BNUMBER:  B-277795 
DATE:  October 27, 1997
TITLE: Chem-Fab Corporation, B-277795, October 27, 1997
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Matter of:Chem-Fab Corporation

File:     B-277795

Date:October 27, 1997

Mark F. Petrovic for the protester.
Ronald M. Pettit, Esq., Defense Logistics Agency, for the agency.
Michael R. Golden, Esq., Office of the General Counsel, GAO, 
participated in the preparation of the decision.

DIGEST

Protest that the agency deprived a potential offeror of an opportunity 
to compete because the firm allegedly did not receive a mailed copy of 
the solicitation and amendment is denied where the record shows that 
the agency followed established procedures for disseminating 
solicitation documents, and there is no evidence in the record of any 
deficiencies in the agency's solicitation process or of a deliberate 
attempt by the agency to exclude the protester.

DECISION

Chem-Fab Corporation protests the award of a contract to Vanaero 
Company under request for proposals (RFP) No. SPO740-97-R-0775, issued 
by the Defense Logistics Agency, Defense Supply Center Columbus 
(DSCC), for skid tube assemblies.  Chem-Fab, one of three approved 
sources for this item, contends that DSCC improperly failed to provide 
the firm with a copy of the RFP, that this failure precluded it from 
submitting an offer, and that the requirement should be canceled and 
resolicited to provide Chem-Fab an opportunity to compete.

We deny the protest.

The RFP was issued on May 30, 1997, as a small business set-aside.  
The RFP subsequently was amended on June 9, to identify the precise 
quantity of items to be procured.  The closing date was extended to 
June 20.  Due to the need to fill back-orders for this critical 
application item, a Justification For Other Than Full and Open 
Competition on the basis of urgency was executed prior to the issuance 
of the RFP.  Due to the urgency, and as permitted by Federal 
Acquisition Regulation (FAR)  sec.  5.202(a)(2), the buy was not synopsized 
in the Commerce Business Daily (CBD).

The record contains a copy of the bidder's mailing list for the 
solicitation which lists the name and address of three small business 
vendors, including Chem-Fab, which are approved sources for the item.  
The record contains individual printouts for each vendor, which 
apparently were used to generate the mailing list.  The record 
contains a copy of the mailing list for the amendment, which also 
lists Chem-Fab and the other two approved sources.  The mailing list 
for the amendment contains the following certification:

     AMEND NO.      1      
     MAILED              INITIALS             

The certification was completed with the date "5/9" and was 
initialed.[1]

The DSCC buyer for this acquisition furnishes an affidavit in which he 
states that "[t]o the best of my recollection, I mailed Chem-Fab a 
copy of the original solicitation at the time the initial mailing went 
out."  The buyer also explains that the certification on the mailing 
list for the amendment shows a mailing date and is initialed by an 
individual in DSCC's bid room as being mailed.  The buyer states that 
"[t]here is nothing in [the] file to indicate that Chem-Fab was 
excluded from either mailing," and there is "no returned mail in the 
file to indicate that Chem-Fab's mailings were returned as 
undeliverable."  DSCC received offers from the other two approved 
sources and awarded to Vanaero, the low-priced offeror.

In response to the agency report, Chem-Fab continues to assert that it 
was wrongly excluded from the competition because of the agency's 
failure to synopsize the requirement.  It also asserts that it has an 
internal system for tracking solicitations and that it is unlikely it 
would not have responded, had it received the RFP or amendment, since 
it has repeatedly in the past furnished quotes to DSCC for this item.  
Finally, Chem-Fab points out that it was solicited for the "left-hand" 
version of this same item within a month after the issuance of the 
protested RFP and responded to that solicitation.

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.  10 U.S.C.  sec.  
2304(a)(l)(A) (1994).  "Full and open competition" is obtained when 
"all responsible sources are permitted to submit sealed bids or 
competitive proposals."  10 U.S.C.  sec.  2302(3)(D); 41 U.S.C.  sec.  403(6).  
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  para.  131 at 2.  We will, however, 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.  Air Masters Corp., B-262213, Sept. 12, 1995, 
95-2 CPD  para.  110 at 3; Metropolitan Int'l Resources, Inc., B-258011, 
B-258012, Nov. 17, 1994, 94-2 CPD  para.  196 at 2.

Here, we find DSCC satisfied the statutory and regulatory requirements 
governing notice and distribution of solicitation materials, since no 
basis exists in the record to attribute the protester's apparent 
nonreceipt of the solicitation and amendment to any deficiencies in 
the agency's dissemination process or to a deliberate attempt to 
exclude the protester from the competition.

Initially, to the extent Chem-Fab challenges DSCC's failure to 
synopsize the requirement, as the agency correctly points out, FAR  sec.  
5.202(a)(2) provides that the contracting officer need not submit a 
notice of a proposed contract action for publication in the CBD where 
the contract action is based, as here, on unusual and compelling 
urgency under FAR  sec.  6.302-2.  The protester agrees that the use of the 
exception to full and open competition under FAR  sec.  6.302-2 was 
justified here.  While we recognize that notice in the CBD might have 
helped Chem-Fab because Chem-Fab's tracking system, like other 
vendors' systems, identifies contracting opportunities through the 
CBD, DSCC properly waived the synopsis requirement.

Further, Chem-Fab does not dispute that the solicitation and amendment 
mailing lists, which were provided in the agency report on the 
protest, contain the firm's correct mailing address.  The record also 
contains specific evidence that the amendment was mailed to the 
vendors on the list, including Chem-Fab.  There were no returned 
envelopes showing that the two mailings to Chem-Fab were misaddressed 
or otherwise undeliverable.  Chem-Fab further states that it received 
the solicitation for the other version of the same item during the 
same time period as the protested acquisition was pending.  Chem-Fab's 
apparent failure to receive either the RFP or amendment under the 
protested acquisition in no way shows purposeful or deliberate action 
on the part of the agency to exclude the firm from competing.  As a 
general rule, the risk of nonreceipt of solicitation documents rests 
with the offeror because the contracting agency is not a guarantor 
that these documents will be received in every instance.  Air Masters 
Corp., supra, at 3-4.  Since there is no showing here that DSCC failed 
to mail the solicitation and amendment to Chem-Fab at its correct 
address, there is no basis to sustain the protest.[2]

The protest is denied.

Comptroller General
of the United States

1. Although the date of mailing was inserted as "5/9," the agency 
points out that this is an obvious error, since that date predates the 
issuance of the solicitation.  The agency reports the correct date is 
"6/9," the date on which the amendment was issued and mailed.  We have 
no basis to question the agency's position.

2. Chem-Fab's representative furnishes an affidavit, describing a 
conversation with the buyer on August 13, 1997, in which the 
representative learned of the award and the buyer advised that "the 
solicitation had been synopsized many times," which was not accurate.  
Thus, Chem-Fab argues that the buyer's statements in his affidavit to 
our Office are similarly unreliable.  We are not prepared to say that 
the buyer's August statement, apparently made extemporaneously and 
without reference to the contract file, establishes that the buyer's 
affidavit based on his recollections and reference to the contract 
file are not to be given weight.  In our view, the contract file 
mailing list records furnished with the agency report provide 
sufficient support for our conclusion that DSCC followed the 
established procedures for disseminating solicitation documents, that 
there is no indication in the record of any deficiencies in the 
solicitation process, and that there is no evidence that the agency 
deliberately attempted to exclude the protester from the competition.