B-222425.3, OCT 1, 1986, 86-2 CPD 371

B-222425.3: Oct 1, 1986

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PROCUREMENT - BID PROTEST - GENERAL ACCOUNTING OFFICE PROCEDURES - GENERAL ACCOUNTING OFFICE DECISIONS - RECONSIDERATION DIGEST: PRIOR DECISION IS AFFIRMED ON RECONSIDERATION WHERE PROTESTER HAS NOT SHOWN IT CONTAINS ANY ERROR OF FACT OR LAW. WHICH ITSELF IS A RECONSIDERATION OF OUR DECISION IN DISPLAY SCIENCES. IN OUR INITIAL DECISION WE HELD THAT DISPLAY WAS NOT AN "INTERESTED PARTY" UNDER OUR BID PROTEST REGULATIONS. TO OBJECT TO THE CANCELLATION OF THE SOLICITATION BECAUSE IT HAD SUBMITTED A NONRESPONSIVE BID AND THEREFORE WOULD NOT HAVE BEEN ENTITLED TO AWARD EVEN IF THE SOLICITATION HAD NOT BEEN CANCELED. WE FOUND THAT THE UNSOLICITED DESCRIPTIVE LITERATURE DISPLAY SUBMITTED WITH ITS BID SHOWED THAT DISPLAY WAS NONRESPONSIVE BECAUSE IT FAILED TO SHOW COMPLIANCE WITH A MATERIAL REQUIREMENT FOR PICTURE SIZE.

B-222425.3, OCT 1, 1986, 86-2 CPD 371

PROCUREMENT - BID PROTEST - GENERAL ACCOUNTING OFFICE PROCEDURES - GENERAL ACCOUNTING OFFICE DECISIONS - RECONSIDERATION DIGEST: PRIOR DECISION IS AFFIRMED ON RECONSIDERATION WHERE PROTESTER HAS NOT SHOWN IT CONTAINS ANY ERROR OF FACT OR LAW.

DISPLAY SCIENCES, INC.-- REQUEST FOR RECONSIDERATION:

DISPLAY SCIENCES, INC., REQUESTS THAT WE RECONSIDER OUR DECISION IN DISPLAY SCIENCES, INC., B-222425.2, AUG. 26, 1986, 86-2 CPD PARA. ***, WHICH ITSELF IS A RECONSIDERATION OF OUR DECISION IN DISPLAY SCIENCES, INC., B-222425, JULY 9, 1986, 86-2 CPD PARA. 49, WHEREIN WE DISMISSED DISPLAY'S PROTEST OF THE CANCELLATION OF INVITATION FOR BIDS (IFB) NO. DAHA90-86-B-0001, ISSUED BY THE NATIONAL GUARD BUREAU CONTRACTING SUPPORT OFFICE FOR THE PROCUREMENT OF VIDEO CASSETTE PROJECTORS ON A "BRAND NAME OR EQUAL" BASIS.

IN OUR INITIAL DECISION WE HELD THAT DISPLAY WAS NOT AN "INTERESTED PARTY" UNDER OUR BID PROTEST REGULATIONS, 4 C.F.R. SEC. 21.1(A) (1986), TO OBJECT TO THE CANCELLATION OF THE SOLICITATION BECAUSE IT HAD SUBMITTED A NONRESPONSIVE BID AND THEREFORE WOULD NOT HAVE BEEN ENTITLED TO AWARD EVEN IF THE SOLICITATION HAD NOT BEEN CANCELED. WE FOUND THAT THE UNSOLICITED DESCRIPTIVE LITERATURE DISPLAY SUBMITTED WITH ITS BID SHOWED THAT DISPLAY WAS NONRESPONSIVE BECAUSE IT FAILED TO SHOW COMPLIANCE WITH A MATERIAL REQUIREMENT FOR PICTURE SIZE.

ON RECONSIDERATION, WE AGREED THAT DISPLAY'S PROTEST SHOULD NOT HAVE BEEN DISMISSED UNDER OUR INTERESTED PARTY RULE. HOWEVER, WE DENIED DISPLAY'S PROTEST AGAINST THE CANCELLATION OF THE IFB BECAUSE WE FOUND THAT THE CONTRACTING OFFICER'S DETERMINATION TO CANCEL WAS REASONABLE. THE CONTRACTING OFFICER HAD CONCLUDED, FROM THE BRAND-NAME LITERATURE DISPLAY FURNISHED WITH ITS BID, THAT THE BRAND NAME SPECIFICATION OVERSTATED THE GOVERNMENT'S NEEDS WITH RESPECT TO PICTURE SIZE, AND SO ADVISED BIDDERS IN A CANCELLATION NOTICE. THE CONTRACTING OFFICER FURTHER ADVISED OUR OFFICE THAT HE BELIEVED COMPETITION WOULD BE ENHANCED IF THE REQUIREMENT WERE RESOLICITED USING A GENERIC SPECIFICATION THAT STATED THE GOVERNMENT'S ACTUAL NEEDS.

WE FOUND NO BASIS TO QUESTION THE CONTRACTING OFFICER'S CANCELLATION ACTION, AND WE SPECIFICALLY CONCLUDED THAT THE CONTRACTING OFFICER'S DESIRE TO OBTAIN ENHANCED COMPETITION FOR THESE UNITS BY RELAXING THE SPECIFICATION CONSTITUTED A VALID REASON FOR CANCELING THE IFB UNDER FEDERAL ACQUISITION REGULATION, 48 C.F.R. SEC. 14.404-1(C)(9), WHICH PERMITS A CANCELLATION OF BIDS IF IN THE BEST INTEREST OF THE GOVERNMENT. WHILE DISPLAY ARGUED THAT ITS BID WOULD HAVE SERVED THE GOVERNMENT'S NEEDS, WE FOUND REASONABLE THE CONTRACTING OFFICER'S JUDGMENT THAT LOWER PRICES WOULD BE OBTAINED IF THE REQUIREMENT WERE RESOLICITED USING A REVISED, LESS RESTRICTIVE SPECIFICATION. WE ALSO REJECTED DISPLAY'S CONTENTION THAT WE SHOULD NOT CONSIDER THE ABOVE STATED DETERMINATION AS JUSTIFYING THE CANCELLATION BECAUSE THAT GROUND WAS NOT SPECIFICALLY RAISED IN THE CANCELLATION NOTICE.

DISPLAY NOW REITERATES THE CONTENTION THAT WE SHOULD NOT HAVE CONSIDERED ANY GROUNDS FOR CANCELLATION NOT ASSERTED BY THE CONTRACTING OFFICER IN THE CANCELLATION NOTICE. CITING LANGUAGE IN MOTOROLA, INC; ET AL., B-221391.2, ET AL., MAY 20, 1986, 86-1 CPD PARA. 471, DISPLAY ASSERTS THAT THE SPECIFIED CANCELLATION BASIS WOULD NOT HAVE REQUIRED THE IFB'S CANCELLATION IF THE AGENCY'S NEEDS COULD BE MET BY AN AWARD UNDER THE IFB, AND NO OTHER BIDDERS WOULD BE PREJUDICED, WHICH DISPLAY BELIEVES WERE THE CIRCUMSTANCES HERE.

AS WE ADVISED IN OUR PRIOR DECISION, HOWEVER, IN CONCLUDING THAT THE CONTRACTING OFFICER'S DECISION TO CANCEL WAS REASONABLE, THE PROPRIETY OF A CANCELLATION MUST BE JUDGED IN LIGHT OF ALL PERTINENT FACTORS, INCLUDING THOSE NOT SPECIFICALLY STATED TO THE BIDDERS. WE THEREFORE HAVE RECOGNIZED THAT EVEN WHERE DIFFERENCES EXIST BETWEEN THE BASES FOR CANCELLATION ORIGINALLY ADVANCED BY AN AGENCY AND THOSE LATER ASSERTED BY THE CONTRACTING OFFICER, A SUBSEQUENTLY-RAISED BASIS FOR CANCELLATION THAT WOULD HAVE SUPPORTED CANCELLATION HAD IT BEEN ADVANCED ORIGINALLY IS ACCEPTABLE. DESIGNWARE, INC., B-221085, JAN. 28, 1986, 86-1 CPD PARA. 101.

SINCE DISPLAY HAS FAILED TO SHOW OUR PRIOR HOLDING WAS BASED ON ANY ERROR OF FACT OR LAW, WE AFFIRM THE DECISION. 4 C.F.R. SEC. 21.12.