Cancellation of a sole source procurement - protestable??

[LindaF]

Does anyone know of a GAO or COFC case where an agency’s cancellation of sole source procurement was protested? I have only be able to find a 1970s GAO case.  I assume that the protestor would have to show that the cancellation was not reasonable….

 

Thanks,

 

[Voyager]

https://www.wifcon.com/pd15_206e.htm

You missed the best part of this website: go to WIFCON.com, then on the right side go to "Legal", then "Protests", then "By FAR".  This link’s case references are found under FAR 15.206(e).

[Vern Edwards]

See Process Control Technologies v. U.S., 53 Fed. Cl. 71 (2002), concerning the cancellation of an 8(a) sole source set-aside because the price was too high. I think this was really a claim, but the court said it was a protest of the competitive procurement that followed.

Excepts:

Quote

 

Disappointed bidder filed pre-award bid protest. On defendant's motion for judgment on the administrative record, the Court of Federal Claims, Bush, J., held that: (1) contracting agency was reasonable in cancelling sole source set-aside procurement based on excessive price and its concern that contractor could not meet the delivery schedule, and (2) agency conduction meaningful discussions with bidder regarding deficiencies in its proposal.

***

On December 11, 1995, the United States Army, White Sands Missile Range (Army) issued Request for Proposals (RFP) No. DAAD07–96–R–0103 for the purchase of wire harness kits and test fixtures for the Flexible Engine Diagnostic System, a mobile testing facility used to test turbo-shaft engines. The requirement was offered to Process Control Technologies, a division of GMC Enterprises, Inc. (Process Control; PCT) as a sole source set-aside pursuant to Section 8(a) of the Small Business Act, 15 U.S.C. § 637(a). In July 1995, the Army nominated PCT as the small disadvantaged business to meet the requirement.

***

On January 30, 1996, Army officials toured PCT's plant and met with PCT personnel. During the discussions, PCT provided the Army with a list of more than $110,000 worth of equipment PCT required to perform the contract. The cost of this equipment was not included in PCT's proposal, and PCT expected the government to pay for it. PCT also stated that it intended to hire eleven new employees for the contract. Finally, PCT stated that the contract would be managed by PCT's president and director of Federal contracts and business development and that one hundred percent of their salaries would be charged to the Army.

 

On January 31, 1996, Army officials met to discuss whether contracting with PCT was in the government's best interest. On February 2, 1996, the contracting officer decided to cancel the RFP on the basis of (1) PCT's unreasonable price; and (2) PCT's failure to adequately demonstrate that it could meet the critical delivery schedule. The contracting officer decided that the most urgently required materials would be purchased from another vendor pursuant to an existing contract and that a new solicitation would be issued for the remaining items. In reaching his decision, the contracting officer relied upon detailed written findings and Section 15.608(b) of the Federal Acquisition Regulation...

 

In this matter, the responsibility for making the determination provided for in Section 15.608(b) has been delegated to the contracting officer. 48 C.F.R. § 15.608(b) (1995).

On February 5, 1996, the contracting officer informed PCT, via letter, of his decision to cancel the solicitation. On November 17, 1999, nearly four years later, PCT filed its complaint in this court. In its complaint, plaintiff seeks $238,360 for plaintiff's proposal preparation expenses; pre-and post-judgment interest upon the principal amount; and any other further relief to which plaintiff may be justly entitled.

 

***

 

In this matter, plaintiff does not contend that the Army acted in bad faith, nor has it pointed to any evidence that is even suggestive of bad faith conduct. Accordingly, there is no genuine issue of material fact regarding the Army's allegedly disparate treatment of Process Control.

CONCLUSION

For the foregoing reasons, it is hereby ORDERED:

(1) Defendant's Motion for Judgment Upon the Administrative Record, filed February 17, 2000 is GRANTED;

(2) The Clerk is directed to enter final judgment dismissing the complaint in this action; and

(3) Each party to bear its own costs.

 

I think the agency ended up buying from Lockheed. Not sure.

[Vern Edwards]

See also Health Services Marketing Corporation, B-241183, 1991. 

Quote

Agency's cancellation of negotiations on the basis that the sole-source contractor's proposed costs exceeded the government estimate by a significant amount was proper where protester makes no showing that the government estimate was unreasonable.

Such protests have happened, but appear to be very rare.

[joel hoffman]

Whether or not a firm protests would likely depend upon the circumstances. Also, whether you are cancelling the acquisition or simply rejecting and replacing the firm. @LindaF, the original poster, didn’t explain which scenario she is asking about.

We occasionally rejected sole source 8(a) proposals for various reasons and in coordination with SBA,  to replace the SBA’s nominated firm with another firm. Never Protested.

We once cancelled a sole source 8(a) procurement for an urban street overpass at a railroad crossing in northern Mississippi,  due to unreasonable pricing and unsuccessful negotiations to reduce it.

It was also obvious that the arrangement was a front for a couple of non-disadvantaged subcontractors.

We converted it to a competitive small business set-aside. The resulting contract was something like 40% lower in price than the original, sole source Proposal.

————————————

Oddly, one of the original proposed subs apparently confused me with somebody else. He called me during the second RFP pre-proposal period to ask if I was “still interested” in being a sub for the converted acquisition.

I informed him that I was the COE person that he had negotiated with on the 8(a) procurement. He became flustered, apologized and ended the conversation! 

Edited July 14, 2024 by joel hoffman

[Vern Edwards]

32 minutes ago, joel hoffman said:

We occasionally rejected sole source 8(a) proposals for various reasons and in coordination with SBA,  to replace the SBA’s nominated firm with another firm. Never Protested.

For the sake of the OP: Who was "we"?

[C Culham]

Hmmmm, Too little too late?   I notice the original post was supposedly made on March 6????

[joel hoffman]

On 7/12/2024 at 8:39 AM, Vern Edwards said:

For the sake of the OP: Who was "we"?

“We” were the Mobile (AL) District of the US Army Corps of Engineers.

In the 1990’s, I was Chief of the Construction Division Contract Administration office, which among other duties, negotiated all sole source 8(a) construction contracts, conducted all Part 15 competitively negotiated construction source selections as well as some technical type service contract source selections.

Three of my employees, who negotiated 8(a) contracts and I worked directly with the Chief of Contracting and his other KO’s for those contracts.

”We” coordinated closely with the Atlanta Regional SBA office.