B-190154, OCTOBER 5, 1977

B-190154, OCTOBER 5, 1977

CLAIM FOR BID PREPARATION EXPENSES RELATING TO CANCELLATION OF SOLICITATION MANDATED BY LACK OF FUNDS IS DENIED SINCE, AT MOST, MERE NEGLIGENCE ON PART OF GOVERNMENT IS INVOLVED WHICH DOES NOT SUPPORT RECOVERY OF EXPENSES ABSENT SHOWING THAT GOVERNMENT ACTED ARBITRARILY TOWARD BIDDER-CLAIMANT. REQUEST THAT AWARD BE MADE NOTWITHSTANDING LACK OF FUNDS IS ALSO DENIED.

R. J. BEASLEY CONSTRUCTION CORPORATION:

A CLAIM FOR BID PREPARATION COSTS HAS BEEN RECEIVED FROM R. J. BEASLEY CONSTRUCTION CORPORATION BECAUSE OF THE DEPARTMENT OF THE ARMY'S DECISION TO CANCEL INVITATION FOR BIDS (IFB) DACA65-77-B-0041 AFTER BIDS WERE OPENED UNDER THE SOLICITATION. THE IFB, UNDER WHICH BEASLEY HAD SUBMITTED A BID, WAS CANCELED WHEN THE DEPARTMENT "DISCOVERED THAT THERE WERE INSUFFICIENT FUNDS AVAILABLE TO AWARD A CONTRACT."

BID PREPARATION COSTS WILL BE ALLOWED WHERE THE GOVERNMENT ACTED ARBITRARILY OR CAPRICIOUSLY WITH RESPECT TO A CLAIMANT'S BID OR PROPOSAL. AUSTIN-CAMPBELL COMPANY, B-188659, AUGUST 9, 1977, 77-2 CPD 99. MERE NEGLIGENCE, HOWEVER, BY THE PROCURING ACTIVITY IS GENERALLY NOT SUFFICIENT TO SUPPORT A CLAIM FOR BID PREPARATION COSTS. AUSTIN CAMPBELL, SUPRA. ASSUMING, WITHOUT DECIDING, THAT THE GOVERNMENT WAS NEGLIGENT IN NOT REALIZING, PRIOR TO ISSUING THE IFB, THAT THERE WERE INSUFFICIENT FUNDS TO AWARD THE CONTRACT, THIS FACT DOES NOT MEAN THAT THE GOVERNMENT ACTED ARBITRARILY. CONSEQUENTLY, THE CLAIM IS DENIED.

ALTERNATIVELY, THE BIDDER URGES THAT AWARD SHOULD BE MADE UNDER THE IFB NOTWITHSTANDING THE LACK OF FUNDS. STATUTORY LIMITATIONS PREVENT AWARDS OF CONTRACTS, HOWEVER, WHEN FUNDS ARE NOT AVAILABLE. TIMCO, B-186177, SEPTEMBER 14, 1976, 76-2 CPD 242. CONSEQUENTLY, THE PROTEST IS DENIED.