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16 U.S.C. § 5952:  National Park Service Concessions Management Improvement Act of 1998

Comptroller General - Key Excerpts

The regulations implementing the 1998 Act set out the following standard for canceling a prospectus: “The Director may cancel a solicitation at any time prior to award of the contract if he determines in his discretion that this action is appropriate in the public interest.” 36 C.F.R. § 51.11 (2004). Applying this standard, we find no basis to object to the cancellation. As discussed, the evaluation panel recommended that the Director cancel the prospectus because it appeared that the agency’s estimate was significantly overstated and was impeding competition. Considering this recommendation, together with the two prospective offerors’ objections to the agency estimate as being too high to make the contract profitable (neither submitted an offer), the Director determined that it was in the public interest to cancel the prospectus and review the estimate with the goal of achieving greater competition. We see nothing improper in this determination. Although the protester complains about the agency’s reliance on the letters, they clearly constituted evidence of the effect of the CFIP estimate on the procurement; together with GSBM’s offer, which priced the work at approximately half the agency’s estimate, the letters reasonably indicated that the CFIP estimate was problematic, and may have contributed to the receipt of only a single offer. It follows that the agency reasonably relied on this evidence in concluding that canceling, reviewing and reissuing the prospectus could result in increased competition. The prospect of increased competition generally provides a reasonable basis for an agency to cancel a solicitation. See A-Tek, B-286967, Mar. 22, 2001, 2001 CPD ¶ 57 at 3. The fact that the agency at one time indicated that the prospectus would not be canceled does not establish that the cancellation was improper. (Great South Bay Marina, Inc., B-293649, May 3, 2004) (pdf)

SHDE’s argument is, basically, that pursuant to CICA we should have disregarded any and all costs to the government that might arise from a recommendation that could lead to contract cancellation, since NPS decided to continue performance, on a best-interests basis, notwithstanding the protest filing. However, as indicated in our decision in Adelaide Blomfield Mgmt. Co., supra, we do not view our CICA authority as requiring a recommendation that the government in effect step away from its legal obligations and breach a contract. While our CICA authority does require us, in fashioning a recommendation, to disregard any cost or disruption from the proper termination of a contract where the statute’s stay was overridden in the government’s “best interests,” in the absence of a clause that would permit the government to unilaterally terminate a contract for convenience a successful protester’s only remedy is reimbursement of proposal preparation and protest costs. To prevail on a request for reconsideration, the requesting party must show that our decision contains errors of fact or law, or present information not previously considered that warrants the decision’s reversal or modification. 4 C.F.R. § 21.14(a). Because SHDE’s request for reconsideration provides no basis for our Office to modify our recommendation, the request is denied. (Shields & Dean Concessions, Inc.--Reconsideration, B-292901.4, March 19, 2004) (pdf)

In view of the closeness of the competition--as discussed above, there was only a 1‑point difference between the total cumulative scores assigned to the SHDE and GLGO proposals--we conclude that any of the flaws in the NPS evaluation could have changed the agency’s selection decision. This problem is compounded by the agency’s failure in its evaluation to indicate the scores being assigned to the subfactors under the selection factors, thus making it impossible to understand how the agency arrived at the score assigned for each selection factor. Thus, for example, we have no idea what weight was accorded to the EMP subfactor under PSF 1, which makes it impossible to determine the potential effect of the above‑discussed evaluation flaw involving GLGO’s EMP on the selection decision. Accordingly, we sustain the protest. While our recommendation under these circumstances normally would be for the agency to reevaluate proposals, with a view to possibly awarding to a different firm, this remedy is not feasible here because the concession contract awarded to GLGO did not contain a termination for convenience clause. Our Office has held that in the absence of such a clause, we will not recommend termination of an awarded contract, even if we sustain the protest and find the contract award improper. See, e.g., Peter N.G. Schwartz Cos. Judiciary Square Ltd. P’ship, B-239007.3, Oct. 31, 1990, 90-2 CPD ¶ 353 at 11‑12; SWD Assocs.--Costs, B-226956.3, Sept. 1, 1989, 89-2 CPD ¶ 206 at 2. For this reason, we recommend that the agency reimburse SHDE for its proposal preparation costs as well as the reasonable costs of filing and pursuing the protest, including reasonable attorneys’ fees. 4 C.F.R. § 21.8(d) (2003). SHDE’s certified claim for costs, detailing the time expended and costs incurred, must be submitted to the agency within 60 days of receiving this decision. (Shields & Dean Concessions, Inc., B-292901.2; B-292901.3, February 23, 2004)  (pdf)

Comptroller General - Listing of Decisions

For the Government For the Protester
Great South Bay Marina, Inc., B-293649, May 3, 2004 (pdf) Shields & Dean Concessions, Inc., B-292901.2; B-292901.3, February 23, 2004 (pdf)
Shields & Dean Concessions, Inc.--Reconsideration, B-292901.4, March 19, 2004 (pdf)  

U. S. Court of Federal Claims - Key Excerpts


U. S. Court of Federal Claims - Listing of Decisions

For the Government For the Protester


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