American Consulting Services, Inc., B-276149.2; B-276537.2,

American Consulting Services, Inc., B-276149.2; B-276537.2, BNUMBER: B-276149.2; B-276537.2 DATE: July 31, 1997 TITLE: American Consulting Services, Inc., B-276149.2; B-276537.2, July 31, 1997 ********************************************************************** Matter of:American Consulting Services, Inc. File: B-276149.2; B-276537.2 Date:July 31, 1997 Terrence M. O'Connor, Esq., and Shirley Maznicki, for the protester. Thomas J. Duffy, Esq., Captain Philip T. McCaffrey and John F. Guckert Jr., Esq., Department of the Army, for the agency. Karin L. Genis, Esq., for the Small Business Administration. Behn Miller, Esq., and Christine S. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST 1. Protest challenging post-bid opening cancellation of invitation for bids on ground that cancellation was prompted solely by contracting agency's bad faith intent to avoid awarding a contract to the protester is denied where there is no evidence of such bad faith and where the canceled solicitation did not reflect the contracting agency's minimum needs. 2. Protest that contracting agency transferred its requirement for remedial education services to the Small Business Administration's (SBA) section 8(a) contracting program in a bad faith attempt to avoid continued performance under a small business set-aside contract previously awarded to the protester and in retaliation for filing of a protest is denied where record shows that: (1) significantly higher testing success rate and independent research at other Army installations convinced the contracting activity to convert the current instructor/classroom requirement to an automated tutorial program; (2) agency's decision to convert the procurement from an instructor/classroom format to an automated tutorial program was made several months prior to the contractor's current protest challenging cancellation of another educational services solicitation; and (3) the contracting agency properly classified the offered procurement as a new requirement. DECISION American Consulting Services, Inc. (ACS) protests the Department of the Army's cancellation of invitation for bids (IFB) No. DAKF36-97-B-0002, for certification and accreditation of the Primary Leadership Development Course (PLDC) at the Fort Drum, New York, Noncommissioned Officer's (NCO) Academy. ACS was the apparent low bidder under the canceled IFB. ACS also protests the failure of the Army to exercise the final option of its remedial education services contract, No. DAKF36-94-D-0015, and the transfer of this requirement to the Small Business Administration's (SBA) section 8(a) program. ACS contends that both the IFB cancellation and the transfer of the remedial education services requirement to the section 8(a) program reflect a bad faith attempt by the Army to avoid contract awards to ACS. Because both protests arise from the same allegation of bad faith, we address them in one decision. We deny the protests. BACKGROUND The PLDC IFB was issued on October 17, 1995, and contemplated the award of a firm, fixed-price contract for "all personnel, equipment and materials . . . to perform all services necessary to certify and accredit" the PLDC course for "6 [college] credit hours per student." Of significance to this protest, the IFB identified each PLDC "session" or "class" as being comprised of "approximately 80 students"; bidders were also advised that "approximately 18 contact hours are available to the contractor during the PLDC" to provide the supplemental instruction necessary to obtain the required college accreditation. Originally, the IFB had limited competition to accredited colleges and universities; however, on November 15, the Army issued an amendment which expanded competition to include business concerns--such as ACS--which were "able to obtain the services of one fully accredited college or university." At the November 26 bid opening, only two bids were submitted. ACS was the apparent low bidder ($172,800); Jefferson Community College (JCC)--the incumbent for the PLDC requirement--submitted the second lowest-priced bid ($205,632). Shortly after bid opening, the contract specialist contacted ACS and asked for verification of its bid price; the specialist also asked ACS to identify the name of the college with which it would be subcontracting, and to provide several contract references. Despite several rounds of facsimile correspondence between the contract specialist and ACS, the Army never received any evidence from ACS regarding its university or college arrangements for the PLDC course. Since August 1994, ACS had been performing a different contract for remedial education services--referred to as the "FAST [Functional Academic Skills Training] requirement"--at Fort Drum.