BNUMBER:  B-265869
DATE:  January 2, 1996
TITLE:  Marine Research Specialists

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Matter of:Marine Research Specialists

File:     B-265869

Date:     January 2, 1996

Eiji Imamura, Marine Research Specialists, for the protester.
Fred Kopatich, Esq., and Alden F. Abbott, Esq., Department of 
Commerce, for the agency.
Charles W. Morrow, Esq., and James A. Spangenberg, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Agency improperly failed to provide a common basis for competition or 
obtain full and open competition where it timely provided some 
offerors with reports prepared under the incumbent contract, which the 
solicitation stated would be made available, but advised the protester 
to seek the information under the Freedom of Information Act; only 
provided the protester with this material information 2 days before 
the proposal due date; and then declined to extend the proposal due 
date, which effectively resulted in the protester's being able to 
submit a proposal on a common basis.

DECISION

Marine Research Specialists (MRS) protests the agency's failure to 
timely provide certain information under request for proposals (RFP) 
No. 50-DGNF-5-00079, issued by the Department of Commerce, National 
Oceanic and Atmospheric Administration (NOAA) for a marine 
recreational fishing survey.

We sustain the protest.

NOAA issued the RFP on July 11, 1995, to obtain a contractor to 
conduct the 1996 "National Marine Fishery Statistics Survey" (NMFSS), 
with options to conduct the survey in 1997 and 1998.[1]  The RFP 
contained detailed instructions for the preparation of technical, 
management, and price proposals, and set forth a best value evaluation 
scheme whereunder technical and management factors were weighted 
equally to cost.

The RFP statement of work (SOW) with accompanying appendices detailed 
the requirements for conducting the survey, including the sampling 
population, the survey procedures, and the required questions.  The 
SOW further advised that "reports of the results of previous surveys 
were available upon request."  Amendment No. 0001, issued on August 
15, changed the closing date from August 26 (a Saturday) to August 25, 
and identified the specific reports that were available on request.  

In February 1995, NOAA notified the marine research firms on its 
mailing list, including MRS, of the upcoming procurement and sent each 
a copy of the current contract's SOW.[2]  On July 6 (just prior to 
issuance of the RFP), MRS contacted the contracting officer to request 
various documents related to the incumbent contract, including the 
reports generated under that contract.[3]  Instead of furnishing MRS 
with the reports, the contracting officer advised MRS that these 
reports, as well as the additional requested information, had to be 
obtained from the agency's Freedom of Information Act (FOIA), 5 U.S.C.  
552 (1994), office, not the contracting office.  Other potential 
offerors who requested these survey reports after the RFP was issued 
on July 11 were provided them by the contracting office in a timely 
manner. 

As directed by the contracting officer, MRS immediately filed a FOIA 
request for the documents with the NOAA FOIA office on July 7.  On 
July 24, the FOIA officer requested that MRS pay certain fees to 
offset the cost of releasing the documents, which MRS paid the next 
day by overnight mail.  MRS never received any further response from 
the FOIA office.

On August 21 and 22, MRS contacted the contract specialist and 
contracting officer to complain that it had not received the reports 
or other information requested pursuant to FOIA and that this put MRS 
at a disadvantage in submitting a proposal.  According to MRS, it 
sought more time to submit a proposal in view of the impending August 
25 closing date.[4]  The agency then provided MRS with the voluminous 
reports by overnight mail on August 22.  MRS timely protested on 
August 24 requesting that the closing date be extended.  The agency 
did not extend the closing date and has received proposals.[5]  

MRS protests that the agency failed to timely provide it with the 
reports referenced in the RFP's SOW, which prevented MRS from 
submitting a competitive proposal.  MRS argues that the reports 
generated under the incumbent contract were critical to producing a 
superior proposal under this best value procurement, and that MRS was 
denied an equal opportunity to participate in the competition because 
of the agency's failure to provide this information in a timely 
manner.[6] 
 
The Competition in Contracting Act of 1984 (CICA), 41 U.S.C.  
253(a)(1)(A) (1994), requires contracting agencies to obtain full and 
open competition through the use of competitive procedures, the dual 
purpose of which is to ensure that a procurement is open to all 
responsible sources and to provide the government with the opportunity 
to receive fair and reasonable prices.  Custom Envtl. Serv., Inc., 70 
Comp. Gen. 563 (1991), 91-1 CPD  578; Catamount Constr. Inc., 
B-225498, Apr. 3, 1987, 87-1 CPD  374.  In furtherance of these 
goals, it is the contracting agency's affirmative obligation to use 
reasonable methods for the dissemination of solicitation materials; 
significant deficiencies on the part of the agency that contribute to 
a firm's failure to receive solicitation materials will result in our 
sustaining a protest, so long as the protester availed itself of every 
reasonable opportunity to obtain the materials.  Id.

Moreover, it is a fundamental principle of competitive negotiation 
that offerors must be treated equally by a procuring activity.  
University Research Corp., 64 Comp. Gen. 273 (1985), 85-1 CPD  210; 
EMS Dev. Corp.,  70 Comp. Gen. 459 (1991), 91-1 CPD  427.  An 
essential element of that treatment involves providing offerors with 
the same information concerning the agency's requirements so as to 
provide a common basis for the submission of proposals.  Id; see 
Federal Acquisition Regulation (FAR)  15.410 (c) (any information 
that is given to a prospective offeror under a negotiated procurement 
must be promptly furnished to all other prospective offerors as a 
solicitation amendment if the information is necessary in submitting a 
proposals, or if the lack of such information would be prejudicial).   

NOAA argues that MRS is primarily to blame for its delayed receipt of 
the incumbent's survey reports because, unlike the other offerors, MRS 
did not seek the reports from the contracting office during the 
proposal preparation period until shortly before the closing date.  
However, 2 working days prior to issuing the RFP the contracting 
officer instructed MRS to obtain the reports from the agency's FOIA 
office.  Consequently, the protester's actions in seeking this 
information through FOIA channels, as directed, was entirely 
reasonable and consistent with the RFP's advice that such reports 
would be made available.  See Qualimetrics, Inc., B-262057, Nov. 16, 
1995, 95-2 CPD  228.  NOAA offers no explanation as to why MRS was 
directed to obtain the reports from the FOIA office and the record 
indicates that MRS diligently sought the reports from the office to 
which it was directed by the cognizant contracting official up until 
it became clear that they would not be obtained in time for use in the 
preparation of its proposal.  As stated above, NOAA did not refer any 
other requester to the FOIA office; instead, it timely furnished the 
reports to all other prospective offerors who requested the reports.  

NOAA maintains that in any event the information was immaterial 
because the SOW was sufficiently detailed to allow MRS to prepare a 
proposal.  NOAA, however, on its own initiative, made these reports 
available upon request, presumably in recognition of the importance 
that these documents might serve to prospective offerors, and the 
other offerors did indeed request and receive these reports.  On this 
record, we cannot say that, notwithstanding the level of detail in the 
SOW, access to the reports would not enhance an offeror's 
understanding of, and ability to satisfy, the agency's requirements.

We conclude that MRS was treated unequally by not being given the same 
timely access to the reports as were given the other offerors and that 
the agency's actions effectively prevented MRS from submitting a 
proposal on a common basis with the other offerors.  Further, we 
conclude that the agency exacerbated the situation by not extending 
the closing date as requested by the protester, with the result that 
the agency did not obtain full and open competition.[7]  See 
University Research Corp., supra; EMS Dev. Corp., supra; Catamount 
Constr. Co., supra.

We recommend that NOAA establish a new closing date and allow MRS to 
submit a proposal.  MRS also is entitled to the costs of filing and 
pursuing the protest, including reasonable attorneys' fees.  4 C.F.R.  
21.6(d)(1) (1995).  MRS should submit its certified claim for costs 
directly at the agency within 60 days of receiving this decision.  4 
C.F.R.  21.6(f)(1).

The protest is sustained.

Comptroller General
of the United States  

1. The NMFSS consists of a telephone survey of recreational fishing by 
residents in coastal counties and a field intercept survey of anglers 
returning from recreational fishing trips.  The purpose of the NMFSS 
is to collect statistics on the status of marine recreational fishery 
resources.  

2. The current contract's SOW also included the provision that reports 
generated under the previous contract were available upon request.

3. MRS also requested a copy of the incumbent's actual contract and 
its technical proposal for that contract.

4. The contracting officer states that "at no time during this 
conversation did [MRS] ask for a specific extension of time to submit 
a proposal."  The protester states that the agency made clear during 
the conversations that the closing date would not be extended and that 
since it had been given none of the requested information at that time 
it did not know precisely how much time would be required.

5. No award has been made.

6. To the extent that MRS through its protest seeks to obtain the 
remaining information it requested pursuant to its FOIA request it 
must avail itself of the remedies available under FOIA.  See LNM 
Corp., B-247669, Apr. 29, 1992, 92-1 CPD  405.

7. NOAA asserts that the CICA mandate for full and open competition 
was not violated because, given the number of offers received (we do 
not disclose the number of offers because no award has been made), it 
obtained adequate competition.  However, our review indicates that the 
competition was not so great that it could be said that the mandate 
for full and open competition was realized because the absence of even 
one offeror here due to the agency's improper action diminishes the 
level of competition.  See, e.g., Davis Enter., B-249514, Dec. 4, 
1992, 92-2 CPD  389; Abel Converting, Inc. v. United States, 679 
F.Supp., 1133 (D.D.C. 1988).