B-180465, SEP 4, 1974

B-180465: Sep 4, 1974

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CONTRACTING OFFICER'S CANCELLATION OF SOLICITATION FOR MICROFILM AND REJECTION OF ALL OFFERS PURSUANT TO WRITTEN DETERMINATION THAT PRODUCT AND SERVICES WERE NO LONGER REQUIRED BECAUSE AGENCY DECIDED TO EFFECT WORK IN- HOUSE. RENDERS MOOT PROTESTER'S ALLEGATION THAT SOLICITATION WAS DEFECTIVE. THE RFP WAS SENT TO FOUR POTENTIAL OFFERORS. THE SOLICITATION WAS CANCELLED AFTER CONTRACTING OFFICIALS DETERMINED THAT THE IFB CONTAINED PROVISIONS WHICH IMPROPERLY ATTEMPTED TO PREQUALIFY BIDDERS (A REQUIREMENT FOR BID SAMPLES AND A DEMONSTRATION RUN). WAS ONE OF THE TWO ORIGINAL BIDDERS ON IFB (D) 34. WHILE MCSI WAS THE APPARENT LOW BIDDER. IT WAS NOT CONSIDERED FOR AWARD BECAUSE OF ITS ALLEGED INABILITY TO SUCCESSFULLY ACCOMPLISH A DEMONSTRATION RUN.

B-180465, SEP 4, 1974

CONTRACTING OFFICER'S CANCELLATION OF SOLICITATION FOR MICROFILM AND REJECTION OF ALL OFFERS PURSUANT TO WRITTEN DETERMINATION THAT PRODUCT AND SERVICES WERE NO LONGER REQUIRED BECAUSE AGENCY DECIDED TO EFFECT WORK IN- HOUSE, RENDERS MOOT PROTESTER'S ALLEGATION THAT SOLICITATION WAS DEFECTIVE.

MICROFILM COMMUNICATION SYSTEMS, INCORPORATED:

THE BUREAU OF RECLAMATION, UNITED STATES DEPARTMENT OF THE INTERIOR, DENVER, COLORADO, ISSUED REQUEST FOR PROPOSALS (RFP) NO. (D) 34,388 ON DECEMBER 14, 1973, FOR COMPUTER OUTPUT MICROFILM. THE RFP WAS SENT TO FOUR POTENTIAL OFFERORS, AND INCLUDED IN ITS FORMAT A BENCHMARK PROGRAM. PREVIOUSLY, THE DEPARTMENT OF THE INTERIOR HAD ISSUED INVITATION FOR BIDS (IFB) NO. (D) 34,388 ON JUNE 22, 1973, FOR THE SAME COMPUTER OUTPUT MICROFILM, BUT THE SOLICITATION WAS CANCELLED AFTER CONTRACTING OFFICIALS DETERMINED THAT THE IFB CONTAINED PROVISIONS WHICH IMPROPERLY ATTEMPTED TO PREQUALIFY BIDDERS (A REQUIREMENT FOR BID SAMPLES AND A DEMONSTRATION RUN).

MICROFILM COMMUNICATION SYSTEMS, INCORPORATED (MCSI), WAS ONE OF THE TWO ORIGINAL BIDDERS ON IFB (D) 34,388. WHILE MCSI WAS THE APPARENT LOW BIDDER, IT WAS NOT CONSIDERED FOR AWARD BECAUSE OF ITS ALLEGED INABILITY TO SUCCESSFULLY ACCOMPLISH A DEMONSTRATION RUN. THE RECORD INDICATES THAT WHEN THE IFB WAS CANCELLED AND THE RFP ISSUED, MCSI INDICATED A WILLINGNESS TO SUBMIT A PROPOSAL. HOWEVER, BY LETTER OF JANUARY 7, 1974, MCSI REQUESTED THAT THE SOLICITATION'S BENCHMARK PROGRAM BE CHANGED. THIS REQUEST WAS DENIED BY THE AGENCY ON THE GROUNDS THAT THE SUGGESTED ALTERATION WOULD INVOLVE ADDITIONAL EXPENSE TO THE GOVERNMENT AND WAS IN CONTRADICTION OF THE RFP'S SPECIFICATIONS. HOWEVER, MCSI PROTESTED TO THIS OFFICE AGAINST ANY AWARD UNDER RFP (D) 34,388. AS THE GROUNDS FOR ITS PROTEST, MCSI ALLEGED THAT THE PROVISIONS OF THE RFP IN NO WAY DIFFERED FROM THOSE OF THE CANCELLED IFB, AND THAT IF THE IFB WAS DEFECTIVE THEN THE RFP WAS ALSO SUBJECT TO THE SAME DEFICIENCY.

IN RESPONSE TO THIS PROTEST, THE DEPARTMENT OF THE INTERIOR FURNISHED THIS OFFICE A DOCUMENTED REPORT DATED APRIL 12, 1974, CONTENDING THAT THE RFP'S BENCHMARK PROGRAM WAS PROPER AND THEREFORE RECOMMENDING THAT THE PROTEST BE DENIED. THE REPORT ALSO STATED THAT THE PROCUREMENT PROCESS ON RFP (D) 34,388 WAS SUSPENDED PENDING A DECISION BY OUR OFFICE ON THE MCSI PROTEST. SHORTLY THEREAFTER, THIS OFFICE WAS INFORMALLY ADVISED BY THE CONTRACTING OFFICER THAT THE DEPARTMENT OF THE INTERIOR RECENTLY ACQUIRED EQUIPMENT TO PROVIDE IN-HOUSE CAPABILITY FOR THE SERVICE AND PRODUCT COVERED UNDER RFP (D) 34,388. AS INTERIOR WAS THEREAFTER SUCCESSFUL IN ITS EFFORTS TO ADAPT ITS PRESENT EQUIPMENT TO PROVIDE THE SERVICE AND PRODUCT IN QUESTION, PURSUANT TO FEDERAL PROCUREMENT REGULATIONS (FPR) 1- 2.404-1(B)(2), THE DECISION WAS MADE TO REJECT ALL OFFERS AND CANCEL RFP (D) 34,388. A DETERMINATION AND FINDING TO THAT EFFECT WAS MADE ON JULY 24, 1974, AT WHICH TIME THE OFFERORS WERE ADVISED OF THIS ACTION.

FPR 1-2.404-1 STATES IN PERTINENT PART:

"(A) PRESERVATION OF THE INTEGRITY OF THE COMPETITIVE BID SYSTEM DICTATES THAT, AFTER BIDS HAVE BEEN OPENED, AWARD MUST BE MADE TO THAT RESPONSIBLE BIDDER WHO SUBMITTED THE LOWEST RESPONSIVE BID, UNLESS THERE IS A COMPELLING REASON TO REJECT ALL BIDS AND CANCEL THE INVITATION. ***.

"(B) INVITATIONS FOR BIDS MAY BE CANCELLED AFTER OPENING BUT PRIOR TO AWARD, AND ALL BIDS REJECTED, WHERE SUCH ACTION IS CONSISTENT WITH SEC. 1- 2.404-1(A) AND THE CONTRACTING OFFICER DETERMINES IN WRITING THAT CANCELLATION IS IN THE BEST INTEREST OF THE GOVERNMENT FOR REASONS SUCH AS THE FOLLOWING:

"(2) THE SUPPLIES OR SERVICES ARE NO LONGER REQUIRED."

WHILE FPR 1-2.404-1(B)(2) BY ITS TERMS APPLIES ONLY TO AN INVITATION FOR BIDS, THE OFFICE HAS LONG RECOGNIZED THAT THE PRINCIPLE STATED THEREIN ALSO APPLIES TO NEGOTIATED PROCUREMENTS AND THAT CONTRACTING OFFICERS ARE CLOTHED WITH BROAD POWERS OF DISCRETION IN DECIDING WHETHER TO CANCEL A NEGOTIATED PROCUREMENT. B-178282, JULY 27, 1973. UNDER THE CIRCUMSTANCES, WE DO NOT BELIEVE THAT THE CONTRACTING OFFICER'S DECISION TO CANCEL THE RFP WAS UNWARRANTED. THEREFORE, THE MATTERS RAISED IN MCSI'S PROTEST ARE ACADEMIC AND WILL NOT BE CONSIDERED. B-180529, MAY 17, 1974.