BNUMBER:  B-270993
DATE:  May 10, 1996
TITLE:  Family Stress Clinics of America

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Matter of:Family Stress Clinics of America

File:     B-270993

Date:May 10, 1996

Clifford K. Brickman for the protester.
Mike Colvin and Steven L. Zangwill, Department of Health and Human 
Services, for the agency.
Henry J. Gorczycki, Esq., and James A. Spangenberg, Esq., Office of 
the General Counsel, GAO, participated in the preparation of the 
decision.

DIGEST

An oral amendment extending the closing date for submission of 
proposals indefinitely is in full force and effect, even though it was 
not confirmed in writing, where the amendment was issued under exigent 
circumstances accompanying the shutdown of the contracting agency and 
the terms of the oral amendment are not in dispute.

DECISION

Family Stress Clinics of America protests request for proposals (RFP) 
No. 240-BPHC-8(6), issued by the Department of Health and Human 
Services (HHS), Health Resources and Services Administration, for 
counseling services for the Employee Assistance Program for the 
western region of the United States Postal Service.  Family Stress 
contends that the agency orally amended the RFP by indefinitely 
extending the closing date for receipt of proposals and then failed to 
honor the terms of that amendment.

We sustain the protest.

The RFP contemplated the award of a cost-plus-award-fee contract for 1 
year with 4 option years.  HHS issued two written amendments, the 
second of which set the closing date for receipt of proposals as 
December 29, 1995.

Because of the budget impasse, the agency was shut down from December 
18 through January 5, 1996.  Additionally, due to snow emergencies, 
the shutdown was extended for all but 1 day thereafter until normal 
operations resumed on January 16.  According to the agency, the duties 
and responsibilities of the contracting staff during this period, 
including answering of telephones and receipt of mail, were primarily 
performed by the contracting officer.

On December 21, the contracting officer contacted ROW Sciences, Inc., 
a technical support contractor of the agency, and instructed ROW to 
call all of the 125 firms on the RFP distribution list, obtain their 
fax numbers, and provide an explanation about extending the closing 
date for submission of proposals, if necessary.  The ROW employees 
making the calls read the following prepared statement to each firm on 
the list:

     "I am calling for the contracts office at [HHS].

     "The due date this week for proposals in response to the Postal 
     Service Employee Assistance Program RFPs has been extended.  We 
     do not have a firm date yet, but the extension will be for at 
     least a couple of weeks.

     "We will fax the amendment to the RFP in the next day or so.  The 
     amendment will identify who you can call if you have questions."

The ROW employees were instructed that, in the event someone persisted 
with questions, they should repeat the last sentence of the statement 
and should not give out HHS phone numbers.

On December 28, ROW contacted Family Stress and read the statement 
into the Family Stress's voice mail.  ROW repeated the statement 
during several telephone conversations with Family Stress in early 
January.  ROW states that Family Stress was persistent in requesting 
more information about the extension and that ROW only repeated the 
prepared statement, as instructed.  ROW states that after the shutdown 
was over, it obtained permission to provide Family Stress with an HHS 
phone number.

Prior to the end of the shutdown, Family Stress faxed a letter on 
January 11 to the contracting specialist on this RFP.  This letter 
referenced previous letters faxed on December 22 and 27, which raised 
questions about the RFP and requested a response.  The letter stated 
that attempts to reach the contracting specialist by phone in the 
interim had been unsuccessful.

On January 17, the contracting specialist left a voice mail message 
for Family Stress answering its questions and stating that HHS had not 
extended the closing date.  In a later phone conversation with Family 
Stress, the contracting officer confirmed that the agency had not 
extended the closing date.  Six proposals were received in response to 
the RFP.  

Family Stress protests that the oral statement disseminated by ROW 
amended the solicitation to extend the closing date indefinitely.  In 
response, HHS contends that the oral statement is not an amendment 
because it was never followed by written confirmation.  We find that 
the oral statement read by ROW to prospective offerors constituted an 
oral amendment extending indefinitely the closing date for submission 
of proposals and that the agency's failure to confirm this amendment 
in writing does not preclude its enforceability.

When the closing date for receipt of proposals is to be changed, the 
RFP is to be amended prior to the closing date.  Federal Acquisition 
Regulation (FAR)  sec.  15.410(a)(3).  Where the time available before the 
closing date is insufficient for issuance of a written amendment, 
prospective offerors are to be notified by electronic data 
interchange, telegram, or telephone of an extension of the closing 
date.  FAR  sec.  15.410(b).  While such telephonic and telegraphic notices 
are required to be confirmed in a written amendment to the 
solicitation, id., we have long recognized that an agency may need to 
orally amend a solicitation and require offerors to act on the terms 
of the amendment before the agency can disseminate a written amendment 
confirming those terms.  See Porta-Fab Corp., B-213356, May 7, 1984, 
84-1 CPD  para.  511; Chrysler Motors Corp., B-186600, Sept. 29, 1976, 76-2 
CPD  para.  294.  When such exigent circumstances exist, an oral amendment 
is effective.  See Porta-Fab Corp., supra. 

Here, such exigent circumstances clearly existed--the agency was shut 
down and the notification of closing date extension was provided only 
one day prior to that date.  Obviously, with the agency closure and 
the repeated statements from ROW during early January, a prompt 
written confirmation of the extension could not reasonably have been 
expected shortly after December 28.[1]  See Porta-Fab Corp., supra.

The facts also are not in dispute.  In response to the contracting 
officer's instruction, ROW contacted the firms on the distribution 
list and unambiguously stated that it was calling for HHS, that the 
closing date for proposals "had been extended" indefinitely, that "the 
extension will be for at least a couple of weeks," and that an 
amendment to the RFP confirming this extension would be issued.  The 
agency does not assert that ROW disseminated this statement without 
the authority of the contracting agency.  Under the circumstances, we 
think that this statement clearly constituted an oral amendment 
extending the closing date indefinitely.  

HHS nevertheless alleges that the fact it received six proposals 
demonstrates that ROW's oral statement did not confuse any other 
offeror into not submitting a proposal.  The record shows that only 
two proposals were received by HHS on or before December 29; three 
others were received on January 3, and one was received on January 23.  
Two of the proposals were submitted by offerors who were not on the 
list of 125 prospective offerors from which ROW made its calls, and of 
the remaining four, the agency states, one was delivered by courier 
the morning of December 28 and two were in the possession of couriers 
as early as December 27 or 28.  Since ROW first made its call to 
Family Stress on December 28, it appears that at least three of these 
four proposals may have left the offerors' hands prior to ROW's calls 
advising of the extended closing.  Thus, the number of proposals 
received does not negate the unequivocal nature or effect of ROW's 
message on behalf of HHS' extending of the closing date.  

Finally, HHS alleges that Family Stress's protest should not be 
sustained because that firm was not ready to submit a proposal either 
on December 29, or in January when the shutdown ended.  Family Stress 
responds that it was in the process of preparing its proposal for 
submission at the time of the oral amendment and, when notified of the 
indefinite extension of the closing date, it gave its subcontractors 
additional time to provide information for the proposal.  Under the 
circumstance, we cannot find that Family Stress could not have 
submitted a timely proposal if the agency had not extended the closing 
date.  Nevertheless, in view of the indefinite extension, Family 
Stress's readiness to submit a proposal by either December 29 or in 
January would not be controlling.

We recommend that the agency reopen the competition, issue an 
amendment establishing a closing date for submission of proposals, and 
proceed with the procurement.  We also recommend that the protester be 
reimbursed its costs of filing and pursuing its protest, including 
reasonable attorneys' fees.  4 C.F.R.  sec.  21.8(d)(1) (1996).  The 
protester should submit its certified claim for costs to the 
contracting agency within 90 days of receiving this decision.  4 
C.F.R.  sec.  21.8(f)(1).

The protest is sustained.

Comptroller General
of the United States

1. In addition, because of the unusual exigent circumstances and ROW's 
declination to give HHS phone numbers, we do not think that the 
protester should have been greatly concerned that no written 
amendment, confirming the closing date extension and establishing a 
new closing date, was issued until normal HHS operations resumed in 
mid-January.

Moreover, the record evidences that Family Stress attempted to contact 
the contracting office telephonically during the shutdown and was 
unsuccessful on every attempt, as evidenced by its unanswered faxes to 
the contracting specialist for this RFP.  Although the contracting 
officer states that he was performing all of the duties of his laid 
off staff, including answering phones, it is not surprising under the 
extreme demands of the shutdown that some phones, fax messages, and 
even attempts by couriers to deliver packages went unanswered, as the 
record evidences occurred here.