BNUMBER:  B-274667
DATE:  December 24, 1996
TITLE:  Adrian Supply Co., Inc.

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Matter of:Adrian Supply Co., Inc.

File:     B-274667

Date:December 24, 1996

Linda Goldman for the protester.
Mark Kallenbach, Esq., Diane D. Hayden, Esq., and George N. Brezna, 
Department of the Navy, for the agency.
Wm. David Hasfurther, Esq., John Van Schaik, Esq., and Michael R. 
Golden, Esq., Office of the General Counsel, GAO, participated in the 
preparation of the decision.

DIGEST

Protest of agency's failure to timely provide copy of solicitation is 
denied since the agency made a diligent, good faith effort to 
publicize and distribute the solicitation and, although the 
contracting agency caused some of the delay in providing the protester 
with the bid package, there is no evidence that the agency 
deliberately attempted to preclude the protester from bidding and the 
protester did not avail itself of every reasonable opportunity to 
obtain the package and to submit a bid.

DECISION

Adrian Supply Co., Inc. protests the failure of the Department of the 
Navy to extend bid opening so that it might bid on the two new 
skid-mounted electrical substations being procured under invitation 
for bids (IFB) No. N62470-96-B-5116, for the Norfolk Naval Shipyard, 
Portsmouth, Virginia.

We deny the protest.

The procurement was synopsized in the Commerce Business Daily (CBD).  
The synopsis advised prospective bidders that specifications would be 
available on or about August 6 and that out-of-town bidders should 
make arrangements for  delivery of the bid package and notify the 
contracting agency of those arrangements.  The IFB actually was issued 
on August 19, with bid opening scheduled for September 18.  

On September 4, the contracting agency states it was contacted by an 
Adrian representative who asked why the firm had not received the bid 
package after it had requested it and provided a completed Federal 
Express airbill in late August.  Because the agency could find no 
evidence of receipt of Adrian's airbill, it prepared a Federal Express 
airbill using Adrian's Federal Express number and scheduled a Federal 
Express pick-up for September 5.  After the package was not picked up 
on September 5, the agency learned from Federal Express that--because 
of high winds caused by Hurricane Fran--the pick-up would not be made 
until September 9.  The agency states that on September 9 Adrian again 
contacted the agency and was told that Federal Express had picked up 
the package that morning and the reasons for the delay in the pick-up.  
Adrian also was told the package would be delivered on September 10.  
In fact, the package was delivered on September 10.

On September 18, shortly before bid opening, Adrian requested that the 
contracting officer postpone the bid opening since the firm had not 
had time to prepare and submit a bid due to the delay in receipt of 
the solicitation.  The agency denied the request, advising that, while 
an earlier request might have been granted, since bid opening was 
about to occur, with some bidders attending from out of town, an 
extension was not possible.  Adrian protested this denial.  Fourteen 
bids were received and opened as scheduled.

Adrian notes that it submitted a July 21 facsimile to the agency in 
which it requested a copy of the IFB and advised that if the agency 
needed its Federal Express number in order to provide a copy of the 
IFB to so advise.  On August 29, Adrian telephoned the agency to find 
out why a bid package had not been sent and to provide the agency with 
its Federal Express number.  From September 3 to 5, Adrian made 
further inquiries to the agency to obtain the bid package.  Adrian 
argues that, despite its diligent efforts to obtain the bid package, 
the contracting agency breached its duty to make reasonable efforts to 
provide it.

The Competition in Contracting Act of 1984 (CICA), 10 U.S.C.  sec.  
2304(a)(1)(A) (1994), mandates "full and open competition," the 
purpose of which is to ensure that a procurement is open to all 
responsible sources and provide the government with the opportunity to 
receive fair and reasonable prices.  Nomura Enter. Inc., B-248298, 
July 31, 1992, 92-2 CPD  para.   64.  In pursuit of these goals, it is a 
contracting agency's affirmative obligation to utilize reasonable 
methods for the dissemination of solicitation documents and 
information to prospective competitors.  The statutory mandate clearly 
is violated where an agency attempts to exclude an offeror by 
deliberately withholding or delaying the transmission of solicitation 
documents and information.  On the other hand, a prospective offeror's 
nonreceipt of solicitation documents will not warrant recompetition 
where (1) the agency has made a diligent, good-faith effort to comply 
with statutory and regulatory requirements regarding notice and 
distribution of solicitation materials, and the nonreceipt appears to 
result not from significant deficiencies in the dissemination process, 
but from isolated errors; and (2) the agency receives sufficient 
competition to assure reasonable prices.  Id.

Here, the agency made a diligent, good faith effort to publicize and 
distribute the solicitation.  In this respect, the agency synopsized 
the procurement in the CBD and provided copies of the IFB to 45 
prospective bidders.  In addition, although the agency made errors 
that contributed to the delay in Adrian's receipt of a bid 
package--for instance, the agency failed to respond to Adrian's July 
21 facsimile and to Adrian's request for the package at the end of 
August--it has not been shown that the agency deliberately attempted 
to exclude Adrian from the competition.

Moreover, notwithstanding the agency's failure to promptly respond to 
Adrian requests, Adrian contributed to the delay in its receipt of the 
bid package by not availing itself of every reasonable opportunity to 
obtain it.  Despite the fact that the CBD synopsis indicated that 
specifications for the procurement would be available on or about 
August 6, after it sent its July 21 facsimile, Adrian (without knowing 
the date set for bid opening) made no further effort to obtain a bid 
package until August 29.  It appears likely that had Adrian made 
further inquiries during this timeframe, it would have received the 
solicitation significantly earlier.[1]  Under these circumstances, and 
in view of the fact that 14 bids were received, we do not think it was 
an abuse of discretion for the contracting officer not to delay the 
bid opening.  Nomura Enter., Inc., supra.

The protest is denied.

Comptroller General
of the United States  

1. Moreover, Adrian could have promptly requested that the agency 
delay the bid opening.  Although Adrian received the bid package on 
September 10, the firm did not request a bid opening extension at that 
time; rather, it waited an additional 8 days, until September 18, to 
request that the agency postpone the bid opening.  Finally, Adrian 
does not explain why it was unable to prepare and submit its bid in 
the 8 days that was available.