B-200735, JUN 22, 1981

B-200735, JUN 22, 1981

DIGEST: DETERMINATION OF WHETHER JUSTIFICATION TO CANCEL INVITATION FOR BIDS EXISTS IS MATTER OF AGENCY DISCRETION AND THEREFORE WILL NOT BE DISTURBED ABSENT CLEAR PROOF OF ABUSE OF DISCRETION.

MICA, INC.:

MICA, INC. PROTESTS THE CANCELLATION OF INVITATION FOR BIDS (IFB) N00228- 80-B-QA28 ISSUED BY THE NAVAL SUPPLY CENTER (NAVY), OAKLAND, CALIFORNIA, FOR VARIOUS TYPES OF CARPETING. THE IFB WAS CANCELED BEFORE BID OPENING WHEN THE CONTRACTING OFFICER BECAME AWARE OF THE AWARD BY THE GENERAL SERVICES ADMINISTRATION (GSA) OF A FEDERAL SUPPLY SCHEDULE (SCHEDULE) CONTRACT WHICH INCLUDED THE CARPETING TO EBSCO INTERIORS, WHICH THE CONTRACTING OFFICER BELIEVED HE WAS REQUIRED BY REGULATION TO USE.

THE PROTEST IS DENIED.

THE RECORD INDICATES THAT BEFORE ISSUING THE IFB THE CONTRACTING OFFICER INVESTIGATED WHETHER THERE WAS A SCHEDULE FOR THE CARPETING. HE FOUND NONE AND ALSO DETERMINED THAT NONE WAS EXPECTED TO BE AWARDED BEFORE OCTOBER 1, 1980. THE SOLICITATION WAS ISSUED AUGUST 25, 1980, WITH BID OPENING SET FOR SEPTEMBER 22. ON SEPTEMBER 18 EBSCO INTERIORS NOTIFIED THE CONTRACTING OFFICER THAT GSA HAD AWARDED THE FIRM A SCHEDULE CONTRACT WHICH INCLUDED THE CARPETING THAT THE NAVY WAS SEEKING IN ITS SOLICITATION. ON THE FOLLOWING DAY GSA CONFIRMED THE AWARD TO EBSCO INTERIORS AND ALSO INFORMED THE NAVY THAT THE SCHEDULE WAS MANDATORY. THE MORNING OF THE BID OPENING DATE, EBSCO INTERIORS FURNISHED THE CONTRACTING OFFICER A COPY OF A SECTION OF ITS NEW CONTRACT WITH GSA WHICH SHOWED THAT THE CONTRACT INCLUDED THE CARPETING SOUGHT. IN VIEW THEREOF, AND BECAUSE THE LIST IN DEFENSE ACQUISITION REGULATION (DAR) SEC. 5-102.3 (1976 ED.) OF THOSE SCHEDULES WHICH ARE MANDATORY FOR USE BY THE DEPARTMENT OF DEFENSE (DOD) INCLUDES THE GROUP AND CLASS OF ITEMS TO WHICH THE CARPETING IN QUESTION BELONGS, THE IFB WAS CANCELED.

IN A REPORT ON THE PROTEST, THE NAVY ACKNOWLEDGES THAT THE SCHEDULE IN FACT IS NOT REQUIRED TO BE USED BY DOD FOR THE CARPETING. THE REASON IS THAT A PROVISION IN EBSCO INTERIORS' SCHEDULE CONTRACT, WHICH THE NAVY WAS NOT FURNISHED UNTIL AFTER THE PROTEST WAS FILED, EXEMPTS THESE PARTICULAR TYPES OF CARPETING FROM THE MANDATORY PURCHASE REQUIREMENT. IN THIS RESPECT, DAR SEC. 5-102.3 ADVISES THAT THE SCHEDULE INVOLVED SHOULD BE CHECKED FOR COMPLETE DETAILS CONCERNING EXCEPTIONS TO MANDATORY PURCHASE REQUIREMENTS. HOWEVER, THE NAVY NONETHELESS CONTENDS THAT IT ACTED REASONABLY IN CANCELING THE SOLICITATION BASED ON THE INFORMATION WHICH IT HAD AT THAT TIME.

DAR SEC. 2-209 PROVIDES THAT "INVITATIONS FOR BIDS SHOULD NOT BE CANCELED (BEFORE OPENING) UNLESS CANCELLATION IS CLEARLY IN THE PUBLIC INTEREST, SUCH AS WHERE THERE IS NO LONGER A REQUIREMENT FOR THE SUPPLIES OR SERVICES ***." IN CONSTRUING THIS PROVISION, WE HAVE HELD THAT THE DETERMINATION WHETHER A COGENT REASON EXISTS FOR CANCELLATION IS A MATTER PRIMARILY WITHIN THE DISCRETION OF THE CONTRACTING AGENCY AND THEREFORE IT WILL NOT BE DISTURBED BY OUR OFFICE ABSENT CLEAR PROOF OF ABUSE OF DISCRETION. B-175138, JANUARY 3, 1973.

IN VIEW OF THE CAUTION IN DAR SEC. 5-102.3 THAT SPECIFIC SCHEDULES MAY CONTAIN EXCEPTIONS TO MANDATORY PURCHASE REQUIREMENTS, WE BELIEVE THAT THE CONTRACTING OFFICER SHOULD HAVE REQUESTED A COPY OF THE ENTIRE SCHEDULE CONTRACT FROM EBSCO INTERIORS INSTEAD OF RELYING ON ONLY THE SECTION FURNISHED BY THE FIRM BEFORE DETERMINING THAT THE PARTICULAR CARPETING SOUGHT HAD TO BE PURCHASED FROM EBSCO INTERIORS.

NONETHELESS, IN OUR VIEW, THE CONTRACTING OFFICER REASONABLY RELIED ON THE INFORMATION DISCUSSED ABOVE IN CANCELING THE SOLICITATION. HE KNEW THAT A SCHEDULE CONTRACT FOR CARPETING HAD BEEN AWARDED; GSA ADVISED HIM THAT THE SCHEDULE WAS MANDATORY FOR DOD CARPETING PURCHASES; THE PORTION OF EBSCO INTERIORS' CONTRACT THAT HE WAS FURNISHED INCLUDED THE SAME TYPES OF CARPETING BEING SOUGHT BY THE NAVY; AND THE GROUP AND CLASS OF THIS CARPETING WERE INCLUDED IN THE DAR SEC. 5-102.3 LIST OF MANDATORY SCHEDULE PURCHASE ITEMS. UNDER THESE CIRCUMSTANCES, WE CANNOT SAY THAT THE CANCELLATION OF THE IFB WAS AN ABUSE OF THE CONTRACTING AGENCY'S DISCRETION UNDER DAR SEC. 2-209.

THE PROTEST IS DENIED.