Whenever government contractors file a bid protest addressing the government cancellation of solicitation, there are certain considerations they must contemplate.
For example, in a recent GAO protest, Matter of: TaxSlayer LLC, the firm protested the Government’s cancellation of the solicitation and GAO did not agree with protestor’s arguments.
GAO disagreed that the Internal Revenue Service (IRS) improperly cancelled the solicitation because the record demonstrated that the agency reasonably cancelled the solicitation based on concerns regarding whether the solicitation’s requirements and evaluation criteria were adequately structured to reflect the agency’s needs.
The solicitation provided for award on a best-value basis, considering six factors, in descending order of importance: (1) technical approach, (2) management approach, (3) corporate experience, (4) past performance, (5) software testing and evaluation, and (6) price.
Protest Arguments Against Government Cancellation of Solicitation
The protestor argued that the IRS’s stated rationale for canceling the RFP–that the agency “was unable to reach a proper source selection decision based on the solicitation provisions addressing software evaluation”–was unreasonable because it failed to explain how the RFP prevented the IRS from making a proper award decision, or how the RFP was otherwise flawed.
- The protester stated that the cancellation of solicitation decision was based solely on the agency’s inability to reach a proper source selection and did not stem from any RFP defect, and therefore, should have been resolved by a new evaluation.
GAO’s Rule on Government Cancellation of Solicitations
In this case, GAO found that a reasonable basis to cancel exists when:
- An agency determines that a solicitation does not accurately reflect its needs.
- A reasonable basis also exists to cancel a solicitation when an agency determines it needs to revise evaluation standards in order to ensure fair and equal competition.
A government contracting agency has broad discretion in deciding whether to cancel a solicitation and need only have a reasonable basis for doing so.
- In bid protest litigation, where subsequent explanations merely provide a detailed rationale for contemporaneous conclusions and fill in previously unrecorded details, GAO will allow those explanations so long as the explanations are credible and consistent with the contemporaneous record.
On the other hand, GAO accords lesser weight to post-hoc arguments or analyses made in response to protest allegations because we are concerned that new judgments made in the heat of an adversarial process may not represent the fair and considered judgment of the agency. See when bid and proposal costs are recoverable.
- The cancellation of solicitation notice issued by the contracting officer stated that the agency decided to cancel the solicitation “based on the solicitation provisions addressing software evaluation.”
- The contracting officer also submitted a statement explaining that he determined that the requirement should be re-competed under a revised solicitation, with a performance work statement which better reflected the government’s software evaluation requirements.
Protest Can be Sustained on Other Grounds
In contrast to the above recent decision, if the agency is unable to show how cancellation of solicitation does not somehow relate to its legitimate needs, protestors might be able to get a win in a post-award protest.
- The agency has very broad discretion in making such cancellation decisions.
- Attacking the decision as being unreasonable alone will not win a protest.
Finding a flaw with the rationality and legitimacy of the cancellation of solicitation may be a way to address a protest although hard to overcome. See information about the arbitrary and capricious standard.
For help challenging a government cancellation of solicitation in a bid protest, call our bid protest lawyers at 1-866-601-5518.