B-176929(1), MAR 6, 1973

B-176929(1): Mar 6, 1973

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ALTHOUGH THE TIME PERIOD INVOLVED IN THIS PROCUREMENT WAS PROTRACTED. THE FACT REMAINS THAT THE NEEDS OF THE GOVERNMENT WERE NONEXISTENT AT THE TIME THE INVITATION WAS CANCELLED AND. ON THE SECOND PORTION OF THIS PROCUREMENT IS A VALID AND SUBSISTING AGREEMENT. GAO IS WITHOUT AUTHORITY TO TAKE ANY ACTION ADVERSE TO THAT CONTRACT. WAS FOUND TO BE THE LOW BIDDER ON ITEM GROUP A. AWARD OF THAT ITEM GROUP WAS MADE TO E-SYSTEMS ON JUNE 19. WAS THE LOW RESPONSIVE BIDDER ON ITEM GROUP B. A PREAWARD SURVEY WAS REQUESTED FOR INSO BY THE CONTRACTING OFFICER ON MAY 26. WE ARE ADVISED THAT THE CONTRACTING OFFICER WAS NOTIFIED APPARENTLY BY DCASO DURING THE LATTER PART OF JULY THAT THE RESULTS OF THE SURVEY WOULD NOT BE CHANGED.

B-176929(1), MAR 6, 1973

BID PROTEST - CANCELLATION OF IFB - EXPIRATION OF REQUIREMENTS DENIAL OF PROTEST BY INSO ELECTRONIC PRODUCTS, INC., AGAINST THE CANCELLATION OF A PORTION OF AN IFB ISSUED BY THE U.S. ARMY ELECTRONICS COMMAND, PHILADELPHIA, PA. ALTHOUGH THE TIME PERIOD INVOLVED IN THIS PROCUREMENT WAS PROTRACTED, THE FACT REMAINS THAT THE NEEDS OF THE GOVERNMENT WERE NONEXISTENT AT THE TIME THE INVITATION WAS CANCELLED AND, THEREFORE, THE COMP. GEN. CANNOT OBJECT TO THE CANCELLATION OF THIS PROCUREMENT. SEE B-159865, OCTOBER 6, 1966. FURTHERMORE, THE CONTRACT WITH E-SYSTEMS, INC., ON THE SECOND PORTION OF THIS PROCUREMENT IS A VALID AND SUBSISTING AGREEMENT, AND GAO IS WITHOUT AUTHORITY TO TAKE ANY ACTION ADVERSE TO THAT CONTRACT.

TO INSO ELECTRONIC PRODUCTS, INC.:

WE REFER TO YOUR LETTER OF NOVEMBER 6, 1972, AND SUBSEQUENT CORRESPONDENCE, PROTESTING AGAINST THE CANCELLATION OF A PORTION OF INVITATION FOR BIDS NO. DAAB05-72-B-0463, ISSUED BY THE UNITED STATES ARMY ELECTRONICS COMMAND (ECOM), PHILADELPHIA.

THE INVITATION REQUESTED BIDS FOR 134 RADIO SET SUBASSEMBLIES AND RELATED ITEMS FOR THE AN/ARC-114 RADIO SET, ITEM GROUP A, AND ON 102 RADIO SET SUBASSEMBLIES AND RELATED ITEMS FOR THE AN/ARC-115 RADIO SET, ITEM GROUP B. AT THE MAY 9, 1972, BID OPENING, E-SYSTEMS, INC., A LARGE BUSINESS CONCERN, WAS FOUND TO BE THE LOW BIDDER ON ITEM GROUP A. AWARD OF THAT ITEM GROUP WAS MADE TO E-SYSTEMS ON JUNE 19. INSO ELECTRONIC PRODUCTS, INC. (INSO), WAS THE LOW RESPONSIVE BIDDER ON ITEM GROUP B.

A PREAWARD SURVEY WAS REQUESTED FOR INSO BY THE CONTRACTING OFFICER ON MAY 26, 1972. THE SURVEY, DATED JUNE 19, 1972, CONDUCTED BY THE DEFENSE CONTRACTS ADMINISTRATION SERVICES OFFICE (DCASO), RECOMMENDED THAT NO AWARD BE MADE TO INSO. ON JUNE 30, 1972, THE CONTRACTING OFFICER REVIEWED THE FINDINGS OF THE SURVEY AND DETERMINED INSO TO BE A NON-RESPONSIBLE BIDDER UNDER THE STANDARDS SET FORTH IN ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-903.1. AT INSO'S REQUEST, THE CONTRACTING OFFICER ARRANGED FOR A MEETING ON JULY 18 BETWEEN THE PRESIDENT OF INSO AND DCASO TO DISCUSS THE SURVEY FINDINGS. WE ARE ADVISED THAT THE CONTRACTING OFFICER WAS NOTIFIED APPARENTLY BY DCASO DURING THE LATTER PART OF JULY THAT THE RESULTS OF THE SURVEY WOULD NOT BE CHANGED.

ON AUGUST 15, 1972, THE CONTRACTING OFFICER REQUESTED APPROVAL FROM THE COMMANDING GENERAL OF ECOM TO REFER THE MATTER OF INSO'S RESPONSIBILITY TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR THE POSSIBLE ISSUANCE OF A CERTIFICATE OF COMPETENCY (COC). INSO PROTESTED AGAINST THE FAILURE TO MAKE AWARD TO IT ON AUGUST 31, 1972. THEREAFTER, APPROVAL FOR REFERRAL TO SBA WAS GRANTED ON SEPTEMBER 13, AND THE MATTER WAS REFERRED TO SBA THE SAME DAY. IN VIEW OF THIS, INSO WITHDREW ITS PROTEST ON THAT DATE. OCTOBER 20, 1972, THE CONTRACTING OFFICER WAS TELEPHONICALLY NOTIFIED THAT SBA HAD FOUND INSO TO BE RESPONSIBLE. ON OCTOBER 26, WRITTEN NOTICE FROM SBA TO THIS EFFECT AND OF THE FORTHCOMING ISSUANCE OF A COC WAS RECEIVED BY THE CONTRACTING OFFICER. AS A CONSEQUENCE, THE CONTRACTING OFFICER WAS PREPARED TO MAKE AWARD TO INSO ON OCTOBER 31. HOWEVER, ON OCTOBER 30, THE CONTRACTING OFFICER WAS INFORMED BY THE DIRECTOR OF MATERIEL MANAGEMENT THAT THE REQUIREMENT SOLICITED FOR IN THE INVITATION NO LONGER EXISTED. OFFICIAL DOCUMENTATION OF THIS CHANGE WAS RECEIVED ON NOVEMBER 2, AND ON NOVEMBER 3 APPROVAL TO CANCEL THE REQUIREMENT WAS GIVEN BY THE CHIEF OF THE PHILADELPHIA PROCUREMENT BRANCH. ON NOVEMBER 3, SBA AND INSO WERE TELEPHONICALLY ADVISED THAT THE REQUIREMENT HAD BEEN CANCELED. WRITTEN CONFIRMATION OF THE CANCELLATION WAS MAILED TO BOTH PARTIES ON NOVEMBER 6.

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

YOU PROTEST THE PROTRACTED PROCEDURE WHICH CULMINATED IN A CANCELLATION OF THE PROCUREMENT WHEN AN AWARD TO INSO WAS IMMINENT. WHILE WE MAY FEEL THAT THE TIME PERIOD INVOLVED WAS PROTRACTED, THE FACT REMAINS THAT THE NEEDS OF THE GOVERNMENT WERE NONEXISTENT AT THE TIME THE INVITATION WAS CANCELED. CONSEQUENTLY, WE CANNOT OBJECT TO THE CANCELLATION OF THIS PROCUREMENT. SEE B-159865, OCTOBER 6, 1966; B 169342, JUNE 19, 1970.

REGARDING YOUR QUESTION AS TO WHY, IN VIEW OF THE CHANGE RESULTING IN THE CANCELLATION OF THE ITEM GROUP B PROCUREMENT, THE CONTRACT WITH E SYSTEMS WAS ALSO NOT CANCELED, WE NOTE THAT THE CONTRACT WITH E-SYSTEMS IS A VALID AND SUBSISTING AGREEMENT. AND, ON THIS RECORD, OUR OFFICE IS WITHOUT AUTHORITY TO TAKE ANY ACTION ADVERSE TO THAT CONTRACT. ENCLOSED IS A COPY OF OUR LETTER TO THE SECRETARY OF THE ARMY RECOMMENDING CORRECTIVE ACTION BE TAKEN AS REGARDS THE ADMINISTRATIVE PROCEDURE WHICH LED TO THE DELAY IN THE REFERRAL OF THE ISSUE OF INSO'S RESPONSIBILITY TO SBA.

ACCORDINGLY, THE PROTEST IS DENIED.