TITLE:  Allied Materials & Equipment Company, Inc., B-293231, February 5, 2004
BNUMBER:  B-293231
DATE:  February 5, 2004
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Allied Materials & Equipment Company, Inc., B-293231, February 5, 2004

   Decision
    
    
Matter of:   Allied Materials & Equipment Company, Inc.
    
File:            B-293231
    
Date:              February 5, 2004
    
Michael I. Goulding, Esq., Centre Law Group, for the protester.
Robert L. Mercadante, Esq., Defense Logistics Agency, for the agency.
Peter D. Verchinski, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
Protest of agency*s failure to post solicitation on FedBizOpps Internet
website, as required by regulation, is denied, where protester did not
avail itself of every reasonable opportunity to obtain the solicitation;
although presolicitation notice indicated an anticipated August 20, 2003
closing time, as that time approached and passed, protester did not
contact agency to determine status of solicitation, and finally inquired
as to status approximately 7 weeks after closing time.
DECISION
     <>Allied Materials & Equipment Company, Inc. protests the award of a
contract by the Defense Logistics Agency (DLA), Defense Supply Center to
ILC Dover, Inc., under request for proposals (RFP) No. SP0560-03-R-0186,
for chemical-biological filter elements. Allied alleges that the agency*s
failure to post the solicitation to FedBizOpps, the government-wide point
of entry (GPE), as required by the Federal Acquisition Regulation (FAR),
improperly denied it the opportunity to compete for the contract.
    

   We deny the protest.
    
On July 18, 2003, DLA published a synopsis of the proposed RFP on the
FedBizOpps website.  The notice informed potential offerors that the
proposed closing date was August 20, and included contact information for
various DLA contracting personnel.  Under FAR S: 5.102(a)(1),
solicitations synopsized on the GPE (i.e., FedBizOpps) must subsequently
be posted there as well.  Allied states that, following publication of the
notice, it began actively monitoring the FedBizOpps and DLA Procurement
Gateway websites for the RFP.  According to Allied, the RFP was never
posted, and it became concerned with the posting delay when it learned
that a new synopsis for the same item had been posted on October 1. 
Allied contacted the contracting officer on October 7 and inquired as to
both the general status of the two solicitations, and whether the new
solicitation was intended to replace the earlier solicitation.  The
contracting officer explained in a brief e-mail that the October 1
solicitation was not meant to replace the earlier solicitation, and that
the October 1 solicitation would be available on October 16.  Thereafter,
by letter dated October 14, Allied again requested information about both
solicitations.  DLA responded in a letter dated October 31, explaining
that the RFP in issue had been posted to DLA*s own Procurement Gateway
website on August 6, that only one proposal was received by the August 20
closing date, and that award was made to ILC Dover on October 7.
    
On November 7, Allied filed this protest in our Office, alleging that
DLA*s failure to post the RFP on FedBizOpps had improperly denied Allied
an opportunity to compete.  DLA acknowledges that it failed to post the
RFP, as required by the FAR.  The agency explains that it normally
satisfies the FAR requirement by posting a solicitation on DLA*s
Procurement Gateway website, and then including a web-link to the
solicitation with the FedBizOpps synopsis.  DLA states that, here, it
properly placed the RFP on the Procurement Gateway (the protester denies
the RFP was posted on this website), but it failed to include the
necessary link on FedBizOpps.  Nevertheless, DLA argues that Allied was
not prejudiced by its actions, and thus there is no basis for sustaining
the protest, since Allied actually received a copy of the RFP before the
closing time, as evidenced by a computer printout that the agency claims
demonstrates that Allied downloaded the RFP from the Procurement Gateway
on August 20.  Allied denies that it downloaded the RFP; indeed, it claims
that it monitored both FedBizOpps and the Procurement Gateway daily from
August 8 until November 7, and that the RFP was never posted to either
website. 
    
The Competition in Contracting Act of 1984 generally requires contracting
agencies to obtain full and open competition through the use of
competitive procedures, the dual purpose of which 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. 10
U.S.C. S: 2304(a)(1)(A) (2000); Kendall Healthcare Prods. Co.,
B‑289381, Feb. 19, 2002, 2002 CPD P: 42 at 6.  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, FAR S: 5.102(a)(1) generally requires that solicitations that
are synopsized on the GPE also be available on the GPE.  However,
concurrent with the agency*s obligations in this regard, prospective
contractors also must avail themselves of every reasonable opportunity to
obtain the solicitation documents.  Laboratory Sys. Servs., Inc.,
B-258883, Feb. 15, 1995, 95-1 CPD P: 90 at 2.  Where a prospective
contractor fails in this duty, we will not sustain its protest challenging
the agency*s failure to meet its solicitation dissemination obligations. 
Wind Gap Knitwear, Inc., B-276669, July 10, 1997, 97-2 CPD P: 14 at 3.  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.  Id.
    
We need not resolve the dispute between the parties as to whether Allied
downloaded the RFP, since, even accepting Allied*s version of the facts as
correct, we find that the protester failed to avail itself of every
reasonable opportunity to obtain the solicitation.
    
Allied learned of the solicitation through the July 18 synopsis and, thus,
as of that date, was aware of the August 20 anticipated closing time for
the receipt of proposals.  The protester nevertheless did not contact the
agency prior to the closing time to inquire into the status of the
solicitation, nor did it contact the agency shortly after the closing time
to determine whether the closing time had been changed.  Instead, the
protester waited approximately 7 weeks after the closing time to inquire
into the status of the procurement.  This delay was unreasonable.  While,
as Allied notes, an anticipated closing time in a presolicitation notice
may subsequently be extended, it nevertheless serves to establish the
rough time frame during which a prospective offeror reasonably should
expect to receive the announced solicitation.  Prospective offerors cannot
ignore the anticipated closing time when they are waiting to receive an
announced solicitation--or, it follows, when they are awaiting the posting
of a solicitation on a website.  Rather, even where a prospective offeror
has specifically requested a solicitation, see Wind Gap Knitwear, Inc.,
supra, as the anticipated closing time approaches and then passes without
its receiving the solicitation, the prospective offeror is reasonably
expected to stop merely waiting and instead to take steps to actively seek
the solicitation.  We believe this principle necessarily extends to the
circumstances here.  While monitoring a website might initially be a
reasonable approach to obtaining a solicitation that is to be posted
there, we do not think it was reasonable for Allied to continue doing so
as the closing time approached and passed, without at least attempting to
obtain information as to the status of the procurement; in this regard, as
noted above, the synopsis included the names, telephone numbers, fax
numbers, and e‑mail addresses of both the contract specialist and
the commodity business specialist involved with the solicitation.
    
We conclude that, notwithstanding the agency*s error in failing to post
the RFP to FedBizOpps, Allied*s inability to compete was primarily the
result of its failure to fulfill its obligation to avail itself of every
reasonable opportunity to obtain the RFP.  See Laboratory Sys. Servs.,
Inc., supra.
    
The protest is denied.
    
Anthony H. Gamboa
General Counsel