B-182738, MAR 18, 1975

B-182738: Mar 18, 1975

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CANCELLATION OF RFP AFTER OPENING OF PROPOSALS AND CONDUCTING OF PREAWARD SURVEY WAS PROPER WHERE EQUIPMENT WAS NO LONGER REQUIRED. PROTEST AGAINST PRACTICE OF CONTRACTING AGENCY NEGOTIATING RATHER THAN ADVERTISING FOR PROCUREMENT CANCELED AFTER OPENING OF PROPOSALS AND PRIOR PROCUREMENTS UPON WHICH AWARDS WERE MADE IS UNTIMELY UNDER 4 C.F.R. SEC. 20.2(A) (1974) PROVISION THAT PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN ANY TYPE OF SOLICITATION WHICH ARE APPARENT PRIOR TO BID OPENING OR CLOSING DATE FOR RECEIPT OF PROPOSALS BE FILED PRIOR TO BID OPENING OR CLOSING DATE FOR RECEIPT OF PROPOSALS. 3. PROTEST FILED IN 1974 AGAINST MANNER IN WHICH NEGOTIATIONS WERE CONDUCTED IN PROCUREMENT AWARDED IN 1972 IS UNTIMELY.

B-182738, MAR 18, 1975

1. CANCELLATION OF RFP AFTER OPENING OF PROPOSALS AND CONDUCTING OF PREAWARD SURVEY WAS PROPER WHERE EQUIPMENT WAS NO LONGER REQUIRED, SINCE DESPITE PROTRACTED PREAWARD PROCEDURE GOVERNMENT MAY NOT BE COMPELLED TO MAKE AWARD FOR ITEM OR QUANTITIES OF ITEM WHICH IT NO LONGER NEEDS OR WANTS. 2. PROTEST AGAINST PRACTICE OF CONTRACTING AGENCY NEGOTIATING RATHER THAN ADVERTISING FOR PROCUREMENT CANCELED AFTER OPENING OF PROPOSALS AND PRIOR PROCUREMENTS UPON WHICH AWARDS WERE MADE IS UNTIMELY UNDER 4 C.F.R. SEC. 20.2(A) (1974) PROVISION THAT PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN ANY TYPE OF SOLICITATION WHICH ARE APPARENT PRIOR TO BID OPENING OR CLOSING DATE FOR RECEIPT OF PROPOSALS BE FILED PRIOR TO BID OPENING OR CLOSING DATE FOR RECEIPT OF PROPOSALS. 3. PROTEST FILED IN 1974 AGAINST MANNER IN WHICH NEGOTIATIONS WERE CONDUCTED IN PROCUREMENT AWARDED IN 1972 IS UNTIMELY, SINCE 4 C.F.R. SEC. 20.2(A) (1974) REQUIRES PROTEST TO BE FILED WITHIN 5 WORKING DAYS AFTER BASIS OF PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN.

SERV-QUEEN INC.:

SERV-QUEEN INC. (SERV-QUEEN), HAS PROTESTED THE CANCELLATION OF REQUEST FOR PROPOSALS (RFP) DSA120-75-R-0707 FOR BASSINET AND DRESSING TABLES ISSUED BY THE DEFENSE PERSONNEL SUPPORT CENTER (DPSC), DEFENSE SUPPLY AGENCY (DSA), AND THE PRACTICE OF DSA IN NEGOTIATING RATHER THAN ADVERTISING THIS PROCUREMENT AND PRIOR SIMILAR PROCUREMENTS.

RFP DSA120-75-R-0707 WAS ISSUED ON AUGUST 20, 1974, FOR 100 BASSINET AND DRESSING TABLES. THE CLOSING DATE FOR PROPOSALS WAS SEPTEMBER 5, 1974, AND SERV-QUEEN WAS THE LOW OFFEROR. ON SEPTEMBER 19, 1974, A PREAWARD SURVEY WAS CONDUCTED ON SERV-QUEEN WHICH RESULTED IN A RECOMMENDATION FOR AWARD OF THE CONTRACT. ON OCTOBER 30, 1974, SERV QUEEN WAS CONTACTED TO EXTEND ITS OFFER ACCEPTANCE PERIOD BEYOND THE EXPIRATION DATE OF NOVEMBER 4, 1974, IN ORDER THAT THE NECESSARY PAPERWORK COULD BE COMPLETED.

ON NOVEMBER 12, 1974, THE DPSC SUPPLY OPERATIONS DIVISION NOTIFIED THE CONTRACTING OFFICER THAT THE EQUIPMENT BEING PROCURED UNDER THE RFP WAS NO LONGER NEEDED BECAUSE OF A REDUCTION IN THE DEMAND FOR THE ITEMS AND REQUESTED THAT THE RFP BE CANCELED. ON THE SAME DAY, SERV-QUEEN WAS NOTIFIED BY TELEPHONE THAT THE SOLICITATION WAS BEING CANCELED. AMENDMENT NO. 0001 TO THE SOLICITATION WAS ISSUED ON NOVEMBER 18, 1974, CANCELING THE RFP BECAUSE THE EQUIPMENT WAS NO LONGER NEEDED.

THERE IS A DISPUTE AS TO WHAT WAS SAID IN VARIOUS TELEPHONE CONVERSATIONS THAT TOOK PLACE DURING THE PERIOD AFTER THE NOVEMBER 12 TELEPHONE CONVERSATION AND UP TO NOVEMBER 21, 1974, THE DATE SERV-QUEEN RECEIVED AMENDMENT NO. 0001. SERV-QUEEN ALLEGES IT WAS UNABLE TO ASCERTAIN THE REASON FOR THE CANCELLATION FROM DSA, WHICH STATEMENT DSA DISPUTES. MOREOVER, SERV-QUEEN POINTS OUT THAT AFTER THE NOVEMBER 12 TELEPHONE CALL, IT RECEIVED THE COMMERCE BUSINESS DAILY FOR THAT DATE WHICH STATED THAT AN AWARD WAS MADE TO IT UNDER THE RFP. WHATEVER MAY HAVE BEEN SAID IN SUBSEQUENT TELEPHONE CONVERSATIONS IS NOT RELEVANT TO OUR DISPOSAL OF THE ISSUE PRESENTED BY THE PROTEST - WHETHER THE CANCELLATION OF THE RFP WAS PROPER. FURTHER, DSA HAS INDICATED THAT PUBLICATION IN THE COMMERCE BUSINESS DAILY WAS PREMATURE AND OCCURRED THROUGH AN INADVERTENCE.

THE DPSC SUPPLY OPERATIONS DIVISION DETERMINED THAT DUE TO THE REDUCTION IN THE DEMAND FOR THE ITEMS BEING PROCURED, THE EQUIPMENT UNDER THE INSTANT RFP WAS NO LONGER REQUIRED AND REQUESTED THE PROCUREMENT AND PRODUCTION DIVISION TO CANCEL THE RFP. IN THIS CONNECTION, OUR OFFICE HAS HELD THAT THE GOVERNMENT MAY NOT BE COMPELLED TO MAKE AN AWARD FOR AN ITEM OR QUANTITIES OF AN ITEM IN AN RFP WHICH IT NO LONGER NEEDS OR WANTS. 174956, APRIL 11, 1972. FURTHER, IN A SITUATION WHERE A PROCUREMENT WAS CANCELED WHEN AN AWARD WAS IMMINENT AFTER A PROTRACTED PREAWARD PROCEDURE, OUR OFFICE STATED:

"*** 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-159885, OCTOBER 6, 1966; B- 169342, JUNE 19, 1970." B-176929(1), MARCH 6, 1973.

ACCORDINGLY, THE PROTEST AGAINST THE CANCELLATION IS DENIED.

THE PROTEST AGAINST THE PRACTICE OF DSA NEGOTIATING RATHER THAN ADVERTISING FOR THE IMMEDIATE PROCUREMENT AND PRIOR PROCUREMENTS UPON WHICH AWARDS WERE MADE IS UNTIMELY, SINCE OUR BID PROTEST PROCEDURES AND STANDARDS IN 4 C.F.R. SEC. 20.2(A) (1974) PROVIDE THAT -

"*** PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN ANY TYPE OF SOLICITATION WHICH ARE APPARENT PRIOR TO BID OPENING OR THE CLOSING DATE FOR RECEIPT OF PROPOSALS SHALL BE FILED PRIOR TO BID OPENING OR THE CLOSING DATE FOR THE RECEIPT OF PROPOSALS. ***"

SERV-QUEEN HAS ALSO PROTESTED AGAINST THE MANNER IN WHICH NEGOTIATIONS WERE CONDUCTED UNDER RFP DSA120-72-R-2137. THE AWARD UNDER THAT RFP WAS MADE ON JUNE 16, 1972. THE PROTEST WAS FILED ON NOVEMBER 26, 1974. IT IS UNTIMELY SINCE SECTION 20.2(A) OF OUR BID PROTEST PROCEDURES AND STANDARDS ALSO REQUIRES THAT PROTESTS BASED UPON OTHER THAN ALLEGED IMPROPRIETIES IN A SOLICITATION BE FILED WITH OUR OFFICE WITHIN 5 WORKING DAYS AFTER THE BASIS OF THE PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN, AND IT WILL NOT BE CONSIDERED.