B-400127, Zia Engineering & Environmental Consultants, LLC; Garrison Engineering & Maintenance Services, LLC, August 7, 2008
Decision
Matter of: Zia Engineering & Environmental Consultants, LLC; Garrison Engineering & Maintenance Services, LLC
Edward
H. Martinez, for Zia Engineering & Environmental Consultants, LLC, and
Garrison Engineering & Maintenance Services, LLC, the protesters.
Maj. David Abdalla, Department of the Army, for the agency.
Paula A. Williams, Esq., and Ralph O. White, Esq., Office
of the General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest of agency’s cancellation
of a solicitation for base operations support and logistics services, under a
public-private competition pursuant to Office of Management and Budget Circular
No. A-76, is denied where the record shows that the decision to cancel was
reasonably based on a conclusion that the solicitation no longer reflects the
agency’s actual needs because future mission demands will significantly
increase those needs.
DECISION
Zia Engineering &
Environmental Consultants, LLC and Garrison Engineering & Maintenance
Services, LLC protest the cancellation of request for proposals (RFP) No.
W9124R-07-R-0009, issued by the Department of the Army pursuant to Office of
Management and Budget (OMB) Circular No. A-76 for base operations and logistics
services at the U.S. Army Garrison White Sands Missile Range (WSMR),
In July 2006, the Army announced its intent to conduct an
A-76 cost comparison study regarding WSMR’s public works and logistical functions. Pursuant to that announcement, on
Meanwhile, on March 7, the Director of the Installation
Management Command (IMCOM) for the Western Region sent the Commanding General
for IMCOM a formal request for authorization to cancel the WSMR solicitation. In making the request, the Director
identified various significant changes that had occurred since the A-76 study
had begun, such as, the Army’s announced plans to station the 2d Engineering
Battalion at WSMR, and the addition of a Heavy Brigade Combat Team to
WSMR. In addition, the Director noted a
staffing shortfall at WSMR exacerbated by the remote location of the garrison,
as well as the ongoing A-76 study.
Agency Report (AR) exh. 8, Letter from the IMCOM Director, at 1-3 (
On April 22, the contracting officer (CO) received an
email from IMCOM directing the cancellation of the A-76 competition. AR exh. 15, Email to CO. That same day, the CO issued amendment No.
0003 canceling the solicitation and distributed the amendment, by email, to the
protesters and other site attendees.
In response to the protesters’ request for an explanation
of the decision to cancel the solicitation, the contracting officer stated
that:
Increased mission demands and future restationing efforts risk mission failure due to support of additional installation requirements while simultaneously conducting an A-76 competition.
The Army recently unveiled its Grow the Army plan which includes restationing a Brigade Combat (Heavy) Team, the 2d Engineering Battalion, and expanding the Army Test and Evaluation Command mission. Support to these additional units present a tremendous challenge to the already-taxed WSMR workforce. In addition, WSMR is an isolated site with limited ability to attract and retain a quality workforce. Over the past several months, WSMR faced significant staffing challenges due to the current public works/logistics functions A-76 competition. Current on-board personnel are exiting in advance of the competition’s results and recruitment efforts are very difficult since personnel are hesitant to apply for a position under competition. Consequently, WSMR has not filled over 40 key positions within its public works and logistics directorates.
Given the above circumstances, which placed WSMR at a significant risk of mission failure, the IMCOM leadership requested relief from continuing a competition which was severely limiting the garrison’s ability to support current and near term mission growth.
AR exh. 17, CO Letter to the Protesters, at 1-2 (
The protesters contend that the cancellation was improper because
the agency did not disclose to potential private sector offerors that agency
officials had requested cancellation of the A-76 competition. In the protester’s view, it was unfair to ask
private sector offerors to expend resources to respond to the RFP while the
agency was actively seeking to cancel the ongoing cost comparison study. Protest at 2-5; Protesters’ Comments at 2, 5.
Where an agency determines that a solicitation does not
accurately reflect its needs, cancellation is appropriate. Rice Servs., Ltd., B-284997.5,
As discussed above, the record shows that due to the
agency’s increased mission demands caused by the future addition of two military
units, the agency determined that the solicitation no longer reflected its
actual needs. Given that the additional
military units will significantly increase the total population at WSMR, which
would then impact the scope of base operating and logistics services required
at the garrison, we find that the agency has demonstrated a reasonable basis
for its decision to cancel this procurement.
See Satellite Servs., Inc., B-288848.3, Apr. 28, 2003,
2003 CPD para. 88 at 14.
We also find no basis to grant the protesters’ request to
recover their costs for competing in this procurement. The Competition in Contracting Act of 1984,
31 U.S.C. sect. 3554(c)(1) (2000), and our implementing regulations, 4 C.F.R.
sect. 21.8(d) (2008), provide for our Office to recommend reimbursement of proposal
preparation costs only where we determine that “a solicitation, proposed award,
or award does not comply with statute or regulation.” The fact that the agency was seeking
permission to cancel the procurement, while simultaneously conducting it, does
not render unreasonable an otherwise appropriate basis for canceling. Since the cancellation here was proper, and
there is no other reason to conclude that the agency has acted contrary to
statute or regulation, we have no basis to recommend the recovery of proposal
preparation costs. See Bahan
Dennis Inc., B-249496.3,
The protests are denied.[2]
Gary L. Kepplinger
General Counsel
[1]
This letter acknowledged that, as requested by the protesters, their unopened
proposals were returned.
[2]
We recognize the harshness of this result, and would have preferred that the
agency provide notice of its deliberations so that businesses could assess for
themselves the risk of writing a proposal to perform the work. On the other hand, we also recognize that
agencies are under significant pressures in this area, including pressure to
complete cost comparison studies expeditiously once they are begun. See e.g., Alan D. King,
B-295529.6,