Comptroller General

United States General Accounting Office

Washington, DC 20548 

of the United States

Decision 

Matter of: Cummins Power Systems, LLC 

File: B-402079.2 

Date: January 7, 2010 

Paul A. Debolt, Esq., and Jeffery M. Chiow, Esq., Venable, LLP, for the protester. 

Debra J. Talley, Esq., Department of the Army, for the agency. 

Mary G. Curcio, Esq., and John M. Melody, Esq., Office of the General Counsel, GAO, 

participated in the preparation of the decision. 

DIGEST 

Compelling reason existed to cancel invitation for bids (IFB) after bid opening--and 

protest challenging cancellation is denied--where IFB restricted competition by 

requiring offeror to be a certified distributor of brand name item, and agency 

determined that restriction exceeded its needs. 

DECISION 

Cummins Power Systems LLP protests the post-bid opening cancellation of 

invitation for bids (IFB) No. W15P7T-09-B-J005, issued by the Department of the 

Army for Onan brand engines, which are used in tactical quiet generators. 

 

We deny the protest. 

 

The IFB was issued on a brand name basis for Onan engines and limited the 

competition to Onan-certified distributors. IFB at 2. On September 30, 2009, the 

Army made award to Engineered Electric Company DBA Fermont (Fermont). 

Cummins challenged the award in a protest filed in our Office, arguing that Fermont 

was not eligible for the award because it is not a certified distributor of Onan 

engines. In response, the agency advised our Office that it had decided to cancel the 

IFB and would re-issue it without the certified distributor restriction. Cummins 

asserts that the cancellation is improper and that, as the sole responsive, responsible 

bidder under the IFB, it should receive the award. 

 

A contracting agency must have a compelling reason to cancel an IFB after bid 

opening due to the potential adverse impact on the competitive bidding system of 

resoliciting after bid prices have been exposed. Federal Acquisition Regulation 
(FAR) § 14.404-1(a) (1); HDL Research Lab, Inc., B-254863.3, May 9, 1994, 94-1 CPD 

¶ 298 at 5. An IFB may be canceled and all bids rejected after opening where, 

consistent with the compelling reason standard, cancellation is clearly in the public's 

interest. FAR § 14.404-1(c)(10). An agency’s desire to obtain enhanced competition 

by materially modifying specifications to make them less restrictive constitutes a 

valid reason for canceling an IFB under this FAR standard. Hroma Corp., B-285053, 

June 6, 2000, 2000 CPD ¶ 88 at 4; Diversified Energy Sys.; Essex Elec. Eng’rs, Inc., 

B-245593.3, B-245593.4, Mar. 19, 1992, 92-1 CPD ¶ 293 at 3. 

Here, in response to Cummins’s protest, the agency explains that, while it requires 

Onan engines, it has no legitimate need for the contractor to be a certified Onan 

distributor. Agency Report (AR) at 5. In this regard, the agency notes that Fermont 

has provided the engines in the past, in a manner that meets its needs. Id. at 6.1

 This 

being the case, and since it is clear that at least one bidder--Fermont, which 

submitted the lowest price--would be precluded from competing if the certification 

requirement is not removed from the IFB, the agency reasonably determined that 

resolicitation would result in enhanced competition and, accordingly, that 

cancellation was in the public’s interest. Under these circumstances, there was a 

compelling reason to cancel the IFB, and the cancellation therefore was 

unobjectionable. See Siemens Power Corp.; Asea Brown Boveri, Inc., B-257167, 

B-257167.2, Aug. 11, 1994, 94-2 CPD ¶ 160 at 2-3 (cancellation was unobjectionable 

where agency determined it had overstated its needs and less restrictive

specifications should result in enhanced competition and lower costs). 

Cummins argues that, because it submitted a responsive bid and it is a responsible 

bidder, it will be prejudiced by the cancellation and resolicitation. However, the fact 

that Cummins may be prejudiced does not preclude cancellation where, as we have 

found is the case here, there is a compelling reason for the cancellation. In any case, 

we note that Cummins will have the same opportunity as the other bidders to submit 

a new bid with knowledge of the other bids submitted. 

The protest is denied. 

Lynn H. Gibson 

Acting General Counsel 

 

1

 Cummins asserts that the agency’s corrective action conflicts with the justification 

and approval (J&A) the agency originally prepared to limit the competition to 

certified distributors. The Army responds that the J&A was never intended to 

approve limiting the competition to certified distributors. We need not resolve this 

dispute in light of the agency’s subsequent determination that it does not need the 

engines to be provided by a certified Onan distributor. 

Page 2 B-402079.2