B-212597, OCT 25, 1983

B-212597, OCT 25, 1983

DIGEST: PROTEST THAT AGENCY IMPROPERLY CANCELED REQUEST FOR PROPOSALS (RFP) ISSUED ON A SOLE-SOURCE BASIS AND IMPROPERLY REVISED RFP TO PERMIT OPEN COMPETITION OF REQUIREMENT IS DISMISSED BECAUSE THE OBJECTIVE OF BID PROTEST FUNCTION IS TO INSURE FULL AND FREE COMPETITION FOR GOVERNMENT CONTRACTS.

GROUP W CABLE, INC.:

GROUP W CABLE, INC. (GROUP W), PROTESTS THE CANCELLATION OF REQUEST FOR PROPOSALS (RFP) NO. F24604-82-R0008 AND THE SUBSEQUENT ISSUANCE OF RFP NO. F24604-83-R0013 FOR THE AWARD OF A CABLE TELEVISION (CATV) FRANCHISE TO SERVE MALMSTROM AIR FORCE BASE, MONTANA, ISSUED BY THE DEPARTMENT OF THE AIR FORCE (AIR FORCE). GROUP W CONTENDS THAT THE AIR FORCE IMPROPERLY CANCELED THE INITIAL RFP, A SOLE-SOURCE NEGOTIATION WITH GROUP W. THE AIR FORCE'S STATED REASON FOR THE CANCELLATION WAS THE NEED TO MAKE MAJOR REVISIONS IN THE RFP CATV SPECIFICATIONS IN ACCORDANCE WITH CHANGES MADE IN AIR FORCE CATV CONTRACTING PROCEDURES. THESE CHANGES BECAME EFFECTIVE DURING NEGOTIATIONS WITH GROUP W, BUT BEFORE AWARD OF A CONTRACT TO GROUP W UNDER THAT RFP. HOWEVER, GROUP W ASSERTS THAT A COMPARISON OF THE INITIAL RFP WITH THE REVISED RFP INDICATES NO SUBSTANTIVE DIFFERENCE IN THE SPECIFICATIONS. ACCORDINGLY, GROUP W ARGUES THE CANCELLATION OF THE FIRST RFP WAS IMPROPER, THE RFP SHOULD BE REINSTATED, AND AWARD SHOULD BE MADE TO GROUP W.

WE DISMISS THE PROTEST.

INITIALLY, WE NOTE THAT THE AIR FORCE ARGUES THAT OUR OFFICE HAS NO JURISDICTION TO CONSIDER THIS PROTEST UNDER OUR BID PROTEST PROCEDURES BECAUSE THE AWARD OF A CATV FRANCHISE DOES NOT INVOLVE THE USE OF APPROPRIATED FUNDS. IN THIS CONNECTION, THE AIR FORCE STATES THAT GAO DOES NOT HAVE AUTHORITY TO CONSIDER A PROTEST CONCERNING PROCUREMENTS THAT DO NOT INVOLVE THE DIRECT EXPENDITURE OF APPROPRIATED FUNDS, CITING, FOR EXAMPLE, PINKERTON'S INC., B-210541, FEBRUARY 1, 1983, 83-1 CPD 121.

EVEN WHERE THE CATV AWARDS DO NOT NECESSARILY INVOLVE DIRECT EXPENDITURE OF APPROPRIATED FUNDS, THIS OFFICE HAS CONSIDERED PROTESTS AGAINST CATV PROCUREMENTS. SEE, FOR EXAMPLE, TELEPROMPTER OF SAN BERNADINO, INC., B-191336, JULY 30, 1979, 79-2 CPD 61, IN WHICH WE CONSIDERED A PROTEST AGAINST AN AWARD OF AN AIR FORCE CATV FRANCHISE. IN THIS CONNECTION, WE SPECIFICALLY HAVE STATED THAT WE WILL CONSIDER PROTESTS INVOLVING THE AWARD OF A FRANCHISE FOR SERVICES ON A MILITARY BASE TO BE PAID PRINCIPALLY BY MILITARY PERSONNEL ORDERING SUCH SERVICES WHERE THE FRANCHISE INCLUDES SERVICE FOR THE GOVERNMENT AND THE GOVERNMENT IS OBLIGATED FOR TERMINATION COSTS. SEE JOHN C. LOZINYAK, B-211923, SEPTEMBER 7, 1983, 83-2 CPD ; ARROW TRANSPORTATION, INC., B-201882, FEBRUARY 10, 1981, 81-1 CPD 90.

NEVERTHELESS, WE DISMISS THE PROTEST ON OTHER GROUNDS.

ALTHOUGH GROUP W ARGUES THAT THERE ARE NO SUBSTANTIAL DIFFERENCES BETWEEN THE TWO RFP'S, THERE IS ONE READILY DISCERNIBLE MATERIAL DIFFERENCE. UNDER THE INITIAL RFP, THE AIR FORCE INTENDED TO AWARD NONCOMPETITIVELY TO GROUP W BUT, UNDER THE REVISED RFP, THE AIR FORCE IS CONDUCTING A COMPETITIVE PROCUREMENT. THUS, GROUP W IS ARGUING FOR REINSTATEMENT OF A SOLE-SOURCE AWARD AND ALSO OBJECTING TO THE ISSUANCE OF A COMPETITIVE PROCUREMENT INSTEAD OF A SOLE-SOURCE CONTRACT. IN VIEW OF THE OBJECTIVE OF OUR BID PROTEST FUNCTION TO INSURE FULL AND FREE COMPETITION FOR GOVERNMENT CONTRACTS, WE HAVE DECLINED AS A GENERAL MATTER TO REVIEW A PROTEST THAT AN AGENCY SHOULD PROCURE AN ITEM FROM A PARTICULAR FIRM ON A SOLE-SOURCE BASIS. SEE INGERSOLL RAND, B-205792, JANUARY 8, 1982, 82-1 CPD 26.

WE DISMISS THE PROTEST.