B-208193, JAN 18, 1983

B-208193, JAN 18, 1983

DIGEST: CANCELLATION OF IFB AFTER BID OPENING WAS PROPER WHERE SPECIFICATIONS WERE INADEQUATE AND DID NOT REFLECT AGENCY NEEDS BECAUSE OF FAILURE TO LIST CAPACITY (EIGHT BIT VERSUS 16 BIT) OF COMPUTER BEING PROCURED.

PACIFIC SCIENTIFIC COMPANY, GARDNER - NEOTEC DIVISION:

PACIFIC SCIENTIFIC COMPANY, GARDNER - NEOTEC DIVISION (NEOTEC), PROTESTS THE CANCELLATION OF INVITATION FOR BIDS NO. IFB 31-W-ARS-82, ISSUED BY THE DEPARTMENT OF AGRICULTURE, FOR A NEAR INFRARED REFLECTANCE/TRANSMISSION MICRO - PROCESSOR CONTROLLED MONOCHROMATOR (COMPUTER) SYSTEM FOR USE BY THE AGRICULTURE RESEARCH SERVICE (ARS), WESTERN WHEAT QUALITY LABORATORY, PULLMAN, WASHINGTON. WE DENY THE PROTEST.

IN RESPONSE TO ITS SOLICITATION, ARS RECEIVED ONLY TWO BIDS. NEOTEC BID $61,900 AND THE BID OF TECHNICON INSTRUMENTS CORP. (TECHNICON) WAS $70,000.

ARS TECHNICAL PERSONNEL EVALUATED THE TWO BIDS AND DURING THE COURSE OF THE EVALUATION, IT WAS DISCOVERED THAT A MAJOR DEFICIENCY EXISTED IN THE SPECIFICATIONS OF THE IFB. SPECIFICALLY, THE IFB FAILED TO INCLUDE THE REQUIRED BIT CAPACITY OF THE COMPUTER COMPONENT. THE TECHNICAL PERSONNEL INDICATED THAT A 16-BIT CAPACITY WAS REQUIRED IN ORDER FOR THE SYSTEM TO BE COMPATIBLE WITH OTHER NEAR INFRARED REFLECTANCE (NIR) INSTRUMENTS IN USE AT ARS FACILITIES AROUND THE COUNTRY. WITHOUT THIS COMPATIBILITY, PLANS FOR INTERACTIVE COOPERATIVE RESEARCH AMONG VARIOUS ARS FACILITIES COULD NOT BE REALIZED.

THE NORTH STAR ADVANTAGE COMPUTER, THE SYSTEM UPON WHICH NEOTEC SUBMITTED ITS BID, HAS AN EIGHT BIT CAPACITY. TECHNICON'S COMPUTER SYSTEM HAS A 16 BIT CAPACITY, BUT ITS BID WAS REJECTED IN ACCORDANCE WITH FEDERAL PROCUREMENT REGULATIONS (FPR) SEC. 1-2.404-2(B)(5) BECAUSE TECHNICON LIMITED ITS LIABILITY TO THE GOVERNMENT IN THE EVENT OF DELAY IN DELIVERY. THUS, IN RELIANCE ON THE ARS TECHNICAL EVALUATION OF NEOTEC'S BID, THE CONTRACTING OFFICER CANCELED THE SOLICITATION.

NEOTEC PROTESTS THE CANCELLATION OF THE SOLICITATION. IT CONTENDS THAT ITS EIGHT-BIT COMPONENT WOULD EXECUTE COMPUTATIONS TO THE SAME ACCURACY AND SPEED AS A 16-BIT UNIT. THUS, NEOTEC STATES THAT ITS SYSTEM SATISFIES THE GOVERNMENT'S NEEDS AS WELL AS THE SPECIFICATIONS CITED IN THE IFB. THE ARS TECHNICAL PERSONNEL DISPUTE THE DATA PROVIDED BY NEOTEC.

THIS OFFICE HAS LONG RECOGNIZED THAT CONTRACTING OFFICIALS HAVE BROAD DISCRETION TO DETERMINE WHETHER A SOLICITATION SHOULD BE CANCELED AND THE CONTRACT REPROCURED. APEX INTERNATIONAL MANAGEMENT SERVICES, INC., 60 COMP.GEN. 172 (1981), 81-1 CPD 24. OUR REVIEW IS LIMITED TO THE QUESTION OF REASONABLENESS OF THE EXERCISE OF DISCRETION. SPERRY UNIVAC, B-195028, JANUARY 3, 1980, 80-1 CPD 10. TO BE SUSTAINABLE, A CONTRACTING OFFICER'S DISCRETIONARY DECISION MUST REFLECT THE REASONED JUDGMENT OF THE CONTRACTING OFFICER BASED UPON THE INVESTIGATION AND EVALUATION OF THE EVIDENCE REASONABLY AVAILABLE AT THE TIME THE DECISION IS MADE. APEX INTERNATIONAL MANAGEMENT SERVICES, INC., SUPRA. IT IS INCUMBENT UPON THE PROTESTER TO ESTABLISH THAT THE CONTRACTING OFFICER ABUSED THIS DISCRETION. A&C BUILDING AND INDUSTRIAL MAINTENANCE CORPORATION, B-205259, DECEMBER 15, 1981, 81-2 CPD 478.

HOWEVER, BECAUSE OF THE POTENTIAL ADVERSE IMPACT ON THE COMPETITIVE BIDDING SYSTEM OF CANCELING AN INVITATION AFTER BID PRICES HAVE BEEN EXPOSED, THE CONTRACTING OFFICERS, IN THE EXERCISE OF THEIR DISCRETIONARY AUTHORITY, MUST FIND THAT A COGENT AND COMPELLING REASON EXISTS THAT WARRANTS CANCELLATION. ENGINEERING RESEARCH INC., 56 COMP.GEN. 364 (1977), 77-1 CPD 106, LAPTEFF ASSOCIATES, B-195076, NOVEMBER 20, 1979, 79-2 CPD 366. GENERALLY, THE USE OF INADEQUATE SPECIFICATION PROVIDES A SUFFICIENT BASIS FOR INVITATION CANCELLATION. REVERE SUPPLY CO. INC., B-187154, JANUARY 12, 1979, 77-1 CPD 21. SPECIFICATIONS ARE INADEQUATE WHEN THEY DO NOT STATE THE GOVERNMENT'S ACTUAL NEEDS. KEMP INDUSTRIES, INC., B-192301, OCTOBER 2, 1978, 78-2 CPD 248.

BASED UPON THE ENTIRE RECORD BEFORE US, WE FIND THAT THE CONTRACTING OFFICER ACTED REASONABLY IN CANCELING THE SOLICITATION. THE SPECIFICATIONS IN THE IFB DID NOT SPECIFY WHAT CAPACITY THE PROPOSED SYSTEM WAS TO BE AND, THEREFORE, BIDDERS WERE NOT BIDDING ON AN EQUAL BASIS. THIS IS EVIDENCED BY THE FACT THAT THE ONLY TWO BIDDERS OFFERED DIFFERING CAPACITY IN THEIR SYSTEMS. IN ADDITION, TECHNICON HAS STATED IF AN EIGHT-BIT CAPACITY COMPUTER IS WHAT THE GOVERNMENT REALLY DESIRED, IT CAN ALSO PROPOSE SUCH A SYSTEM. ASIDE FROM THE ISSUE OF COMPATIBILITY WITH OTHER SYSTEMS, WE FIND THE FAILURE TO STATE THE CAPACITY DESIRED AN ADEQUATE REASON FOR CANCELLATION.

THE PROTEST IS DENIED.