B-171761, NOV 30, 1971

B-171761, NOV 30, 1971

BID PROTEST - CANCELLATION OF SOLICITATION DENIAL OF PROTEST AGAINST THE CANCELLATION AND READVERTISEMENT OF A PORTION OF AN IFB ISSUED BY THE U.S. MARINE CORPS, FOR ELECTRONIC MAINTENANCE SHELTER AN/GRM-86 AND ITS ASSOCIATED DATA ITEMS. THERE IS A WIDE RANGE OF DISCRETION ACCORDED THE CONTRACTING OFFICER IN DECIDING, AFTER BID OPENING, TO REJECT ALL BIDS AND TO READVERTISE THE SOLICITATION, AND THE COMP. GEN. CANNOT SAY THAT IT CONSTITUTED AN ABUSE OF THAT DISCRETION WHERE, AS HERE, IT WAS DETERMINED THAT CANCELLATION AND RESOLICITATION WOULD RESULT IN A SUBSTANTIAL SAVINGS TO THE GOVERNMENT.

TO KECO INDUSTRIES, INC.:

WE REFER TO YOUR TELEGRAM DATED AUGUST 9, 1971, PROTESTING THE CANCELLATION AND READVERTISEMENT OF THAT PORTION OF INVITATION FOR BIDS (IFB) NO. M00027-71-B-0006, ISSUED BY THE UNITED STATES MARINE CORPS, WASHINGTON, D.C., PERTAINING TO ELECTRONIC MAINTENANCE SHELTER, AN/GRM 86 AND ITS ASSOCIATED DATA ITEMS. YOU CONTEND THAT THE AWARD OF A CONTRACT FOR AN/GRM-86 SHOULD BE MADE UNDER THE ORIGINAL IFB TO YOUR FIRM AS THE LOW BIDDER FOR THAT ITEM.

THE IFB, ISSUED ON AUGUST 26, 1970, CALLED FOR BIDS ON ITEM 0001, ELECTRONIC SHOP AN/GRM-32D; ITEM 0011, ELECTRONIC SHOP AN/GRM-38B; AND ITEM 0021, ELECTRONIC MAINTENANCE SHELTER AN/GRM-86, ALL WITH ASSOCIATED DATA ITEMS. OUT OF THE NINE BIDS RECEIVED, FOUR WERE DETERMINED TO BE NONRESPONSIVE. YOUR RESPONSIVE BID IS SECOND LOW FOR THE TOTAL OF ALL ITEMS, ALTHOUGH LOW ON AN/GRM-86. BEFORE AWARD, SEVERAL BIDDERS INCLUDING YOUR FIRM PROTESTED THE SUBJECT PROCUREMENT TO THIS OFFICE. ON AUGUST 4, 1971, THE MARINE CORPS CANCELLED THE SUBJECT IFB FOR THE FOLLOWING REASONS: (1) THERE IS NO LONGER A REQUIREMENT FOR AN/GRM-32 AND AN/GRM-38; AND (2) AWARD CANNOT BE MADE FOR THE REMAINING AN/GRM-86 EQUIPMENT BECAUSE THE IFB "REQUESTED OFFERS ON A LOT BASIS." THIS REQUIREMENT IS SCHEDULED TO BE READVERTISED.

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

ON THE OTHER HAND, THE ACTIVITY ASSERTS THAT THE IFB CLEARLY ILLUSTRATES THE INTENT TO MAKE AN AWARD TO ONE BIDDER FOR ALL ITEMS. THE FOLLOWING FACTORS ARE OFFERED IN SUPPORT OF THE ACTIVITY'S CONTENTION THAT AN AGGREGATE AWARD WAS INTENDED: (1) PAGE 2 OF AMENDMENT NO. P0003 TO THE SUBJECT IFB PROVIDES THAT "PROPOSALS WILL BE EVALUATED ON THE BASIS OF ALL ITEMS ... ", (2) PARAGRAPH 2 OF AMENDMENT P0005 UTILIZES THE PHRASE "SUCCESSFUL BIDDER" IN THE SINGULAR AND OTHER PORTIONS OF THE IFB REFER TO "AWARD" ALSO IN THE SINGULAR, (3) THE PROCUREMENT IS NOT CONDUCIVE TO MULTIPLE AWARDS IN VIEW OF THE REQUIREMENT FOR FIRST ARTICLE TESTING AND PROVISIONING AND (4) THE IFB CONTAINS NO PROVISION FOR THE INCLUSION OF A $50.00 ADMINISTRATIVE CHARGE AS AN EVALUATION FACTOR AS PRESCRIBED FOR MULTIPLE AWARD SITUATIONS BY ASPR 2-201(A) SEC. D (III).

THE MARINE CORPS STATES THAT IT WAS THE ADMINISTRATIVE INTENTION TO HAVE A SINGLE CONTRACTOR FOR ALL THE IFB ITEMS AND THAT THE IFB WAS DRAFTED WITH THIS PURPOSE IN MIND. FURTHERMORE, WE ARE ADVISED BY THE MARINE CORPS AS FOLLOWS, IN CONNECTION WITH THE NEW REQUIREMENT:

"1. THE REQUIREMENTS FOR THE AN/GRM-32, 38B AND 86 SHELTERS WERE COMBINED UNDER IFB M00027-71-B-0006 IN ORDER TO ASSURE AN ECONOMIC PROCUREMENT. ALTHOUGH THERE IS NO LONGER A REQUIREMENT FOR 19 AN/GRM 32 SHELTERS AND 18 AN/GRM-38B SHELTERS, THERE IS A REQUIREMENT FOR 51 AN/GRM- 94 SHELTERS. THE LATTER SHELTER IS AN ADVANCED MODEL WHICH WILL REPLACE THE OTHER TWO MODELS. IN ORDER TO ASSURE AN ECONOMIC PROCUREMENT OF THE AN/GRM-94, IT IS NECESSARY TO COMBINE THEM WITH THE 88 AN/GRM-86 SHELTERS.

"2. SEPARATE CONTRACTS FOR THE TWO TYPES OF SHELTERS WOULD RESULT IN ADDITIONAL COSTS TO THE GOVERNMENT. PRIMARILY, THESE ADDITIONAL COSTS WOULD BE INCURRED IN THE FOLLOWING AREAS: CONTRACT ADMINISTRATION; PROVISIONING (DETERMINING REQUIREMENT FOR AND PURCHASE OF REPAIR PARTS); FIRST ARTICLE TESTING; AND PRE-ACCEPTANCE TESTING."

THERE IS, OF COURSE, A WIDE AREA OF DISCRETION ACCORDED THE CONTRACTING OFFICER IN DECIDING, AFTER BID OPENING, TO REJECT ALL BIDS AND READVERTISE. WHILE SUCH ACTION CAN BE TAKEN ONLY FOR A MOST COGENT REASON, ONE SUCH RECOGNIZED REASON IS THE PROSPECT OF SUBSTANTIAL MONETARY SAVINGS TO THE GOVERNMENT. 36 COMP. GEN. 364 (1956). SEE ALSO 43 COMP. GEN. 268, 273 (1963). IN THE CIRCUMSTANCES, WE CANNOT CONCLUDE THAT THE DECISION OF THE CONTRACTING OFFICER TO CANCEL THE SUBJECT IFB AND READVERTISE THE REMAINING REQUIREMENT CONSTITUTES AN ABUSE OF HIS DISCRETIONARY AUTHORITY.

ACCORDINGLY, YOUR PROTEST MUST BE DENIED.