BNUMBER:  B-276571.2 
DATE:  July 17, 1997
TITLE: Tender Loving Care Ambulance & Ambulette Co., Inc., B-
276571.2, July 17, 1997
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Matter of:Tender Loving Care Ambulance & Ambulette Co., Inc.

File:     B-276571.2

Date:July 17, 1997

Zulima V. Farber, Esq., Lowenstein, Sandler, Kohl, Fisher & Boylan, 
for the protester.
Maria D. Esparraguera, Esq., and Craig E. Hodge, Esq., Department of 
the Army, for the agency.
Tania L. Calhoun, Esq., and Christine S. Melody, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest that contracting agency's decision to cancel solicitation in a 
negotiated procurement was unreasonable is denied where the record 
shows that the solicitation's stated estimates, upon which pricing was 
based, were significantly overstated, and the solicitation failed to 
include certain material provisions.

DECISION

Tender Loving Care Ambulance & Ambulette Co., Inc. (TLC) protests as 
unreasonable the cancellation of request for proposals (RFP) No. 
DAAB08-96-R-0021, issued by the Department of the Army to obtain 
emergency medical technician services and transport for Fort Monmouth, 
New Jersey.     

We deny the protest.

This small business set-aside solicitation anticipated the award of a 
fixed-price, indefinite delivery, indefinite quantity contract for 
these services.  Offerors' pricing was to be based upon the 
solicitation's estimated number of "runs" to be made to various 
medical facilities over each of 3 years; the RFP estimated the annual 
number of runs at 660. 

TLC, the incumbent contractor, and Monmouth-Ocean Hospital Services 
Corporation (MONOC), were the only two firms submitting proposals.  
The Army evaluated these proposals, conducted two rounds of 
discussions, and evaluated
two sets of best and final offers (BAFO).  MONOC was awarded the 
contract on February 26, 1997, as the offeror whose proposal was most 
advantageous to the government.  In addition to its superior past 
performance rating, MONOC's price was lower than TLC's.

TLC filed a protest in this Office arguing that MONOC was not a small 
business, that the solicitation's estimated number of runs was 
significantly overstated, and that the Army improperly evaluated its 
proposal with respect to past performance.  Our Office dismissed the 
first two bases of protest as beyond our jurisdiction and as untimely, 
respectively.  On April 23, TLC withdrew the remainder of its protest 
after the Small Business Administration determined that MONOC was not 
a small business.  Two weeks later, the Army advised TLC of its 
intention to cancel the solicitation and to issue a revised 
competitive solicitation.  This protest followed.

A procuring agency may reject all proposals (even if technically 
acceptable) received in response to a solicitation if cancellation is 
clearly in the government's best interest.  Federal Acquisition 
Regulation (FAR)  sec.  15.608(b)(4); Labatt Food Serv., Inc., B-259900, 
May 3, 1995, 95-1 CPD  para.  229 at 3.  In a negotiated procurement such as 
this one, the contracting agency has broad discretion in deciding 
whether to cancel a solicitation and need only establish a reasonable 
basis for doing so.  See JRW Management Co., Inc., B-260396.2, June 
16, 1995, 95-1 CPD  para.  276 at 6-7.  Our review of each of the three 
bases for the Army's decision to cancel this solicitation shows that 
any one of them, standing alone, reasonably supports its decision.  
For the sake of brevity, we will discuss only two of the bases for the 
cancellation.[1] 

First, the Army concurs with TLC's prior (but untimely) allegation 
that the solicitation's estimates are significantly overstated.  
Projections based upon current usage show that 330 runs annually is 
the most reasonable estimate, half that set forth in the solicitation.  
A solicitation for an indefinite quantity of goods or services must 
contain estimates based on the best information available and must 
present a reasonably accurate representation of the agency's 
anticipated actual needs.  Lederle-Praxis Biologicals Div., American 
Cyanamid Corp., B-257104 et al., Aug. 22, 1994, 94-2 CPD  para.  205 at 5.  

TLC does not dispute the reasonableness of the Army's present 
estimates, but complains that it is unfair to deprive TLC of award 
under the canceled solicitation when it was TLC itself who pointed out 
the flaw in the estimates.  This contention provides no basis to 
object to the agency's decision to cancel.  There is no justification 
apparent from the record here for the agency in effect to negotiate a 
sole source contract with TLC simply because that firm raised a 
solicitation impropriety.  On the contrary, the agency clearly failed 
to comply with the requirement to set forth reasonably accurate 
estimates and, since a resolicitation with accurate estimates may 
result in cost savings to the government, this basis for canceling the 
solicitation is reasonable.  See G.K.S. Inc., 68 Comp. Gen. 589, 591 
(1989), 89-2 CPD  para.  117 at 3 (a reasonable basis to cancel exists when 
a new solicitation presents the potential for increased competition or 
cost savings).    

Second, the Army points out that the solicitation improperly failed to 
include the mandatory "Indefinite Quantity" clause at FAR  sec.  52.216-22, 
as well as any indication of the minimum quantity to be ordered.  FAR  sec.  
16.504(a)(4)(ii) requires indefinite quantity solicitations to specify 
the total minimum quantity or dollar value of supplies or services to 
be acquired under the contract.  An indefinite quantity contract is 
enforceable and, thus, binding on the parties only if the buyer agrees 
to purchase from the seller at least a guaranteed minimum quantity of 
goods and services.  Sunbelt Properties, Inc., B-249307, Oct. 30, 
1992, 92-2 CPD  para.  309 at 3.  Moreover, since such minimum guarantees 
affect the contract's level of risk, they generally have a significant 
effect on offerors' prices.  See Park Sys. Maintenance, Inc., 
B-252453.4, B-253373.3, Nov. 4, 1993, 93-2 CPD  para.  265 at 3.  Contrary 
to TLC's argument, these provisions cannot simply be added to the 
contract at a later date, given their material impact on the 
competition and the parties' legal obligations. 

In sum, given the flaw in the estimates and the omission of the 
material FAR clauses, we conclude that the agency had a reasonable 
basis to cancel the RFP.

The protest is denied.

Comptroller General
of the United States

1. The Army's third basis for cancellation is its conclusion that 
award to TLC would violate the rule that purchases must be made at 
fair and reasonable prices.  See FAR  sec.  15.802(a).