TITLE: B-297789, Goodway Graphics of Virginia, Inc.; NPC, Inc.; P.A. Hutchison Co., March 21, 2006
BNUMBER: B-297789
DATE: March 21, 2006
*******************************************************************************************
B-297789, Goodway Graphics of Virginia, Inc.; NPC, Inc.; P.A. Hutchison Co., March 21, 2006

   Decision

   Matter of: Goodway Graphics of Virginia, Inc.; NPC, Inc.; P.A. Hutchison
   Co.

   File: B-297789

   Date: March 21, 2006

   Anthony W. Hawks, Esq., for the protesters.

   LaTonya D. Hayes, Esq., Government Printing Office, for the agency.

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

   DIGEST

   Where Government Printing Office (GPO) failed to comply with its policies
   regarding compilation of a bidders list and publication of an invitation
   for bids (IFB), GPO reasonably determined that it had a compelling reason
   to cancel the IFB after bid

   opening and resolicit its requirements.

   DECISION

   Goodway Graphics of Virginia, Inc., NPC, Inc., and P.A. Hutchison Co.
   protest the Government Printing Office's (GPO) decision to cancel an
   invitation for bids (IFB) issued pursuant to GPO's Program 421-M for
   production of Army books and pamphlets. The protesters assert that the
   agency lacked a compelling reason to cancel the IFB after bid opening.

   We deny the protest.

   The IFB was sent to 22 firms on October 27, 2005, and 16 contractors
   responded. Bid opening was held on November 17. The discovery that one of
   several incumbents had been unintentionally excluded from the agency's
   bidders list prompted the agency to investigate the procurement. That
   investigation uncovered two significant deviations from the procurement
   policies contained in GPO's Printing Procurement Regulation (PPR). The
   agency did not post the IFB on either the GPO or Federal Business
   Opportunities (FedBizOpps) Internet websites,[1] see PPR, Chap. VIII,
   sect. 5.4, and the agency excluded two incumbent contractors from the
   agency distribution list. See PPR, Chap. X, sect. 1.1(b)(4). On December
   6, the contracting officer sought the concurrence of the GPO Contract
   Review Board in her decision to cancel and readvertise the solicitation,
   as required by PPR, Chap. I, sect. 10.4(a)(2). The Board unanimously
   concurred with the contracting officer's decision.

   On December 9, the agency reissued the IFB to 21 contractors with a
   December 19 bid opening date. Twenty-two contractors submitted bids, six
   more than responded to the first solicitation. This protest followed.

   The PPR requires that there be a compelling reason to cancel an IFB after
   bid opening. PPR, Chap. XII, sect. 2(a); News Printing, Inc., B-274773.2,
   Feb. 11, 1997, 97-1 CPD para. 68 at 2.[2] Determining whether a compelling
   reason exists involves the exercise of the contracting agency's judgment;
   we review such a determination only to ensure that it is reasonable. News
   Printing, Inc., supra.

   The PPR states that an IFB may be cancelled after bid opening where
   cancellation is "clearly in the best interest of the government." PPR,
   Chap., XII, sect. 2.1(b). Here, the contracting officer had two principal
   reasons for concluding that the cancellation was in the government's best
   interest: the agency failed to publish the solicitation on FedBizOpps;[3]
   and the agency failed to solicit two incumbents.[4] As explained below, we
   think the contracting officer's decision to cancel the solicitation and,
   in the resolicitation, to adhere more closely to the policy guidance in
   the PPR, was reasonable.

   The PPR provides that contracting officers "shall promote and provide for
   competition to the maximum extent practicable." PPR, Chap. VIII, sect.
   3.4(a). Under the PPR, the term "maximum extent practicable" is defined to
   mean that "all responsible sources are permitted to complete." Id. sect.
   3.3.[5] In this case, it clearly was reasonable for the contracting
   officer to conclude that the failure to publish the IFB on FedBizOpps may
   have impeded all responsible sources from competing. Compounding that
   failure, two incumbent contractors were not sent the IFB, also contrary to
   the policy in the PPR to include previously successful bidders on the
   bidders list. PPR, Chap. X, sect. 1.1(b)(2). Under these circumstances, it
   was reasonable for the contracting officer to conclude that cancellation
   would serve the public's interest in maximizing competition. Kertzman
   Contracting, Inc.; Centigrade, Inc.--Entitlement to Costs, supra.

   In support of their position that the cancellation lacked a compelling
   basis, the protesters argue first that the grounds cited by the
   contracting officer reflect GPO policy, not regulations, and that the
   agency actions not taken were optional, not required. We recognize that
   some provisions of the PPR describe the procedures to be used in mandatory
   language, while other provisions are expressed in terms of a policy to be
   followed.[6] These differences in terminology in the PPR are not
   dispositive of the propriety of the decision to cancel, however; rather,
   it is clear that, as discussed above, the PPR directs contracting officers
   to promote and provide for maximum competition that offers the opportunity
   for all responsible sources to compete. As discussed above, the record
   shows that the cancellation here was consistent with that responsibility.

   The protesters also argue that one of the incumbent contractors not
   solicited originally failed to take advantage of the opportunity to obtain
   a copy of the solicitation through a bid subscription service, and that
   its failure to do so, rather than the agency's failure to solicit the
   firm, was the principal reason that the incumbent did not receive a copy
   of the IFB. This argument does not support the conclusion that the
   cancellation was improper. The central issue here is whether the agency's
   failure to publicize the solicitation and to include two incumbents on the
   bidders list justifies cancellation of the solicitation in furtherance of
   the government's interest in maximizing competition. As explained above,
   we conclude that it does. We therefore see no basis to question the
   contracting officer's decision to cancel the IFB.

   The protest is denied.

   Anthony H. Gamboa
   General Counsel

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

   [1] The PPR states that GPO's policy is to publish solicitations in the
   Commerce Business Daily, which has been replaced by the FedBizOpps
   website. VSE Corp.; Johnson Controls World Servs., B-290452.3 et al., May
   23, 2005, 2005 CPD para. 103 at 5.

   [2] Although GPO, as a legislative branch agency, is not subject to the
   Federal Acquisition Regulation (FAR), C-Cubed Corp., B-289867, Apr. 26,
   2002, 2002 CPD para. 72 at 3, both GPO's PPR and the corresponding FAR
   provision, sect. 14.404-1, require a compelling reason to cancel an IFB
   after bid opening.

   [3] While the protesters do not concede that the agency failed to publish
   the IFB on FedBizOpps, the record contains a declaration by a GPO senior
   publishing specialist stating that she has knowledge that the publication
   did not take place, and the record contains no evidence from the
   protesters that the IFB was published.

   [4] GPO procedures allow any party to purchase in bulk copies of all GPO
   solicitations; distribution firms that subscribe to this service then make
   the solicitations available to their own subscribers. As another factor
   bearing on the decision to cancel, the agency noted that the subscription
   bid service which normally would have distributed the IFB to interested
   potential bidders, including one of the incumbent contractors omitted from
   the bidders list, maintained that it did not receive the IFB until one day
   prior to the bid opening--too late to send it to prospective bidders. The
   record is not clear on these facts; the knowledgeable GPO official states
   that the bid service in fact received the IFB on the date it was issued.
   We need not resolve this issue, however, given our conclusion that the
   cancellation was justified on the other grounds discussed below.

   [5] This is the same definition as for "full and open competition" under
   the Competition in Contracting Act of 1984. 41 U.S.C. sect. 403(6) (2000);
   Kertzman Contracting, Inc.; Centigrade, Inc.--Entitlement to Costs,
   B-259461 et al., May 3, 1995, 95-1 CPD para. 226 at 3.

   [6] For example, the PPR states that the agency's "policy" is to include
   previously successful bidders on the bidders list, PPR, Chap. X, 1.1(b),
   but that the bidders list "shall" be compiled by including the previously
   successful vendor. PPR, Chap. X, sect. 1.1(e). Similarly, the PPR states
   that the agency "should" publish certain solicitations on-line, PPR, Chap.
   VIII, sect. 5.4, but, that to allow contractors who are not on the current
   bidders mailing list time to request and receive solicitations, proposed
   procurements "shall" be publicized on-line 15 days before the issuance of
   solicitations. PPR, Chap. VIII, sect. 5.5.