ESM Group, Inc.
B-400298.2: Oct 14, 2008
- Full Report:
ESM Group, Inc. protests the cancellation of request for proposals (RFP) No. W15P1J-08-R-3021, issued by the Department of the Army, for magnesium powder.
We deny the protest.
B-400298.2, ESM Group, Inc., October 14, 2008
The RFP, issued on
ESM now protests the cancellation of the solicitation, arguing that it was not reasonably based and was a pretext to avoid our consideration of its initial protest challenging the solicitation's terms. The protester contends that [t]he lack of a valid basis for canceling the Solicitation can be readily discerned simply from the illogical and inconsistent justifications the Army has offered in support of its action. Protester's Comments at 1. In this regard, and as mentioned previously, the agency had previously stated that the solicitation was canceled because it failed to restrict the purchase of Magnesium Powder (atomized) to the National Technology Industrial Base, and that the requirement would be resolicited with the appropriate restriction. Agency Request for Dismissal, encl. 1, Contracting Officer's Memorandum, at 1. In responding to this protest, the agency explains that since the cancellation, the agency had found that the requirement for magnesium powder no longer exists, and that [c]ontrary to the protester's claims, the Agency has no requirements or plans to procure magnesium powder in the near future. Agency Report (AR) at 1-2. The protester questions the veracity of the agency's claim here, noting that according to the cognizant contracting officer, the customer notified the [procuring activity that] there was no longer an existing requirement for Magnesium Powder on July 14, which was the day before the agency notified our Office that the solicitation had been canceled because it was defective. Protester's Comments at 11'12. The protester also contends that the agency's explanations regarding the cancellation are inconsistent, and thus unreasonable, given that the agency also states that the cancellation was appropriate because the requiring activity is obtaining the magnesium powder through an existing DLA [Defense Logistics Agency] contract, which according to the protester expired on September 10, 2008. Protester's Comments at 2; see Contracting Officer's Statement at 2.
In a negotiated procurement such as this one, a contracting agency has broad discretion in deciding whether to cancel a solicitation, and need only establish a reasonable basis for doing so. A-Tek, Inc., B-286967,
While the record here is not a model of clarity, the agency has affirmatively represented that it no longer has a need for the magnesium powder, specifically stating that the Agency has no requirement or plans to procure magnesium powder in the near future. AR at 1-2. With regard to the protester's challenge to the veracity of this representation, we note that Government officials are presumed to act in good faith and a protester's claim that contracting officials are motivated by bias or bad faith must be supported by convincing proof. Our Office will not attribute unfair or prejudicial motives to procurement officials on the basis of inference or supposition. Brian X. Scott, supra, at 4. The protester has not provided such convincing proof. In this regard, we do not view the fact that the customer notified the procuring activity on July 14 that it no longer needed the magnesium powder, and the procuring activity's cancellation of the solicitation by amendment on July 14 and notification of our Office of the cancellation on July 15 on a different basis, as convincing proof that the agency was not truthful in its statement that it no longer needed the magnesium powder. This is so given that these different reasons were advanced during the same time frame by different elements within the agency. Nor do we view the agency's statement that the requiring activity is obtaining the magnesium powder through an existing DLA contract to be proof of bias or bad faith, given that the discovery of an existing contract to satisfy its needs may in itself provide a reasonable basis for a cancellation, and in the alternative, that according to the protester, the contract has now expired. In sum, we simply cannot find, as asserted by the protester, that the Army's statement that it no longer has a need for the magnesium powder is demonstrably false. See Protester's Comments at 12. Since an agency has reasonable basis to cancel a solicitation where it determines that it no longer has a requirement, we find based upon our review of the record here that the agency's cancellation of the solicitation is unobjectionable. See Peterson-Nunez Joint Venture, supra.
The protest is denied.
Gary L. Kepplinger