TITLE:  A-Tek, Inc., B-286967, March 22, 2001
BNUMBER:  B-286967
DATE:  March 22, 2001
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A-Tek, Inc., B-286967, March 22, 2001

Decision

Matter of: A-Tek, Inc.

File: B-286967

Date: March 22, 2001

Debra A. Mays for the protester.

Vickie R. Shaw, Esq., Department of the Treasury, for the agency.

John L. Formica, Esq., and James A. Spangenberg, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Agency's cancellation of a solicitation for an uninterruptible power supply
system is reasonable where the solicitation was ambiguous and/or overstated
the agency's minimum needs.

DECISION

A-Tek, Inc. protests the cancellation of request for proposals (RFP) No.
CS-I-00-013, issued by the Customs Service, Department of the Treasury, for
replacement of the uninterruptible power supply (UPS) service to the
Newington Data Center, Newington, Virginia.

We deny the protest.

The agency issued the RFP for the installation and support of the UPS
service for 5 years from the date of contract award. RFP attach. A,
statement of work (SOW), at 1. The RFP provided for the award of a
fixed-price contract to the offeror submitting the proposal representing the
best overall value to the government, considering certain designated
evaluation criteria. The agency received and evaluated proposals and revised
proposals, [1] and determined that the proposal submitted by Commercial Air,
Power & Cable, Inc. represented the best value to the government.

After receiving a debriefing on October 5, A-Tek filed a protest with the
agency, contending that the agency's evaluation of its proposal and
selection of Commercial Air's proposal for award were unreasonable. A-Tek
specifically argued in its agency-level protest that all of the proposals
received, other than A-Tek's, should have been rejected as technically
unacceptable because they did not offer to complete the installation of the
system within 45 days of contract award as A-Tek claimed was required by the
solicitation. Agency Report (AR), Tab V, Agency-Level Protest (Oct. 10,
2000).

The agency found, after reviewing A-Tek's protest, that the proposals had
not been properly evaluated, and that the RFP was ambiguous as to whether
the installation of the system had to be completed within 45 days of
contract award. Agency Legal Memorandum at 2. The agency also concluded that
the evaluation factors set forth in the solicitation required revision, and
that a more detailed SOW was needed. Id.; Contracting Specialist's Statement
at 4. Accordingly, the agency informed A-Tek by letter dated November 17
that "[a]fter a rather extensive agency review, [the agency has] decided
that the acquisition should be resolicited to clarify certain specification
requirements, including the time limits for performance." AR, Tab V, Agency
Letter to A-Tek (Nov. 17, 2000).

A-Tek then filed another protest with the agency, challenging the agency's
cancellation of the solicitation and the evaluation of the proposals. In
this protest, A-Tek also asserted for the first time that during the conduct
of the procurement, the contracting specialist had improperly disclosed
A-Tek's "strategy" to Commercial Air. AR, Tab V, Agency-Level Protest (Nov.
20, 2000).

The agency subsequently informed A-Tek that the agency had determined "that
portions of the solicitation and specification were ambiguous and deficient"
and as a result the "specification will be rewritten to provide more clarity
relative to the specific requirements of the [agency]." AR, Tab V, Agency
Letter to A-Tek (Dec. 4, 2000).

A-Tek filed this protest with our Office on December 14, arguing that the
agency's evaluation of proposals and selection of Commercial Air's proposal
for award were unreasonable, and that the agency's subsequent cancellation
of the solicitation was improper. The protester also contended that the
agency improperly disclosed its "unique performance strategy [to] other
offerors."

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 interests. Federal Acquisition Regulation sect. 15.608(b)(4);
Tender Loving Care Ambulance & Ambulette Co., Inc., B-271571.2, June 17,
1997, 97-2 CPD para. 25 at 2. In a negotiated procurement such as this one, the
contacting agency has broad discretion in deciding whether to cancel a
solicitation and need only establish a reasonable basis for doing so. Tender
Loving Care Ambulance & Ambulette Co., Inc., supra.
A reasonable basis exists when, for example, a solicitation is ambiguous, or
where it overstates the agency's minimum needs, such that the cancellation
of the solicitation and issuance of a revised solicitation would present the
potential for increased competition or costs savings. Chant Eng'g Co., Inc.,
B-270149.2, Feb. 14, 1996, 96-1 CPD para. 96 at 2.

The agency explains that it became concerned during the conduct of the
procurement that the drawings included in the amended RFP "were very old,"
and realized after receipt of revised proposals "that the solicitation and
evaluation process should have been clearer and more precise." Contracting
Specialist's Statement at 1, 4. In this regard, the agency reports that it
intends to obtain the services of an architect and engineering contractor to
aid in the development of "a more detailed specification/SOW" and revised
"source selection criteria." Id. at 4.

The agency adds that during its consideration of A-Tek's initial
agency-level protest, it realized that the evaluation factors set forth in
the RFP were inconsistent with certain aspects of the SOW, and that the
solicitation may have been ambiguous regarding the time allowed for
installation of the UPS system. Specifically, as mentioned previously, A-Tek
clearly felt that the requirement set forth in the solicitation as initially
issued that "[t]he equipment shall be installed, tested and accepted within
45 calendar days after Contract award" remained, whereas the agency (as well
as certain of the other offerors) believed that the 45-day installation
requirement had been effectively deleted by amendment No. 0001 to the RFP.
RFP attach. A, at 2; amend. No. 0001, attach. A, at 2. The agency explains
here that the 45-day installation requirement exceeds its minimum needs, and
that had the solicitation been clear in this regard, the agency may have
received offers from firms who were "unable to meet the 45-day deadline."
Agency Legal Memorandum at 7. The agency points out that it received a
letter from a firm that had been interested in competing for the contract
but had not submitted a proposal because of "the time frame required to
complete [the] project." Id.; AR, Tab X. The agency adds that the
solicitation's ambiguity in this regard may have also caused certain of the
offers to have been higher priced than they would have been had the
solicitation, as amended, clearly provided that the 45-day installation
requirement was no longer applicable. Agency Legal Memorandum at 7.

The protester does not substantively challenge the agency's position that
the solicitation's SOW and source selection criteria should have been
clearer, and based upon this record, we have no reason to find the agency's
view here objectionable. More importantly, the record reflects that the
solicitation was either ambiguous with regard to the time allowed for
installation of the UPS system, or overstated the agency's minimum needs by
continuing to mandate a 45-day installation period, and that the agency may
obtain enhanced competition by amending the solicitation to clearly reflect
its needs in this regard. Accordingly, we find that the agency's decision to
cancel the solicitation to revise the source selection criteria and
specifications to better reflect the agency's actual requirements, and seek
enhanced competition, was reasonable. [2]

The protester's contention that the agency improperly disclosed A-Tek's
proprietary "strategy" is untimely and will not be considered. Specifically,
the record reflects that the protester was aware of the facts underlying
this contention by August 20. Protester's Written Statement at 1-2 (Feb. 22,
2001). At the latest, this aspect of A-Tek's protest should have been raised
within 10 days of A-Tek's October 5 debriefing. However, A-Tek did not raise
this issue with the agency until it filed its second agency-level protest on
November 20. Because this issue was not raised by A-Tek in a timely manner
with the agency, A-Tek's subsequent protest to our Office contending that
the agency improperly disclosed A-Tek's "strategy" is untimely. 4 C.F.R.
sect. 21.2(a)(3) (2000).

The protest is denied.

Anthony H. Gamboa

General Counsel

Notes

1. Revised proposals were requested because of requirements added by an
amendment to the RFP.

2. In light of our conclusion that the agency had a reasonable basis to
cancel the solicitation, the protester's contention that the agency's
evaluation of proposals was unreasonable is academic and will not be
considered.