BNUMBER:  B-276669 
DATE:  July 10, 1997
TITLE: Wind Gap Knitwear, Inc., B-276669, July 10, 1997
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Matter of:Wind Gap Knitwear, Inc.

File:     B-276669

Date:July 10, 1997

David P. Metzger, Esq., and Craig A. Holman, Esq., Holland & Knight, 
for the protester.
James H. Henry II, Esq., Henry, McCord, Bean & Miller, for Daun-Ray 
Casuals, Inc., an intervenor.
Catherine C. Morris, Esq., and Michael Trovarelli, Esq., Defense 
Logistics Agency, for the agency.
Linda Glass, Esq., and Paul Lieberman, Esq., Office of the General 
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest of agency's failure to solicit firm that requested a copy of 
solicitation in response to a procurement synopsis in the Commerce 
Business Daily (CBD) is denied where, although the protester knew--as 
a result of the CBD notice--that the agency estimated a May 25, 1996, 
closing date, the protester unreasonably delayed contacting the agency 
about its nonreceipt of the solicitation until months after its 
initial request (and after the September 13 actual closing date); the 
protester did not avail itself of every reasonable opportunity to 
obtain the solicitation. 

DECISION

Wind Gap Knitwear, Inc. protests the award of a contract to Daun-Ray 
Casuals, Inc. under request for proposals (RFP) No. SPO100-96-R-0144, 
issued by the Defense Logistics Agency (DLA), Defense Personnel 
Support Center (DPSC) for Extended Cold Weather Clothing System 
(ECWCS) undershirts.  Wind Gap contends that DPSC's failure to provide 
it with a copy of the solicitation improperly denied it the 
opportunity to compete for the contract and violated the requirement 
for full and open competition in the Competition in Contracting Act of 
1984, (CICA), 10 U.S.C.  sec.  2304 (a)(1) (1994). 

We deny the protest.

On April 12, 1996, the agency issued a notice in the Commerce Business 
Daily (CBD) announcing its intent to compete an indefinite delivery 
contract for ECWCS undershirts for a minimum quantity of 168,000 and 
maximum quantity of 210,000 units with a 100-percent option quantity.  
The CBD notice indicated an anticipated May 25 closing date and 
invited interested firms to request a copy of the solicitation by 
facsimile.  

Shortly after publication of the CBD notice, on April 22, Wind Gap 
sent a telefacsimile to DPSC requesting a copy of the solicitation, 
immediately followed by  a certified letter to the same effect.  The 
agency's computer-generated bidder's list for underwear, on which Wind 
Gap was not listed, contained 310 firms' names and addresses.  After 
publication of the CBD notice, 33 firms, including Wind Gap, requested 
a copy of the solicitation.  These 33 firms were added as a supplement 
to the computer-generated list.  The agency reports that the 
computer-generated bidder's list is accompanied by preprinted mailing 
labels that correspond to the names on the list.  Upon receipt of the 
bidder's list and the labels, the contract specialist compared the 
labels with the first two pages and the last two pages of the 21-page 
list and confirmed that the names on those pages of the list matched 
the labels.  Mailing labels were then prepared for the 33 firms whose 
names were on the supplement to the computer-generated list.  The 
solicitation was prepared on August 7, and the labels from the 
bidder's list were given to the procurement clerk.  Although the 
bidder's list contained 343 names, due to an oversight only 162 labels 
were sent to the print shop for copying and distribution.

The RFP was issued on August 14 and mailed to the 162 firms for which 
labels had been sent to the print shop.  Five proposals were received 
by the September 13 closing date.[1]  After evaluation of the offers, 
it was determined that Daun-Ray's offer represented the best value to 
the government and was a fair and reasonable price.  Award was made to 
Daun-Ray without discussions on January 5, 1997.[2]  

The protester states that during late 1996, it contacted the agency to 
inquire about the status of the undershirts buy and was told that the 
buy was suspended indefinitely.  While acknowledging that a contact 
with Wind Gap did occur at that time, the agency maintains that the 
topic of discussion was a different acquisition.   On March 27, 1997, 
Wind Gap again contacted the agency and was told that the contract at 
issue in this protest had been awarded to Daun-Ray.  Wind Gap filed 
this protest with our Office on April 3.

CICA 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.  Western Roofing Serv., 
70 Comp. Gen. 323, 325 (1991), 91-1 CPD  para.  242 at 3.  In pursuit of 
these goals, a contracting agency has the affirmative obligation to 
use reasonable methods to publicize its procurement needs and to 
timely disseminate solicitation documents to those entitled to receive 
them.  To that end, Federal Acquisition Regulation (FAR) 
 sec.  14.205-1 requires contracting agencies to include on applicable 
solicitation mailing lists any firm that requests a solicitation 
document.  However, concurrent with the agency's obligations in this 
regard, prospective contractors have the duty to avail themselves of 
every reasonable opportunity to obtain solicitation documents.  
Laboratory Sys. Servs., Inc., B-258883, Feb. 15, 1995, 95-1 CPD  para.  90 
at 3-4.                Where a prospective contractor fails in this 
duty, we will not sustain the protest even if the agency failed in its 
solicitation dissemination obligations, and in  considering such 
situations, we look to see whether the agency or the protester had the 
last clear opportunity to avoid the protester's being precluded from 
competing.  Id.

In this case, notwithstanding the agency's shortcomings in the 
distributon of the solicitation, we deny the protest, because the 
protester failed to diligently pursue its request for a copy of the 
solicitation.  Wind Gap learned of the RFP from the April 12 CBD 
notice.  Based on that notice, Wind Gap knew that proposals were 
estimated to be due by May 25, and it knew that it had not received a 
copy of the RFP as that date approached (and, in fact, passed).  The 
protester maintains that it diligently endeavored to obtain a copy of 
the RFP by its April written request and its late 1996 telephone 
inquiry.  Leaving aside the agency's disagreement concerning the 
subject matter of the telephone conversation, that conversation 
occurred several months after the published closing date (and after 
the actual closing date).  Despite not having received a copy of the 
RFP, Wind Gap did not contact the agency prior to the anticipated May 
25 closing date (to again request a copy of the RFP or, at least, to 
inquire about the status of its request for a copy of the RFP); thus, 
the firm had no assurance that it would receive the RFP in time to 
submit a proposal.  The protester failed to contact the agency 
subsequent to its initial request as that anticipated closing date 
approached or before the actual September 13 closing date, even though 
Wind Gap was fully aware that the agency had not honored its April 22 
request for a copy of the RFP.  We conclude, therefore, that Wind Gap 
failed to fulfill its obligation to avail itself of every reasonable 
opportunity to obtain the RFP, see Laboratory Sys. Servs., Inc., 
supra; the protester had the last clear opportunity to avoid the 
firm's preclusion from competition under the RFP, and failed to do so.

The protest is denied.

Comptroller General 
of the United States  

1. Seventeen other firms also responded, indicating that they would 
not be submitting an offer but wanted to remain on the bidder's list.

2. Due to another oversight, the agency failed to synopsize the award 
decision in the CBD until May 1, l997.  Wind Gap maintains that it was 
prejudiced by the agency's failure to timely synopsize the award 
because it was denied the opportunity to file its protest in time to 
obtain a CICA stay of contract performance pending protest resolution 
by our Office.  We conclude that Wind Gap was not prejudiced, since as 
discussed, the protester was not unreasonably precluded from 
competing.