TITLE:  USA Information Systems, Inc., B-291488, December 2, 2002
BNUMBER:  B-291488
DATE:  December 2, 2002
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USA Information Systems, Inc., B-291488, December 2, 2002

   Decision
    
    
Matter of:   USA Information Systems, Inc.
    
File:            B-291488
    
Date:              December 2, 2002
    
David K. Wilson, Esq., Troutman Sanders, for the protester.
William B. Barton, Jr., Esq., and William T. Welch, Esq., Barton, Baker,
McMahon & Tolle, for Information Handling Services, Inc., an intervenor.
Clarence D. Long, Esq., Department of the Air Force, for the agency.
Tania Calhoun, Esq., and Christine S. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
In a procurement conducted by electronic commerce, where the solicitation
materials were available only on the Internet, protest that it was
improper for the agency to post an amendment with a short response time
without specifically advising the protester is denied where the record
shows that the protester failed to avail itself of every reasonable
opportunity to obtain the amendment by either registering for e-mail
notification or checking the Internet site, and that this failure was the
reason the protester allegedly had insufficient time to protest the
solicitation's terms.
DECISION
    
USA Information Systems, Inc. (USAInfo) protests the manner in which the
Department of the Air Force amended the terms of request for quotations
(RFQ) No. F16602-02-Q-S9A3, issued to acquire a 1-year Internet-based
network subscription service for various military and engineering
specifications, instructions, and regulations.  USAInfo argues that by
posting the amendment online with a short response time, without
specifically advising the firm, the agency prevented it from timely
protesting the amended solicitation's terms.
    
We deny the protest.
    
On September 14, 2002, Barksdale Air Force Base posted a presolicitation
notice of this solicitation on the Federal Business Opportunities
(FedBizOpps) Internet site at www.eps.gov.  The notice stated that no
quotations would be accepted for the requirement because it was being
procured on a sole-source basis; the sole-source justification indicated
that Information Handling Services, Inc. (IHS) was the only supplier of
this service.  Sole Source Justification at 1.  On September 19, a
representative from USAInfo contacted the agency and obtained a copy of
the solicitation.  The next day, USAInfo's counsel sent an e-mail to the
contracting officer objecting to the sole-source procurement and arguing
that the RFQ's line items were improperly bundled.  USAInfo asked the
contracting officer to amend the RFQ to delete all references to IHS's
products, unique features and part numbers, and to unbundle the line
items. 
    
On September 24, the agency posted RFQ amendment no. 01 to the FedBizOpps
Internet site.  Among other things, the amendment revised the RFQ to
reflect that the procurement was now a full and open competition, changed
all line items to read IHS items *or equal,* and extended the due date for
quotations to Thursday, September 26.  On Wednesday, September 25,
USAInfo's counsel discussed additional concerns with counsel for the
agency, who agreed to extend the due date for quotations and further amend
the solicitation.  While the parties disagree as to whether agency counsel
told USAInfo when the amendment would be issued, USAInfo's counsel states
he was told that the agency wanted to make the award by the end of the
fiscal year.  USAInfo Counsel Affidavit P: 4.  The end of the fiscal year
was Monday, September 30.  On Friday, September 27, the agency posted RFQ
amendment no. 02 to the FedBizOpps Internet site.  The amendment, which
deleted references to IHS and its part numbers, established a closing date
of noon on Monday, September 30.  IHS was the only firm to submit a
quotation, and the Air Force awarded the firm a purchase order in the
amount of $37,447.12, effective October 1.
    
USAInfo filed the instant protest 1 week later.  USAInfo states it did not
become aware of the existence of the amendment or the new due date for
quotations until after the deadline, and argues that the manner in which
the agency amended the solicitation--by posting it online on Friday,
September 27 and providing for a noon, Monday, September 30
deadline--while not so notifying USAInfo was unreasonable.  The protester
states that it believes the amended solicitation still *likely does not
allow [it] to submit a compliant response,* Protest at 2, but that the
agency's actions prevented it from filing a timely protest of the
solicitation's terms.[1]
    
We agree with the Air Force that it was USAInfo's failure to make every
reasonable effort to promptly obtain the amendment that led to its
inability to timely file a protest or submit a quotation.
    
Prospective offerors have an affirmative duty to make every reasonable
effort to obtain solicitation materials.  Performance Constr., Inc.,
B-286192, Oct. 30, 2000, 2000 CPD P: 180 at 2; American Handling, Inc.,
B-281261, Jan. 19, 1999, 99-1 CPD P: 13 at 2.  A prospective vendor bears
the risk of not receiving a solicitation amendment unless it can show that
the agency failed to furnish the amendment inadvertently after the firm
availed itself of every reasonable opportunity to obtain the amendment, or
the agency made a deliberate attempt to exclude the firm from competing. 
Christolow Fire Prot. Sys., B-286585, Jan. 12, 2001, 2001 CPD P: 13 at 2;
Sentinel Sec. & Patrol Servs., B-261018, Aug. 9, 1995, 95-2 CPD P: 67 at
3.  USAInfo has made neither showing.
    
The record shows that USAInfo did not avail itself of every reasonable
opportunity to obtain the amendment.  As indicated above, this was an
electronic procurement conducted pursuant to Federal Acquisition
Regulation (FAR) Subpart 4.5.  The FedBizOpps site includes an e-mail
notification service that allows vendors to fill out a subscription form
in order to receive notices associated with particular procurements.  When
amendments are issued to posted solicitations, the websites automatically
notify registered users of the change by e-mail.  The e-mail also contains
a link to the location that the user can access to locate and download the
amendment.  See Lyons Sec. Servs., Inc., B-289974, May 13, 2002, 2002 CPD
P: 84
at 1-2, n.1.  USAInfo did not avail itself of the registration opportunity
presented by the FedBizOpps Internet site[2] and, accordingly, did not
receive e-mail notice of amendment No. 02.  In addition, despite being on
notice of the Air Force's desire to issue the purchase order by the end of
the fiscal year--Monday, September 30--USAInfo apparently did not avail
itself of the opportunity to check the FedBizOpps web site for the
promised amendment until after noon on Monday, September 30.[3]  USAInfo
must bear the risk it assumed in not availing itself of either of these
opportunities to obtain the amendment and, in our view, its failure to do
so was the reason it allegedly had insufficient time to timely protest the
solicitation's terms.  See Performance Constr., Inc., supra.
    
There is also no evidence that the agency made a deliberate attempt to
exclude USAInfo from competing here.  On the contrary, the agency provided
USAInfo a copy of the solicitation, carefully considered its objections to
the solicitation's terms, and twice amended the solicitation in response
to those objections.  Among other things, the agency withdrew the
sole-source designation to permit USAInfo to compete and eliminated the
references to IHS's products in the solicitation.   USAInfo's assertion
that the agency *may have intentionally precluded* it from responding to
the solicitation to avoid a protest, Comments at 4, is unsupported and
belied by the agency's actions.
    
USAInfo finally complains that amendment No. 02 did not afford vendors
sufficient time to prepare their quotations.  In simplified acquisitions
such as this one, contracting officers are to establish deadlines that
afford suppliers a reasonable opportunity to respond, considering the
circumstances of the individual acquisition, such as the complexity,
commerciality, availability, and urgency. 
FAR S:S: 13.003(h)(2), 5.203(b).  The decision as to the appropriate
preparation time lies within the discretion of the contracting officer. 
See Crowley Am. Transp., Inc., B-259599.2, June 19, 1995, 95-1 CPD P: 277
at 6.  Here, while the time allowed for revision after amendment No. 02
was short, the changes made by the amendment were relatively minor, and
the protester had advance notice of the agency's intent to issue the
purchase order by the end of the fiscal year.  Under the circumstances,
USAInfo has not demonstrated that the contracting officer abused her
discretion in establishing the short timeframe in which to respond to the
amendment by either submitting a quotation or filing a protest.  
    
The protest is denied.
    
Anthony H. Gamboa
General Counsel
    

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   [1] USAInfo has never identified which, if any, of the solicitation's
terms it believes are improper.
[2] According to USAInfo, the employee who tracks solicitation changes
states that when she was initially on the web site the subscription
service was not available.  USAInfo acknowledges, however, that the
service was available at a later point.  
[3] USAInfo is silent as to when it actually learned of the amendment.