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FAR 5.102: Availability of Solicitations

Comptroller General - Key Excerpts

We will not sustain a protest challenging an agency's failure to solicit a successfully performing incumbent unless the record shows that adequate competition resulting in reasonable prices was not achieved, or there is conclusive evidence that the agency deliberately excluded an incumbent from the competition. E.g., Timberland Logging, B-282461, July 8, 1999, 99-2 CPD para. 10 at 3. Here, the VA received 12 proposals in response to the RFP, a number more than sufficient to achieve adequate competition and to support a finding of price reasonableness. Further, as explained below, the record does not show that the agency deliberately excluded Bestcare from the competition.

Bestcare argues that it was excluded due to the fact that "the agency chose an outlet which is rarely, if ever, used for public bidding," FedBizOpps. Protest at 1. Bestcare also states that the VA did not notify incumbent contractors that the RFP had been issued, that the program administrators were not aware that the RFP had been issued, and that the RFP was not available through the VA website. Comments at 1-2. Bestcare asserts that "[s]uch secrecy suggests that the [VA] set out not to foster maximum competition, but to reduce the number of bidders to a minimum." Id. at 2.

We disagree. Far from being a rarely used outlet for the advertisement of procurement opportunities, FedBizOpps is the currently designated Governmentwide Point of Entry (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." FAR sect. 2.101. Wherever agencies are required to publicize notice of a proposed contract action, they must transmit a notice of that action to the GPE. FAR sect. 5.203(a). Beyond these requirements, there are no further requirements to individually notify potential offerors, or to post notice of a contract action on an agency's own website. Finally, we also find it unremarkable that the VA program staff were unaware that the RFP had been issued, as contracting actions are not generally undertaken by the program office, but by the agency's contracting office.

In sum, the record shows that the agency followed applicable regulations by publicizing notice of the RFP on FedBizOpps where it was publicly available to all interested offerors, and received adequate competition in the form of 12 proposals. In the absence of any conclusive evidence that the agency deliberately excluded Bestcare from the competition, and in light of the significant competition received in response to the RFP, we see no basis to conclude that the agency failed to meet its obligations. Interproperty Invs., Inc., B-281600, Mar. 8, 1999, 99-1 CPD para. 55.  (Bestcare, Inc., B-403585, November 23, 2010)  (pdf)

PR Newswire is HHS's incumbent public relations assistance contractor and this RFP is the agency's second effort to obtain follow-on services. In its first attempt, HHS awarded a sole-source contract to PR Newswire. Business Wire challenged the award in a protest to our Office, in response to which the agency took corrective action, including a planned re‑examination of its requirements and an agreement to provide Business Wire with a copy of the solicitation. Business Wire withdrew its protest and we closed our file without further action (B-311078, Feb. 5, 2008). HHS then extended PR Newswire's contract on a month-to-month basis. On May 28, 2008, the RFP was posted on the FedBizOpps website (http://www.fedbizopps.gov) with a closing date of June 24. The contracting officer provided notice to Business Wire, but to no other potential offeror. HHS made award to Business Wire on August 1. After learning of the award, PR Newswire filed this protest.

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PR Newswire asserts that the agency was required to provide it actual notice of the RFP's issuance. However, it cites no authority for this proposition, and we are aware of none. As noted by the agency, and conceded by the protester (Comments at 1), for proposed contract actions--such as this RFP--in excess of $25,000, the agency is required to publish a synopsis and solicitation information on the government point of entry (GPE), accessed through FedBizOpps. Federal Acquisition Regulation (FAR) sections 2.101, 501(a) and 5.102; see 41 U.S.C. sect. 416(a)(7) (2000) (electronic solicitation publication on GPE meets requirements for accessibility of notice). Since FedBizOpps has been expressly designated by statute and regulation as the official public medium for providing notice of contracting actions by federal agencies, and HHS published this solicitation on that website, PR Newswire was on constructive notice of the RFP. See CBMC, Inc., B‑295586, Jan. 6, 2005, 2005 CPD para. 2 at 2 (FedBizOpps website places prospective contactors on constructive notice of contract awards); Aluminum Specialties, Inc. t/a Hercules Fence Co., B-281024, Nov. 20, 1998, 98-2 CPD para. 116 at 2 (notice in Commerce Business Daily (formerly the official public medium for identifying proposed contract actions and now replaced by FedBizOpps) provides constructive notice of solicitation and contents). There is no further requirement that agencies provide actual notice to prospective offerors.

Our conclusion is not changed by the protester's alleged unsuccessful attempts to obtain solicitation information from agency personnel. In this regard, PR Newswire asserts that, as it performed its contract work, its staff made "repeated inquiries" of HHS News Division personnel about when or if a new solicitation would be issued, but it was never provided any information about the RFP. Protest at 1. However, the protester does not identify any specific HHS employee or dates when it sought that information. In fact, it does not allege that it inquired of anyone in the cognizant contracting office; it states only that it asked news division personnel, none of whom were responsible for issuing solicitations. Motion to Dismiss at 2. Since the protester was not seeking information from the office responsible for the solicitation, and there is no evidence that the agency actively or passively misled it about the RFP, the agency's silence provides no basis for protest. PR Newswire has neither alleged, nor provided evidence of, agency bad faith in this regard.

Likewise, the fact that the agency furnished actual notice to Business Wire provides no valid basis for protest. Again, the agency furnished legally sufficient notice to all potential offerors, and the fact that the agency also provided Business Wire with actual notice pursuant to its proposed corrective action, in response to the earlier protest, did not render that notice inadequate.  (PR Newswire Association, LLC, B-400430, September 26, 2008)  (pdf)

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. (Allied Materials & Equipment Company, Inc., B-293231, February 5, 2004) (pdf)

Comptroller General - Listing of Decisions

For the Government For the Protester
Bestcare, Inc., B-403585, November 23, 2010 (pdf)  
PR Newswire Association, LLC, B-400430, September 26, 2008  (pdf)  
Allied Materials & Equipment Company, Inc., B-293231, February 5, 2004 (pdf)  

U. S. Court of Federal Claims - Key Excerpts


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

For the Government For the Protester


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