CueBid Technologies, Inc. (191BWC24R0003)

B-422290.2,B-422290.3,B-422290.4,B-422290.5 Apr 24, 2024 Jump To FULL REPORT VIEW DECISION RELATED PAGES GAO CONTACTS Highlights CueBid Technologies, Inc. (CueBid), of Palmview, Texas, protests the cancellation of request for proposals (RFP) No. 191BWC24R0003, issued by the United States' section of the International Boundary and Water Commission (USIBWC), for sludge dryer alternatives. The protester argues that the agency's decision to cancel the solicitation lacks a reasonable basis and that the cancellation is a pretext to avoid resolving CueBid's protest grounds. We dismiss the protest in part and deny the protest in part. View Decision Decision Matter of: CueBid Technologies, Inc. File: B-422290.2; B-422290.3; B-422290.4; B-422290.5 Date: April 24, 2024 Eyal Ben-Gal for the protester. Rebecca A. Rizzuti, Esq., and Jennifer T. Pena, Esq., International Boundary and Water Commission, United States and Mexico, for the agency. Kyle E. Gilbertson, Esq., and Peter H. Tran, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest that agency improperly canceled solicitation is denied where the agency reasonably determined that the solicitation no longer met its needs. DECISION CueBid Technologies, Inc. (CueBid), of Palmview, Texas, protests the cancellation of request for proposals (RFP) No. 191BWC24R0003, issued by the United States’ section of the International Boundary and Water Commission (USIBWC), for sludge dryer alternatives. The protester argues that the agency’s decision to cancel the solicitation lacks a reasonable basis and that the cancellation is a pretext to avoid resolving CueBid’s protest grounds. We dismiss the protest in part and deny the protest in part. BACKGROUND On December 22, 2023, the agency issued the solicitation, seeking proposals “to provide sludge dewatering/drying technology or alternatives for reducing the weight and volume of daily sludge production with maximum drying efficiency for the Nogales International Wastewater Treatment Plant (NIWTP),” located in Rio Rico, Arizona. Agency Report (AR), Tab 5, RFP at 1.[1] The NIWTP currently treats approximately 15 million gallons of raw sewage daily. AR, Tab 6, RFP Statement of Objectives (SOO) at 1. The final dewatered sludge is disposed of at a nearby landfill, which has indicated that it is “nearing capacity.” Id. at 2. As other landfills are located farther away from the NIWTP, the agency was “interested in reducing the weight and volume of generated sludge” to lower its disposal costs. Id. The agency consequently sought proposals to provide recommendations for upgrades or innovative technology to improve the existing dewatering and drying process at the NIWTP. Id. at 1. The RFP contemplated the award of a single fixed-price contract, with an anticipated 1-year period of performance. RFP at 4; AR, Tab 6, SOO at 1. The contract’s estimated value was between $1 million and $5 million. AR, Tab 7, RFP amend. 1 at 1. On January 12, 2024, the agency issued amendment 1 to the solicitation. Id. This amendment informed offerors that the RFP was “primarily a service contract” under three separate North American Industry Classification System (NAICS) codes: 236210 (Industrial Building Construction); 333310 (Commercial and Service Industry Machinery Manufacturing); and 423830 (Industrial Machinery and Equipment Merchant Wholesalers).[2] Id. CueBid filed its initial protest with our Office on January 18, arguing that the solicitation was defective, and that the agency had conducted an improper site visit. Protest at 1. The protester contended, for example, that despite being an apparent solicitation for services, the RFP had identified three different NAICS codes “related to construction and supply categories,” thereby “instilling ambiguity in the subject matter of the Solicitation.” Id. at 2. CueBid further asserted the RFP failed to include any “actual evaluation criteria.” Id. On January 24, the agency issued amendment 2 to the RFP, “based on the Contracting Officer’s decision after concerns were raised by CueBid’s GAO Pre-Award Protest.” AR, Tab 8, RFP amend. 2 at 1; AR, Tab 11, Small Business Administration (SBA) Contracting Officer’s (CO) Response at 1. That amendment removed the three separate NAICS codes and replaced them with a single NAICS code, 562211 (Hazardous Waste Treatment and Disposal). AR, Tab 8, RFP amend. 2 at 1. Amendment 2 also established the solicitation as a total small business set-aside, and informed offerors that the agency would provide the solicitation’s evaluation criteria in a forthcoming amendment. Id. CueBid then filed an appeal with the SBA’s Office of Hearings and Appeals (OHA), on January 31, challenging the solicitation’s assigned NAICS code. AR, Tab 12, SBA OHA Decision at 1. After CueBid submitted this appeal to OHA, the agency “pause[d]” the solicitation’s proposal deadline.[3] AR, Tab 9, RFP amend.