FAR 5.101: Disseminating contract action information

Comptroller General - Key Excerpts

Phoenix argues that the agency did not notify Phoenix of the cancellation of the FSS purchase order and the issuance of the second RFQ, despite the fact that Phoenix had expressed an interest in competing for the items covered by the FSS purchase order. In response, BLM states that the notice it provided was adequate and in accordance with applicable regulations.

The Federal Acquisition Regulation (FAR) provides that for proposed contract actions expected to exceed a value of $15,000 but not expected to exceed $25,000, notice can be given by displaying notice of the solicitation or a copy of the solicitation in a public place, or by any appropriate electronic means. FAR § 5.101(a)(2). For contract actions expected to exceed $25,000, the agency must use the only recognized Government-wide point of entry--the FedBizOpps website. FAR §§ 2.101 and 5.101(a)(1).

Here, as stated above, the notice for the second RFQ listed a value of $33,380, which would require notice to be given through FedBizOpps. The contracting officer (CO) asserts, however, in a statement submitted during the development of the protest record, that this amount was the original estimated amount that was listed in the FSS RFQ before the agency received Walking Point’s $22,634 quotation, and was not accurate. CO Statement at 2, 4-5. The CO explains that the $33,380 amount was inadvertently included in the second RFQ because it was simply copied from the earlier FSS RFQ for the same requirements. Id.

Although this assertion regarding the value of the acquisition was not made at the time the RFQ was posted, our Office generally will consider post-protest explanations that provide a more detailed rationale for contemporaneous conclusions in our review of the rationality of an agency decision, so long as those explanations are credible and consistent with the contemporaneous record. Windstream Communs., B-409928, Sept. 9 2014, 2014 CPD ¶ 5 n.5; Remington Arms Co., Inc., B-297374, B-297374.2, Jan 12, 2006, 2006 CPD ¶ 32 at 12.

Here, we find credible the agency’s post-protest explanation that the expected value for the second purchase order would be less than $25,000, given the very recent procurement history, i.e., the FSS purchase order quotation of $22,634 for the same requirements. The CO’s explanation for the discrepancy between the agency’s estimate of the value and the price that was inadvertently copied onto the second RFQ is also credible under these circumstances. Accordingly, since the agency did not expect the second purchase order to exceed $25,000--an expectation that was also borne out by the value of the award--we agree that the agency was not required to post notice of the RFQ on FedBizOpps. Instead, the notice the agency provided on FedConnect.net, the agency’s publicly accessible procurement website, met the FAR requirement for providing notice by “any appropriate electronic means.” FAR § 5.101(a)(2). Accordingly, we deny the protest.  (Sterling Medical Corporation B-412407, B-412407.2: Feb 3, 2016)  (pdf)

IFC argues that by using the term "fasteners" instead of the more specific terms "slide fasteners" or "zippers" in the title of the combined synopsis/solicitation, UNICOR failed to properly identify the procurement on FedBizOpps and thereby frustrated IFC's ability to compete for the slide fasteners portion of the procurement. Protest at 3. In support of this premise, IFC cites three previous notices posted to FedBizOpps in which UNICOR used the words "slide fasteners" and "zippers" in the titles as opposed to the term "fasteners." Protester Comments, at 1. IFC's arguments are without merit.

The Competition in Contracting Act of 1984 generally requires that contracting agencies obtain full and open competition through the use of competitive procedures. 41 U.S.C. sect. 253(a)(1)(A) (2006). In furtherance of this goal, agencies are required to use reasonable methods to publicize their procurement needs. Kendall Healthcare Prods. Co., B-289381, Feb. 19, 2002, 2002 CPD para. 42 at 6. The official public medium for providing notice of contracting actions by federal agencies is the FedBizOpps website, which has been designated by statute and regulation as the government-wide point of entry. 15 U.S.C. sect. 637(e); 41 U.S.C. sect. 416; FAR sections 2.101, 5.101(a)(1), 5.201(d). The notice provided by an agency must include an "accurate description" of the property or services to be purchased, sufficient to provide prospective offerors with the ability to make an informed business judgment as to whether to request a copy of the solicitation, see 41 U.S.C. sect. 416(b)(1); TMI Management Sys., Inc., B-401530, Sept. 28, 2009, 2009 CPD para. 191 at 3.

Here, the combined synopsis/solicitation posted by UNICOR on FedBizOpps was not misleading and provided potential offerors, such as IFC, with notice of the intended procurement, which included the acquisition of slide fasteners. As IFC concedes, the term "fasteners," which appeared in the title of the combined synopsis/solicitation, refers to a number of different commercial items--including slide fasteners. Protest at 2-3. Given that slide fasteners are a type of fastener, the title of the combined synopsis/solicitation accurately reflected the fact that the RFP may have potentially included a requirement for slide fasteners. It was therefore incumbent on IFC to review the actual synopsis, RFP, and items specifications, all of which were easily available to IFC, to determine whether the procurement in fact included a requirement slide fasteners. In this regard, we have held that potential offerors such as IFC have an affirmative duty to make every reasonable effort to obtain solicitation materials. See Jess Bruner Fire Suppression, B-296533, Aug. 19, 2005, 2005 CPD para. 163, at 3-4.

IFC suggests that UNICOR had established a practice of using the more specific terms slide fasteners or zippers, as opposed to the more general term fasteners, when posting notices of procurements for slide fasteners, and that using these specific terms would have been more appropriate. IFC's arguments do not provide a basis for finding the agency's actions unreasonable or improper. There is nothing in the record to indicate that UNICOR had an official policy of using these more specific terms. To the contrary, UNICOR notes--and IFC does not dispute--that it has on at least two separate occasions posted solicitations to FedBizOpps which contained only the word "fasteners" in the title, including one in which the protester was awarded a contract for slide fasteners. AR, Tab 14, Notice of Award for Solicitation No. CT1835-07, at 1; AR, Tab 15, Notice of Award for Solicitation No. CT1704-05, at 1. It is apparent that IFC's belief regarding how UNICOR titled its solicitation notices was an assumption made by IFC, and IFC therefore bore the risk that its assumption was incorrect. As we have held, each procurement is a separate transaction, and an agency's practices or actions under one procurement do not bind its practices or actions on other procurements. See Southern CAD/CAM, B‑254201, Nov. 16, 1993, 93-2 CPD para. 278 at 4; see also The Standard Register Company, B‑289579, March 5, 2002, 2002 CPD para.54 at 2‑3 (an agency is not bound by its prior practices "since past practice lacks the force and effect of law").

The protest is denied.  (Ideal Fastener Corporation, B-404206, January 11, 2011)  (pdf)

The RFP, which was issued on February 27, 2008, contemplated the award of an indefinite-quantity contract for a base and 4 option years; the estimated annual quantity to be ordered under the contract was 230,892. The RFP was synopsized and posted on the Federal Business Opportunities (FedBizOpps) website. The solicitation was amended three times, with a final closing date of December 4, 2008. Five offerors submitted proposals; the protester was not among them. The agency awarded a contract to Blond Lighting Fixture Supply Company on December 23.

The protester argues that it did not submit a proposal because it was unaware of the RFP and that this was the agency’s fault. SLG maintains that had the agency properly identified the protester as an approved source of supply, the agency would have furnished it with a copy of the RFP and it would have submitted a proposal; thus, in SLG’s view, it was the agency’s failure to properly identify it as a source of supply that resulted in SLG being unaware of the RFP and not participating in the competition.

The protester is in essence arguing that the agency was required to furnish it with individual notice of the RFP. We disagree. As noted above, the solicitation at issue here was posted on the FedBizOpps website. FedBizOpps has been designated as the government-wide point of entry (GPE)--that is, the single point where government business opportunities greater than $25,000, including synopses of proposed contract actions, solicitations, and associated information, can be accessed electronically by the public. Federal Acquisition Regulation sect. 2.101. Offerors are charged with constructive notice of procurement actions published on the GPE. DBI Waste Sys., Inc., B-400687, B-400687.2, Jan. 12, 2009, 2009 CPD para. 15. Thus, even assuming, as SLG argues, that it should have been listed as an approved source of supply in the RFP (and therefore would have received a copy of the RFP directly from the agency), the protester nevertheless was on constructive notice of the contents of the RFP as a result of the FedBizOpps posting. Because the protester had constructive notice, the agency was under no obligation to furnish it with separate notice of the RFP. PR Newswire Ass’n, LLC, B-400430, Sept. 26, 2008, 2008 CPD para. 178 at 2.

The protester also argues that it would have been on notice of the RFP had the agency not responded in a misleading manner to an email message SLG sent regarding the status of a prior RFP for the same item. (According to the protester, the agency responded to its inquiry regarding the first solicitation with information pertaining to the second, which resulted in SLG failing to understand that the second solicitation had been issued.) The record fails to support the protester’s allegation that the agency furnished it with misleading information, however; thus, this argument also is without merit.  (Solutions Lucid Group, B-401128, LLC, April 2, 2009) (pdf)

DBI asserts that the agency should have provided it with individual notice of the RFP, in addition to the notice on FedBizOpps, based on its status as an incumbent and the agency’s course of dealing with it in this and in prior acquisitions in which DBI asserts it was orally notified of the solicitation.

This argument is without merit. FedBizOpps has been designated as the GPE, “the single point where Government business opportunities greater than $25,000, including synopses of proposed contract actions, solicitations, and associated information, can be accessed electronically by the public.” Federal Acquisition Regulation (FAR) sect. 2.101. Protesters are charged with constructive notice of the contents of procurement actions published on the GPE. Herndon & Thompson, B‑240748, Oct. 24, 1990, 90-2 CPD para. 327 at 3. The doctrine of constructive knowledge imputes knowledge to a party without regard to the party’s actual knowledge of the matter at issue. WorldWide Language Resources, Inc.; SOS Int’l Ltd., B-296984 et al., Nov. 14, 2005, 2005 CPD para. 206 at 9. Accordingly, the notice of the RFP published on FedBizOpps was legally sufficient, and the fact that DBI may not have had actual knowledge of the RFP is not determinative here. See, e.g., Specialty Marine, Inc., B‑292053, May 19, 2003, 2003 CPD para. 106 at 2 (prospective contractor on constructive notice of the contents of procurement announcement even when it did not see the announcement).

DBI’s status as an incumbent contractor did not operate to impose some greater notice obligation on the agency. At one time--but no longer--the FAR required that “bids shall be solicited from . . . the previously successful bidder” or offeror for the requirement. See (superseded) FAR sections 14.205-4 and 15.403. However, the current FAR does not require such notice to incumbent contractors; thus, VA’s failure to provide actual notice to DBI provides no valid basis for protest. See PR Newswire Ass’n, LLC, B-400430, Sept. 26, 2008, 2008 CPD para. 178 at 2 n.1. Nor did the agency’s prior practice of providing oral notice require the agency to provide DBI with actual notice of the RFP here. Shirlington Limousine & Transp., Inc., B-299241.2, Mar. 30, 2007, 2007 CPD para. 68 at 3.

DBI asserts that, on several occasions, its president met with two VA employees, who “indicated that they were not sure exactly what was happening,” but that “VA would let [DBI] know the particulars of the bid once the details were put in place.” Comments at 3. However, even as recalled by the protester’s president, these vague assurances did not include any specific promise to provide a solicitation other than through legally required means, i.e., FedBizOpps, and, further, the agency advises that the employees in question worked in the agency’s Environmental Management Service, not the contracting office. ASR exh. 1. We conclude that these conversations did not establish a commitment on the agency’s part to provide DBI with actual notice of the RFP.  (DBI Waste Systems, Inc., B-400687; B-400687.2, January 12, 2009) (pdf)

As stated above, FAR sect. 5.207(h)(3) identifies the FPDS Product and Service Codes Manual as a standard classification source that may be used to identify a specific product or service within each code. That Manual, which was provided by the agency in its report on the protest, includes code 89, subsistence, under which product code 8940, entitled "Special Dietary Foods and Food Specialty Preparations," is listed. Another classification source, which assists users in choosing the appropriate product or service code, is the Federal Procurement Data Center PSC Wizard, an Internet search program. The agency reports, and the record confirms, that an on-line search of the term "dietary" directs the user to product code 8940 under classification code 89; if "dietary supplement" is the search term, the user is informed that there is no product group which contains that two word search term. AR encl. 13, PSC Wizard Search. These standard classification sources, one of which is specifically referenced in the FAR, identified product code 89 as the classification code that most closely describes the acquisition at issue here. Accordingly, the contracting officer's classification determination was consistent with the applicable regulations, and standard classification sources, as well as the agency's prior procurement history of using code 89 when procuring dietary supplements.  (Kendall Healthcare Products Company, B-289381, February 19, 2002)

Protest that agency deliberately excluded the incumbent protester from competition is denied where record establishes that protester's name was inadvertently dropped from bidders' mailing list and adequate competition was obtained.  (Timberland Logging, B-282461, July 8, 1999)

Where the agency fails to solicit a successfully-performing incumbent, with the result that there is only a minimal level of competition, it does not meet its obligation of obtaining full and open competition. Professional Ambulance, Inc., B-248474, Sept. 1, 1992, 92-2 CPD para. 145 at 2-5. Similarly, we have sustained protests where the agency makes a deliberate or conscious attempt to preclude the protester from competing. Bosco Contracting, Inc., B-270366, Mar. 4, 1996, 96-1 CPD para. 140 at 3. The record here provides no basis for sustaining the protest.  (Interproperty Investments, Inc., B-281600, March 8, 1999)

Comptroller General - Listing of Decisions

For the Government For the Protester
Sterling Medical Corporation B-412407, B-412407.2: Feb 3, 2016)  (pdf)  
Ideal Fastener Corporation, B-404206, January 11, 2011  (pdf)  
Solutions Lucid Group, B-401128, LLC, April 2, 2009 (pdf)  
DBI Waste Systems, Inc., B-400687; B-400687.2, January 12, 2009 (pdf)  
Kendall Healthcare Products Company, B-289381, February 19, 2002  (Pdf Version)  
Timberland Logging, B-282461, July 8, 1999 (incumbent)  
Interproperty Investments, Inc., B-281600, March 8, 1999  

U. S. Court of Federal Claims - Key Excerpts


U. S. Court of Federal Claims - Listing of Decisions

For the Government For the Protester


Bona Fide Needs Rule
Public Laws
Courts & Boards

Rules & Tools

Small Business