Protest challenging the cancellation of a solicitation is denied. Given the history of protests over three years, the agency was justified in reconsidering its procurement strategy. Moreover, the agency had revised its procurement plan in such a way that continuing with the solicitation as written was no longer viable. The protester argued that the agency failed to consider important aspects of the solicitation but did not identify any significant aspect the agency failed to consider. The protester also alleged that the agency cancelled the solicitation in bad faith, but the court found no evidence of malfeasance.
NASA issued a solicitation for acquisition and business support services at the Marshall Space Flight Center. Twenty offerors, including A Squared Joint Venture (A2JV), responded to the solicitation. NASA eliminated A2JV from the competition due to an organizational conflict of interest. A2JV filed a protest with the Court of Federal Claims challenging its elimination.
While A2JV’s COFC protest was pending, NASA awarded the contract to Paragon TEC, Inc. An unsuccessful offeror, Will Technology, Inc., protested the award to Paragon. In light of the protest, NASA reevaluated Paragon’s proposal and then selected a third offeror, Canvas, Inc., for award. Paragon and Canvas filed GAO protests. GAO sustained the protests and recommended NASA reevaluate proposals.
In the meantime, the COFC in A2JV’s protest determined that A2JV’s disqualification was unreasonable. The court ordered the parties to provide briefing on injunctive relief.
But NASA ended up cancelling the solicitation. The contracting officer stated that NASA now wanted to incorporate the acquisition support in the contract into an agency-wide procurement, not just a procurement for the flight center. Moreover, the CO explained, without acquisition services as part of the procurement, a separate contract solely for business support did not make sense.
A2JV amended its protest complaint to challenge the cancellation of the solicitation. Both parties then moved for judgment on the administrative record.
The court found that the decision to cancel the solicitation was rational. Given the history of protests, it was reasonable for NASA to reexamine its rationale for the contract. Indeed, it was reasonable for NASA to question the continued viability of proposals that were three years old. What’s more, NASA rationally decided to consider whether the solicitation was consistent with its agency-wide procurement policy goals.
A2JV argued that NASA’s planned agency-wide procurement might not meet the needs of the Marshall Flight Center. But the CO determined that the agency-wide procurement would meet the center’s needs. What’s more, continuing the procurement to just seek business support would have likely resulted in a cardinal change, requiring a re-solicitation. A2JV’s disagreement with the CO’s conclusions did not make the cancellation unreasonable.
A2JV also argued that the CO failed to consider important aspects of the cancellation, including the availability of other contracting vehicles, the impact on small business, and the possible advantages of bundling acquisition and business support services.
But the court noted that when a protester claims that an agency has failed to consider an important aspect of the problem, the “important aspect” must be some applicable source of substantive law. A2JV did not really identify any sources of law; it claimed that the CO should have addressed pros and cons of the various options before cancelling. The court disagreed, reasoning that the CO only needed to set forth a general approach for a new acquisition plan, which he did. The court would not substitute its judgment for the CO’s.
Finally, A2JV contended that the decision to cancel the solicitation was done in bad faith to avoid an adverse decision in A2JV’s protest. The court found this argument inconsistent with the record, which showed that the cancellation was based on NASA’s decision to change its procurement strategy.
A2JV is represented by Joseph P. Dirik. The government is represented by Borislav Kushnir, Joseph H. Hunt, Robert E. Kirschman, Jr., and Douglas K. Mickle of the U.S. Department of Justice as well as Jerry L. Seemann of NASA.
