B-242819.6, B-242819.7, B-247293, B-247293.2, Apr 9, 1992

B-242819.6,B-247293.2,B-247293,B-242819.7: Apr 9, 1992

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DIGEST: Protest challenging resolicitation and subsequent cancellation of that resolicitation is dismissed where protest is based on underlying untimely argument that protester was entitled to award under canceled original solicitation. There is an extensive background to this matter. This second protest was a challenge to the Air Force's cancellation of IFB-0039 based upon Adrian's review of its competitor's bid which Adrian obtained pursuant to the Freedom of Information Act (FOIA). Adrian disputes the finding in our October 9 decision that it failed to diligently pursue the information on which its arguments under that iteration of its cancellation protest were based. Adrian alleges that it telephonically requested the advice of the General Accounting Office attorney handling the case and was informed that it should seek the document under FOIA.

B-242819.6, B-242819.7, B-247293, B-247293.2, Apr 9, 1992

DIGEST: Protest challenging resolicitation and subsequent cancellation of that resolicitation is dismissed where protest is based on underlying untimely argument that protester was entitled to award under canceled original solicitation.

Attorneys

Adrian Supply Company-- Request for Reconsideration and Protests:

Adrian Supply Company requests reconsideration of the portion of our decision in Adrian Supply Co.-- Recon., B-242819.4; B-242819.5, Oct. 9, 1991, 91-2 CPD Para. 321, in which we dismissed Adrian's second protest of the cancellation of invitation for bids (IFB) No. F29650-90-B-0039 (IFB- 0039), issued by Department of the Air Force for an electrical substation at Kirtland Air Force Base, New Mexico. Adrian also protests the Air Force's issuance of a new solicitation for an electrical substation, IFB No. F29650-92-B-0002 (IFB-0002), as well as the subsequent cancellation of that IFB before bid opening due to the agency's determination that it no longer needs the substation.

We affirm the dismissal; we also dismiss the new protests.

There is an extensive background to this matter. In its initial protest to our Office concerning IFB-0039, Adrian challenged the award of a contract to another offeror. After the Air Force agreed to consider making award to Adrian, it withdrew the protest (B-242819). When the agency subsequently canceled the solicitation on the bases that it failed to provide for an adequate evaluation and the delivery schedule did not represent the agency's requirements, Adrian protested the cancellation (B-242819.2). We dismissed that protest as untimely on April 1, 1991, on the basis that Adrian, although it had been apprised of the intended cancellation and the reasons therefor, impermissibly waited more than 10 working days for the formal agency determination to cancel before protesting. See 4 C.F.R. Sec. 21.2(a)(2) (1991). We subsequently affirmed this dismissal, see Adrian Supply Co.-- Recon., B-242819.3, July 17, 1991, 91-2 CPD Para. 64, denied another request for reconsideration, Adrian Supply Co.-- Recon., B-242819.4; B-242819.5, Oct. 9, 1991, 91-2 CPD Para. 321.

We also dismissed as untimely a second protest presenting new evidence in support of Adrian's challenge to the propriety of the cancellation of IFB- 0039. Id. This second protest was a challenge to the Air Force's cancellation of IFB-0039 based upon Adrian's review of its competitor's bid which Adrian obtained pursuant to the Freedom of Information Act (FOIA). We found that Adrian had failed to diligently pursue the information forming the basis for the second protest because the firm had obtained its competitor's bid under FOIA rather than through the document disclosure provisions of section 21.3(f) of our bid protest regulations. The Air Force then issued a new solicitation (IFB-0002) for the electrical sub-station, but subsequently canceled that solicitation when it concluded that its requirement for the substation no longer existed because of a change in the intended source of electricity.

Here, Adrian once again requests reconsideration of our dismissal of its protest of the IFB-0039 cancellation; Adrian disputes the finding in our October 9 decision that it failed to diligently pursue the information on which its arguments under that iteration of its cancellation protest were based. Adrian alleges in this regard that it did in fact attempt to obtain a copy of its competitor's bid under our document disclosure regulation. In support of its position, Adrian alleges that it telephonically requested the advice of the General Accounting Office attorney handling the case and was informed that it should seek the document under FOIA.

Our file in this case contains no record of the telephone conversations during which Adrian alleges that it was advised to seek its competitor's bid through FOIA and the attorney in question has no present recollection of these conversations. However, even assuming that the conversations occurred, we will not consider Adrian's protest against the issuance of IFB-0002 and the subsequent cancellation of the requirement. These protests were based on, and to some extent were presented in further support of, Adrian's ongoing argument that the cancellation of IFB-0039 was improper. In this regard, Adrian argues that the cancellation of IFB- 0002 is an improper attempt to render academic Adrian's protest of the issuance of the solicitation (Adrian suspects that the Air Force is meeting this requirement now through a Corps of Engineers contract) and, ultimately, to deprive it of the award under IFB-0039. Adrian requests as relief that it receive the award under IFB-0039. This being the focus of Adrian's protests concerning IFB-0002 and cancellation of the requirement, our determination that Adrian's protest of the cancellation of IFB-0039 is untimely-- such that Adrian could not receive the award under IFB-0039 even if we agreed with its arguments in these additional protests-- renders these additional protests academic. See Sioux Falls Shopping News, B-236421.3, Nov. 22, 1989, 89-2 CPD Para. 493.