Encore Management, Inc., B-278903.2, February 12, 1999

B-278903.2 Feb 12, 1999 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights DIGEST Agency has reasonable basis to cancel solicitation for clerical and administrative support services where agency's actual requirement is for personal services which the agency intends to satisfy with civil service personnel. Our Office subsequently dismissed the protest. /2/ While the agency was proceeding with this corrective action. Which determined that the agency was administering the incumbent contract for clerical and administrative services. Which was being performed under the incumbent clerical and administrative services contract. The incumbent contract with Encore was extended to allow sufficient time to hire government employees for all necessary positions. The RFP was canceled and offerors were so notified by letter of October 23. View Decision Matter of: Encore Management, Inc. File: B-278903.2 Date: February 12, 1999 DIGEST Attorneys DECISION Encore Management Inc. protests the cancellation of request for proposals (RFP) No. 97-PB-05, issued by the Corporation for National and Community Service (CNCS) for clerical and administrative support services. We deny the protest. The RFP, issued on June 3, 1997 as a competitive section 8(a) set-aside, contemplated the award of a time-and-materials contract for 1 year with 4 option years to provide support services at all or most of the agency's offices. /1/ RFP at 1, 5, 9, amend. 2, at 2; Agency Report at 5. The agency awarded a contract to Lionel Henderson Corporation on December 15. Agency Report at 2. Encore protested the award on December 23. On January 22, 1998, the agency proposed to take corrective action in response to the protest, which rendered the protest allegations academic. Id. at 2-3. The agency's corrective action included reopening negotiations, conducting additional discussions, and making a new source selection decision based on revised proposals. Id. at 3. Our Office subsequently dismissed the protest. /2/ While the agency was proceeding with this corrective action, the agency's Office of the Inspector General (OIG) initiated an audit of the agency's procurement and contract administration processes. Agency Report at 3, Tab 20. On August 7, the OIG issued report No. 98-24, which determined that the agency was administering the incumbent contract for clerical and administrative services, and other contracts, as personal services contracts in violation of Federal Acquisition Regulation (FAR) Sec. 37.104 (June 1997), and recommended that the agency either cease using personal services contracts or obtain authority to issue such contracts. Agency Report at 4, Tab 23 at 19-24. CNCS's chief operating officer subsequently determined that the agency would hire government employees to perform the work covered by the RFP, which was being performed under the incumbent clerical and administrative services contract. Agency Report, Contracting Officer's Statement at 6, Tab 24. The incumbent contract with Encore was extended to allow sufficient time to hire government employees for all necessary positions. Contracting Officer's Statement at 6. As a result, the RFP was canceled and offerors were so notified by letter of October 23. RFP amend. 3; Agency Report at 4, Tabs 26, 27. This protest followed. Encore alleges that, although the incumbent contract may have been administered as a personal services contract, nothing in the terms of that contract or the canceled RFP requires its administration as a personal services contract, and thus there is no reasonable basis to cancel the RFP. Protest at 3-4; Comments at 4-7. In a negotiated procurement, such as this, the contracting officer has broad discretion in deciding whether to cancel a solicitation; the contracting officer need only have a reasonable basis to do so, as opposed to the cogent and compelling reason required for the cancellation of a solicitation after sealed bids have been opened. G.K.S. Inc., B-235208, Aug. 9, 1989, 89-2 CPD Para. 117 at 3. An agency may properly cancel a solicitation no matter when the information precipitating the cancellation first surfaces or should have been known, even if the solicitation is not canceled until after offers have been submitted and evaluated. Jack Faucett Assocs., supra. Cancellation of a solicitation is proper where award under the solicitation would not serve the government's actual needs. Constructive Solutions, Inc., B-278227, Jan. 9, 1998, 98-1 CPD Para. 9 at 2; Waste Management Envtl. Servs., Inc., B-252553, July 12, 1993, 93-2 CPD Para. 14 at 4-5. It is the responsibility of the contracting activity to determine its requirements, and our Office will defer to the activity's judgment in that regard. Peterson-Nunez Joint Venture, B-258788, Feb. 13, 1995, 95-1 CPD Para. 73 at 4.