecessary to resolve the first issue because we are satisfied that the agency was arbitrary and capricious in its cancellation of the solicitation.

We review agency actions taken in connection with a procurement pursuant to the deferential standards proscribed in the Administrative Procedures Act. 28 U.S.C. § 1491(b)(1)(4) (2012). The long-established standard in procurement challenges is whether the procurement decision “lacked a rational basis” or “involved a violation of regulation or procedure.” Impresa Construzsioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed. Cir. 2001). It is essentially a standard of rationality. See Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1368-69 (Fed. Cir. 2009). Thus our review is deferential to an agency’s own consideration of its needs and its views of what bidders have offered. See generally L-3 Commc’ns, Inc. v. United States, 87 Fed. Cl. 656, 664 (2009) . So long as the agency “examines the relevant data and articulates a satisfactory explanation,” we will not disturb its conclusions. Gulf Grp. Inc. v. United States, 61 Fed. Cl. 338, 351 (2004). Where the agency fails to undertake a review or fails to document such review, we must conclude that it acted irrationally. See AshBritt, Inc. v. United States, 87 Fed. Cl. 344, 370 (2009); Nutech Laundry & Textile, Inc. v. United States, 56 Fed. Cl. 588, 593 (2003).

I. The Agency’s Decision To Cancel the Solicitation Is Unsupported

The record now contains a lengthy history of agency personnel being indifferent to the fidelity of the procurement process. Once the initial decision to award to Intellizant had been made, Ms. Ellis and Ms. Slater make clear that any other result was unwelcome and not seriously considered. Instead they viewed their task as bolstering the initial decision, and not reevaluation. The agency told GAO and Starry that it was undertaking a serious effort to follow the solicitation in reevaluating Intellizant’s proposal consistently with the PWS. But the record does not reflect such an effort. GAO came to the same conclusion in Starry’s second protest.

Another instance of a cavalier disregard for the truth of representations made to the GAO was Mr. Davis’ assurance that he was recused from the procurement process. In fact he remained directly involved in the selection of the TEP and ultimately made the critical decision to moot out the series of protests by cancelling the solicitation.

After losing at GAO, the agency considered its options generally but effectively eliminated any need to comply with its recommendation for reevaluation. Mr. Joy left to Mr. Davis the decision regarding the agency’s course of action. He asked only for a rationale to support a decision to cancel the solicitation. Mr. Davis gave him one: HHS did not need support for MACCS and GovNet under both the UFMS contract and the license agreements for those two programs. Mr. Joy and his colleagues accepted that representation at face value in short order and conducted no independent analysis of the agency’s needs. Thus, we are left to consider only the actions of Mr. Davis in this regard. His deposition leaves no question, however, that the rationale was completely illusory.

The contemporaneous record is devoid of any documentation wherein the agency’s need for support for MACCS and GovNet as part of the larger UFMS system were considered by Mr. Davis or anyone else. The contemporaneous record is devoid of any communications between agency personnel regarding these needs outside of Mr. Davis’ conclusion to cancel the solicitation as reported to Mr. Joy. We are left then with the declarations submitted to GAO and the depositions taken as part of this case. The declarations of John Davis report only what was stated to Mr. Joy and provide no additional substance or support for the notion that an actual comparison of license agreements to the UFMS support contract was undertaken. We turn then to Mr. Davis’ deposition testimony. It is telling.

Although he repeatedly assured Starry’s counsel that he was aware of what was provided under each contract vehicle, he admitted that he did not compare the actual documents. When confronted with the language of the license agreements themselves, he agreed that they do not purport to provide support outside of troubleshooting and debugging. He also admitted that the daily hours of support are not the same under each contract. Thus, even assuming that the support called for under each contract was the same, the actual hours procured would not be the same. The only fig leaf covering for his decision boils down to the fact that the word “support” appears both in the UFMS support contract and in the license agreements.

In stark contrast, the record contains a declaration submitted to GAO by plaintiff in support of its third protest. That declaration is made by a Starry’s UFMS support contract project manager, a position that individual has held since 2009. He is personally knowledgeable about the support provided under that contract for the operation of MACCS and GovNet. He goes into considerable detail in 12 pages detailing the daily services provided for these systems under the UFMS support contract. He concludes that “The limited support services performed by Starry under the MACCS and GovNet-NG license agreements do not duplicate the support services provided the [UFMS support contract].” AR 1220. His reasoned and detailed statements stand unrebutted in the record.

In short, the record contains no basis on which the agency can pin the rationality of its decision to cancel. The conclusion is inescapable that the agency was arbitrary in its cancellation of the solicitation. It must therefore be set aside.  (Starry Associates, Inc. v. U. S., No. 16-44C, July 27, 2016)


The Competition in Contracting Act (CICA) requires executive agencies, when procuring property or services, to “obtain full and open competition through the use of competitive procedures,” unless certain specified exceptions apply. 41 U.S.C.A § 3301(a)(1) (West 2011). It is this statutory imperative for full and open competition that is violated if a procuring agency makes a cardinal change to a contract requirement after accepting bids in response to a solicitation. See AT & T, 1 F.3d at 1205 (“[M]odifications outside the scope of the original competed contract fall under the statutory competition requirement.”). In other words, a cardinal change to a proposed contract during the course of a procurement, or after the contract has been awarded, disguises the essential nature of the competed contract and frustrates full and open competition.

This principle is carried forth in the Federal Acquisition Regulation (FAR). FAR 15.206(e) provides:

If, in the judgment of the contracting officer, based on market research or otherwise, an amendment proposed for issuance after offers have been received is so substantial as to exceed what prospective offerors reasonably could have anticipated, so that additional sources likely would have submitted offers had the substance of the amendment been known to them, the contracting officer shall cancel the original solicitation and issue a new one, regardless of the stage of the acquisition.

48 C.F.R. § 15.206(e) (2011). A cardinal change to a solicitation may thus constitute a violation of CICA and a violation of FAR 15.206(e), unless the agency takes steps to re-open the competition and disclose its changed contract requirements to potential offerors.

C. Whether Changes to a Solicitation Alter the Nature of a Requirement That Was Determinative As To the Evaluation and Elimination of Offerors

The cardinal change doctrine, as applied in the bid protest context, sometimes raises a distinct but related question: Has the agency substantially changed a solicitation or contract requirement that was previously determinative of the elimination of offerors, thus rendering that elimination process arbitrary and capricious? Sometimes this question as to the rationality of an evaluation process that eliminated offerors before a solicitation or contract was changed has been framed as a matter of fundamental fairness. See, e.g., Avtron Mfg., Inc., B-229972, 88-1 CPD ¶ 458, 1988 WL 222812, at *3 (Comp. Gen. May 16, 1988) (“We think it entirely unfair to firms that lose a contract competition because an agency proscribes a conventional, suggested performance approach for the agency to decide, after award, that the same approach is precisely the one needed and then modify the contract accordingly.”). In other cases, the changes to the contract or solicitation are seen as invalidating the evaluation process that eliminated offerors before those changes were made, because the evaluation results are no longer trustworthy in light of the agency’s revised contract requirements. See, e.g., Marvin J. Perry & Assocs., B-277684, B-277685, 97-2 CPD ¶ 128, 1997 WL 687158, at *3 (Comp. Gen. Nov. 4, 1997) (“[T]he record does evidence that if quotes had been obtained from the . . . vendors on the basis of ash rather than red oak furniture, prices may have been significantly lower than the award prices, and that a different vendor may well have been selected.”) (citation omitted). Finally, another way to consider the impact of solicitation or contract changes on the rationality of an evaluation process that eliminated a protestor is to frame such an inquiry as a determination of prejudice to the protestor. See, e.g., MVM, Inc. v. United States, 46 Fed. Cl. 126, 132 (2000) (first finding a cardinal change in a solicitation amendment, then considering whether the agency’s evaluation of the winning bid was reasonable to determine whether the protestor was prejudiced by the cardinal change).

These analytical approaches all have value, depending on the particular context of the procurement examined in a bid protest. Here, an important question is whether Amendment 15 rendered Golden’s elimination from this competition arbitrary and capricious. This inquiry goes hand in hand with the assertion that Amendment 15 effected a cardinal change of the Solicitation. For this reason, the court will address both questions as it examines the changes to the Solicitation that resulted from the issuance of Amendment 15.

VI. Analysis of the Merits of Golden’s Protest

Amendment 15 caused four principal types of changes to the trousers requirement advertised in the Solicitation. The first is the replacement of the Purchase Description and Pattern Styles with updated versions, as these affect the sewing and manufacture of the trousers. The record shows that these sewing changes were not significant changes that would modify offerors’ prices. See AR at 695 (letter from Golden acknowledging that the sewing and manufacturing changes do not have “a significant cost impact associated with them”); id. at 707; Def.’s Mot. at 5-6 & n.2. Nor has plaintiff argued that these sewing changes would have an appreciable impact on the product samples submitted to the Agency. Indeed, plaintiff has largely ignored these changes in its arguments alleging that a cardinal change was effected by Amendment 15. The court finds that the sewing and manufacturing changes encompassed in the updated Purchase Description and Pattern Styles were within the scope of the Solicitation, and do not constitute a cardinal change to the contract requirement. The court also finds that the sewing changes had no impact on the validity of the first phase evaluations of the offerors’ PDMs or price proposals.

The second principal change in Amendment 15 is the addition of Permethrin to all varieties of trousers to be purchased in each lot (Type I, Class 2; Type III, Class 2; Type III OCP, Class 2), as opposed to the addition of Permethrin to just one variety of trousers (Type II, Class 2) in the Solicitation dated January 25, 2010. Plaintiff has conceded that the minor price difference occasioned by this change would affect all offerors equally, and that this change was not beyond the Agency’s contract right to perform conversions to the trousers it would order through this Solicitation. Oral Argument Recording at 2:39-2:40 PM. It is undisputed that there is only one supplier for Permethrin and that the addition of Permethrin is a fixed, and relatively minor, cost that would affect all offerors equally. See Def.’s Reply at 7 n.1 (stating that Permethrin treatment costs [ ]).

Given the small magnitude of this change, the court finds that the addition of Permethrin to two additional varieties of trousers in each lot was not a cardinal change. The offerors would expect the Changes clause in the Solicitation to encompass such changes. Because the addition of Permethrin would cause no change in the field of offerors who would have responded to the Solicitation had they known of this requirement, this change was not a cardinal change to the contract.

The court agrees with both plaintiff and defendant that the added Permethrin affected all offerors equally, and concludes that this change would not change the relative competitiveness of the [ ] proposals evaluated in the first phase evaluation. Further, plaintiff has not alleged, and the court cannot infer, that the offerors’ product samples would, in any way, be affected by the change from Type I, Class 1 fabric (without Permethrin) to Type I, Class 2 fabric (with Permethrin). Thus, the additional Permethrin requirement had no effect on the validity of the first phase evaluation process which eliminated Golden and others from the competition.

The final two principal changes in Amendment 15 require a more detailed examination and comparison to analogous cases. The third principal change was the change from Type II fabric to Type III fabric for the flame resistant trousers to be purchased in each lot. The fourth principal change was the change in the evaluative quantities of the varieties of trousers to be purchased in each lot. The court addresses these changes in turn.

A. Type III Fabrics Required by Amendment 15

At the heart of plaintiff’s protest is Golden’s contention that the revised requirements for flame resistant trousers in Amendment 15 constituted a cardinal change to the Solicitation. This view is not supported by the record or by analogous cases. As defendant argues and plaintiff has not refuted, Type III is merely an “updated version” of the Type II flame resistant fabric, and is produced by the same vendor, “Tencate,” the sole supplier of these products. Def.’s Mot. at 5 (citing AR at 697, 708); see also AR at 524 (noting that the approved Type III fabric is “Improved DefenderTM M”); id. at 710 (referencing the transition from “Current Defender M” to “Improved Durability Defender M” fabrics); id. at 716 (identifying Tencate as the supplier of Type II fabric). Defendant further alleges that Tencate charges each potential contractor essentially the same price for its Type II fabric, and similarly charges each contractor essentially the same price for Type III fabric. Def.’s Mot. at 5; see also AR at 697. This assertion is also unrefuted by plaintiff.

An offeror responding to the Solicitation would have anticipated that DLATS would update the flame resistant fabric specifications as an improved flame resistant fabric became available. This specialized fabric, after all, is used in combat uniforms to protect American troops in hazardous conditions. The Solicitation reserved the right of the Agency to make “conversions” to the trousers, and also included a “Changes” clause. AR at 3, 179. The lots of trousers, after Amendment 15, continue to require a large amount of Type I trousers, and smaller amounts of flame resistant trousers. Amendment 15 is not a cardinal change, because the Agency has merely required updates to the fabrics used in the manufacture of the varieties of the trousers. The essential nature of the procurement has not changed. See, e.g., AT & T, 1 F.3d at 1206 (concluding that a contract modification requiring “the next generation of [a particular type of telecommunication] services . . . at a higher rate of speed” was within the scope of the solicitation, in part because offerors knew that technological improvements were contemplated by the terms of the solicitation).

As to the price increases caused by the change from Type II to Type III fabrics, uniform pricing of flame resistant fabrics from a sole supplier will logically produce uniform price increases in each offeror’s unit price for the flame resistant trousers. In other words, when an upgrade to a more expensive fabric is required, each offeror’s price will be inflated by the same amount per unit. Indeed, defendant has provided detailed charts identifying the uniform price increase per unit for Amendment 15’s changes to the flame resistant trousers, which plaintiff has not rebutted.

For the change from Type II, Class 1 fabric to Type III, Class 2 fabric for one variety of flame resistant trousers, the government estimates that each vendor would experience a uniform increase in unit price of [ ]. Def.’s Reply at 7 n.1. For the change from the Type II, Class 2 fabric to Type III OCP, Class 2 fabric for the other flame resistant trousers, the government estimates that each vendor would experience a uniform increase in unit price of [ ]. Id. These figures are supported by estimates documented in the record. AR at 707-14. Plaintiff has not argued that defendant’s estimates are incorrect, merely that they are unexplained, Pl.’s Reply at 7-8, or misleading, id. at 8-9. The court finds, however, that the figures are adequately explained, and that their meaning is clear.

The record supports defendant’s argument that all offerors’ prices will increase by a uniform amount per unit, and that the figures provided by defendant are the most accurate estimates of those increases. It is true that the changes in Amendment 15 will make the three contracts awarded for combat uniform trousers more expensive. According to the court’s calculation, the increase for the lowest
priced offeror for Lot 0001T is [ ]. AR at 621; Def.’s Mot. Ex. A at 4. The increase for Golden for Lot 0001T is [ ]. AR at 621; Def.’s Mot. Ex. A at 4. The increase for the lowest price offeror for Lot 0002T is [ ], and for Golden it is [ ]. AR at 642; Def.’s Mot. Ex. A at 4. The increase for the lowest price offeror for Lot 0003T is [ ], and for Golden it is [ ]. AR at 666; Def.’s Mot. Ex. A at 4. The court finds that these price increases do not constitute a cardinal change in the procurement for trousers. It is not reasonable to presume that a different field of offerors would have responded to the Solicitation if the modest price increases inherent in Amendment 15 had been disclosed on January 25, 2010.

In analogous bid protests, contract modifications which slightly increase price proposals are not considered to be cardinal changes to the contract. In AT & T, for example, an increase of $100 million dollars caused by a contract modification was an increase to the total estimated cost of the contract of less than 2 percent, and was not judged to be a cardinal change of contract requirements. 1 F.3d at 1204, 1208. On the other hand, in circumstances where fundamental changes were made to contract requirements, and these changes were accompanied by large price changes, the government’s contract modifications have been deemed to be cardinal changes. See, e.g., Cardinal Maint. Serv., Inc. v. United States, 63 Fed. Cl. 98, 109 (2004) (“Where, as here, the amount of additional work nearly doubles the price of the contract that was awarded, and the nature of the work was so substantially increased that the change provision of the contract had to be deleted to accomplish the modifications, the originally awarded contract has been materially changed.”); Poly-Pacific Techs., Inc., B-296029, 2005 CPD ¶ 105, 2005 WL 1299551, at *4 (Comp. Gen. June 1, 2005) (finding a cardinal change where the contract requirements were relaxed and the modified services decreased in cost by “as much as 50 percent”); Webcraft Packaging, Div. of Beatrice Foods Co., B- 194087, 79-2 CPD ¶ 120, 1979 WL 12167, at *6 (Comp. Gen. Aug. 14, 1979) (finding a cardinal change where the contract’s paper requirements were changed from a specialty paper to a more generally available paper, and the contractor proposed a price increase of thirty-seven percent). Although “courts must look beyond simple arithmetic when assessing a cardinal change claim,” PCL Constr. Servs., Inc. v. United States, 47 Fed. Cl. 745, 806 (2000) (citation omitted), the magnitude of the price increase caused by Amendment 15, between approximately [ ], does not indicate that a cardinal change occurred in this procurement for combat uniform trousers.

As to the validity of the first phase evaluation of price proposals, Amendment 15 has not been shown to have affected, in any significant way, the competitiveness of the prices of the offerors that were being evaluated. As defendant’s detailed chart of revised prices shows, none of the offerors would have achieved a different result in the first phase evaluation if they had been bidding on the Amendment 15 requirements: [ ]. The court concludes that Amendment 15 did not render the eliminations of the first phase evaluation process invalid.

Plaintiff’s principal argument to the contrary is that “[i]t cannot be assumed that all the offerors would take that figure [of the uniform increase in the unit price of each variety of trouser] and simply apply the same indirect rates and profit margins as in their original offers.” Pl.’s Reply at 8-9. At oral argument, plaintiff elaborated on this argument and suggested that business decisions might be made by each offeror in response to the changes in Amendment 15, and that these business decisions might produce revised price proposals that differ from those calculated by defendant. Oral Argument Recording at 2:07 PM. The court acknowledges that any such business decisions of offerors responding to the changed contract requirements in Amendment 15 are not presented in the record before the court.

Defendant, however, has provided detailed estimates of revised price proposals based on all of the significant price increases caused by Amendment 15. These estimates appear to the court to be reliable and supported by documents in the record. Plaintiff has not provided any countering evidence showing how the business decisions of offerors might have altered these estimates and invalidated the first phase evaluations of proposals.13 See Murray-Benjamin Elec. Co., L.P., B-400255, 2008 CPD ¶ 155, 2008 WL 3311846, at *2-*3 (Comp. Gen. Aug. 7, 2008) (denying a protest because the protestor had failed to quantify the impact of changes to the solicitation’s requirements, and had thus failed to refute the government’s revised price analysis that showed that the protestor’s bid would still be the higher-priced offer). In the bid protest context, plaintiff bears the burden of showing a significant error by the procuring agency. Grumman Data, 88 F.3d at 1000. Plaintiff has not met that burden here.

B. Change in Evaluative Quantities

Plaintiff appears to argue that the changes to the evaluative quantities of the varieties of trousers within each lot are significant. Pl.’s Mot. at 20. Plaintiff offers no reason, however, why these changes in Amendment 15 would have changed the field of competitors responding to the Solicitation, or that offerors would not have expected that the Agency might alter its evaluation formula. The evaluative quantities, after all, merely provide the multiplier which the Agency would use for the unit price of each variety of trousers in each lot, to compare the offerors’ price proposals. See supra note 4. There is no indication in the record that different offerors would have competed for the lots of trousers, or that their price proposals would have been restructured in response to the changes in the evaluative quantities of the varieties of trousers announced in Amendment 15. The court finds that the change in evaluative quantities is not a cardinal change.

Defendant’s detailed chart of revised price proposals takes these changes into account and conclusively shows that the first phase elimination of offerors was unaffected by the change in evaluative quantities. Def.’s Mot. Ex. A at 4. Thus, even though the revised evaluative quantities, along with the price increases from the fabric changes, would have produced a new set of evaluated prices from the offerors, these revised prices would not fundamentally change the competitive ranking of the offerors’ proposals. See supra notes 11-12 and accompanying text. Plaintiff has offered no evidence to show that the revised evaluative quantities rendered the first phase evaluations invalid. The court concludes that the revised evaluative quantities in Amendment 15 did not render the first phase evaluations arbitrary or capricious.

C. The Cumulative Impact of All Changes in Amendment 15 Is Not a Cardinal Change to the Solicitation

The court has considered all of the changes in Amendment 15 that were noted by plaintiff, Pl.’s Mot. at 20, and finds that Amendment 15 was not a cardinal change to the Solicitation. Neither CICA nor FAR 15.206(e) was violated by the issuance of Amendment 15 and DLATS’s decision to proceed with the second phase evaluation of the remaining offerors. The court also finds that the Agency’s first phase evaluation of proposals was not rendered invalid by the issuance of Amendment 15. Because plaintiff has not succeeded on the merits of its protest, the court need not consider whether Golden was prejudiced by the Agency’s decision to proceed with the second phase evaluation of remaining offerors after issuing Amendment 15, or whether the standard for injunctive relief has been met in this case.  (Golden Manufacturing Co., Inc., v. U. S. , October 1, 2012, No. 12-317C)  (pdf)


C. Was the Decision to Cancel the Solicitation Arbitrary and Capricious?

Plaintiff moves for judgment on the administrative record, arguing that the cancellation decision lacks a rational basis. MORI contends that the administrative record fails to support the agency’s claim that its needs for contractor-provided IT support have changed due to an increase in employees authorized to work in the IT area. See Pl.’s Cancel’n Br. at 11-12, 25-27; Pl.’s Cancel’n Reply at 13-15 & n.7, 19. Plaintiff also argues that the cancellation decision rested on cost savings calculations that were arbitrary and erroneous, and which failed to follow the OMB Circular A-76 methodology. Pl.’s Cancel’n Br. at 5-10, 13-14, 24-32; Pl.’s Cancel’n Reply at 15-20. MORI also alleges that the cancellation of the procurement, since it lacked a valid reason, must have been a pretext to avoid awarding MORI a contract --- in light of the numerous protests, including among other things procurement integrity issues, which had not been resolved but only delayed by a series of purported corrective actions. Pl.’s Cancel’n Br. at 33-36; Pl.’s Cancel’n Reply at 21-22. And it contends that the cost comparison spreadsheet created by Mr. Karimian was so grossly erroneous as to imply bad faith on the part of the agency. Pl.’s Cancel’n Br. at 2, 36-37; Pl.’s Cancel’n Reply at 21-22.

In its cross-motion the government notes that changes in the needs of agencies have been found to be rational grounds for cancelling procurements, and that the FAR requires that solicitations at least be amended in such circumstances. Def.’s Cancel’n Br. at 18-19 (citing, inter alia, Am. Gen. Leasing, Inc. v. United States, 218 Ct. Cl. 367, 375 (1978); Madison Servs., 92 Fed. Cl. at 124-28; Aviation Enters., 8 Cl. Ct. at 19; 48 C.F.R. § 15.206(a), (e)). Defendant contends that the memorandum from Dr. Rodgers stating that NIDDK’s needs have changed is sufficient to establish the rationality of the decision, since as its director “he would obviously possess knowledge about the agency and its employees.” Def.’s Cancel’n Br. at 20. As additional support, the government points to the evidence that funding to hire additional employees was approved in August 2009. Def.’s Cancel’n Reply at 8 (citing AR at 69, 78). The government argues that the cost saving chart is irrelevant to the cancellation decision, as it was prepared over a year earlier, before the agency sought to expand the number of NIDDK employees in the IT area --- and it was the resulting increase in employees that prompted the cancellation. Def.’s Cancel’n Br. at 20-22; Def.’s Cancel’n Reply at 9-10. Moreover, defendant contends that the methodology of OMB Circular A-76 cannot be court-enforced (a position with which the Court agrees, in this particular context), and that the approach used was rational. Def.’s Cancel’n Br. at 22-23; Def.’s Cancel’n Reply at 9-10. And finally, the government argues that there is no evidence of bad faith on the agency’s part --- let alone clear and convincing evidence--- and that the timing of the cancellation decision demonstrates that it was based onchanges in the number of NIDDK employees, not on a desire to injure plaintiff. Def.’s Cancel’n Br. at 23-24; Def.’s Cancel’n Reply at 11-12.

As the government explains things, the cancellation decision was simply a case of a buyer changing its mind about what it needed to procure. But, as the Court explained in part II.B.1.a of this opinion, once offerors have submitted proposals, the fair treatment owed them under 48 C.F.R. § 1.602-2(b) includes a prohibition against the arbitrary cancellation of solicitations. Although government agencies might more or less (depending on whether Congress has imposed its own limitations) be said to have broad discretion in determining their needs, once the rights of offerors are implicated these decisions must be rational. For a cancellation decision to be found not to be arbitrary and capricious, the agency must have “examine[d] the relevant data and articulate[d] a satisfactory explanation,” Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43; this explanation must be “coherent and reasonable,” Domenico Garufi, 238 F.3d at 1333 (quotation omitted); and it must not “‘entirely fail[] to consider an important aspect of the problem’” or “‘run[] counter to the evidence before the agency.’” Ala. Aircraft, 586 F.3d at 1375 (quoting Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43). The Court concludes that NIDDK’s cancellation of the IT Services Solicitation fails this test.

Plaintiff is right in contending that the situation presented in this case is not at all similar to those in which solicitations have been cancelled because the procuring agency decided to change the specifications for items it sought to obtain, cf. Am. Gen. Leasing, Inc. v. United States, 218 Ct. Cl. 367, 375 (1978) (concerning a revision in specifications for leased computer hardware); Aviation Enters., 8 Cl. Ct. at 19 (concerning “overstated specifications” for leased aircraft); or was issuing a new solicitation to reflect programmatic changes in the scope of services sought. Cf. Madison Servs., 92 Fed. Cl. at 127 (concerning a new solicitation that would be suitable for a broader range of offerors). The agency has not articulated a change in its demand for IT services. Rather, NIDDK maintains that --- except for Help Desk services and, possibly, health informatics and work to be identified in the future, see AR at 3-5 --- it had projected that by the end of 2010 it would “have sufficient staff in order to perform” a number of IT “functions with Federal employees.” AR at 3, 5. These functions were identified as “application development, database administration, network administration, systems security, and systems administration.” AR at 3 (Rodgers Mem.); see also AR at 5 (Miller Mem.).

Defendant argues that because the agency first allegedly hired (or planned to hire) the additional IT employees who would be available to perform the identified functions, and then made the formal decision to cancel the procurement, the fact of the hiring makes the cancellation rational regardless of the reasoning supporting the first step. See Def.’s Cancel’n Br. at 20-22; Def.’s Cancel’n Reply at 9-10. But this is not like, for instance, cancelling a solicitation seeking office supplies after stumbling across a forgotten stockpile of these supplies obtained in a previous procurement --- in which case the costs of the stockpile have already been incurred.

The costs of IT services to be received in the future have yet to be incurred. And the agency has decided to “convert[] contract support positions to Federal employees” not just because employees were available, but because “[a]n analysis of expenditures showed that NIDDK could realize significant savings” by doing so. AR at 3 (Rodgers Mem.). This was the reason given by the client agency to the NIH contracting officer, who noted in her approval memorandum that “an analysis reveals/projects that NIDDK could realize a minimum savings of $860,988.21 annually [i]f it converted at least 11 of its contract support positions to Federal employees.” AR at 5 (Miller Mem.). The government does not suggest that the IT Services Solicitation would have been cancelled if the agency believed that costs would significantly increase by using federal employees to perform the functions. Such a decision would hardly be rational. The cost savings rationale cannot be divorced from the decision to cancel the procurement.

But even apart from the cost savings rationale, the Court finds the cancellation decision arbitrary, as the agency failed to consider relevant information, ignored an important aspect of the procurement, and lacked record support for its conclusions. Now, what is important to be considered in making a procurement decision will vary from case to case --- a consideration could be mandated by Congress or by an Executive branch regulation, or it may be apparent from the circumstances of the procurement. Here, the administrative record shows that a memorandum from the President dated March 4, 2009 was the inspiration for NIDDK’s review of “its balance of insourcing and outsourcing in the information technology area.” AR at 3 (Rodgers Mem.). But by that time, MORI had filed its second GAO protest challenging a contract award to ATC --- a protest that included claims of bias and wrongdoing on the part of Mr. Karimian. See Compl. ¶¶ 15-16, 124, 132. The allegations concerning Mr. Karimian had already become the subject of an HHS OIG investigation, launched in January 2009, see id. ¶ 17, and in order to secure the dismissal of MORI’s second GAO protest the agency apparently pledged, on January 22, 2009, to exclude Mr. Karimian from further involvement with the procurement. See id. ¶ 21(g); App. to Def.’s Mot. Dismiss at 2, ¶ 4 (current contracting officer noting that “[i]n January 2009, NIDDK elected to pursue corrective action to replace the project officer”).

Despite the chief information officer’s conduct in the IT services procurement being the subject of an open OIG investigation, and despite his being relieved of responsibilities in the procurement due to alleged PIA violations, the NIDDK director apparently asked Mr. Karimian to analyze whether the agency would save money by cancelling the procurement and then relied on his analysis. See AR at 3-4, 6, 10; Def.’s Cancel’n Reply at 10; Def.’s Resp. to Pl.’s Mot. Supp. Admin. R. at 4, 7. The administrative record does not contain any evidence that the director considered the possibility that Mr. Karimian would have an interest in seeing the procurement cancelled, as a means of mooting the investigation into the latter’s alleged PIA violations.  Curiously, before the HHS OIG could complete its investigation into whether Mr. Karimian had improperly assisted ATC, the agency made a third attempted award to ATC, precipitating MORI’s third GAO protest, filed September 2, 2009. See Compl. ¶¶ 23-24. In this protest, the agency was made aware of additional details concerning the alleged PIA violations. MORI has alleged that, among other things, Mr. Karimian helped ATC draft its proposal by giving it a confidential proposal from a contractor that he had supervised at another agency and by introducing its president to a leading expert in a discipline that was to be added to the solicitation requirements; and that Mr. Karimian altered the requirements to suit an ATC subcontractor. See id. ¶¶ 24(a), 55, 56, 58. The agency responded with proposed corrective action that included suspending the procurement while its counsel conducted his own investigation into the PIA allegations. Id. at ¶¶ 27, 29; App. to Def.’s Mot. Dismiss at 6-7. As a consequence, the third protest was dismissed. Compl. ¶ 31.

Agency counsel recognized that the PIA allegations were “supported by credible evidence” and “concern[ed] the purported improper conduct of a Government official that might have had a bearing on the integrity of the procurement process, the Agency’s consideration of proposals, and the ultimate source selection,” App. to Def.’s Mot. Dismiss at 7 n.1, and that the investigation involved “a critical issue.” Id. at 8. After a fourth GAO protest was filed by MORI on March 23, 2010, adding to its complaints the lack of resolution of the PIA matter, agency counsel informed the GAO that the OIG investigation had found no violations, and that his investigation yielded the same determination. See Compl. ¶¶ 36-38. MORI then brought its protest, including the alleged PIA violations, to our court. In response, the government argued that a challenge to its proposed corrective action was premature --- contending that although the agency counsel’s investigation was complete, the agency had yet to determine whether PIA violations affecting the procurement were committed. See Def.’s Mot. Dismiss at 4-5 & n.4; App. to id. at 3-4 (Miller Decl., ¶ 8) (contracting officer stating she still “ha[d] to make a determination regarding whether a Procurement Integrity Act violation had an impact upon the procurement” and had to provide this “determination to the Head of Contracting Activity who will make the final determination”); Def.’s Reply to Pl.’s Resp. to Def.’s Mot. Dismiss at 17; Tr. (June 29, 2010) at 52. This is how matters stood as of November 23, 2010, when the contracting officer approved the agency’s request to cancel the IT Services Solicitation --- following the analysis of an individual against whom a PIA investigation was still pending, and whose conduct was the basis of claimed PIA violations being entertained in our court See AR at 3-6, 10; Def.’s Cancel’n Reply at 10.

The agency’s reliance upon Mr. Karimian is all the more troubling when one considers the factual and analytical gaps found in the administrative record. First, there is no support for the “projecti[on]” that the agency would by the end of 2010 “have sufficient staff in order to perform” several functions that might have been assigned to the IT Services Solicitation. AR at 3 (Rodgers Mem.). The government’s argument that Dr. Rodgers “obviously” knew “about the agency and its employees,” Def.’s Cancel’n Br. at 20, is nothing more than speculation. The administrative record indicates that the agency had more than 600 employees in 2009, see AR at 73, and contains nothing to support the inference that Dr. Rodgers had particular knowledge concerning its IT staff. Of course, there is nothing wrong with an agency decision maker relying on his own knowledge, and when such information is not part of the paper record supplementation may be allowed. See Tauri Grp., LLC v. United States, 99 Fed. Cl. 475, 481 (2011); Beta Analytics Int’l, Inc. v. United States, 61 Fed. Cl. 223, 225 (2004); Orion Int’l Techs. v. United States, 60 Fed. Cl. 338, 343-44 (2004). The government could have sought a remand or leave to supplement the administrative record with a more complete explanation of the agency’s reasoning, but decided against these courses of action. See Def.’s Resp. to Pl.’s Mot. Supp. Admin. R. at 1 n.1; Sched. Order (Mar. 4, 2011) at 1 (providing that the government “may file its own motion relating to the treatment of the administrative record”).

Because of plaintiff’s motions to supplement the administrative record, we know that the cancelled IT Services Solicitation involved thirty-three positions.  See AR at 80, 85 (derived by dividing the total labor hours by 1,880). The administrative record contains nothing, other than the director’s conclusory statement, see AR at 3 (Rodgers Mem.), showing that the agency could have sufficient IT employees to staff the non-Help Desk positions --- which may have totaled as many as twenty-four.  The record contains job descriptions for six positions (five at grade GS-13 and one at GS-12) in the agency’s Computer Technology Branch, see AR at 18-45, the director of which is Mr. Karimian. See AR at 10. When the government submitted these descriptions to supplement the administrative record, it described them as documents “NIDDK reviewed when creating the cost comparison chart and deciding the type of personnel it would seek to hire.” Def.’s Resp. to Pl.’s Mot. Supp. Admin. R. at 3. While these job descriptions support the reasonableness of using GS-13 pay rates in the cost comparison spreadsheet prepared by Mr. Karimian, nothing in the record indicates how many of them were filled and available to perform requirements of the IT Services Solicitation.

The emails and accompanying attachments concerning the agency’s requested increase in FTEs also fail to support the conclusion that NIDDK projected hiring a sufficient number of IT employees to perform the non-Help Desk portions of the cancelled IT Services Solicitation. See AR at 59-79. These documents indicate that in August 2009, NIDDK requested an increase of twenty-five FTEs (from 630 to 655) for fiscal year 2010, including five “in order to in-source Information technology activities which are now being performed by contractor outsourcing” ---although one of the five is to “provide support for essential new IT initiatives.” AR at 73. An additional eleven FTEs above the budgeted amount (from 649 to 660) were requested for fiscal year 2011, including five to insource IT activities. Id. The numbers apparently approved by NIH were 643 FTEs for fiscal year 2010 and 655 for fiscal year 2011. See AR at 78-79. Although these increases were enough to cover the number of IT employees that the agency wished to add, they were less than the agency requested overall --- and the administrative record does not indicate how NIDDK spread its new hires among the areas vying for the new slots, or whether the hiring even occurred.

Moreover, even if all ten newly proposed IT employee positions were authorized and filled, nothing in the record indicates that this would be sufficient to perform all but the Help Desk work under the IT Services Solicitation. The cancelled solicitation required the full-time work of thirty-three individuals, of whom nine or ten were to perform Help Desk work. See AR at 80, 85. The Help Desk Solicitation encompassed eleven positions, but each of a part-time nature (980 labor hours). See App. to Def.’s Help Desk Br. at 8. Even if all of the Help Desk work under the IT Services Solicitation is assumed to be covered by what amounts to about 6 FTEs, there would have remained at least twenty-three positions to be performed under the cancelled solicitation. The hiring of ten extra IT employees does not on its face appear sufficient to perform all of that work. Perhaps thirteen of the positions that would have been performed under the cancelled solicitation have been performed by agency employees --- but no evidence in the record supports this. Nor is it the sort of knowledge likely within the ken of the agency’s director, as opposed to, say, within Mr. Karimian’s. In any event, Dr. Rodgers could not have reasonably concluded, based on just the evidence contained in the administrative record, that the agency would hire by the end of 2010 enough IT employees to perform the non-Help Desk portions of the cancelled solicitation.

The above recounted failure to take into account Mr. Karimian’s unresolved PIA issues when seeking his advice; failure to consider the full range of work required by the IT Services Solicitation; and absence of record evidence supporting the conclusion that sufficient agency personnel were on staff to perform the non-Help Desk work, are enough to show that the decision to cancel the IT Services Solicitation was arbitrary. But on top of this, there are the problems with the cost savings analysis upon which the agency’s director and the contracting officer relied. As was noted above, it would hardly be rational for an agency to cancel a procurement on the ground that it would cost the taxpayers more money to have the same services performed by government employees. While there may be non-financial reasons to cancel a particular procurement --- in addition to changes in requirements, these could perhaps include security or timing issues --- none here was given. The agency’s director explained in his cancellation request that “[a]n analysis of expenditures showed that NIDDK could realize significant savings if it converted contract support positions to Federal employees.” AR at 3 (Rodgers Mem.). He then requested cancellation under the belief that sufficient IT employees would soon be hired to convert the work from the proposed contract positions. Id. at 3-4. But even if employees were available to perform the work contained in the IT Services Solicitation, assigning them the work in place of other duties would not make sense if the government expected this would cost more than contracting it out. Thus, in the memorandum approving the request, the contracting officer adds that “an analysis of expenditures reveals/projects that NIDDK could realize a minimum savings of $860,988.21 annually [i]f it converted at least 11 of its contract support positions to Federal employees.” AR at 5 (Miller Mem.). Without question, the referenced analysis was relied upon by the agency when it decided to cancel the procurement, and the decision to cancel would not be rational if this analysis is found to be arbitrary.

One problem with the cost savings analysis has already been touched upon, as the Court finds it hardly rational for the agency to have requested that Mr. Karimian perform this analysis while his prior involvement with the procurement was the subject of pending allegations of PIA violations A second problem with the analysis is that it is based on just eleven IT positions, when the cancelled procurement involved thirty-three positions. See AR at 6 (Spreadsheet), 80, 85. Even if the agency had already determined that the Help Desk work would still need to be contracted out, this would still leave at least twenty-three other positions to be converted from the IT Services Solicitation. Even if many of these positions had already been staffed by government employees in the interim while the procurement proceeded, the decision to cancel the solicitation entails a decision to keep that work with government employees instead of using contractor personnel, and cannot rationally ignore the respective costs of performing that work.

Then there are the problems with the analysis itself. It is based on a purported comparison of seven categories of positions, totaling eleven positions in all. AR at 6 (Spreadsheet). The listed positions are: “.Net programmer GS-12/13”; “JAVA/JEE programmer GS-13”; “Database administrator GS-13”; “Infosec/Network engineer GS-13”; “Linux administrator GS-12/13”; “Systems administrator GS12/13”; and “KCMS Administrator.” Id. These positions are assigned contractor costs, ranging from $[XXX,XXX] to $[XXX,XXX] annually (for 1,880 hours worked). Id. The spreadsheet does not explain the basis for these numbers. Included in the administrative record is an e-mail sent by Mr. Karimian on November 18, 2010, with an attachment titled “Voucher 20 period 030109 to 033109.pdf.” AR at 10. The attachment is the invoice for MORI’s support services for the period of March 1, 2009 through March 31, 2009, AR at 12-16, and contains the positions and hourly rates for twenty-one of plaintiff’s employees. See AR at 14-15. In the e-mail, Mr. Karimian wrote, “I used the rates are [sic] based on MORI March 2009 Invoice #20 page 3 and 4 to compare to Federal GSA salary.” AR at 10.

(section deleted)

As MORI points out, the hourly rates used in the cost comparison spreadsheet are higher than those stated in Mr. Karimian’s e-mail for the positions of “.Net Programmer” (actually $[XXX.XX]), “JAVA/JEE Programmer” (actually $[XXX.XX]), and “Infosec/Network engineer” (actually $[XXX.XX]). Pl.’s Cancel’n Br. at 9-10, 28-29 A fourth position, “KCMS Administrator,” was not explained in the e-mail and was given MORI’s highest hourly rate of $[XXX.XX]. See AR at 6 (Spreadsheet), 10; Pl.’s Cancel’n Br. at 10, 29-30. The government concedes that “there are admittedly some inconsistencies in the record, compare AR6 with AR10,” Def.’s Cancel’n Br. at 24, but notes that “[t]he numbers contained in the chart, rather than the numbers Mr. Karimian attempted to recall in an email over a year later, are the numbers that he used at the time the chart was created.” Id. at 21 n.9. Defendant explained that Mr. Karimian’s e-mail was an attempt “to recollect how [his cost comparison] was done,” and “is not evidence of what the agency did and not evidence that what the agency did was not rational.” Tr. (July 27, 2011) at 159. The problem for the government is that this e-mail is the only attempt in the administrative record to explain the basis for the contractor cost figures used in the spreadsheet. Without this e-mail, the figures have no basis whatsoever, and even with it, four of the seven are unexplained. The e-mail at best shows that Mr. Karimian must have performed his calculations no earlier than the April 30, 2009 date that the invoice was forwarded to his attention, see AR at 10, and demonstrates the basis for three of the seven contractor cost calculations.

Another aspect of the contractor cost calculations that is left unexplained is why Mr. Karimian was using the rates from MORI’s voucher in the first place. Had the agency followed OMB Circular A-76, it would have either conducted a standard competition, in which contractor costs would be based on their submitted offers, see Attach. B to OMB Circular A-76, Part D, ¶ 5, or it would have conducted a streamlined competition, in which contractor costs could rest on either “documented market research or solicit[ed] cost proposals.” Id., Part C, ¶ 1(b). At the time Mr. Karimian created his spreadsheet, to determine the likely contractor costs of performing the requirements of the IT Services Solicitation the agency had at its disposal the proposals submitted by offerors in June 2008, upon which the second award to ATC was made. See Compl. ¶ 21(a), (d). As it is undisputed that the IT Services Solicitation concerned more positions than MORI’s incumbent contract, see Tr. (July 27, 2011) at 114 (government counsel explaining increase to 33 positions), there is no obvious, rational reason why someone attempting to determine the costs of a contract awarded under the IT Services Solicitation would look to MORI’s costs under the incumbent contract.  The administrative record does not contain the director’s request for analysis, so we cannot know if Mr. Karimian’s mission was to compare the costs of MORI’s non-Help Desk IT support under the incumbent contract with the costs of moving that work in-house.  If it was, the wrong question was asked, and the analysis does not support a decision to cancel a different procurement involving more than eleven positions (even after subtracting Help Desk support). In any event, no reason is given for using MORI’s invoice as the source of an estimate of contractor costs under the cancelled procurement.

Finally, there are the unexplained factors employed by Mr. Karimian in calculating the costs if government employees were to fill the positions listed in his spreadsheet. The spreadsheet calculates the cost of contractor performance based on each employee working 1,880 hours. See AR at 6 (Spreadsheet). It makes a straight comparison of this to the work performed by one federal government FTE. Id. But as MORI points out, see Pl.’s Cancel’n Br. at 6-7, 30-31, under the cost comparison methodology of the Circular, the government is to assume that one FTE works only 1,776 productive hours annually. Attach. C to OMB Circular A-76, Part B, ¶ 2(d)(2). While it might be the case that NIDDK employees take less annual, sick, and administrative leave, and have less training, than the average federal employee, this is nowhere explained in the administrative record. Mister Karimian then took the GS-13 salaries for steps one, five, and ten, and grossed them up by twenty-seven percent to derive the “Fully Burdened FTE Cost” for each staff position, presumably to reflect fringe benefits and the like. See AR at 6. Plaintiff notes that had the Circular been followed, these salaries would have been increased by “the civilian position full fringe benefit cost factor of 36.25 percent,” Attach. C to OMB Circular A-76, Part B, ¶ 2(f)(1), and the resulting figure would have been further increased by a twelve percent “overhead factor.” Id., Part B, ¶ 5; see Pl.’s Cancel’n Br. at 6, 30. Now perhaps there is good reason to believe that NIDDK’s employees receive less fringe benefits than other federal workers, or to believe that the agency differs from the rest of the government in having no overhead costs, but no rationale for the twenty-seven percent figure is provided in the administrative record.

The problem with these unexplained factors is not that the agency departed from the approach mandated by OMB Circular A-76, but that no reason is provided for the departures. Had the agency followed the cost comparison method prescribed in the Circular, its approach would have been presumptively proper, following the publicly-decreed policy of the Executive Office of the President. Other than by identifying math errors, attempts by plaintiff to impeach the calculations would have smacked of second-guessing. But NIDDK did not take refuge in this safe harbor. Without the policy of the Circular to fall back upon to justify its choices, and no internal agency policy identified by the government as their basis, the agency had to provide an explanation for assuming that its employees work 1,880 productive hours, or receive no more than twenty-seven percent of their salaries in fringe benefits (and overhead support). Requiring such an explanation does not involve second-guessing the judgment of the decision makers, but rather first-guessing --- as we can only guess as to reasons not contained in the administrative record.

Without an explanation for the use of these factors, there is a disconnect between the information considered by the agency and its decision --- with no reason given for processing the information in that way, the result is no better than if the numbers were pulled from a black box. Court review of procurement decisions necessarily “entails identifying the judgments made by the relevant officials and verifying that the relevant information was considered, the relevant factors were employed, and a satisfactory explanation was articulated.” Fort Carson, 71 Fed. Cl. at 592 (citing Overton Park, 401 U.S. at 416, and Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43). While in certain circumstances and contexts the use of particular factors might be attributed to the knowledge and expertise of the official using them, when there exist baselines for the factors --- such as found in the Circular --- the Court holds that deviations from the norm must be explained, else they are arbitrary. The mere fact that calculations were performed does not make their results a rational basis for decision making --- if that were the case, then cost savings would be whatever an agency says they are, insulating decisions based on them from court review.

(section deleted)

(MORI Associates v. U. S., No. 10-298C, December 15, 2011)  (pdf)


A. The Cancellation Has a Rational Basis and Is Otherwise in Accordance with Law

Though entrusted to the contracting officer’s broadest discretion, the decision to cancel a negotiated procurement remains subject to the court’s review, pursuant to 28 U.S.C. § 1491(b) and the APA standard, and may be set aside if ultimately found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” See FFTF Restoration Co. v. United States, 86 Fed. Cl. 226, 244 (2009) (“FFTF”). The agency’s cancellation decision must, therefore, be supported by a rational basis. E.g., id. at 245; Wetsel-Oviatt Lumber Co. v. United States, 43 Fed. Cl. 748, 753 (1999).

(Sections deleted)

1. The Cancellation Has a Rational Basis

Plaintiff contends that the solicitation contemplated the very site closures and work-force reductions recited in the LMD [Logistics Management Directorate] memorandum, and that only the timing of the site closures has changed since issuance of the solicitation. Pl.’s Mot. for J. at 8–9. Plaintiff thus argues that the contracting officer could not reasonably conclude that the changes in FEMA’s requirements exceed what prospective offerors reasonably could have anticipated, or that an amendment would be so substantial, within the meaning of FAR 15.206(e), as to exclude additional offerors from competition. Id. The court disagrees.

The LMD memorandum documents three changes in FEMA’s requirements. First and foremost, due to an “accelerated site closure plan,” FEMA’s needs for contractor-provided services are now limited to [number redacted] THU [temporary housing unit] sites. AR 763. The LMD memorandum identifies the locations of these “[number redacted] enduring sites.” Id. Second, the memorandum notes that FEMA has “hired a significant number of FEMA employees to fulfill the daily operational roles, significantly reducing any requirement for contractor provided baseline services.” Id. Finally, the memorandum requests that a number of changes be made to the contractor compensation scheme in the new solicitation. AR 763–64.

The court finds critical the reduction in the number of THU sites where the agency now requires contractor services. See AR 763. The solicitation identified fifteen THU sites and anticipated that FEMA would require the services of up to 400 full-time contractor employees for “direct site support” and up to 300 employees for “short-term and special interim projects.” AR 356–57. By the same token, the solicitation warned of an unspecified number of site closures, AR 368, and projected that as few as 75 full-time contractor employees might prove sufficient, AR 357. The prospective awardee thus could not rely upon receiving any particular volume of business under its contract with FEMA, and the margin of this uncertainty was high. As plaintiff points out, the solicitation described “an IDIQ contingency contract with actual requirements impossible to determine at the time of formation.” Pl.’s Mot. for J. at 3. FEMA’s plans for accelerated THU site closures have now substantially reduced this margin of uncertainty, limiting the agency’s need for contractor services to a maximum of [number redacted] THU sites, instead of the originally anticipated fifteen. AR 763. In addition, the agency has hired “a significant number” of its own employees to provide the daily services at the active sites. Id. This drastic reduction in the number of THU sites, combined with an increase in the number of FEMA employees on hand, naturally entails a commensurate reduction in the maximum work force that a prospective contractor will have to provide.

It is reasonable to conclude that many contractors—those incapable of servicing the originally anticipated fifteen THU sites or supplying up to 400 full-time employees—would have been reticent to expend time and money in responding to a solicitation that contemplated a volume of work beyond their capacity. At least some of those contractors, however, may respond to a new solicitation that is expressly limited to FEMA’s more decided and more decidedly modest needs. Thus, a new solicitation would permit those additional contractors to compete for the government’s business, whereas an amendment would exclude them from competition. Accordingly, the court finds reasonable the contracting officer’s conclusion that the changes in FEMA’s requirements “were so substantial” that merely amending the solicitation would “preclude those sources who likely would have submitted offers had the substance of the amendment been known to them.” AR 765.

Plaintiff insists that “offerors were put on notice in the original solicitation that . . . the [site] closures and potential reductions whenever they occurred, were within the scope of the contract.” Pl.’s Mot. for J. at 14; Opp’n to Def.’s Mot. for J at 3–4. Plaintiff is correct. See, e.g., AR 332, 368, 374. However, this does not render the changes in FEMA’s requirements necessarily insubstantial within the meaning of FAR 15.206(e), nor does it prove unreasonable the contracting officer’s decision to cancel the solicitation. For, even if plaintiff could persuade the court that proceeding with an amended solicitation would have been a reasonable or even better course of action, this would not disprove the reasonableness of the contracting officer’s decision to cancel the solicitation. It is axiomatic that the demonstrated rationality of one possible conclusion does not negate the rationality of the alternative or even opposite conclusion. After all, reasonable minds can and do differ. See, e.g., Honeywell, Inc. v. United States, 870 F.2d 644, 648 (Fed. Cir. 1989) (“If the court finds a reasonable basis for the agency’s action, the court should stay its hand even though it might, as an original proposition, have reached a different conclusion.”); NLRB v. Roll & Hold Warehouse & Distrib. Corp., 162 F.3d 513, 517 (7th Cir. 1998) (“We will not overturn the agency’s findings merely because we find the opposite conclusion more reasonable.”). Therefore, though a different conclusion might have been reasonable, the court finds reasonable the conclusion that the contracting officer did reach, namely, that a new solicitation, limited ab initio to a more modest scope of work, would garner interest from a larger pool of contractors, thus leading to increased competition.

2. The Cancellation Does Not Violate FAR 15.206(e)

Plaintiff’s second ground for challenge begins with the false premise that a “Government decision to cancel a solicitation for a negotiated procurement must meet the requirements of FAR §15.206(e).” Pl.’s Mot. for J. at 8 (emphasis added). Plaintiff further contends that no “market research or other research [was] performed as required by the FAR.” Pl.’s Opp’n to Def.’s Mot. for J. at 2. Plaintiff concludes that “[s]ince the [LMD] Memorandum on which the cancellation was based fails to establish any of the required elements in FAR §15.206(e), the cancellation violates federal regulations.” Id. at 7. This conclusion, however, rests upon a fundamental misconstruction of the requirements and scope of FAR 15.206(e).

First, as explained above, all that FAR 15.206(e) requires is a reasonable basis for the contracting officer’s decision, which requirement FEMA has met. Moreover, plaintiff’s assertion that this reasonable basis must include some form of “research” is incorrect. The phrase “based on market research or otherwise,” FAR 15.206(e), is naturally read to mean “based on market research or otherwise based,” not, as plaintiff seems to believe, “based on market research or other research.” See, e.g., VSE Corp., B-290452.2, 2005 CPD ¶ 111, *5–6 (Comp. Gen. Apr. 11, 2005) (no research required in order for the cancellation of a negotiated procurement to comply with FAR 15.206(e), where the “agency’s assumption that additional firms may well be interested in . . . a solicitation reflecting the agency’s current requirement, with the result that competition may be increased, is reasonable.” (emphasis added)).

Second, and equally important, the cancellation of a negotiated procurement is not exclusively governed by FAR 15.206(e). Section 15.206 predominantly addresses the circumstances that require a contracting officer to amend a solicitation; subsection (e) carves out a narrow exception when cancellation and re-solicitation, rather than amendment, may be required.  Specifically, this exception requires cancellation where a proposed amendment would be “so substantial as to exceed what prospective offerors reasonably could have anticipated.” FAR 15.206(e). Accordingly, the contracting officer’s failure to cancel a negotiated procurement would violate FAR 15.206(e), if based upon the unreasonable conclusion that a proposed amendment would have been anticipated by prospective offerors. Nothing in the language of FAR 15.206(e), however, precludes the cancellation of a solicitation in response to more modest changes in a procuring agency’s requirements, nor does this subsection otherwise exhaust the circumstances under which the contracting officer is permitted to cancel a negotiated procurement.

To be sure, an agency’s explanation for its cancellation decision may not support the agency’s claim that cancellation was required by FAR 15.206(e). However, such cancellation—so long as it is rationally based—could not be said to violate FAR 15.206(e). The only other regulatory standard governing the cancellation of a negotiated procurement is that of FAR 15.305(b), which simply requires that cancellation be in the “best interest of the Government.” As already noted, this extraordinarily permissive standard requires nothing more than a reasonable basis for the cancellation decision.

Here, the administrative record evinces such a reasonable basis, one that supports not only a discretionary cancellation decision, consistent with the FAR 15.305(b), but likewise supports the conclusion that the changes in FEMA’s requirements rise to the level contemplated by FAR 15.206(e).  (Madison Services, Inc., v. U. S., No. 09-675C, March 23, 2010) (pdf)


3. The Record Shows that the Reasons for Cancellation Relied Upon
by the Agency Were Based on Information that Came to Light
After the Amended Solicitation Was Issued in April 2005. 
(p. 46)

Having examined the administrative record, the court finds that DOE had a rational basis for its decision to cancel the amended solicitation and continue with the incumbent contractor under an existing contract. The court finds, consistent with the government's reading of the record, that the decision to cancel was based on new information learned after the amended solicitation was issued in April 2005, specifically the unanticipated delays in the EIS1 and the reduction of DOE's budget.

a. DOE Learned of the Delays Due to EIS Integration in October 2005.

First, the court finds that it was not irrational for DOE to determine that, as a result of the additional delays in issuing the EIS, of which the record shows DOE learned in late October 2005 (approximately six months after the amended RFP was issued in late April 2005), the solicitation would have to be amended again and the bid proposals revised to reflect the delays in deciding about CLIN 2, as well as the increasing unlikelihood of proceeding with CLIN 2 at all. Though the plaintiff is correct that the amended RFP allowed for the possibility that CLIN 2 might not go forward, the effect of the new information regarding the EIS was more complex than simply dropping the second CLIN from the existing RFP. Rather, the record demonstrates that the new information threw off the timing and pricing of the proposals, as well as DOE's evaluation of those elements of the proposals. Specifically, when DOE learned that the FFTF2 EIS was likely to be integrated into a more comprehensive EIS, and that even if a separate FFTF EIS were allowed, the December 2006 deadline specified in the amended RFP for deciding whether to execute CLIN 2 still could not be met, AR 4-5, DOE explained:

Offerors have developed solutions and priced their propos[als] based on this commitment. All offerors' proposals appear to anticipate the commencement of some decommissioning work (CLIN 2) before deactivation (CLIN 1) would be complete. Depending on the offeror, the cost of CLIN 2 ranges between approximately 30% to 45% of the total proposed contract price. It is now clear that DOE will not be able to decide whether to execute CLIN 2 by the date in the RFP. . . . [Pulling the] FFTF EIS . . . into the expanded Tank Closure EIS . . . would require that demobilization [(decommissioning)] occur after the deactivation work scope is complete, awaiting a final end-state decision sometime in 2008. . . . Consequently, the Government would need to amend the solicitation and allow offerors to revise their proposals, then reevaluate the revised proposals, and possibly conduct additional negotiations. Consequently, if the procurement proceeds, award could not occur before spring of 2006.

AR 5; see also AR 3 ("DOE fully expected to issue CLIN 2 and, accordingly, the costs of CLIN 2 have been evaluated as part of total proposed cost" in evaluating the proposals submitted.). The court finds that DOE rationally concluded that, because the timetables and pricing submitted by the offerors were partly dependent on the timing of CLIN 2 specified in the amended solicitation, further solicitation amendments and proposal revisions would be required in order to properly evaluate the proposals based on the new information regarding that timing.

The court further finds that it was not irrational for DOE to determine, in light of these unanticipated delays in the EIS, that the steady progress made by the incumbent on deactivation would make the residual scope of work so small as to not be cost effective by the time an award could be issued. The SSO memo stated that,

[d]ue to a greatly reduced scope from the existing RFP statement of work, and unavoidable delays in reaching a decision on CLIN 2 from the date stated in [the] current RFP, DOE cannot award the contract without substantial revisions to the RFP, which themselves may be so material as to require canceling the solicitation. The modification of the RFP to redefine the scope and establish a realistic timeframe for CLIN 2 would entail significant delays in award, which render the residual work scope and period of performance to be so small as to be not cost effective for award.

AR 6. The court finds that DOE had a rational basis to conclude that the additional, unanticipated delays in the EIS process would allow so much additional work to be completed as to reduce the scope of work to a point where it would not be cost effective to go forward after another round of amendments and revisions.

b. DOE Learned of the Significant Reduction in its FY 2007 Budget in November 2005.

Next, the court finds that it was not irrational for DOE to conclude, based on the budget reduction of which the record shows DOE learned in November 2005 (more than six months after the amended RFP was issued in April 2005), that the limited funds would need to be shifted toward higher priority Hanford EM projects and away from the FFTF closure projects. Though the plaintiff is correct that DOE knew about their stakeholders' concerns regarding higher priority projects at Hanford at the time the amended solicitation was issued, see AR Ex. B, the court finds that the significant budget reduction reasonably made the need to prioritize other, more critical EM projects at the Hanford Site more pressing.

Specifically, the record shows that the amended RFP projected that DOE would provide $44 million annually to fund the project through contract completion. AR 4. However, in November 2005, DOE procurement officials learned of a sixteen-percent reduction in the OMB passback level for EM funding in FY 2007 from the FY 2006 appropriations level. Id. Meanwhile, costs had "escalated dramatically for more critical EM projects at Hanford, such as K Basin's sludge, Waste Treatment Plant, and plutonium secure storage." Id. Though the plaintiff correctly notes that the amended RFP shifted the final determination regarding CLIN 2 to a later "decision point," allowing DOE to consider stakeholder concerns about such higher priority projects before committing to CLIN 2, see AR Ex. B, the news in November 2005 of a budget reduction that was not contemplated in the RFP reasonably threw the completion of both CLIN 1 and CLIN 2, as those phases were defined in the amended RFP, into doubt. As the SSO memo stated, the higher priority projects were "experiencing cost growth, such that they [would] require a higher proportion of EM Hanford funding," meaning that "DOE [would] not have sufficient funds to support FFTF at the level anticipated in the revised RFP issued in April" 2005. AR 4. Accordingly, the SSO memo stated that "the cost of FFTF will need to [be] either reduced or stretched out over a longer period of time, and the scope of work both for deactivation and decommissioning redefined accordingly." AR 5 (emphasis added). The memo further noted that "[c]ompletion of both deactivation and decommissioning work scopes at this time is very unlikely because of budget constraints and the need to shift funds to higher priority projects. Therefore, only the minimum deactivation consistent with a long term, low cost surveillance mode should be pursued." AR 6 (emphasis added).

Thus, the court finds that DOE had a rational basis for determining that changes to the scope of work set forth in the amended RFP would be necessary, in light of news of the budget reduction in November 2005.33 In turn, the court finds that DOE acted rationally in deciding to cancel the solicitation and allow the incumbent to complete the “minimum deactivation” required, given DOE's determination that the scope of work remaining after another round of amendments and revisions would be too small to be cost effective, as discussed above.

In sum, the court agrees with the government that the administrative record shows that, based on the unanticipated delays in the EIS and the significant reduction in DOE's FY 2007 budget, both of which came to light after the amended RFP was issued, DOE rationally decided to cancel the solicitation and allow the incumbent contractor to continue, rather than amend the solicitation and revise the bids, by which time the incumbent would have made significant progress toward deactivation.  (FFTF Restoration Company, LLC, v. U. S., No. 07-659C, Filed March 2, 2009) (pdf)

--------------------------

1  Environmental Impact Statement

2  Fast Flux Test Facility

U. S. Court of Federal Claims - Listing of Decisions
For the Government For the Protester
Golden Manufacturing Co., Inc., v. U. S. , October 1, 2012, No. 12-317C  (pdf) Starry Associates, Inc. v. U. S., No. 16-44C, July 27, 2016
Madison Services, Inc., v. U. S., No. 09-675C, March 23, 2010 (pdf) MORI Associates v. U. S., No. 10-298C, December 15, 2011  (pdf)
FFTF Restoration Company, LLC, v. U. S., No. 07-659C, Filed March 2, 2009 (pdf)  
CW Government Travel, Inc., d/b/a/ Carlson Wagonlit Travel, v. U. S., No. 99-967C, May 3, 2000 (pdf)  

U. S. Court of Appeals for the Federal Circuit

A. The Forest Service Had a Rational Basis to Cancel CLINs 21, 22, 27, and 34

Croman challenges the Claims Court’s determination that the Forest Service’s decision to partially cancel the 2011 Solicitation was reasonable. The Claims Court rejected Croman’s argument that the Forest Service improperly cancelled the four CLINs, finding that “the agency had a rational basis for its action, notwithstanding [Croman’s] arguments that simply amount to a mere disagreement with the wisdom of the agency’s decision.” Croman Corp., 106 Fed. Cl. at 221. The Claims Court explained that the four CLINs “were cancelled due to, among other reasons, budget constraints.” Id. It was further held that, “[t]o the extent [Croman] contends that the reasons for the cancellation were pretextual, [Croman] has not met its burden of providing clear and convincing evidence to demonstrate such.” Id. (internal citations omitted).

The essence of Croman’s argument is that the Forest Service, in fact, had sufficient funds for the cancelled CLINs, and that the cancellation therefore was pretextual, rendering the Forest Service’s decision improper. Croman finds support in the fact that the Forest Service issued the 2012 Solicitation for exactly the same services cancelled in the 2011 Solicitation. According to Croman, the fact that the same services were solicited within a matter of months and the fact that “the Agency received no supplemental appropriation” between October 2011 and May 2012 show that funds were actually available for the four (4) cancelled CLINs at issue. Croman argues the stated reasoning for cancellation therefore was irrational.

The Forest Service determined that it was necessary to eliminate four (4) out of thirty-four (34) CLINs from the 2011 Solicitation due to budget constraints and a potential need to evaluate a different aircraft the following fiscal year. Croman recognizes that this reasoning, if true, suffices as a basis to modify any solicitation. Croman however argues the Forest Service’s alleged budgetary concerns were nonexistent. Thus, the gravamen of Croman’s contention is that the Forest Service failed to act in good faith by misrepresenting the reasoning underlying the partial cancellation of the 2011 Solicitation.

The presumption that government officials act in good faith is enshrined in our jurisprudence. Am-Pro Protective Agency, Inc. v. United States, 281 F.3d 1234, 1239 (Fed. Cir. 2002). Government officials are presumed to “act ‘conscientiously in the discharge of their duties.’” Kalvar Corp., Inc. v. United States, 543 F.2d 1298, 1301 (Ct. Cl. 1976) (quoting Librach v. United States, 147 Ct. Cl. 605, 612 (1959)). Courts have always been “loath to find to the contrary,” and to induce a court to abandon the presumption of good faith dealing, “requires ‘well-nigh irrefragable proof.’” Id. at 1301–02 (quoting Knotts v. United States, 128 Ct. Cl. 489, 492 (1954)). Thus, Croman must offer clear and convincing evidence that the Forest Service did not act in good faith in order to prevail on this issue. Am- Pro Protective Agency, 281 F.3d at 1239–40.

Here, the record simply does not support a showing that the Government cancelled CLINs 21, 22, 27 and 34 of the 2011 Solicitation in bad faith. Croman’s speculations that there actually were no budgetary concerns are not enough to overcome the presumption that the Government acted in good faith. Accordingly, Croman has failed to meet its burden to show that the decision to cancel CLINs 21, 22, 27 and 34 of the 2011 Solicitation was in bad faith.

Similarly, there was nothing improper about the Forest Service’s decision to issue the 2012 Solicitation consisting of similar helicopters and services. Indeed, Croman does not challenge the 2012 Solicitation, but rather, contends the Forest Service should have reinstated the cancelled CLINs instead of issuing a new solicitation, which would have required the Forest Service to consider Croman’s proposals anew. According to Croman, the Forest Service’s decision to re-solicit was arbitrary and capricious.

In reviewing the Forest Service’s exercise of discretion, this court has articulated relevant factors as general guidelines in determining whether the Forest Service’s actions were arbitrary, capricious, or an abuse of its discretion. Prineville Sawmill Co., Inc. v. United States, 859 F.2d 905, 911 (Fed. Cir. 1988). “‘[R]elevant factors include: subjective bad faith on the part of the officials; the absence of a reasonable basis for the administrative decision; the amount of discretion entrusted to the procurement officials by applicable statutes and regulations; and proven violation of pertinent statutes or regulations.’” Id. (quoting Keco Indus., Inc. v. United States, 492 F.2d 1200, 1203–04 (Ct. Cl. 1974). These factors support upholding the Forest Service’s cancellation and resolicitation. As discussed above, Croman has failed to show that the partial cancellation of the 2011 Solicitation was in bad faith or lacking in rational basis. Given the level of discretion the Forest Service has to make decisions responsive to its actual needs, this court finds nothing arbitrary or capricious in the decision to cancel and re-solicit certain portions of the 2011 Solicitation. Thus, Croman’s contentions related to CLINs 21, 22, 27, and 34 of the 2011 Solicitation fail in their entirety.  (Croman Corporation v. U. S., Mountain West Helicopters, LLC, Siller Helicopters, Columbia Helicopters, No. 2012-5138, July 31, 2013)  (pdf)

U. S. Court of Appeals for the Federal Circuit
For the Government For the Protester
Croman Corporation v. U. S., Mountain West Helicopters, LLC, Siller Helicopters, Columbia Helicopters, No. 2012-5138, July 31, 2013  (pdf)  
   
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