BNUMBER:  B-262213
DATE:  September 12, 1995
TITLE:  Air Masters Corporation

**********************************************************************

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.