BNUMBER:  B-278849 
DATE:  March 23, 1998
TITLE: Ervin and Associates, Inc., B-278849, March 23, 1998
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Matter of:Ervin and Associates, Inc.

File:     B-278849

Date:March 23, 1998

John J. Ervin for the protester.
Richard A. Marchese, Esq., Department of Housing and Urban 
Development, for the agency.
Tania L. Calhoun, Esq., and Christine S. Melody, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest that agency failed to mail a copy of the solicitation and its 
amendments to the protester despite its request to be placed on the 
source list is denied where the contract specialist states that he 
included the protester on the source list and followed procedures that 
should have resulted in the protester's receipt of the documents; 
moreover, even if the agency had failed in its obligation to provide 
the protester with a copy of the solicitation, the record shows that 
the protester did not avail itself of every reasonable opportunity to 
obtain the solicitation and had the last clear opportunity to avoid 
the firm's preclusion from competing under the solicitation.

DECISION

Ervin and Associates, Inc. protests any award under request for 
proposals (RFP) No. DU100C000018593, issued by the Department of 
Housing and Urban Development (HUD) to obtain comprehensive financial 
analytical services.  Ervin contends that HUD intentionally excluded 
it from the competition by failing to provide it with a copy of the 
solicitation.

We deny the protest.

In May 1997, Ervin learned from a press account that HUD was planning 
a new procurement of these services.  By letter sent by facsimile on 
June 27, Ervin asked the Director of the Program Support Division in 
HUD's Office of Procurement and Contracts to put the firm on the 
source list to receive a copy of the solicitation when it was issued.  
One month later, the Director gave the letter to the contract 
specialist.  The letter's cover sheet bore the Director's handwritten 
note asking the contract specialist to place Ervin on the source list 
for this solicitation.  

The contract specialist states that he typed Ervin's name and address 
into the computerized source list.  This list would later generate 
printed labels for use on envelopes containing copies of the 
solicitation and its amendments.  The contract specialist states, and 
the record confirms, that Ervin's correct name and address appear on 
the source list, along with the names and addresses of 69 other firms.

The procurement was synopsized in the Commerce Business Daily (CBD) on 
July 21.  The notice advised prospective offerors that the RFP would 
be issued on or about August 4.  Firms could submit a written request 
for a copy of the solicitation to the contract specialist, whose name 
and address was provided, or firms could download the solicitation and 
any amendments from HUD's Internet Home Page, whose address was also 
provided.  

On August 25, the contract specialist states that he made copies of 
the solicitation; printed out labels for each firm on the source list, 
including Ervin; placed copies of the solicitation in individual 
envelopes; and attached the labels to the envelopes.  He further 
states that he printed his office's mail code below the return address 
in the upper lefthand corner of each envelope so that any undelivered 
envelopes would be returned directly to his office.  He delivered the 
70 labeled envelopes containing the solicitation to HUD's mail room, 
and states that they were sent out by U.S. mail.  He also forwarded an 
electronic copy of the RFP for placement on HUD's Internet Home Page 
where it could be downloaded and printed by interested firms.  The 
solicitation established September 22 as the anticipated due date for 
receipt of proposals.

Solicitation amendment No. 0001, issued September 16, extended the 
closing date for receipt of proposals to October 6.  Amendment No. 
0002, issued October 1, extended the closing date to October 14.  
Amendment No. 0003, issued October 7, made no change to the closing 
date.  The contract specialist states that, for each amendment, he 
made copies; printed labels for each firm on the source list, 
including Ervin; placed the copies in envelopes; affixed the mailing 
labels; printed the mail code on the envelopes; and delivered the 
envelopes to the mail room where they were sent out by U.S. mail.  As 
with the solicitation, he forwarded an electronic copy of each 
amendment for posting on HUD's Internet Home Page.

Ervin was not one of the 11 firms submitting proposals by the October 
14 closing date.  On November 3, Ervin filed an agency-level protest 
arguing that HUD had "purposely and illegally sought to exclude Ervin 
from the competition" by intentionally ignoring its request to be 
placed on the source list, thereby failing to provide Ervin a copy of 
the solicitation.  After HUD's December 3 denial of the agency-level 
protest, Ervin filed essentially the same protest in our Office.

Under the Competition in Contracting Act of 1984, agencies are 
generally required to obtain full and open competition through the use 
of competitive procedures when procuring property or services.  41 
U.S.C.  sec.  253(a)(1)(A) (1994).  The dual purpose of this requirement 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.  5.101(a)(1) generally requires 
contracting agencies to publish in the CBD a synopsis of each contract 
action expected to exceed $25,000, as is the case here.  In addition, 
FAR  sec.  14.205-1(b),(c) requires contracting agencies to include on 
applicable solicitation mailing lists any firm that requests a 
solicitation document.  

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.  Wind Gap Knitwear, 
Inc., B-276669, July 10, 1997, 97-2 CPD  para.  14 at 3; Laboratory Sys. 
Servs., Inc., B-258883, Feb. 15, 1995, 95-1 CPD  para.  90 at 3-4; Lewis 
Jamison Inc. & Assocs., B-252198, June 4, 1993, 93-1 CPD  para.  433 at 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.  
Wind Gap Knitwear, Inc., supra.

The Ervin employee who states that he would have received the RFP and 
its amendments had they been mailed states that he did not receive 
them.  As explained above, the contract specialist states that he 
placed Ervin's correct name and address on the source/mailing list; 
printed out the labels from this list and affixed those labels to 
envelopes containing the relevant documents; and mailed the envelopes.  
He further states that, to the best of his knowledge, neither the 
envelope containing the RFP mailed to Ervin nor any of the three 
envelopes containing the amendments mailed to Ervin were returned.  

While Ervin details what it alleges to be a continuing pattern of 
corruption, blackballing, and retaliation on the part of HUD toward 
the firm, these allegations are not directed toward the contract 
specialist and we have no reason to doubt his account of events here.  
Procurement officials are presumed to act in good faith and 
allegations to the contrary must be supported by virtually irrefutable 
proof that they had specific and malicious intent to harm the 
protester.  Mictronics, Inc.,
B-234034, May 3, 1989, 89-1 CPD  para.  420 at 2.  Moreover, since HUD made 
the solicitation available to anyone in the world who wanted it by way 
of the Internet, the notion that HUD would attempt to preclude Ervin 
from competing by refusing to mail it the solicitation is not 
reasonable. 

In any event, even if we had some basis to conclude that the agency 
had failed in its solicitation dissemination obligations, the record 
shows that Ervin, not HUD, had the last clear opportunity to avoid the 
firm's preclusion from competition under this solicitation.

It is undisputed that Ervin's sole contact with HUD on this matter was 
its June 27 facsimile request to be placed on the source list.  After 
approximately 3 weeks, the solicitation was synopsized in the CBD.  
Where a contracting agency has synopsized a proposed procurement in 
the CBD, a potential contractor is on constructive notice of the 
solicitation and its contents and has a duty to make reasonable 
efforts to obtain a copy of the solicitation in order to ensure that 
it is included in the competition.  L&L Oil Co., Inc., B-246560, Mar. 
9, 1992, 92-1 CPD  para.  270 at 2.  Hence, as of July 21, Ervin was on 
notice that the solicitation would be issued on or about August 5 and 
that the solicitation could be obtained by written request or by 
downloading from HUD's Internet Home Page.  Further, as of the date of 
the solicitation's issuance, Ervin was on constructive notice that the 
anticipated closing date for the receipt of proposals was September 
22.  

As the solicitation's anticipated issuance date approached and passed, 
and the closing date approached, Ervin was still not in possession of 
a copy of the solicitation.  Despite this fact, Ervin failed to 
contact HUD to inquire as to the status of its request to receive a 
copy of the solicitation or to make a renewed request.  Ervin also 
failed to download the solicitation from HUD's Internet Home Page.  
Without taking such action as more and more time passed, the firm had 
no assurance that it would receive the solicitation in time to submit 
a proposal.  We conclude, therefore, that Ervin failed to fulfill its 
obligation to avail itself of every reasonable opportunity to obtain 
the RFP, see Wind Gap Knitwear, supra, at 3-4; Ervin had the last 
clear opportunity to avoid the firm's preclusion from competing under 
the solicitation.  

The protest is denied.

Comptroller General
of the United States