BNUMBER:  B-281024 
DATE:  November 20, 1998
TITLE: Aluminum Specialties, Inc. t/a Hercules Fence Company, B-
281024, November 20, 1998
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Matter of:Aluminum Specialties, Inc. t/a Hercules Fence Company

File:     B-281024

Date:November 20, 1998

David A. Hearne, Esq., Outland, Gray, O'Keefe and Hubbard, for the 
protester.
George N. Brezna, Esq., Patrick J. Coll, Esq., and Vicki E. O'Keefe, 
Esq., Department of the Navy, for the agency.
Linda C. Glass, Esq., and Paul I. Lieberman, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Where contracting agency synopsized intention to issue competitive 
solicitation in Commerce Business Daily, directly contacted firms that 
had bid under predecessor solicitation (including incumbent protester) 
regarding their interest in receiving solicitation package, advertised 
solicitation on local contracting office bulletin board and thereafter 
mailed solicitation package to protester's correct address, protester 
bears risk of nonreceipt of solicitation.  

DECISION

Aluminum Specialties, Inc. t/a Hercules Fence Company (Hercules) 
protests the award of five contracts to Hurricane Fence Company under 
invitation for bids (IFB) No. N00187-97-B-6863 issued by the 
Department of the Navy, Navy Public Works Center (PWC) Norfolk for 
chain link fencing repair, replacement, and installation for various 
locations of the Navy PWC.  Hercules, the incumbent contractor for 
three of the contracts, asserts that the requirement was inadequately 
advertised and that the sole bid received was unreasonably priced.

We deny the protest.

On June 5, 1998, the agency posted a Commerce Business Daily (CBD) 
synopsis announcing its intention to issue a competitive solicitation 
on July 6 for the award of five separate requirements contracts to 
provide fence installation and repair services at five different 
locations.  CBD Notice, June 5, 1998.  On August 4, the agency 
advertised the solicitation by posting a notice on the bulletin board 
outside of the PWC Norfolk contracts department office.  Seven firms 
responded to the CBD announcement to request copies of the 
solicitation, and were placed on the bidders' mailing list.  The 
agency also contacted six other firms that had submitted bids for the 
current contracts, including the protester, to ascertain whether they 
were interested in receiving the solicitation package.  Unsworn 
Declaration of Contract Specialist, Oct. 5, 1998, at 1.  All six firms 
expressed interest and were added to the mailing list.  The agency 
reports that it mailed the solicitation materials to the 13 firms on 
the mailing list, including Hercules, on August 4.  Additionally, on 
August 13, another firm, Beamon Enterprises, picked up a copy of the 
solicitation at the PWC Norfolk contracts department.  Agency Report 
at 1.  The mailing address for Hercules as it appears on the mailing 
list is 1526 Early Street, Norfolk, Virginia, 23502, which is the 
correct address for the company.  At the September 4 bid opening, 
Hurricane's bid, which included each of the five sites, was the only 
one received.  On September 11, Hercules filed this protest with our 
Office, and PWC Norfolk has stayed the procurement pending a decision 
by our Office.

Hercules contends that the agency did not adequately advertise the 
solicitation because it failed to advertise in local sources as it had 
done in the past.   The protester asserts that as a result of the 
agency's failure to advertise in local sources,  two local firms that 
have historically submitted bids on this procurement (one being 
Hercules) were not made aware of the solicitation this year.

An agency meets the Competition in Contracting Act of 1984 (CICA), 10 
U.S.C.  sec.  2304(a)(1)(A) (1994), mandate for full and open competition 
when it makes a diligent good-faith effort to comply with the 
statutory and regulatory requirements regarding notice of the 
procurement and distribution of solicitation materials, and it obtains 
a reasonable price.  Ervin and Assocs., Inc., B-278849, Mar. 23, 1998, 
98-1 CPD  para.  92 at 2-3; The Maxima Corp., B-234019, Apr. 7, 1989, 89-1 
CPD  para.  363 at 5. 

In this regard, 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.  Further, FAR  sec.  14.205-1(b), (c) require contracting 
agencies to include on applicable solicitation mailing lists any firm 
that requests a solicitation document.  The agency met these 
requirements and took all reasonable steps necessary to ensure that 
Hercules was notified of the procurement.  While the agency previously 
may have published solicitation notices in local newspapers as is 
permissible under FAR 5.101(b)(3),(4), it was not required to provide 
such notice, and the failure to do so does not, by itself, reasonably 
evidence an intention to exclude Hercules or any other local 
contractor from participating in the competition.  In fact, FAR 
5.101(b)(4)(i) provides that the Contracting Officer may place paid 
advertising only when it is anticipated that effective competition 
cannot be obtained otherwise.  Publication of a synopsis in the CBD 
constitutes constructive notice of a solicitation and its contents to 
all firms, including Hercules.  Uniform Rental Serv., B-228293, Dec. 
9, 1987, 87-2 CPD  para.  571 at 2.  

Here, the agency not only announced its intention to issue a 
competitive solicitation in the CBD, it also placed the solicitation 
announcement on the bulletin board outside of the local contracts 
office.  Further, the agency contract specialist states that she 
contacted Hercules and five other firms that had previously bid on the 
requirements to see if they were interested in receiving the 
solicitation package.  The contract specialist also states that she 
added Hercules to the mailing list when Hercules expressed interest in 
bidding.  The mailing list contains the protester's name and current 
address, and the contract specialist states that a copy of the 
solicitation was sent to Hercules.  Unsworn Declaration, supra, at 
1-2.  The mailing list also contains the names and addresses of 
several other local firms.  In its comments, the protester does not 
dispute any of these representations; instead Hercules merely states 
that it has no record of being contacted by the agency and notes that 
if the agency did mail the solicitation, "it was not received by 
[Hercules] administrative personnel engaged in the bidding process in 
time for Hercules . . . to submit a bid."  Protester Comments at 2, 
n.1.  Additionally, in view of the expressions of interest received, 
the Contracting Officer could reasonably anticipate effective 
competition.

A firm bears the risk of not receiving solicitation materials unless 
it is shown that the contracting agency made a deliberate effort to 
prevent the firm from competing, or that, even if not deliberate, the 
agency failed to provide the solicitation materials after the firm 
availed itself of every reasonable opportunity to obtain them. 
Chem-Fab Corp., B-277795, Oct. 27, 1997, 97-2 CPD  para.  120 at 3; Crown 
Management Servs., Inc., B-232431.4, Apr. 20, 1989, 89-1 CPD  para.  393 at 
2.  Here, there is no allegation or evidence that the agency 
deliberately attempted to exclude Hercules from participating in the 
procurement.  On the contrary, as outlined above, the agency took 
reasonable steps to include Hercules in the procurement process, by 
inquiring into its interest in bidding and mailing the solicitation 
package to Hercules.  The agency's actions here in providing notice of 
the procurement and distributing the solicitation are unexceptionable; 
the agency is not a guarantor that the solicitation will be received 
in every instance.  Chem-Fab Corp., supra, at 3-4.

Initially, the protester argued that the sole bid received did not 
provide reasonable prices because it exceeded the government estimate 
for four of the five requirements.  The agency reported, and the 
protester now concedes, that  Hurricane's prices are lower than the 
government estimate for all but the Norfolk site, where Hurricane's 
price is only $64,250.93 higher than the government estimate of 
$2,131,568.47.  In its comments on the agency report, the protester 
asserts that the lack of local participation in the competition by 
itself calls into question the price reasonableness of Hurricane's bid 
regardless of comparison with the government estimates because local 
contractors generally enjoy some price advantages.

The contracting officer determined that Hurricane's prices are 
reasonable based on comparison with the government estimate because 
Hurricane's prices were below the government estimate for four of the 
five sites and only slightly higher for the fifth site.  Unsworn 
Declaration of Contracting Officer, Oct. 6, 1998, at 1.  A 
determination concerning price reasonableness is a matter of 
administrative discretion involving the exercise of business judgment 
which we will not question unless it is clearly unreasonable or there 
is a showing of fraud or bad faith.  Nomura Enter., Inc., B-271215, 
May 24, 1996, 96-1 CPD  para.  253 at 2.   An agency properly may rely on 
government estimates alone in determining whether prices are fair and 
reasonable, Pipe Inc., B-236461, Dec. 7, 1989, 89-2 CPD  para.  526 at 2, 
and the fact that only one bid is received does not call into question 
this determination.  Mil-Base Indus., B-218015, Apr. 12, 1985, 85-1 
CPD  para.  421 at 7.  Hurricane's prices were below the government estimate 
for four of the five sites and only 3 percent higher for the fifth 
site.  This comparison of the sole bid received adequately supports 
the reasonableness of the prices, and the record provides no 
meaningful basis to question the agency's price reasonableness 
determination. 

The protest is denied.

Comptroller General
of the United States