B-215712.2, JAN 18, 1985, 85-1 CPD 54

B-215712.2: Jan 18, 1985

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

CONTRACTS - NEGOTIATION - REQUESTS FOR PROPOSALS - CANCELLATION - IN HOUSE GOVERNMENT PERFORMANCE DIGEST: AGENCY'S DECISION TO CANCEL A PROCUREMENT PRIOR TO THE CLOSING DATE FOR RECEIPT OF REVISED PROPOSALS WILL NOT BE REVIEWED SINCE THE AGENCY DECIDED AFTER CANCELLATION TO PERFORM THE WORK IN-HOUSE. WHICH IS GENERALLY A MATTER OF EXECUTIVE BRANCH POLICY NOT WITHIN GAO'S BID PROTEST FUNCTION. GAO WILL NOT REVIEW A PROTEST AGAINST THE AGENCY'S FAILURE TO ISSUE A COST COMPARISON SOLICITATION AS SPECIFIED BY OFFICES OF MANAGEMENT AND BUDGET CIRCULAR A-76. SINCE THAT IS ALSO A MATTER OF EXECUTIVE POLICY. THE RFP WAS FOR ANALYTICAL SERVICES IN CONNECTION WITH THE DEPARTMENT OF DEFENSE'S TECHNICAL DATA MANAGEMENT PROGRAM.

B-215712.2, JAN 18, 1985, 85-1 CPD 54

CONTRACTS - NEGOTIATION - REQUESTS FOR PROPOSALS - CANCELLATION - IN HOUSE GOVERNMENT PERFORMANCE DIGEST: AGENCY'S DECISION TO CANCEL A PROCUREMENT PRIOR TO THE CLOSING DATE FOR RECEIPT OF REVISED PROPOSALS WILL NOT BE REVIEWED SINCE THE AGENCY DECIDED AFTER CANCELLATION TO PERFORM THE WORK IN-HOUSE, WHICH IS GENERALLY A MATTER OF EXECUTIVE BRANCH POLICY NOT WITHIN GAO'S BID PROTEST FUNCTION. SIMILARLY, GAO WILL NOT REVIEW A PROTEST AGAINST THE AGENCY'S FAILURE TO ISSUE A COST COMPARISON SOLICITATION AS SPECIFIED BY OFFICES OF MANAGEMENT AND BUDGET CIRCULAR A-76, SINCE THAT IS ALSO A MATTER OF EXECUTIVE POLICY.

RESEARCH, ANALYSIS & MANAGEMENT CORPORATION:

RESEARCH, ANALYSIS & MANAGEMENT CORPORATION (RAM) PROTESTS THE CANCELLATION OF REQUEST FOR PROPOSALS (RFP) MDA903-84-0047 ISSUED BY THE DEFENSE SUPPLY SERVICE-WASHINGTON (DSSW). THE RFP WAS FOR ANALYTICAL SERVICES IN CONNECTION WITH THE DEPARTMENT OF DEFENSE'S TECHNICAL DATA MANAGEMENT PROGRAM. WE DISMISS THE PROTEST.

RAM AND TWO OTHER FIRMS SUBMITTED OFFERS IN RESPONSE TO THE RFP. SUBSEQUENTLY, THE REQUIRING ACTIVITY INFORMED DSSW THAT CERTAIN CHANGES IN THE DELIVERABLE SERVICES WERE NEEDED. AN AMENDMENT WAS ISSUED CHANGING THE DELIVERABLE SERVICES REQUIRED BY THE RFP AND ALSO THE CRITERIA FOR THE EVALUATION OF THE OFFEROR'S PROPOSALS. DSSW ALSO ESTABLISHED A NEW DATE FOR THE SUBMISSION OF REVISED PROPOSALS BY THE OFFERORS.

BEFORE THE REVISED PROPOSALS WERE DUE, HOWEVER, THE REQUIRING ACTIVITY SUGGESTED THAT THE RFP BE CANCELED. THE RFP HAD BEEN ISSUED ON A COST- PLUS-FIXED-FEE BASIS AND, IN THE EVALUATION OF THE OFFERORS' PROPOSALS, PROBLEMS WERE ENCOUNTERED IN DETERMINING WHETHER THE LABOR HOURS PROPOSED BY THE OFFERORS FOR THE SERVICES WERE SUFFICIENT TO MEET THE RFP'S WORK REQUIREMENTS. CONSEQUENTLY, THE RFP WAS CANCELED SO THAT MORE PRECISE REQUIREMENTS COULD BE FORMULATED TO ALLOW THE GOVERNMENT TO RESOLICIT ON A FIRM, FIXED-PRICE BASIS. RAM CONTENDS THAT THE CANCELLATION OF THE RFP WAS A SUBTERFUGE TO ALLOW ONE OF THE OFFERORS TO OBTAIN MORE FAVORABLE TERMS FOR DOING THE WORK.

WE NEED NOT DECIDE WHETHER THE RFP WAS PROPERLY CANCELED BECAUSE DSSW NOW STATES THE REQUIRED SERVICES FOR THE TECHNICAL DATA MANAGEMENT PROGRAM CAN BE PERFORMED ON AN IN-HOUSE BASIS. AS A GENERAL RULE, OUR OFFICE DOES NOT REVIEW AN AGENCY DECISION CONCERNING WHETHER WORK SHOULD BE PERFORMED IN- HOUSE OR BY A CONTRACTOR, SINCE WE REGARD THIS TO BE A MATTER OF EXECUTIVE BRANCH POLICY NOT WITHIN OUR BID PROTEST FUNCTION. JETS, INC., 59 COMP.GEN. 263 (1980), 80-1 CPD PARA. 152; CROWN LAUNDRY AND DRY CLEANERS, INC., B-194505, JULY 18, 1979, 79-2 CPD PARA. 38.

WE HAVE ALLOWED A LIMITED EXCEPTION TO THIS RULE WHEN AN AGENCY UTILIZES THE PROCUREMENT SYSTEM TO AID IN ITS IN-HOUSE/CONTRACT DETERMINATION. WHERE AN AGENCY NOTIFIES OFFERORS OF COST COMPARISON PROCEDURES IT INTENDS TO USE IN DETERMINING WHETHER IT WILL OR WILL NOT AWARD A CONTRACT, WE WILL REVIEW AN ALLEGATION THAT THE AGENCY FAILED TO FOLLOW THE GUIDELINES IT ESTABLISHED. MIDLAND MAINTENANCE, INC., B-202977.2, FEB. 22, 1982, 82-1 CPD PARA. 150. THIS IS BECAUSE IT WOULD BE DETRIMENTAL TO THE PROCUREMENT SYSTEM IF, AFTER INDUCING THE SUBMISSION OF OFFERS, AN AGENCY EMPLOYS A FAULTY OR MISLEADING COMPARISON THAT MATERIALLY AFFECTS THE DETERMINATION OF WHETHER TO AWARD A CONTRACT. ID.

THE FACTS SURROUNDING THIS PROCUREMENT DO NOT FIT WITHIN THE ABOVE MENTIONED EXCEPTION. THE RECORD SHOWS THAT THERE WAS NOTHING IN THE RFP WHICH INDICATED THAT IT WAS BEING USED TO MAKE AN IN-HOUSE/CONTRACT DETERMINATION. MOREOVER, THERE OBVIOUSLY WAS NO COST COMPARISON INVOLVED, SINCE THE RFP WAS CANCELED BEFORE THE OFFERORS HAD PREPARED THEIR FINAL OFFERS. SEE SCHONSTADT INSTRUMENT COMPANY, B-215531, AUG. 1, 1984, 84-2 CPD PARA. 141.

RAM URGES THAT WE ADVISE THE REQUIRING ACTIVITY TO TERMINATE IN HOUSE PERFORMANCE UNTIL THE POLICIES OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-76 AND PART 7.3 OF THE FEDERAL ACQUISITION REGULATION ARE FOLLOWED WITH REGARD TO THE ISSUANCE OF A SOLICITATION FOR COST COMPARISON PURPOSES. THIS IS BEYOND OUR LIMITED SCOPE OF REVIEW. ANY ADVERSE EFFECT ON THE COMPETITIVE PROCUREMENT SYSTEM OF THE FAILURE TO ISSUE A SOLICITATION TO COMPARE THE COST OF CONTRACTING AND IN-HOUSE PERFORMANCE IS TOO SPECULATIVE AND REMOTE TO JUSTIFY OUR REVIEW OF AN EXECUTIVE BRANCH POLICY MATTER AND THUS THE ACTION RAM PROPOSES. SEE DWS, INC., B-211950.2, FEB. 10, 1984, 84-1 CPD PARA. 164.

THE PROTEST IS DISMISSED.