Link: GAO Opinion
Agency: General Services Administration
Disposition: Protest sustained.
Protest challenging the cancellation of a request for quotations (RFQ) and issuance of orders on a sole-source basis to a non-profit agency under the authority of the Javits-Wagner-O’Day Act is sustained where the acquired items are not on the procurement list maintained by the Committee for Purchase From People Who Are Blind or Severely Disabled, so that the sole-source procurement was improper and therefore the cancellation of the RFQ was not reasonable.
General Counsel P.C. Highlight:
OSC Solutions argues that GSA could not issue the blanket purchase agreement and orders to IBNC under the authority of the Javits-Wagner-O’Day Act (JWOD Act), because the tarps are not on the JWOD procurement list. Given that the agency could not purchase the tarps from IBNC under the authority of the JWOD Act, OSC Solutions argues that the agency did not have a reasonable basis to cancel the RFQ, where OSC Solutions had submitted a responsive quotation. GAO states that a contracting agency needs a reasonable basis to support a decision to cancel an RFQ. GAO has recognized that a solicitation may be cancelled where, during the course of the procurement, the item or services involved are discovered to be on, or have been added to, the JWOD procurement list.
GSA had no reasonable basis to cancel the RFQ, because the tarps obtained from IBNC under the authority of the JWOD Act are not on the procurement list. Accordingly, GSA’s noncompetitive purchase of the tarps was not authorized by the JWOD Act. Given that the noncompetitive purchase of the tarps from IBNC under the JWOD Act was the agency’s only documented basis for cancellation of the RFQ, GAO finds that GSA did not have a reasonable basis to cancel the RFQ.
GSA argues that OSC Solutions was not prejudiced by the agency’s cancellation of the RFQ. GAO will not sustain a protest unless the protester demonstrates a reasonable possibility that it was prejudiced by the agency’s actions, that is, unless the protester demonstrates that, but for the agency’s actions, it would have had a substantial chance of receiving the award. GAO finds a reasonable possibility that OSC Solutions was prejudiced by GSA’s cancellation of the RFQ and improper issuance of orders to IBNC under the JWOD Act. GSA’s arguments do not establish that there was no reasonable possibility that OSC Solutions would not have had a substantial chance of receiving an order under the RFQ. OSC Solutions raised colorable arguments disputing whether IBNC offer TAA-compliant tarps that would satisfy the RFQ requirements. While GAO would normally recommend that the agency cancel the orders to IBNC and consider issuing an order or orders under the RFQ, GSA has advised us that it terminated for convenience the orders issued to IBNC, after having received 68,406 tarps, and conducted a limited competition for the remaining 93,393 tarps, under which GSA received a quotation from OSC Solutions. The protest is sustained.