In the protest decision of Aerosage, LLC, B-410648.3 (March 20, 2015), the GAO held that the VA properly cancelled a solicitation for fuel oil while the protest was still pending. The VA cancelled the solicitation after it acquired a 3-day emergency supply of fuel under a sole source procurement and the rest of the fuel under an existing contract with the Defense Logistics Agency.
Aerosage argued that the VA improperly circumvented the automatic stay that was implemented when the protest was filed.
The GAO noted that while an Agency cannot avoid the automatic stay by cancelling a solicitation and ordering the same services under a different solicitation, this is not exactly what happened here. The VA had an urgent need for fuel and justified purchasing a 3-day supply on a sole source basis. This was done under a different solicitation and with the appropriate sole source justifications. Additionally, the VA purchased the remaining fuel required under an existing contract with the Defense Logistic Agency. The VA said there was nothing wrong with that either. As such, the GAO held that the solicitation being protested no longer fit the VA’s needs and was therefore properly cancelled.
This decision provides a good legal discussion on the boundaries of the Government’s right to cancel a solicitation.
