Matter of: Lynch Machinery Company, Inc.--Protest and Entitlement to Costs File: B-256279.2 Date: July 11, 1994

Matter of: Lynch Machinery Company, Inc.--Protest and Entitlement to Costs File: B-256279.2 Date: July 11, 1994

DIGEST

Attorneys

DECISION

We deny the protest and the request for costs.

The original IFB for this item was issued on December 16, 1993, with bid opening scheduled for January 18, 1994. On January 14, prior to bid opening, Lynch filed a protest with this Office, challenging the solicitation's technical specifications as improper; Lynch contended that the solicitation improperly restricted bidders to offering a shear with an adjustable rake angle feature and that the specified measurements for the rake angle were ambiguous.[1]

Immediately after Lynch's protest was filed at this Office, the agency began a detailed technical review of the solicitation specifications. On March 2, in response to the protest, the agency issued an amendment to the solicitation which clarified that the required rake angle measurement was .25 inches per foot. However, with respect to Lynch's challenge to the adjustable rake angle requirement, the agency determined that this feature was required to meet its minimum needs. Specifically, as explained in the agency report responding to Lynch's protest, because a shear with a fixed blade rake angle can only be modified manually--a task which requires some disassembly of the shear itself--a fixed rake angle feature presents extensive time delays, and would require the prison metal shop to take twice as much time in preparing for each metal cutting operation, particularly since the shop works with a wide variety of metal thicknesses. The agency also reported that a shear with a fixed rake angle would be unable to cut some types of metals used by the prison. Finally, the BOP concluded that because a shear with a fixed rake angle requires manual manipulation and some disassembly, this type of blade potentially created a more dangerous inmate working environment.

On March 16, Lynch filed comments on the agency report. In these comments, Lynch argued--with supporting technical documentation--that a fixed rake angle feature would not necessarily result in time delays since, according to Lynch, a type of fixed rake angle shear machine exists which can be used with minimal manual adjustment and disassembly and which is known to cut the types of metal used at the Fort Dix FCI site.

After examining Lynch's comments, the agency decided to reevaluate its prior technical conclusions and to investigate the feasibility of the shear machine referenced in Lynch's comments. On March 28, the agency notified this Office and the protester that it was canceling the IFB; at the time of the cancellation, no bids had been opened since the agency had suspended this procurement as a result of Lynch's protest. That same day, Lynch filed this protest and request for costs with our Office.[2]

ANALYSIS

To the extent Lynch protests the cancellation of the IFB, we see no basis for this challenge. Federal Acquisition Regulation (FAR) Sec. 14.209(a) provides that where--as here--a procurement is canceled prior to bid opening, the cancellation must be clearly in the public interest as, for example, where there is no longer a requirement for the solicited supplies or services, or where an amendment to the IFB would be of such magnitude that a new solicitation is desirable.

In this case, the agency decided to further investigate whether Lynch's proposed shear machine--with a fixed angle rake--might, in fact, serve its minimum needs. If Lynch's proposed model proves satisfactory, the agency will be able to conduct a broader and more competitive procurement. Where, as here, the purpose of a cancellation is to broaden competition--and rectify what has been demonstrated to be a potentially restrictive technical specification--cancellation is unobjectionable. See HDL Research Lab, Inc., B-254863.3, May 9, 1994, 94-1 CPD Para. 298 (agency reasonably canceled IFB where it found that specifications for power supplies overstated its minimum needs, and were biased towards one supplier); Deere & Co., B-241413.2, Mar. 1, 1991, 91-1 CPD Para. 231 (compelling reason for cancellation exists where IFB improperly limited bidders to one particular forklift diesel engine manufacturer).

While Lynch has requested its bid preparation and protest costs, we find no basis to award them here. As a preliminary matter, our Bid Protest Regulations do not permit the award of bid preparation costs where an agency takes corrective action. See Loral Fairchild Corp.--Entitlement to Costs, B-251209.2, May 12, 1993, 93-1 CPD Para. 378; Moon Eng'g Co., Inc.--Entitlement to Costs, B-247053.6, Aug. 27, 1992, 92-2 CPD Para. 129.

Although our Bid Protest Regulations do provide that a protester may be entitled to reimbursement of its costs of filing and pursuing a protest where the contracting agency decides to take corrective action in response to a protest, see 4 C.F.R. Sec. 21.6(e) (1994), the purpose of this provision is to allow the award of such costs only where we find that an agency has unduly delayed taking corrective action in response to a clearly meritorious protest. See PLX, Inc.--Entitlement to Costs, B-251575.2, Mar. 10, 1993, 93-1 CPD Para. 224.

Here, there is no evidence in the record--nor does the protester suggest--that the BOP delayed taking corrective action in response to Lynch's protest. Instead, the record shows that Lynch's protest involved a complex technical issue which the agency immediately investigated, and--upon receiving further detail from Lynch--decided to reevaluate. Although Lynch's protest proceeded for almost 3 months, throughout the protest process the agency was responsive to the concerns raised--e.g., issuing the March 2 amendment--and approached the protest with careful and deliberate technical analysis. Moreover, the agency report was thorough and technically detailed. In our view, this is precisely the type of prompt investigation and response to a protest which our Regulations are designed to encourage. Building Servs. Unlimited, Inc.--Entitlement to Costs, B-254323.3, Mar. 10, 1994, 94-1 CPD Para. 190. Accordingly, we conclude that the award of protest costs is not appropriate in this case.

The protest and request for costs are denied.

1. Rake angle refers to the clearance distance between the upper and lower blades of the shear; this angle must be set--either automatically if the shear has an "adjustable" rake angle, or manually if the shear is equipped with a "fixed" rake angle--in order to accommodate various metal sheath thicknesses.

2. Because the solicitation cancellation rendered Lynch's protest academic, on March 29, we dismissed the original protest. See East West Research, Inc.--Recon., B-233623.2, Apr. 14, 1989, 89-1 CPD Para. 379.