Matter of: Paragon Dynamics, Incorporated File: B-251465; B-251465.2 Date: March 3, 1993
Highlights
PROCUREMENT Special Procurement Methods/Categories In-house performance Administrative discretion GAO review Decision to cancel solicitation and to perform the services in-house is a matter of executive policy which the General Accounting Office does not review under its bid protest function except when the agency issues a competitive solicitation for cost comparison purposes under Office of Management and Budget Circular No. A repair contract was no longer needed. Paragon was informed of the agency's decision to do the work in-house and that the solicitation was "in the process of being canceled in its entirety.". The protester also contends that the agency should have conducted a cost comparison in accordance with Office of Management and Budget Circular No.
Matter of: Paragon Dynamics, Incorporated File: B-251465; B-251465.2 Date: March 3, 1993
PROCUREMENT Special Procurement Methods/Categories In-house performance Administrative discretion GAO review Decision to cancel solicitation and to perform the services in-house is a matter of executive policy which the General Accounting Office does not review under its bid protest function except when the agency issues a competitive solicitation for cost comparison purposes under Office of Management and Budget Circular No. A-76.
Attorneys
DECISION
Paragon Dynamics, Incorporated protests the cancellation of request for proposals (RFP) No. DTFA02-91-R-00551, by the Federal Aviation Administration (FAA), Department of Transportation. The FAA canceled the solicitation because it decided to perform the services in-house.
We dismiss the protests.
The RFP, issued on May 27, 1992, sought offers to provide repair/overall modification services for the air traffic control back-up emergency communication (BUEC) system. Four offerors submitted proposals by the closing date of July 30. On September 8, the requiring activity advised the contracting officer that the BUEC system repairs would be performed in -house; thus, a repair contract was no longer needed. By letter dated November 19, Paragon was informed of the agency's decision to do the work in-house and that the solicitation was "in the process of being canceled in its entirety." These protests followed.
Paragon contends that the FAA lacked a reasonable basis for its determination to cancel the solicitation after proposals had been submitted and to perform the services in-house. The protester also contends that the agency should have conducted a cost comparison in accordance with Office of Management and Budget Circular No. A-76.[1]
We will not review the FAA's decision to cancel the solicitation and perform the services in-house. Our Office does not generally review agency decisions to cancel procurements so as to perform the services in-house since such decisions are a matter of executive branch policy, which is not within our protest function. RAI, Inc., B-231889, July 13, 1988, 88-2 CPD Para. 48. We have recognized a limited exception to this rule where an agency utilizes the procurement system to aid in its determination by issuing a competitive solicitation for the stated purpose of comparing the costs of in-house performance with the costs of contracting. We will consider a protest that the agency failed to follow established cost comparison procedures because we believe it would be detrimental to the procurement system if, after the submission of offers, an agency were permitted to alter the procedures it had established and upon which offerors had relied. Id.; Services Alliance Sys., Inc., B-243306, Mar. 18, 1991, 91-1 CPD Para. 297.
In this case, the solicitation was not issued for the purpose of performing an A-76 cost comparison. Rather, the FAA simply elected to cancel the solicitation when it realized that the services could be performed more cheaply in-house. This conclusion was driven by a cut in available funding, and the need to maintain the BUEC system to support air traffic. Under these circumstances, the agency may properly cancel the solicitation, and review by our Office is not appropriate. Creative Resources, Inc., B-225950, Feb. 11, 1987, 87-1 CPD Para. 153. Further, contrary to the protester's assumption, the decision to perform the services in-house need not be based upon the results of an A-76 cost comparison. H. David Feltoon, B-232418, Jan. 5, 1989, 89-1 CPD Para. 10.
The protests are dismissed.
1. Paragon also complains that the agency failed to timely provide it with certain information requested under the Freedom of Information Act (FOIA), 5 U.S.C. Sec. 552 (1988), and asserts that the agency unduly delayed its decision to cancel the RFP and otherwise failed to satisfy certain procedural notice requirements. Our Office has no authority to determine what information an agency must disclose in connection with a FOIA request, and Paragon's recourse in this regard is to pursue the remedies under FOIA. Government Sys. Integration Corp., B-227065, Aug. 7, 1987, 87-2 CPD Para. 137. As to the alleged delay and lack of notice, those procedural deficiencies do not provide a basis for protest. Cajar Defense Support Co., B-239297, July 24, 90-2 CPD Para. 76.