B-178255, FEB 25, 1974

B-178255, FEB 25, 1974

1. BIA CANCELLATION OF IFB FOR EMERGENCY HELICOPTER SERVICE WHEN ADVISED THAT SERVICE WOULD BE PERFORMED BY THE ARIZONA NATIONAL GUARD WAS IN ACCORDANCE WITH FPR 1-2.208(A) PROVIDING FOR CANCELLATION WHERE THERE IS NO LONGER REQUIREMENT FOR SERVICE. 2. FAILURE TO STATE IN CANCELLATION NOTICE EXPLANATION FOR CANCELLATION OF IFB AS PROVIDED IN FPR 1-2.208(B) WAS PROCEDURAL OMISSION NOT AFFECTING VALIDITY OF CANCELLATION.

TO AVIATION SPECIALTIES CO.:

COUNSEL FOR AVIATION SPECIALTIES COMPANY HAS REQUESTED RECONSIDERATION OF DECISION B-178255, DECEMBER 28, 1973, IN WHICH IT WAS HELD THAT OUR OFFICE WAS UNABLE TO CONCLUDE THAT THE BUREAU OF INDIAN AFFAIRS (BIA) CANCELLATION OF A TELEGRAPHIC REQUEST FOR BIDS, SOLICITATION NO. 2428, WAS IMPROPER.

THE FACTS AS SET OUT IN THE DECEMBER 28 DECISION WERE AS FOLLOWS:

"THE SOLICITATION SOUGHT BIDS ON HELICOPTER FREIGHT SERVICES FOR EMERGENCY DELIVERY OF FOOD, FUEL, AND ANIMAL FEED TO CERTAIN GROUPS OF INDIANS. THE TELEGRAPHIC BIDS WERE TO BE OPENED AT 2 P.M. ON MARCH 9, 1973.

"JUST PRIOR TO BID OPENING, IT WAS ASCERTAINED BY BIA OFFICIALS THAT THE ARIZONA NATIONAL GUARD HAD AGREED TO PROVIDE THE NECESSARY SERVICES AS A TRAINING MISSION. THE SOLICITATION WAS CANCELED IMMEDIATELY THEREAFTER AND NOTIFICATION TO ALL FIRMS INITIALLY CONTACTED WAS MADE BY TELEGRAM AND TELEPHONE."

IN DENYING THE PROTEST AGAINST THE CANCELLATION, OUR OFFICE HELD:

"*** WHERE AN ITEM OR SERVICE IS NO LONGER NEEDED PRIOR TO BID OPENING, IRRESPECTIVE OF THE REASON, AN AGENCY HAS NO CHOICE OTHER THAN TO CANCEL THE SOLICITATION."

IN THE REQUEST FOR RECONSIDERATION, IT IS POINTED OUT THAT SECTION 1 2.208(A) OF THE FEDERAL PROCUREMENT REGULATIONS (FPR) PROVIDES:

"*** INVITATIONS FOR BIDS SHOULD NOT BE CANCELLED UNLESS CANCELLATION IS CLEARLY IN THE PUBLIC INTEREST, SUCH AS WHERE THERE IS NO LONGER A REQUIREMENT FOR THE MATERIAL OR SERVICE OR WHERE AMENDMENTS TO THE INVITATION WOULD BE OF SUCH MAGNITUDE THAT A NEW INVITATION IS DESIRABLE.

IT IS ALSO POINTED OUT THAT FPR 1-2.208(B) REQUIRES THAT THE NOTICE OF CANCELLATION STATE THE REASON FOR CANCELLATION OF THE INVITATION. IT IS STATED THAT THE HOLDING QUOTED ABOVE IS IN DIRECT CONFLICT WITH FPR 1- 2.208(A) WHICH PROVIDES THAT INVITATIONS NOT BE CANCELED UNLESS CLEARLY IN THE PUBLIC INTEREST. FURTHER, IT IS INDICATED THAT NO EXPLANATION WAS GIVEN FOR THE CANCELLATION AT THE TIME IT WAS MADE.

FPR 1-2.208(A) CITES AS AN EXAMPLE OF "PUBLIC INTEREST" A SITUATION "*** WHERE THERE IS NO LONGER A REQUIREMENT FOR THE *** SERVICE ***." IN THE PRESENT SITUATION, ONCE BIA WAS ADVISED THAT THE SERVICE WOULD BE PERFORMED BY THE ARIZONA NATIONAL GUARD, THERE WAS NO LONGER ANY SERVICE THAT REMAINED FOR PROCUREMENT BY BIA. IN THE CIRCUMSTANCES, WE BELIEVE THAT BIA HAD NO ALTERNATIVE OTHER THAN TO CANCEL THE INVITATION. MOREOVER, ANY FAILURE TO PROVIDE AN EXPLANATION FOR THE CANCELLATION IN THE CANCELLATION NOTICE WAS A PROCEDURAL OMISSION THAT DID NOT AFFECT THE VALIDITY OF THE CANCELLATION. B 173670, NOVEMBER 18, 1971.

ACCORDINGLY, THE DECISION OF DECEMBER 28, 1973, IS SUSTAINED.