BNUMBER: B-262213
DATE: September 12, 1995
TITLE: Air Masters Corporation
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Matter of: Air Masters Corporation
File: B-262213
Date: September 12, 1995
Steven M. Cockriel, Esq., Cockriel, Horas & Radice, for the protester.
Michael R. Freeman for Commercial Facilities Management, Inc., an
interested party.
Joel D. Malkin, Esq., General Services Administration, for the agency.
Paula A. Williams, Esq., and Michael R. Golden, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest by incumbent contractor that the agency deprived it of an
opportunity to compete because the firm allegedly did not receive a
mailed copy of the solicitation is denied where the record shows that
the agency followed established procedures for disseminating
solicitation documents, there is no indication of any deficiencies in
the contracting agency's solicitation process and no evidence that the
agency deliberately attempted to exclude the protester.
DECISION
Air Masters Corporation protests any award under request for proposals
(RFP)
No. GS-05P-95-GAC-0056, issued by the General Services Administration
(GSA) for mechanical operation and maintenance services for two
federal buildings in East St. Louis, Illinois. Air Masters, the
incumbent contractor, contends that GSA improperly failed to provide
the firm a copy of the RFP, that this failure precluded it from
submitting an offer, and that the requirement should be canceled and
resolicited to give Air Masters an opportunity to compete.
We deny the protest.
In a letter dated May 11, 1995, the contracting officer notified Air
Masters that it intended to issue a solicitation on or about June 16,
for the services currently being provided by the firm to cover the
period January 1, 1996 to December 31, 1998. The contracting officer
requested Air Masters to provide a copy of the collective bargaining
agreement (CBA) covering the proposed follow-on contract period by
close of business May 30, 1995.
The May 17 Commerce Business Daily (CBD) contained a notice of the
requirement which indicated that performance would begin on January 1,
1996, for a 3-year term and that the agency anticipated a July 20
closing date. Interested firms were directed to contact the contract
specialist to obtain copies of the solicitation and the notice
contained the names and telephone numbers of two agency employees (the
contract specialist and the contracting officer). The RFP was issued
on
June 16, and copies were mailed to 170 firms, including the protester,
on the solicitation mailing list. Amendment 01 was also issued that
day and mailed to the same firms, including Air Masters. The RFP
advised offerors that the current CBA would expire on June 30, and
offerors could obtain a copy of the CBA from either the contracting
officer or the union at the address listed in the RFP.[1] Two
offerors (not including the protester) submitted proposals by the July
20 deadline for receipt of proposals.
On July 21, the contract specialist contacted Air Masters regarding
its failure to submit a proposal and learned that the firm was unaware
that an RFP had been issued. After checking with its staff, the
protester sent a facsimile letter to the contracting officer later
that same day which stated that a search within the organization
revealed that the firm had not received the solicitation package.
Thereafter, on July 26, the contract specialist telephoned Air Masters
and informed its contract manager of the address to which the
solicitation package and the amendment had been mailed on June 16, and
that neither had been returned by the Postal Service as undeliverable.
In addition, the contract specialist advised him of the May 11 letter
which had been mailed, prior to release of the RFP, to the same
address as that used for mailing the solicitation and amendment
packages; that letter also had not been returned by the Postal Service
as undeliverable. Since the solicitation had closed on July 20, the
contract specialist indicated that no further action could be taken.
This protest followed.
Air Masters maintains that it did not receive either the solicitation
package or the May 11 letter and was not "aware" of the CBD
announcement for the follow-on services. The protester asserts that
as the incumbent contractor for the past
11 years, it is unaware of any reason why GSA would not consider the
firm a potential offeror and that the agency's failure to furnish the
firm a copy of the solicitation had the effect of improperly excluding
it from the competition in contravention of the applicable statutory
and regulatory requirements.
Under the Competition in Contracting Act of 1984 (CICA), agencies are
required to obtain full and open competition through the use of
competitive procedures when procuring property or services. 41 U.S.C.
253(a)(1)(A) (1988). "Full and open competition" is obtained when
"all responsible sources are permitted to submit sealed bids or
competitive proposals." 41 U.S.C. 259(c). Accordingly, we
carefully scrutinize allegations that a firm has not been provided an
opportunity to compete for a particular contract and take into account
all of the circumstances surrounding the firm's nonreceipt of the
solicitation materials, as well as the agency's
explanations. Sutton Designs, Inc.,--Recon., B-235382.2, Aug. 11,
1989, 89-2 CPD
131. Thus, we will conclude that the agency has met its obligation
if it has made a diligent, good faith effort to comply with the
statutory and regulatory requirements regarding notice and
distribution of solicitation materials and it obtains competition and
reasonable prices. Metropolitan Int'l Resources, Inc.,
B-258011; B-258012, Nov. 17, 1994, 94-2 CPD 196.[2]
Here, we find GSA satisfied the statutory and regulatory requirements
governing notice and distribution of solicitation materials and have
no basis in the record to attribute the protester's nonreceipt of the
solicitation to any deficiencies in the agency's dissemination process
or to a deliberate attempt to exclude the protester from the
competition.
Air Masters does not dispute that the solicitation mailing list, which
was provided in the agency's report on the protest, contains the
firm's correct mailing address. Nor does it dispute that GSA had the
correct address for mailing the May 11 letter which sought a copy of
the CBA by May 30, and which also advised Air Masters of the
anticipated June 16 issuance of the instant RFP. In this regard, Air
Masters's apparent failure to receive either of these packages in no
way shows purposeful or deliberate action on the part of the agency to
exclude the incumbent from competing. As a general rule, the risk of
nonreceipt of solicitation documents rests with the offeror as the
contracting agency is not a guarantor that these
documents will be received in every instance. Lewis Jamison Inc. &
Assocs.,
B-252198, June 4, 1993, 93-1 CPD 433. Since there is no showing
here that GSA did not mail the solicitation package to Air Masters at
its correct address, there is no basis to sustain the protest.
The protest is denied.[3]
/s/ Ronald Berger
forRobert P. Murphy
General Counsel
1. As a follow-up to the May 11 request for the new CBA, the record
shows that the contract specialist telephoned Air Masters on June 27,
and was told that the new CBA would be issued in mid-July.
2. In its comments on the agency report, the protester alleges that
since the lowest-priced offer GSA received is unreasonably low, this
precludes a finding that adequate competition was achieved. This
contention has no merit. As the agency points out, both timely offers
are significantly below the government estimate (as is also the late
offer submitted by the protester). The fact that a firm's offer for a
fixed-priced contract may be below-cost does not, by itself, provide a
basis to reject the offer. This is so because below-cost pricing is
not prohibited and the government cannot withhold an award from a
responsible offeror merely because its low offer is below cost.
Norden Sys., Inc., B-227106.9, Aug. 11, 1988, 88-2 CPD 131.
Further, the agency reports that this is a negotiated procurement, and
if the agency has reason to question the prices, it can do so by
conducting discussions.
3. Air Masters questions why during a July 13 meeting with three GSA
employees regarding a different contract, none of these employees (who
allegedly are involved with this maintenance services contract)
mentioned the RFP. However, the protester has not shown, nor is there
any evidence in the record before us, that the individuals who met
with the protester knew that a solicitation for the follow-on services
had been issued or that Air Masters had not received the solicitation
package.