B-200688, NOV 12, 1980
Highlights
DIGEST: PROTEST OF CANCELLATION OF IFB FILED MORE THAN 10 WORKING DAYS AFTER PROTESTER WAS NOTIFIED OF CANCELLATION AND AFTER PROTESTER RECEIVED REVISED IFB WITH ALLEGEDLY "MINOR" CHANGES ONLY IS UNTIMELY AND WILL NOT BE CONSIDERED ON MERITS. JWT WAS THE APPARENT LOW BIDDER. THE REQUIREMENT WAS RESOLICITED. A CONTRACT WAS AWARDED TO NORTHWEST CONSTRUCTION CO. JWT ESSENTIALLY ARGUES THAT AN INVITATION SHOULD NOT BE CANCELED AFTER BIDS HAVE BEEN EXPOSED AND ASSERTS THAT THE SPECIFICATION CHANGES MADE HERE WERE MINOR. JWT WAS ADVISED IN A LETTER FROM USDA DATED MAY 16. BY LETTER OF JULY 20 WAS NOTIFIED BY USDA THAT NORTHWEST CONSTRUCTION CO. WAS THE LOW BIDDER. OUR BID PROTEST PROCEDURES REQUIRE THAT PROTESTS BE FILED NOT LATER THAN 10 WORKING DAYS AFTER THE BASIS FOR PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN.
B-200688, NOV 12, 1980
DIGEST: PROTEST OF CANCELLATION OF IFB FILED MORE THAN 10 WORKING DAYS AFTER PROTESTER WAS NOTIFIED OF CANCELLATION AND AFTER PROTESTER RECEIVED REVISED IFB WITH ALLEGEDLY "MINOR" CHANGES ONLY IS UNTIMELY AND WILL NOT BE CONSIDERED ON MERITS.
JOHN R. WOOD TRUCKING INC.:
JOHN R. WOOD TRUCKING, INC. (JWT) PROTESTS THE UNITED STATES DEPARTMENT OF AGRICULTURE'S (USDA) CANCELLATION AFTER BID OPENING OF INVITATION FOR BIDS (IFB) NO. R5-14-80-50 FOR THE CONSTRUCTION OF ROADS FOR A TIMBER SALE. JWT WAS THE APPARENT LOW BIDDER. THE REQUIREMENT WAS RESOLICITED, WITH CERTAIN SPECIFICATION REVISIONS, UNDER IFB NO. R5 14-80-112, AND A CONTRACT WAS AWARDED TO NORTHWEST CONSTRUCTION CO. JWT ESSENTIALLY ARGUES THAT AN INVITATION SHOULD NOT BE CANCELED AFTER BIDS HAVE BEEN EXPOSED AND ASSERTS THAT THE SPECIFICATION CHANGES MADE HERE WERE MINOR.
JWT WAS ADVISED IN A LETTER FROM USDA DATED MAY 16, 1980, THAT IFB 50 HAD BEEN CANCELED "DUE TO DEFECTIVE SPECIFICATIONS" AND THAT THE REQUIREMENT WOULD BE REVISED AND READVERTISED. JWT ALSO BID ON THE RESOLICITATION, BUT BY LETTER OF JULY 20 WAS NOTIFIED BY USDA THAT NORTHWEST CONSTRUCTION CO. WAS THE LOW BIDDER. JWT FILED THE PROTEST IN OUR OFFICE ON OCTOBER 2.
OUR BID PROTEST PROCEDURES REQUIRE THAT PROTESTS BE FILED NOT LATER THAN 10 WORKING DAYS AFTER THE BASIS FOR PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN, WHICHEVER IS EARLIER. 4 C.F.R. SEC. 20.2(B)(2) (1980).
THUS, WE HAVE HELD THAT ORDINARILY WHERE A FIRM BIDS ON THE RESOLICITATION OF A CANCELED SOLICITATION, IT MAY NOT FIRST PROTEST THE CANCELLATION AFTER LEARNING THAT IT IS NOT ENTITLED TO AWARD UNDER THE RESOLICITATION. CONSOLIDATED PHOTOCOPY COMPANY, INC., B-196136, JANUARY 29, 1980, 80-1 CPD 80; SHERIFF CONSTRUCTION COMPANY, INC., B-192357, OCTOBER 2, 1978, 78-2 CPD 249.
IN THIS CASE, WOOD'S GENERAL OBJECTION TO THE CANCELLATION SHOULD HAVE BEEN FILED WITHIN 10 DAYS OF WHEN IT WAS NOTIFIED OF THE CANCELLATION. THE EXTENT IT BELIEVES THE CANCELLATION WAS NOT WARRANTED BECAUSE THE NEW SOLICITATION CONTAINED ONLY MINOR SPECIFICATION CHANGES, IT SHOULD HAVE FILED THE PROTEST WITHIN 10 DAYS OF ITS RECEIPT OF THE REVISED IFB. JWT DID NEITHER. CONSEQUENTLY, WE VIEW THE PROTEST AS UNTIMELY.
WITH RESPECT TO THE PROTESTER'S FIRST CONCERN, WE POINT OUT THAT PRECISELY BECAUSE THE CANCELLATION OF AN IFB AFTER BIDS ARE EXPOSED HAS A POTENTIAL ADVERSE IMPACT ON THE COMPETITIVE BIDDING SYSTEM, CANCELLATION MUST BE WARRANTED BY A COGENT AND COMPELLING REASON. SEE JOY MANUFACTURING COMPANY, B-200043, SEPTEMBER 10, 1980, 80-2 CPD 188. THE PROCUREMENT REGULATIONS AUTHORIZE A CONTRACTING OFFICER TO CANCEL AN IFB AFTER BID OPENING WHERE "INADEQUATE, AMBIGUOUS, OR OTHERWISE DEFICIENT SPECIFICATIONS WERE CITED ***." FEDERAL PROCUREMENT REGULATIONS SEC. 1- 2.404-1 (1964 ED.).
THE PROTEST IS DISMISSED.