Matter of: Information Ventures, Inc.
Date: February 13,
H. Kleinstein for the protester.
Gibson, Department of Health and Human Services, for the agency.
D. Westfall-McGrail, Esq., and Christine S. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
Protest challenging cancellation
of solicitation is denied where the agency withdrew funding for the
procurement; lack of funding provides a reasonable basis for cancellation even
if the decision to cancel was prompted by a protest concerning the
solicitation, unless it is shown that the decision to withdraw funding was the
result of bad faith on the agency’s part.
Information Ventures, Inc. (IVI)
protests the cancellation of solicitation No. 2006-Q-08296, issued by the Department of Health and Human
Services, Centers for Disease Control and Prevention, for services in support
of the Agency for Toxic Substances and Disease Registry. The protester argues that the agency
cancelled the solicitation in order to avoid responding to an earlier protest
that it filed objecting to the terms of the solicitation.
We deny the protest.
The solicitation, issued on December 22, 2005, called for various services in support
of peer review activities by the agency, such as planning services related to
peer review and other expert panels, and identifying and establishing
contractual relationships with expert consultants. On January
3, 2006, IVI filed a protest arguing that the agency should have
issued the solicitation as a total small business set-aside. We subsequently dismissed the protests as
academic after the agency advised, by letter dated January 10, that the solicitation
had been canceled. IVI then protested
the cancellation, arguing that the agency had cancelled the solicitation to
avoid addressing the issues raised in its protest. The agency responded by notifying us that the
solicitation had been cancelled due to a lack of funding.
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procurement at issue have been withdrawn and the solicitation has been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.
The protest is denied.
Anthony H. Gamboa