Agency Reasonably Canceled Solicitation to Switch to More Advantageous Contract Vehicle; GAO B-416390.5, Abacus Technology Corporation

Protest alleging that the agency improperly cancelled a solicitation following two protests is denied, where the agency reasonably decided to pursue the requirement using a newly-available IDIQ that provided for a longer period of performance. While the agency knew the IDIQ used for the original solicitation would not provide for its preferred period of performance, department policy required use of this IDIQ. GAO found it reasonable for the agency to switch to new contract vehicles with longer performance periods when they became available.

Abacus Technology Corporation protested U.S. Citizenship and Immigration Services’ decision to cancel a solicitation for IT services after several rounds of challenges to the evaluation and award decisions.

USCIS initially awarded the contract to Abacus, but that decision was protested by Salient CRGT Inc. After corrective action, the agency awarded the contract to Salient and Abacus protested. At this time, the agency decided to cancel the solicitation altogether and begin with a fresh acquisition using a different contract vehicle. The agency explained that the EAGLE II IDIQ would expire in 2020 and thus task orders under the contract would not be able to provide five years of uninterrupted services.

Abacus argued that the agency’s rationale for cancelling the solicitation is premised upon an incorrect reading of the underlying EAGLE II IDIQ contract and that any alleged desire for a five-year period of performance is belied by agency actions over the course of this procurement. Instead, Abacus alleged the cancellation is a pretext to avoid defending against another protest.

However, GAO found the agency’s rationale reasonable. First, GAO rejected Abacus’ argument that the agency misread the provisions of the IDIQ. Abacus noted that task orders could run through September 2021, even though the IDIQ expires in September 2021. However, the agency’s stated preference was to award a task order that would provide uninterrupted services for at least 60 months, well beyond the September 2021 expiration date. Therefore, GAO found it irrelevant whether a task order issued under the cancelled solicitation would run for 20 months or 32 months.

Alternatively, Abacus argue the agency was well aware of the expiration date for EAGLE II when the original solicitation was issued, and therefore the impending expiration of the contract is not a new issue that justifies a change in the agency’s procurement strategy. According to Abacus, USCIS knew that a five-year period of performance was not available, and that the agency never purported to require such a period.

Specifically, Abacus noted that the solicitation contemplated a four-year period of performance. Further, the agency issued the initial award to Abacus even though only three years of performance remained, and made the second award to Salient, even though less than three years remained. Abacus alleged that the desire to avoid another protest was the true reason for the cancellation.

USCIS conceded that the initial solicitation provided for a four-year period of performance, as that was the maximum time available under EAGLE II. However, the agency noted it was required by DHS policy to use EAGLE II for these services, even though it would have preferred a longer period of performance. However, as the second protest played out, DHS announced a portfolio of contracts designated to replace EAGLE II and USCIS decided to avail itself of one of these new vehicles. Thus, rather than award a task order under EAGLE II, which would require the agency to conduct another procurement within the next 2 to 3 years, USCIS opted to pursue the work using a new contract vehicle that would provide its preferred period of performance.

GAO found nothing objectionable about the agency’s decision and no evidence the agency wished to avoid a competitive procurement or another protest. GAO noted that an agency may reasonably cancel a solicitation when it identifies a contract that is more advantageous. GAO also explained that the question here is not what the agency would have done absent the second protest, but whether its actions were reasonable.

Abacus Technology Corporation is represented by Gregory R. Hallmark and Elizabeth N. Jochum of Holland & Knight LLP, and Alexander B. Ginsberg and Meghan D. Doherty of Pillsbury Winthrop Shaw Pittman LLP. Salient CRGT Inc. is represented by Holly A. Roth, Elizabeth G. Leavy, and Lawrence P. Block of Reed Smith LLP. The government is represented by John Cornell, Department of Homeland Security. GAO attorneys Elizabeth Witwer and Jennifer D. Westfall-McGrail participated in the preparation of the decision.