B-177726, APR 4, 1973

B-177726, APR 4, 1973

BID PROTEST - CANCELLATION OF RFP DECISION DENYING THE PROTEST OF MOBILE AEROSPACE CORPORATION AGAINST THE CANCELLATION OF A RFP ISSUED BY THE NAVAL AIR SYSTEMS COMMAND, WASHINGTON, D.C. FOR PERIODIC DEPOT LEVEL MAINTENANCE ON P-2 SERIES AIRCRAFT. THE CONTRACTING ACTIVITY DID NOT ABUSE ITS BROAD DISCRETIONARY AUTHORITY TO REJECT ALL OFFERS. SEE B-167364, SEPTEMBER 29, 1969.

TO MOBILE AEROSPACE CORPORATION:

REFERENCE IS MADE TO THE DECEMBER 27, 1972, TELEGRAM FILED ON YOUR BEHALF, PROTESTING AGAINST CANCELLATION OF REQUEST FOR PROPOSALS NO. N00019-72-R-0157, ISSUED BY THE NAVAL AIR SYSTEMS COMMAND (NAVAIR), WASHINGTON, D.C.

THE RFP, ISSUED ON AUGUST 23, 1972, SOLICITED OFFERS FOR THE PERFORMANCE OF PERIODIC DEPOT LEVEL MAINTENANCE ON P-2 SERIES AIRCRAFT. VARIOUS AMENDMENTS EXTENDED THE DATE FOR RECEIPT OF OFFERS TO OCTOBER 6, 1972. MOBILE AEROSPACE WAS FOUND TO BE THE LOW OFFEROR, BUT AS A RESULT OF A PREAWARD SURVEY CONDUCTED ON OCTOBER 18-20, 1972, IT WAS DETERMINED THAT MOBILE WAS NOT A RESPONSIBLE OFFEROR. IN VIEW OF MOBILE'S STATUS AS A SMALL BUSINESS, THE MATTER WAS THEN REFERRED TO THE SMALL BUSINESS ADMINISTRATION, WHICH ISSUED A CERTIFICATE OF COMPETENCY ON DECEMBER 13, 1972. MEANWHILE, BY LETTER OF DECEMBER 12, 1972, NAVAIR NOTIFIED YOU THAT THE SOLICITATION WAS CANCELLED BECAUSE A REDUCTION IN PROGRAM FUNDS "NECESSITATES A COMPLETE REASSESSMENT OF ALL REWORK REQUIREMENTS *** IN THE LIGHT OF CURTAILED RESOURCES." YOUR PROTEST FOLLOWED.

YOU ASSERT THAT THE NAVY'S REQUIREMENTS FOR THE SERVICES COVERED BY THE RFP DID NOT CHANGE AND THAT THE TRUE REASON FOR THE CANCELLATION WAS "THE NAVY'S EFFORT TO AVOID PLACING A CONTRACT *** WITH A SMALL BUSINESS CONCERN." YOUR CLAIM THAT THE CANCELLATION WAS ARBITRARY AND CONTRARY TO APPLICABLE LAW AND REGULATIONS.

THE NAVY, IN ITS REPORT TO US ON THIS MATTER, STATES THAT A REVIEW OF ITS AIRCRAFT REWORK PROGRAMS WAS UNDERTAKEN DURING THE LATER STAGES OF THIS PROCUREMENT BECAUSE THE FISCAL YEAR 1973 DEPARTMENT OF DEFENSE APPROPRIATION ACT, P.L. 92-570, ENACTED OCTOBER 26, 1972, DID NOT INCLUDE CERTAIN OPERATION AND MAINTENANCE FUNDS REQUESTED BY THE NAVY. THE REPORT FURTHER STATES:

*** THE DELETION OF THE FUNDS HAD A VERY SIGNIFICANT IMPACT ON THE NAVY'S OPERATIONS AND MAINTENANCE (O&MN) FINANCIAL PLAN FOR FISCAL YEAR 1973. THIS PLAN, WHICH INCLUDES THE AIRCRAFT REWORK PROGRAM, WAS THEREUPON REVISED. ON 9 DECEMBER 1972 THE CHIEF OF NAVAL MATERIAL NOTIFIED NAVAIR OF A SUBSTANTIAL REDUCTION IN FUNDS AVAILABLE FOR AIRCRAFT REWORK IN FISCAL YEAR 1973. IN VIEW OF THE REDUCTION IN FUNDING AND UNCERTAINTIES THEREBY RAISED AS TO THE AIRCRAFT TO BE REWORKED, IT WAS DETERMINED THAT A LENGTHY REASSESSMENT OF THE ENTIRE REWORK PROGRAM WOULD BE NECESSARY AND THAT NO REWORK PROCUREMENTS SHOULD BE MADE UNTIL ITS COMPLETION.

THE NAVY REPORT INDICATES THAT IT THEN CANCELLED THREE OUTSTANDING SOLICITATIONS FOR AIRCRAFT REWORK, INCLUDING RFP -0157, SOLELY FOR THIS REASON, AND DENIES THAT THE INSTANT RFP WAS CANCELLED TO AVOID PLACING A CONTRACT WITH A SMALL BUSINESS CONCERN.

PARAGRAPH 10(B) OF THE "SOLICITATION INSTRUCTIONS AND CONDITIONS" OF THE CANCELLED RFP STATED THAT THE GOVERNMENT RESERVES THE RIGHT TO REJECT ANY OR ALL OFFERS. WE HAVE HELD THAT THE AUTHORITY TO REJECT ALL OFFERS IS BROAD AND IS PRIMARILY A MATTER OF ADMINISTRATIVE JUDGMENT. B-167364, SEPTEMBER 29, 1969; B-168000, NOVEMBER 26, 1969. IN VIEW OF THE NAVY'S EXPLANATION FOR THE CANCELLATION AND THE ABSENCE OF ANY EVIDENCE IN THE RECORD TO THE CONTRARY, THERE IS NO BASIS FOR US TO CONCLUDE THAT NAVAIR ABUSED ITS DISCRETION IN DECIDING TO CANCEL THE SOLICITATION.

ACCORDINGLY, YOUR PROTEST IS DENIED.