[Protest of Justice Decision To Cancel and Resolicit IFB in Part]

B-210911,B-210911.2,B-210911.3: Apr 17, 1984

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Two firms protested a Department of Justice decision to cancel part of an invitation for bids and to resolicit the canceled items. In addition, one of the firms protested the contract award for one item under the resolicitation. The initial solicitation used a brand name or equal description for 49 items. Justice asked the Federal Bureau of Investigation (FBI) to evaluate the technical acceptability of 13 of these items, and FBI found all but 3 of the items acceptable. One of the protesters was the low bidder for the three unacceptable items. Because Justice believed that the solicitation did not properly identify the needs of the Government, it decided to cancel the solicitation and resolicit the three unacceptable items. The first protester contended that Justice lacked a compelling reason for the cancellation and, because its bid complied in all respects with the terms of the solicitation, it should have received award for the items. GAO found that Justice acted properly in canceling the solicitation, because the use of inadequate specifications provides a sufficient basis for solicitation cancellation. Furthermore, the protester failed to show that the Justice determination to cancel the solicitation was unreasonable, arbitrary, or in violation of procurement regulations. The second protester also protested the cancellation and contended that the first protester's bid was nonresponsive because it did not bid products equal to the brand name products listed in the solicitation. However, because GAO found that the agency's determination that the first protester's products met the solicitation requirements was valid, it disagreed with this contention. GAO found that a protest the first protester raised concerning the reprocurement was academic with respect to two of the three items, because the agency subsequently canceled the procurement of these items. With regard to one item, the first protester contended that the agency used unduly restrictive specifications and acted improperly in awarding the contract while its protest was still pending. GAO found that the first protester failed to show that the agency's determination of its minimum needs was unreasonable. In view of this conclusion, the protester's objection to the award while a protest was pending was academic. However, such a procurement practice is a procedural defect which does not affect the validity of an otherwise valid award. Accordingly, both protests were denied.