TITLE:  Wilcox Industries Corporation, B-287392, April 12, 2001
BNUMBER:  B-287392
DATE:  April 12, 2001
**********************************************************************
Wilcox Industries Corporation, B-287392, April 12, 2001

Decision

Matter of: Wilcox Industries Corporation

File: B-287392

Date: April 12, 2001

Robert F. Guarasi for the protester.

Joshua Kranzberg, Esq. U.S. Army Materiel Command, for the agency.

Aldo A. Benejam, Esq., and Christine S. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Allegation that the agency improperly failed to publicize solicitation or
award in the Commerce Business Daily (CBD) is denied where the record
clearly shows that the acquisition was synopsized in the CBD Online (CBDNet)
and in the printed version of the CBD on two separate occassions, including
a notice announcing a change to the solicitation number; the notices advised
that the solicitation and related documents could be downloaded from the
agency's Internet home page; and the notices provided a link to that site,
along with the contracting officer's e-mail address and telephone number,
and the protester failed to fulfill its obligation to avail itself of every
reasonable opportunity to obtain the solicitation.

DECISION

Wilcox Industries Corporation protests the award of a contract to Insight
Technology, Inc. under request for proposals (RFP) No. DAAB07-01-R-N201
(N201), issued by the U.S. Army Communications-Electronic Command (CECOM)
for AN/PAQ-4C aiming lights. Wilcox argues that CECOM improperly failed to
publicize the solicitation or the award in the Commerce Business Daily
(CBD).

We deny the protest.

On June 29, 2000, CECOM initially synopsized the acquisition for aiming
lights and spare parts in the CBD Online (CBDNet) as RFP
No. DAAB07-00-R-N204 (N204). Agency Report (AR) Mar. 20, 2001, exh. A. [1]
That notice announced that the solicitation and related documents would be
available on the "Army Single Face To Industry (ASFI) Interactive Business
Opportunities Web Page at http://abop.monmouth.army.mil"; [2] that the
estimated closing date would be August 30; and that the solicitation would
be issued as a total small business set-aside. Id. In addition to referring
to the ASFI web page, that CBDNet announcement provided the contracting
officer's (CO) telephone number, together with her e-mail address.

The CO explains that under RFP No. N204, the agency contemplated acquiring
the aiming lights as part of a combined acquisition with two other related
items. However, as a result of concerns raised by Wilcox, and to further
enhance competition, the agency decided to acquire the aiming lights
separately. Accordingly, on July 26, the agency published a new CBDNet
notice announcing the acquisition for only the aiming lights under RFP No.
N204. [3] That CBDNet notice announced a revised estimated closing date of
September 15. As with the earlier notice, interested parties were referred
to the agency's ASFI web page, and were provided with the CO's telephone
number and her e-mail address.

On November 20, the agency issued a notice on the ASFI website that the
solicitation number was being changed from N204 to N201, and concurrently
issued the solicitation on the website. AR exh. D. The CO explains that
except for the new RFP number (changed because the procurement crossed into
a new fiscal year), all other aspects of the procurement remained unchanged.
The CO states that RFP No. N201 was not a different acquisition, but only
reflected some revisions and corrections made to the solicitation between
July and November 2000, primarily as a result of industry comments. The CO
further states that any interested party could have learned of the status of
the procurement even if it searched the ASFI website using the original RFP
number (i.e., N204). CO Statement, Mar. 16, 2001, para.para. 6, 7, at 3. In this
regard, the CO explains that the ASFI "website technology is such that a
search using the old [RFP] number, even after the 20 November 2000
solicitation number change, would lead the prospective offeror to the final
version of the solicitation." Id. para. 7.

Wilcox apparently did not access the ASFI website referred to in either
CBDNet announcement to keep informed on the status of the procurement,
failed to download the solicitation, and failed to submit a proposal in
response to the RFP. CECOM awarded the contract to Insight on February 28,
2001. Wilcox subsequently filed this protest in our Office on March 9, 2001.

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. 10 U.S.C. sect. 2305(a)(1)
(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.,
B-232666.4, Mar. 5, 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 sect. 5.101(a)(1) generally requires contracting agencies
to publish in the CBD a synopsis of each contract action expected to exceed
$25,000.

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.

Contrary to the protester's contentions, we think that the agency used
reasonable methods here to disseminate information concerning the status of
the procurement and related documents, including the solicitation. The
record clearly shows that the acquisition for the aiming lights was
initially synopsized in the CBDNet and the CBD as part of the requirements
under RFP No. N204. The CBDNet notice advised that the solicitation and
related documents could be downloaded from the agency's ASFI Internet home
page, and provided a link to that site, along with the CO's e-mail address
and telephone number. That CBDNet announcement thus provided potential
offerors with all of the information they required to keep current on the
status of the solicitation, either by reviewing the ASFI website, or by
contacting the CO by e-mail or telephone. Wilcox failed to take any of these
reasonable steps to keep current on the status of the procurement.

In addition, even if there were some basis to conclude that the agency had
failed in its solicitation dissemination obligations, the record shows that
Wilcox, not CECOM, had the last clear opportunity to obtain a copy of the
solicitation. In this connection, 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.

Here, as already explained, the acquisition for the aiming lights was
initially synopsized in the CBDNet on June 29 (July 3 in the printed version
of the CBD), as part of the agency's requirements under RFP No. N204.
Subsequently, the agency published a new CBDNet notice on July 26 (July 28
in the printed CBD), announcing that the aiming lights would be acquired
separately under RFP No. N204, with a revised estimated closing date of
September 15. Although the RFP was ultimately issued with a new number
(N201) several months later, Wilcox knew from the July CBD notices that the
solicitation would be issued some time thereafter, with an estimated closing
date of September 15. Yet it is apparent that Wilcox never referred to the
ASFI website. Had Wilcox done so, it could have easily learned of the
solicitation number change, and could have readily downloaded the RFP when
it was ultimately issued on November 20.

Wilcox states that in response to an agency market survey of potential
sources, it requested that it be included in the agency's "bidder's list"
for the aiming lights, and that it be kept abreast of the procurement,
implying that the agency failed to do so. We note, however, that Wilcox's
response to the agency's market survey is dated April 3, 2000, several
months before either of the CBD announcements discussed here were posted,
and well before the solicitation was issued. Wilcox has provided no evidence
that it tried to contact the agency concerning its request to be included in
a "bidder's list," or to inquire as to the status of the solicitation after
April 3. In fact, in its comments responding to the Army's dismissal
request, Wilcox states that it accessed the ASFI website "only recently" to
obtain the information posted on November 20. Protester's Comments, Mar. 27,
2001, at 2. Even assuming that the agency did not include Wilcox on a
"bidder's list" for this requirement, as the protester contends, since the
record is clear that Wilcox failed either to access the ASFI website at any
time prior to closing, or to contact the CO to follow up on the status of
the procurement after it responded to the agency's market survey on April 3,
Wilcox did not avail itself of every reasonable opportunity to obtain the
solicitation.

Based upon our review of the record, we think that the agency met its
obligation to use reasonable methods to publicize the procurement, and to
timely disseminate information about the status of the solicitation.
Further, by not taking reasonable steps to keep itself apprised of the
status of the solicitation, Wilcox failed to fulfill its obligation to avail
itself of every reasonable opportunity to obtain the RFP. [4] See Ervin and
Assocs., Inc., B-278849, Mar. 23, 1998, 98-1 CPD para. 92 at 4.

The protest is denied.

Anthony H. Gamboa

General Counsel

Notes

1. The CBDNet notice was followed by a notice in the printed version of the
CBD on July 3.

2. The agency explains that CECOM and other commands use this website for
the electronic exchange of various documents between the government and
industry. According to the agency, the website is designed to capture the
entire solicitation process, from posting draft documents to electronic
signature of contracts.

3. The CBDNet notice was followed by a notice in the printed version of the
CBD on July 28.

4. Since Wilcox did not submit a proposal in response to the RFP, Wilcox is
not an interested party to challenge the award to Insight, or the agency's
alleged failure to publish notice of the award in the CBD. See Bid Protest
Regulations, 4 C.F.R. sect. 21.0(a) (2000); Valentec Kisco, Inc., B-238359, May
11, 1990, 90-1 CPD para. 465 at 3-4.