B-175870, JUN 13, 1972

B-175870: Jun 13, 1972

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THE PROTEST IS DENIED SINCE THE COMP. IS UNABLE TO CONCLUDE THAT THE CONTRACTING OFFICER ABUSED HIS BROAD DISCRETIONARY POWER. TO CANCEL AN INVITATION UPON A WRITTEN DETERMINATION THAT THE SPECIFICATIONS HAVE BEEN REVISED. ALTHOUGH NOTICE WAS GIVEN ONLY AFTER THE SECOND IFB WAS ISSUED. THE NOTICE PROVISIONS OF ASPR 2.404-3 WERE COMPLIED WITH. INCORPORATED: THIS IS IN REPLY TO YOUR LETTER OF APRIL 25. WHICH WAS LOW. WAS APPROXIMATELY $19. SINCE ADDITIONAL FUNDS WERE NOT MADE AVAILABLE. IT WAS DETERMINED TO REVISE THE SPECIFICATIONS. THIS SECOND IFB WAS SIMILAR TO THE FIRST EXCEPT IT DID NOT INCLUDE A REQUIREMENT FOR REMOVAL OF THE STREET AND SIDEWALK AND RELATED WORK. THE SPECIFICATION CHANGE WAS ESTIMATED TO REDUCE THE COST OF THE PROJECT BY APPROXIMATELY $20.

B-175870, JUN 13, 1972

BID PROTEST - CANCELLATION - UNTIMELY NOTICE DECISION DENYING THE PROTEST OF WOLF CREEK GARDEN CENTER, INC; AGAINST THE ACTIONS OF WRIGHT-PATTERSON AFB, OHIO, IN AWARDING A CONTRACT UNDER A SECOND IFB BEFORE CANCELLING THE ORIGINAL IFB. THE PROTEST IS DENIED SINCE THE COMP. GEN. IS UNABLE TO CONCLUDE THAT THE CONTRACTING OFFICER ABUSED HIS BROAD DISCRETIONARY POWER, UNDER ASPR 2.404 -1(B)(2), TO CANCEL AN INVITATION UPON A WRITTEN DETERMINATION THAT THE SPECIFICATIONS HAVE BEEN REVISED. ALTHOUGH NOTICE WAS GIVEN ONLY AFTER THE SECOND IFB WAS ISSUED, THE NOTICE PROVISIONS OF ASPR 2.404-3 WERE COMPLIED WITH. HOWEVER, THE AIR FORCE HAS CAUTIONED THE ACTIVITY AGAINST SUCH ACTION IN FUTURE PROCUREMENTS.

TO WOLF CREEK GARDEN CENTER, INCORPORATED:

THIS IS IN REPLY TO YOUR LETTER OF APRIL 25, 1972, IN WHICH YOU PROTEST AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. F33601-72-B 0547 AND CANCELLATION OF INVITATION FOR BIDS NO. F33601-72-B-0414, ISSUED BY WRIGHT -PATTERSON AIR FORCE BASE, OHIO.

THE INVITATION FOR BIDS CALLED FOR FURNISHING LABOR, MATERIAL AND EQUIPMENT FOR RELOCATING THREE GOLF COURSE HOLES, INCLUDING THE REMOVAL OF AN EXISTING STREET AND SIDEWALK. YOUR BID, WHICH WAS LOW, WAS APPROXIMATELY $19,000 HIGHER THAN THE AIR FORCE ESTIMATE. SINCE ADDITIONAL FUNDS WERE NOT MADE AVAILABLE, IT WAS DETERMINED TO REVISE THE SPECIFICATIONS. THEREFORE, ON APRIL 17, 1972, THE CONTRACTING OFFICER REJECTED ALL BIDS, CANCELLED THE INVITATION, AND ISSUED IFB F33601-72-B- 0547. THIS SECOND IFB WAS SIMILAR TO THE FIRST EXCEPT IT DID NOT INCLUDE A REQUIREMENT FOR REMOVAL OF THE STREET AND SIDEWALK AND RELATED WORK. THE SPECIFICATION CHANGE WAS ESTIMATED TO REDUCE THE COST OF THE PROJECT BY APPROXIMATELY $20,000. NOTICE OF CANCELLATION OF THE FIRST IFB WAS SENT TO BIDDERS ON APRIL 20, 1972.

YOU CLAIM THAT THE AIR FORCE ACTED IMPROPERLY AND ILLEGALLY BECAUSE ISSUANCE OF THE SECOND INVITATION WAS NOT PRECEDED BY CANCELLATION OF THE FIRST INVITATION. YOU BELIEVE AWARD SHOULD BE MADE TO YOU AS LOW BIDDER ON THE ORIGINAL SOLICITATION. IN ADDITION, YOU NOTE THAT THE MATTER WAS HANDLED IN A MANNER STRICTLY FOR THE CONVENIENCE OF THE AIR FORCE AND WITHOUT REGARD TO THE TROUBLE AND EXPENSE CREATED FOR THE BIDDERS.

ASPR 2.404-1 AUTHORIZES THE CANCELLATION OF IFBS AFTER BID OPENING WHEN THE CONTRACTING OFFICER DETERMINES IN WRITING THAT SPECIFICATIONS HAVE BEEN REVISED OR THAT OTHERWISE ACCEPTABLE BIDS ARE AT UNREASONABLE PRICES. THE CONTRACT FILE FORWARDED TO US WITH THE ADMINISTRATIVE REPORT CONTAINS A "REVIEW AND APPROVAL CANCELLATION OF IFB F33601-72-B 0414", DATED APRIL 17, 1972, AND SIGNED BY THE CONTRACTING OFFICER, WHICH STATES THAT THE IFB WAS CANCELLED BECAUSE OF REVISED SPECIFICATIONS.

WE HAVE RECOGNIZED THAT THE AUTHORITY OF A CONTRACTING OFFICER TO REJECT ALL BIDS "IS EXTREMELY BROAD." 39 COMP. GEN. 396, 399 (1959). IN 47 COMP. GEN. 748, 751 (1968), WE SAID THAT:

" *** WHILE THE INTEREST OF THE GOVERNMENT AND THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM REQUIRE THAT INVITATIONS BE CANCELLED ONLY FOR COGENT AND COMPELLING REASONS, THERE NECESSARILY IS RESERVED IN THE CONTRACTING OFFICIALS A SUBSTANTIAL AMOUNT OF DISCRETION IN DETERMINING WHETHER OR NOT AN INVITATION SHOULD BE CANCELLED."

SINCE THE FUNDS FOR THE PROJECT WERE LESS THAN THE LOW BID, THE ONLY REAL OPTIONS THE ACTIVITY HAD WERE TO CANCEL THE PROJECT OR RESOLICIT WITH MODIFIED SPECIFICATIONS WHICH COULD BE EXPECTED TO PRODUCE BIDS WITHIN THE FUND LIMITATION. UNDER THE FACTS OF THIS CASE, WE CANNOT FIND THAT THE CONTRACTING OFFICER ABUSED HIS BROAD DISCRETIONARY AUTHORITY IN DECIDING TO CANCEL THE ORIGINAL IFB IN ACCORDANCE WITH ASPR 2.404-1(B)(2).

WITH RESPECT TO YOUR CLAIM OF ILLEGALITY, ASPR 2.404-3 STATES:

"WHEN HE DETERMINES TO REJECT ALL BIDS, THE CONTRACTING OFFICER SHALL NOTIFY EACH BIDDER THAT ALL BIDS HAVE BEEN REJECTED, STATING THE REASON FOR SUCH ACTION."

AS NOTED ABOVE, THE CONTRACTING OFFICER DID NOTIFY BIDDERS OF THE IFB CANCELLATION, BUT HE DID SO AFTER ISSUING THE SECOND IFB. WHILE WE FIND NOTHING IN THE REGULATIONS SPECIFICALLY REQUIRING NOTIFICATION PRIOR TO ISSUANCE OF A NEW SOLICITATION, AIR FORCE AUTHORITIES HAVE REPORTED THAT THIS TYPE OF DELAY IS NOT CONDONED AND THAT THE PROCUREMENT ACTIVITY HAS BEEN CAUTIONED AGAINST THE USE OF SUCH PRACTICE IN FUTURE PROCUREMENTS.