TITLE:  Aleman & Associates, Inc., B-287275.2; B-287356.2, July 2, 2001
BNUMBER:  B-287275.2; B-287356.2
DATE:  July 2, 2001
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Aleman & Associates, Inc., B-287275.2; B-287356.2, July 2, 2001

Decision

Matter of: Aleman & Associates, Inc.

File: B-287275.2; B-287356.2

Date: July 2, 2001

Albert T. Aleman, Jr., Aleman & Associates, Inc., for the protester.

Michael K. Cameron, Esq., Department of Justice, Immigration and
Naturalization Service, for the agency.

Jeanne W. Isrin, Esq., and Jerold D. Cohen, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Cancellation of request for quotations (RFQ) for 1 year of janitorial and
grounds maintenance services, with 4 option years, on the basis that the
services had to be procured pursuant to the Javits-Wagner-O'Day (JWOD) Act,
was improper where only services for 240 days or fewer had to be acquired
under the statute. Related RFQ to cover a shorter term properly was
canceled, however, since a reasonable basis existed for cancellation.

DECISION

Aleman & Associates, Inc. protests the cancellation of request for
quotations Nos. ACD-8-Q-0024 (RFQ-0024) and ACD-1-Q-0008 (RFQ-0008), issued
by the Immigration and Naturalization Service (INS), Department of Justice,
for janitorial and grounds maintenance services at border patrol stations
and related INS facilities in the Laredo, Texas area.

We sustain the protest.

The RFQs cover 12 facilities that employ Border Patrol agents who are
responsible for apprehending illegal immigrants and maintaining custody of
them at the facilities. INS previously had procured the required janitorial
and grounds maintenance services for 11 of the facilities competitively,
which had resulted in purchase orders to three different contractors; the
twelfth facility, the Laredo North Station, was not open at that time. INS
then decided to consolidate its requirements in the interest of higher
quality performance, efficiency in acquisition, and consistency in services
received, and in March 2000 issued RFQ-0024, set aside for small businesses,
for long-term services (a 1-year base period plus 4 option years) to be
provided at the original 11 facilities plus the Laredo North Station, which
was scheduled to open on November 1, 2000.

Five quotations were received on June 2, 2000. The agency evaluated them and
made a competitive range determination, which included Aleman's quotation.
Subsequently, amendments were issued, and revised quotations were received
on August 25. Due to a protracted review process and a lack of personnel
resources, evaluation of revised quotations was delayed. On February 12,
2001, Aleman protested the delay in making award, an alleged solicitation
defect, and a competitive advantage that one vendor had improperly gained,
according to Aleman. Further revised quotations were requested by February
20. Meanwhile, INS issued RFQ-0008 to competitively procure its short-term
requirements for the 12 facilities until the procurement under RFQ-0024 was
completed. [1] On March 5, Aleman protested RFQ-0008, arguing that the
solicitation was ambiguous and reflected numerous violations of the Federal
Acquisition Regulation (FAR).

On March 20, INS canceled both RFQs based on the agency's determination that
the required services had to be procured through the National Industries for
the Severely Handicapped (NISH) pursuant to FAR Subpart 8.7, which
implements the Javits-Wagner-O'Day Act (JWOD Act), 41 U.S.C. sect.sect. 46-48c
(1994). Subsequently, the agency awarded a short-term contract for the
required services (and added a 13th facility) through NISH (which represents
JWOD-participating nonprofit agencies), for 1 month with an option to extend
for 6 months.

Aleman protested both cancellations on March 22, arguing that the agency was
not required to procure either requirement from a mandatory source, and
hence no reasonable basis for cancellation existed in either case.

We agree with Aleman as to RFQ-0024 and we therefore sustain the protest of
that cancellation. We deny the protest with respect to RFQ-0008.

The JWOD Act provides authority for noncompetitive acquisitions for
specified supplies or services. See FAR sect. 6.302-5(b)(2). The Act establishes
the Committee for Purchase from People Who Are Blind or Severely Disabled
(the Committee), and grants it exclusive authority to establish and maintain
a procurement list of supplies and services provided by qualified nonprofit
agencies for the blind or disabled. 41 U.S.C. sect.sect. 46(a), 47(a); see FAR
Subpart 8.7. Once a service has been added to the procurement list,
contracting agencies are required to acquire that service directly from a
qualified workshop, if the service is available within the period required.
41 U.S.C. sect. 48; FAR sect. 8.704; JAFIT Enters., Inc., B-266326, B-266327, Feb.
5, 1996, 96-1 CPD para. 39 at 2.

INS maintains that it had to cancel both solicitations because the required
services are on the procurement list and available through NISH via General
Services Administration/JWOD Basic Ordering Agreement (BOA) No. GS07F-NISHT.
"Temporary Administrative/General Support Services" for Texas, Oklahoma,
Louisiana, Arkansas and New Mexico have been on the procurement list since
August 30, 1996. The BOA is a written understanding for short-term (less
than 240 days) JWOD-related contract actions, setting out terms and
conditions that become effective, and binding, upon incorporation into an
order or contract issued under the document. [2] BOA at 1. INS issued a
short-term contract using the BOA [3] and, for its longer-term need for the
janitorial and grounds maintenance services, submitted a request to the
Committee to begin the process to have that requirement added to the JWOD
procurement list; on April 13, the Committee published in the Federal
Register notice of its proposed intent to add the required services to the
list.

Cancellation of RFQ-0024

A contracting agency needs a reasonable basis to support a decision to
cancel an RFQ. USA Elect., B-283269.2, Oct. 5, 1999, 99-2 CPD para. 67 at 3. We
have recognized that a solicitation properly may be canceled where, during
the course of the procurement, the items or services involved are discovered
to be on, or have been added to, the JWOD procurement list. See Best Foam
Fabricators, Inc., B-259905.3, June 16, 1995, 95-1 CPD para. 275 at 2; Microform
Inc., B-246253, Nov. 13, 1991, 91-2 CPD para. 460, aff'd on recon., B-246253.2,
Mar. 31, 1992, 92-1 CPD para. 338.

There was no reasonable basis to cancel RFQ-0024, since the services it
covered were not on the JWOD procurement list, and INS was therefore not
required to procure the services through NISH--indeed, it was not permitted
to purchase the services through NISH. RFQ-0024 represented an INS
requirement for 1 base year plus 4 option years. Quotations were solicited
on that basis in March of 2000, and discussions, amendments, and evaluations
were founded on a need covering that time frame. The only related services
currently on the procurement list are "temporary"; the BOA, through which
such services presumably would be ordered, similarly is clear that it
applies only to temporary services, not to exceed 240 days. As indicated
above, services to cover the length of time involved in RFQ-0024 have been
proposed for the procurement list, but they have not yet been added. Neither
the presence of short-term services on the list, nor the anticipation of
longer-term services being added, supports INS's action. [4]

Cancellation of RFQ-0008

As stated above, RFQ-0008 was issued on a competitive basis to ensure the
continuity of services while the RFQ-0024 procurement was being completed.
We have no legal basis to object to the cancellation of RFQ-0008. The
solicitation contemplated a 2-month contract with 1-month options, which put
it within the parameters of the temporary services now on the JWOD
procurement list, as well as those covered by the BOA, making award through
NISH required. As stated above, cancellation of a solicitation is proper
where the agency determines that it is required to procure the required
supplies or services from a non-profit agency pursuant to the JWOD Act.

We note that Aleman argues that procurement from NISH is not required based
on the following BOA provision:

NONMANDATORY STATUS

This agreement is for nonpersonal ‘temporary' Administrative and
General Support Services. The Government is not required to order any
services from the associated nonprofit agencies.

BOA at 3. The meaning of this standard clause in the JWOD context is not
altogether clear from the record -- it may be intended simply to clarify
that the existence of the BOA document does not obligate the government to
order any services through that procurement vehicle. In any case, however,
the provision clearly does not alter the mandatory character of the JWOD
procurement list with respect to covered temporary administrative/general
support services.

Recommendation

Since RFQ-0024 was improperly canceled, we would ordinarily recommend that
INS reinstate the solicitation and complete the procurement. As noted above,
however, the required services were proposed to be added to the procurement
list on April 13, and the Committee advises us that the approval process is
approaching completion. We believe that it therefore is unlikely that INS
could revive and complete the dormant procurement and make award before the
addition of the required services to the procurement list, so that no useful
purpose would be served by recommending that the agency reinstate RFQ-0024.
[5] Cf. JAFIT Enters., Inc., supra (where we did not recommend that
outstanding purchase orders improperly issued to Goodwill Industries under
JWOD Act authority be terminated, since most if not all of the services
involved had since been added to the procurement list). However, because INS
violated procurement laws and regulations, we find Aleman entitled to the
costs of filing and pursuing its protest of the RFQ-0024 cancellation, and
its quotation preparation costs in connection with that procurement. Bid
Protest Regulations, 4 C.F.R. sect. 21.8(d) (2001). The protester should submit
its certified claim for such costs, detailing the time expended and the
costs incurred, directly to the contracting agency within 60 days after
receipt of this decision. 4 C.F.R. sect. 21.8(f)(1).

The protest is sustained.

Anthony H. Gamboa
General Counsel

Notes

1. Before it issued RFQ-0008, INS had issued sole-source purchase orders to
the incumbent contractors to cover the 11 original facilities, and also had
issued a purchase order, following a competitive procurement, for the
services for the Laredo North Station. In our decision Aleman & Assocs.,
Inc., B-287275, May 17, 2001, 2001 CPD para. ___, we denied Aleman's protest of
those actions.

2. The BOA (at 1) specifies:

This agreement is pursuant to and meets the requirements of the
Javits-Wagner-O'Day Act (41 U.S.C. 46-48(c)) and the rules of the Committee
for Purchase From People Who Are Blind or Severely Disabled (41 CFR Part
51). Orders or contracts issued under the scope of this agreement are
considered to meet the requirements of FAR Part 8.7 and no agency need seek
further competition, justification or comply with the synopsis requirements
of FAR 16.703.

3. We have no basis to dispute INS's position that the janitorial and
grounds maintenance services involved here are administrative/general
services within the BOA's purview.

4. We have held that an agency violated the statutory requirement for full
and open competition in a negotiated procurement where it relied on the JWOD
Act authority in making a noncompetitive award for services that were added
to the procurement list only after the contract was awarded. JAFIT Enters,
Inc., supra.

5. We therefore need not consider the specific issues Aleman raised
regarding the solicitation and the evaluation process.