TITLE: B-297450.3, Saturn Landscape Plus, Inc., April 18, 2006
BNUMBER: B-297450.3
DATE: April 18, 2006
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B-297450.3, Saturn Landscape Plus, Inc., April 18, 2006

   Decision

   Matter of: Saturn Landscape Plus, Inc.

   File: B-297450.3

   Date: April 18, 2006

   John T. Bray, Esq., for the protester.

   Maj. Lawrence M. Anderson, Department of the Air Force, for the agency.

   Kenneth Kilgour, Esq., and Christine S. Melody, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest challenging certain agency decisions as improper because they
   allegedly were made in bad faith is denied where the record shows that
   there is no basis to question the propriety of the challenged decisions;
   specifically, the record shows that the agency reasonably decided to
   cancel the initial solicitation and issue a revised solicitation to
   reflect reduced option periods and changed evaluation factors, and the
   agency properly decided to set the procurement aside for Historically
   Underutilized Business Zone (HUBZone) firms based on the reasonable
   expectation of receiving two or more offers from HUBZone firms and making
   award at a fair market price.

   DECISION

   Saturn Landscape Plus, Inc. protests certain decisions by the Department
   of the Air Force regarding request for proposals (RFP) Nos.
   FA5004-05-R-C004 and FA5004-06-R-C007, for landscape services at Eielson
   Air Force Base (AFB), Alaska. Saturn asserts that the Air Force acted in
   bad faith toward Saturn by: canceling the initial RFP instead of
   reevaluating offers and making a new award decision; issuing the revised
   RFP as a set-aside for Historically Underutilized Business Zone (HUBZone)
   firms; and posting to the Federal Business Opportunities (FedBizOpps)
   website allegedly "duplicitous" answers to questions submitted by
   potential offerors. Saturn also protests the agency's alleged failure to
   take timely corrective action in response to Saturn's initial protest of
   the award decision under the original RFP.

   We deny the protest.

   On March 1, 2005, the Air Force issued RFP No. FA5004-05-C004 for
   landscape services at Eielson AFB. The contract, a total small business
   set-aside, was to be awarded to the firm whose proposal offered the best
   value to the government. The base performance period was April 15, 2006 to
   September 30, 2006, with nine 1-year options. Offerors were required to
   submit their proposals by May 2; nine offerors, including Saturn and Hawks
   Enterprises, submitted proposals. The contract was awarded to Hawks on
   September 30. Saturn, the incumbent contractor, protested the award to our
   Office on October 17, asserting, among other challenges, flaws in the
   agency's past performance evaluation of the awardee. On December 2, the
   agency advised that it intended to take corrective action, either by
   terminating the award to Hawks, reevaluating all proposals, and making a
   new award decision, or by canceling the solicitation and issuing a new
   solicitation with a call for new proposals. On December 2, we dismissed
   the protest as academic.[1] According to the Air Force, it received
   notification of our decision to dismiss the protest on December 5. By
   letter of December 6, the Air Force informed Hawks of the government's
   intent to terminate the contract, effective that day.

   The agency decided to issue a revised RFP to reflect the following
   changes. After the initial solicitation was issued in March 2005, Eielson
   AFB was included on the Base Realignment and Closure (BRAC) list. Although
   Eielson AFB was ultimately removed from that list, the Air Force reports
   that concern over future BRAC decisions regarding the base and a desire
   for greater flexibility in planning prompted the agency to reduce the
   number of option periods from nine to six. Technical evaluation factors
   also were added to the two existing factors--past performance and
   price--and the revised past performance information provided new
   definitions of "relevant" past performance and "similar size." Agency
   Report (AR), Tab 7, RFP at 8-9. The agency also made the determination to
   set aside the procurement for HUBZone firms. In September 2005, the
   contracting squadron at Eielson AFB received a protest regarding another
   procurement, alleging that it should have been set aside for HUBZone
   firms.[2] The contracting squadron canceled that solicitation and
   determined that, for all future solicitations, it would conduct
   appropriate market research for all potential set-asides. Consistent with
   that determination, the agency here conducted market research, including a
   search of the central contractor's registration website and the Small
   Business Administration website and direct contact of several possible
   offerors, to assess the appropriateness of the grounds maintenance
   requirement for a HUBZone set-aside. The contracting officer concluded
   that the solicitation was, in fact, suitable for a HUBZone set-aside.
   Taken together, the contracting officer considered these changes
   significant enough to warrant issuance of a new solicitation by the
   agency.[3] AR, Tab 2, Contracting Officer's Statement of Facts, at 9.

   The agency then published a presolicitation notice on January 23, 2006.
   Interested parties submitted questions to the agency, which published,
   without attribution, the questions and the agency's responses on February
   1. On February 8, the agency issued the new solicitation, with a proposal
   due date, as extended by amendment 3, of March 3. The protester then filed
   this protest on February 10.

   The protester contends that the agency's decision to resolicit under a
   revised RFP, rather than reevaluate proposals and make a new award
   decision under the original RFP, was made in bad faith. Contracting
   officers are presumed to act in good faith; we will not attribute unfair
   or prejudicial motives to procurement officials on the basis of inference
   or supposition. Pride Mobility Prods. Corp., B-292822.5, Dec. 6, 2004,
   2005 CPD para. 72 at 5. In order to show bad faith, a protester must
   present virtually irrefutable evidence that the contracting agency
   directed its actions with the specific and malicious intent to injure the
   protester. Information Res., Inc., B-271767 et al., July 24, 1996, 96-2
   CPD para. 38 at 2.

   In deciding whether to cancel a solicitation, the contracting officer has
   broad discretion and need only advance a reasonable basis for such a
   decision. Sunshine Kids Serv. Supply Co., B-292141, June 2, 2003, 2003 CPD
   para. 119 at 2. Here, as discussed above, the record contains evidence
   that the agency made several material changes to the RFP--reducing the
   number of option periods, revising the evaluation criteria, and setting
   the procurement aside for HUBZone firms. Given the changes to the
   solicitation, we see nothing unreasonable in the contracting officer's
   decision to cancel the solicitation, see Global Solutions Network, Inc.,
   B-289342.4, Mar. 26, 2002, 2002 CPD para. 64 at 3-4; Wilkinson Mfg. Co.,
   B-210642 et al., Mar. 6, 1984, 84-1 CPD para. 270 at 3-4, and we likewise
   find no evidence in the record that the agency's decision to cancel was in
   any way motivated by bad faith toward Saturn.

   The protester also alleges that the decision to set aside the procurement
   for HUBZone firms was motivated by bad faith. Generally, our Office
   regards a determination to set aside a procurement as a matter of business
   judgment, within the agency's discretion. See York Int'l Corp., B-244748,
   Sept. 30, 1991, 91-2 CPD para. 282 at 6. Here, as discussed above, based
   on its market research, the agency concluded that there was a reasonable
   expectation that offers would be received from two HUBZone firms and that
   award would be made at a fair market price, as contemplated under FAR
   sect. 19.305(b). The protester has not alleged that the agency's decision
   to set aside the procurement was improper, and we see nothing in the
   record to suggest that it was. To the extent Saturn asserts that the
   decision was motivated by bad faith, there simply is nothing in the record
   suggesting that the agency was motivated by a specific intent to harm the
   protester. Id.

   Saturn also alleges that the agency responses in the "Questions and
   Answers" dated February 1, 2006, and posted to FedBizOpps, were
   prejudicial to Saturn. Specifically, Saturn objects to responses one,
   four, and five:

     Q1. In February of 2004, the grounds maintenance contract with Saturn
     was modified to add litter control, what was the additional cost per
     month to the government?

     A1. This is proprietary information, therefore we cannot give out the
     additional cost.

     Q4. Name of last contractor?

     A4. Hawk and Company, Inc.

     Q5. Bottom dollar value of last contract?

     A5. $5,450,000.00.

   AR, Tab 23, Questions and Answers. Saturn is concerned with how the 2004
   modification to its contract became known to the firm that submitted the
   first question, and Saturn asks why the agency did not answer questions
   four and five by naming Saturn as the last contractor, along with the
   amount of that contract.

   Our Bid Protest Regulations, 4 C.F.R. sections 21.1(c)(4) and (f), require
   that a protest include a detailed statement of the legal and factual
   grounds for protest, and that the grounds stated be legally sufficient.
   These requirements contemplate that protesters will provide, at a minimum,
   either allegations or evidence sufficient, if uncontradicted, to establish
   the likelihood that the protester will prevail in its claim of improper
   agency action. Robert Wall Edge--Recon., B-234469.2, Mar. 30, 1989, 89-1
   CPD para. 335 at 2. Saturn does not allege, and we see no basis to assume,
   that any of the agency's responses violated any procurement law or
   regulation. As a result, Saturn's allegations are insufficient to form a
   valid basis of protest. In any event, the protester, which is not a
   HUBZone firm, is ineligible for award under the revised RFP and therefore
   is not an interested party to raise this ground of protest. Admiral Towing
   and Barge Co., B-291849, B-291849.2, Mar. 6, 2003, 2003 CPD para. 164 at 5
   n.5. Moreover, Saturn's assertion that the agency responses were made with
   the intent to prejudice the protester contains no plausible explanation of
   what that prejudice is, and some showing of prejudice is a necessary part
   of any viable protest. Crane & Co., B-297398, Jan. 18, 2006, 2006 CPD
   para. 22 at 9.

   Unrelated to its allegations of bad faith, Saturn asserts that the agency
   violated FAR sect. 33.104(g) [4] by failing to complete corrective action
   in response to the initial protest within 60 days of receiving our
   "recommendations." That FAR provision is inapplicable here in that we did
   not issue a recommendation to the agency as part of a decision on the
   protest; rather, the agency decided to take corrective action in response
   to the initial protest. In any event, as discussed above, the agency took
   immediate steps to terminate the contract initially awarded and within a
   reasonable time reissued the solicitation. We see no basis on which to
   question the speed with which the agency acted. See J&J/BMAR Joint
   Venture, LLP--Costs, B-290316.7, July 22, 2003, 2003 CPD para. 129 at 3.

   Finally, in a supplemental protest, Saturn alleged that the agency
   improperly received and opened proposals during the pendency of this
   protest, citing 4 C.F.R. sect. 21.0(f). That section of our Bid Protest
   Regulations provides the definition of "adverse agency action," and
   appears irrelevant to the protest allegation. In any event, an agency is
   not required to suspend the closing date for receipt of proposals or its
   evaluation of offerors' proposals while a protest is pending. Lifecare
   Mgmt. Partners, B-297078, B-297078.2, Nov. 21, 2005, 2006 CPD para. 8 at
   10 n.16.

   The protest is denied.

   Anthony H. Gamboa
   General Counsel

   ------------------------

   [1] The protester filed a request that we recommend that it be reimbursed
   its protest costs on February 1, 2006. The request was untimely filed; our
   Bid Protest Regulations require that such a filing be made within 15 days
   of when the protester learns that our Office has closed the protest based
   on the agency's decision to take corrective action. See 4 C.F.R. sect.
   21.8(e) (2005).

   [2] The Federal Acquisition Regulation (FAR) requires agencies to set
   aside for HUBZone firms any acquisition exceeding the simplified
   acquisition threshold, whenever the contracting officer has a reasonable
   expectation that the agency will receive two or more offers from HUBZone
   firms and that award will be made at fair market price. FAR
   sect. 19.1305(b).

   [3] The agency also asserts that the original solicitation contemplated
   award of a fixed-price contract with economic price adjustment (EPA), and
   that this contract type was determined to be inappropriate for this effort
   and was revised in the resolicitation. The protester asserts that the
   original solicitation did not, in fact, contain an EPA clause. Since, as
   discussed below, we conclude that the agency's decision to cancel and
   resolicit was proper on the other grounds asserted by the agency, the
   issue concerning the contract type is not material to our resolution of
   the protest.

   [4] FAR 33.104(g) provides as follows:

     If the agency has not fully implemented the GAO recommendations with
     respect to a solicitation for a contract or an award or a proposed award
     of a contract within 60 days of receiving the GAO recommendations, the
     head of the contracting activity responsible for that contract shall
     report the failure to the GAO not later than 5 days after the expiration
     of the 60-day period. The report shall explain the reasons why the GAO's
     recommendation, exclusive of costs, has not been followed by the agency.