National Defense Advisors, Inc.

B-405741: Dec 13, 2011

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Ralph O. White
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WhiteRO@gao.gov

 

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National Defense Advisors, Inc. (NDA), of Fairfax Station, Virginia, protests the decision of the Defense Intelligence Agency (DIA) to cancel request for proposals (RFP) No. HHM402-11-R-0235 for an adjunct instructor at DIA’s National Defense Intelligence College. NDA also objects to the agency’s issuance of a task order to Booz Allen Hamilton, Inc. (BAH), of McLean, Virginia, to fulfill the requirement.

We deny the protest.

B-405741, National Defense Advisors, Inc., Dec 13, 2011

Decision

Matter of: NationalDefense Advisors, Inc.

File: B-405741

Date: December 13, 2011

MarkT. Johnson, for the protester.
Max D. Houtz, Esq., Maj. Brent Cotton, and LTC John Maher, Defense IntelligenceAgency, for the agency.
Noah B. Bleicher, Esq., and Sharon L. Larkin, Esq., Office ofthe General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Agency had a reasonable basis to cancel solicitation wheresolicitation did not reflect agency's needs and amending the solicitationresulted in a change so substantial that it exceeded what reasonable offerorscould have anticipated.

DECISION

National Defense Advisors, Inc. (NDA), of Fairfax Station,Virginia, protests the decision of the Defense Intelligence Agency (DIA) tocancel request for proposals (RFP) No. HHM402-11-R-0235 foran adjunct instructor at DIA's National Defense Intelligence College. NDA also objects to the agency's issuance ofa task order to Booz Allen Hamilton, Inc. (BAH), of McLean, Virginia, tofulfill the requirement.

We deny the protest.

BACKGROUND

On August 18, 2011, the DIA published the solicitation atissue as a total small business set-aside seeking proposals for an adjunctinstructor to teach up to six graduate-level classes per academic year and toadvise at least five thesis students per year at the National DefenseIntelligence College. SolicitationSynopsis at 1. The RFPcontemplated the award of a fixed-price, level-of-effort contract with a 1-yearbase period and four 1-year options. RFP at 2. The RFPincluded a statement of work (SOW) that indicated that the subject matter ofinstruction was "Intelligence Budget and Congressional Relationships." SOW at 1-2. As amended, the RFP required that proposalsbe submitted by 1:00 p.m. on September 7. RFP at 1.

The day before proposals were due, the contracting officerlearned that the solicitation included an incorrect SOW. Agency Report (AR) at 2. In this regard, the agency explains that inMay the college had prepared two different SOWs, one seeking an instructor toteach intelligence budget and congressional relationships courses ("budgetcourses") and another seeking an instructor to teach cyber and collectionsissues and trends courses ("cyber courses"). Contracting Officer's Statement at 2. On July 28, prior to the posting of thesolicitation at issue, DIA had issued a task order to BAH--a largebusiness--for an instructor to teach the budget courses. Id. DIA reports that it mistakenly included the SOW for that instructorposition in the current solicitation instead of the SOW for the cyber coursesinstructor position that still needed to be filled. Agency Request for Summary Dismissal at 1; ARat 1-2.

According to NDA, the Dean of the College of StrategicIntelligence informed the company on September 2 that "the original SOW [for abudget courses instructor] had recently been filled by a [BAH] employee . . . ." Protest at 1. Still, on September 7, NDA submitted a proposal in response to theposted SOW for the budget courses instructor. Id. After it submitted itsproposal, but before the 1:00 p.m. solicitation deadline, the agency informedNDA (and other offerors) that the posted SOW was incorrect and a new SOW wasforthcoming. ContractingOfficer's Statement at 2-3. OnSeptember 7, after the solicitation's original closing time, DIA amended thesolicitation to replace the posted SOW that sought a budget courses instructorwith a new SOW that sought a cyber courses instructor,and the agency extended the proposal due date to September 16. AR at 2.

On September 13, NDA submitted to DIA a "draft protestletter," in which NDA argued that the new SOW was "diametrically different"from the original one and that it resulted in a "markedly different solicitation." Protest, Tab D, NDA DraftProtest Letter, at 1, 2. NDArequested that DIA cancel the amended solicitation.[1] Id. at 1. In response, DIA cancelled the solicitationon September 14. ContractingOfficer's Statement at 4. Thisprotest followed.

DISCUSSION

NDA protests the agency's "gross mismanagement" of thesolicitation and "contract irregularities." Protest at 1. Specifically, NDAargues that the cancellation of the solicitation and the award of a task order toBAH for a budget courses instructor were "improper." Protest at 1; Comments at 3. NDA requests the agency terminate thecontract with BAH and award a contract to small business offerors for that work. Id.

In a negotiated procurement, a contracting agency hasbroad discretion in deciding whether to cancel a solicitation, and need onlyestablish a reasonable basis for doing so. Trujillo/AHW, JV, B-403958.4, Oct. 13, 2011, 2011 CPD ¶ 218 at 3;USA Elecs., B-283269.2,Oct. 5, 1999, 99-2 CPD ¶ 67 at 3. Areasonable basis to cancel exists when, for example, an agency determines thata solicitation does not accurately reflect its needs, Logistics SolutionsGroup, Inc., B-294604.7, B-294604.8, July 28, 2005, 2005 CPD ¶ 141 at 3, orwhere the agency determines that it no longer has a requirement for the itemsolicited. Peterson-NunezJoint Venture, B-258788, Feb. 13, 1995, 95-1 CPD ¶ 73 at 4. Moreover, an agency may cancel a solicitationno matter when the information precipitating the cancellation first arises,even if it is not until proposals have been submitted and evaluated. Brian X. Scott,B-310970, B-310970.2,Mar. 26, 2008, 2008 CPD ¶ 59 at 3.

Here, the agency's decision to cancel the solicitation wasreasonable. The DIA mistakenly included inthe RFP the SOW seeking an instructor to teach budget courses, and thatrequirement had already been met under a previously issued task order toBAH. Consequently, the agency no longerhad a requirement for the work being solicited. Instead, the college needed an instructor with "vastly differenteducation, experience, and subject matter qualifications" to teach cybercourses. AR at 3. In this regard, replacing the SOW was sosubstantial a change that it exceeded what potential offerors could haveanticipated. See FederalAcquisition Regulation § 15.206(e). Indeed, the protester acknowledged the "dramatic change" and"substantial difference" between the two SOWs and advocated canceling theRFP. Comments at 3;Protest, Tab D, NDA Draft Protest Letter, at 1. Thus, on the record before us where the solicitationdid not accurately reflect the agency's needs, we find reasonable the agency'sdecision to cancel the RFP.

Next, NDA argues that the task order to BAH was an"improper conversion of small business set-aside work to a large businessconcern." Protest at 3. This allegation is untimely. Under our Bid Protest Regulations, a protestbased on other than alleged improprieties in a solicitation must be filed nolater than 10 calendar days after the protester knew, or should have known, ofthe basis for protest, whichever is earlier. 4 C.F.R. § 21.2(a)(2) (2011). A protester's receipt of oral informationforming the basis of its protest is sufficient to start the 10-day time period;written notification is not required. Swafford Indus., B-238055, Mar. 12, 1990, 90-1 CPD ¶ 268 at2.

Here, NDA was informed on September 2 that the SOW for thebudget courses instructor "had recently been filled" by a BAH employee. Protest at 1. Under our Regulations, NDA had 10 days from when it learned BAH wasperforming the work to file a protest on this ground, i.e., until September12. Because NDA filed its protest on September 19, after the 10-day period permitted by our Regulations, the protest allegation is untimely.

The protest is denied.

Lynn H. Gibson
General Counsel



In an email to the agency that accompanied its draft protest letter, NDAwarned, "If . . . this solicitation isallowed to continue, competition will not be fair [and] open nor will the bestinterests of the government be achieved." Protest, Tab D, NDA Draft Protest Letter, at 1.