(sections deleted)

We next consider whether Latvian Connection was afforded sufficient time in which to prepare a proposal in response to amendment No. 4. The Competition in Contracting Act of 1984 generally requires contracting agencies to obtain full and open competition through the use of competitive procedures, 10 U.S.C. § 2304(a)(1)(A), 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. Kendall Healthcare Prods. Co., B-289381, Feb. 19, 2002, 2002 CPD ¶ 42 at 6. In pursuit of these goals, a contracting agency must use reasonable methods to publicize its procurement needs and to timely disseminate solicitation documents to those entitled to receive them. Id. Additionally, agencies must provide potential offerors a reasonable opportunity to respond. FAR §§ 5.203(b), 13.003(h)(2); see Sabreliner Corp., B‑288030, B‑288030.2, Sept. 13, 2001, 2001 CPD ¶ 170 at 6-7. What constitutes a reasonable opportunity to respond will depend on “the circumstances of the individual acquisition, such as complexity, commerciality, availability, and urgency.” FAR § 5.203(b).

As stated above, we find that the protester first became aware of amendment No. 4 on Saturday, May 2, when it spotted the amendment on the [Army Single Face to Industry]  AFSI website. The protester states that Friday and Saturday are considered non-business days in Kuwait (where the protester’s representative was located), and that Sunday is considered a business day. Protester’s Email to GAO (Aug. 3, 2014). This means that the protester had less than 2 business days in which to respond to amendment No. 4, specifically to prepare a revised proposal addressing the new sunshade canopy dimensions. Under these circumstances, we find that Latvian Connection was not provided sufficient time in which to submit a response to the amendment. See Information Ventures, Inc., B-293541, Apr. 9, 2004, 2004 CPD ¶ 81 at 4 (where a December 31, 2003, announcement of the intended award established a response period from potential sources of one-and-a-half business days (until January 5, 2004), we held that the agency did not provide a sufficient time in which to respond).

We next discuss whether Latvian Connection was prejudiced by the Army’s actions. In this regard, the Army acknowledges that it did not notify Latvian Connection when it sent out an email containing a courtesy copy of amendment No. 4 to the original offerors on April 28. AR at 5. The agency argues, however, that Latvian Connection had constructive knowledge of amendment No. 4 by virtue of the fact that the agency posted it on the ASFI website that same day. AR at 5-6. Therefore, the agency contends that Latvian Connection was not prejudiced by the failure of the agency to send it the email that was sent to the original offerors. Id. at 9. Since as set forth above, we find that the protester had less than 2 business days to respond to this amendment, we conclude that the protester was prejudiced by the brief response time here.

The agency also argues that the protester “contributed” to its non-receipt of amendment No. 4 by incorrectly typing the contract specialist’s email address when it submitted its initial proposal. Id. at 5. As stated above, the Army failed to meet its obligation to publicize the issuance of RFP amendment No. 4 through the GPE. Thus, even if the protester contributed to the agency’s mistaken belief that the protester had not submitted an initial proposal, the protester could have received notice of the amendment through the GPE. For this reason, we conclude that any errors on the part of the protester concerning the email addresses used to transmit its initial proposal were superseded by the agency’s failure to properly publicize RFP amendment No. 4.

Finally, Latvian Connection argues that the issuance of RFP amendment No. 4 was improper because the Army failed to restrict the procurement to the offerors that submitted initial proposals, as required by FAR § 15.206. Protest at 1. As stated above the solicitation did not specifically address whether the competition would follow FAR part 13 or part 15 procedures. AR at 8. To the extent the protester argues that the agency should have specified that FAR part 15 procedures applied, this was an apparent solicitation impropriety that, to be timely, should have been challenged before initial proposals were due, on April 20. See 4 C.F.R. § 21.2(a)(1). In any event the Army states that it did not receive proposals from any offerors that had not already submitted a proposal in response to the original solicitation. AR at 9; Declaration of Contract Specialist (May 28, 2015) at 2. We therefore find no merit to this aspect of the protest.  (Latvian Connection, LLC B-411489: Aug 11, 2015)  (pdf)

Bannum asserts that the contracting officer’s refusal to extend the closing date was an abuse of discretion.

Where a protester contends that the agency allowed insufficient time for preparation of proposals, we require a showing that the time allowed was inconsistent with statutory requirements or otherwise unreasonable, or that it precluded full and open competition. See Coyol International Group, B-408982.2, Jan. 24, 2014, 2014 CPD ¶ 40 at 2; National Medical Staffing, Inc., B-244096, May 22, 1991, 91-1 CPD ¶ 503 at 1. We will not disturb a contracting officer’s decision in this regard unless it is shown to be unreasonable or the result of a deliberate attempt to exclude the protester from the competition. Systems 4, Inc., B‑270543, Dec. 21, 1995, 95-2 CPD ¶ 281 at 3.

Here, Bannum has not shown that the refusal to further extend the closing date was unreasonable. The Federal Acquisition Regulation (FAR) provides that agencies shall allow at least a 30-day response time for receipt of proposals from the date of issuance of a solicitation, if the proposed contract action is expected to exceed the simplified acquisition threshold. FAR § 5.203(c). As discussed, however, the agency had already granted a two week extension of the initial approximately three month period (from issuance of the solicitation) allowed for submission of proposals. Since the current contract expires December 31, 2015, and the new contractor was permitted 120 days after award for its facility to become fully operational, the agency concluded that award must be made by September 1 in order to ensure continuity of services. Contracting Officer Statement (COS) at 3; see RFP at 10. The contracting officer, expecting that multiple rounds of discussions would be necessary given the complexity of the procurement, states that she was concerned that further extensions of the closing date for submission of initial proposals would jeopardize the required September 1 award date. COS at 2-3; see AR at 5. Bannum has not shown that this concern was unwarranted.

Furthermore, although Bannum advised in its agency protest that it had “already begun a search for another property,” Agency-Level Protest at 4, there is no indication that Bannum had or could obtain a suitable property in time to submit a competitive proposal even with the requested three week extension. In this regard, the agency explains that:

Introducing RRCs into a community is a controversial subject that generally encounters many pitfalls. In particular, many problems and delays can arise when trying to build community support and secure zoning. The first step in the process is securing a facility. In this case, Bannum does not have a facility and is now asking for a three week extension to do what the [contracting officer] had initially allowed nine months [--actually 8 months from issuance of the RFI--] to accomplish.

AR at 5.

Bannum argues that failure to grant an extension to Bannum would result in an [deleted] to the incumbent. Protest at 4-5. As discussed, however, the agency reasonably concluded that further extensions of the closing date could jeopardize the continuation of services. In this regard, our Office has repeatedly held that the fact that a particular prospective offeror is unable to compete under a solicitation that reflects the agency’s needs does not establish that the solicitation is unduly restrictive. Micromass, Inc., B‑278869, Mar. 24, 1998, 98-1 CPD ¶ 93 at 4; AT&T, B‑253069, June 21, 1993, 93-1 CPD ¶ 479 at 4 (solicitation not improper merely because a potential offeror cannot meet its requirements).  (Bannum, Inc. B-411340: Jul 8, 2015)  (pdf)

Except for the acquisition of commercial items, agencies are required to allow at least a 30-day response time for receipt of bids or proposals from the date of issuance of a solicitation, if the proposed contract action is expected to exceed the simplified acquisition threshold. FAR § 5.203(c). There is no per se requirement that the closing date in a negotiated procurement be extended following a solicitation amendment. Harmonia Holdings, LLC, B-407186.2, B-407186.3, Mar. 5, 2013, 2013 CPD ¶ 66 at 7. The determination of what constitutes a sufficient amount of time for proposal preparation is a matter committed to the discretion of the contracting officer; we will not object to that determination unless it is shown to be unreasonable. Financial Asset Mgmt. Sys., Inc., B-409722.9, Apr. 24, 2015, 2015 CPD ¶ 145 at 6. We limit our review of such determinations to the questions of whether the refusal to extend the closing date adversely impacted competition and whether there was a deliberate attempt to exclude an offeror. Harmonia Holdings, LLC, supra.

The Forest Service contends that it afforded offerors a meaningful opportunity to respond to the solicitation. The agency first argues that it released a draft RFP to prospective offerors 6 months in advance of the release of the RFP. AR at 10. The Forest Service next submits that it complied with the requirements of FAR § 5.203(c) by providing offerors with an initial period of 34 days to submit proposals, and then extended the proposal deadline by 15 additional days following the publication of subsequent amendments. Id. The agency also argues that a further enlargement was not necessary in light of the amendments to the RFP because they merely answered offerors’ questions, corrected typos, and provided clarification to the terms of the RFP. Id. at 11. The Forest Service argues that Coulson has failed to articulate how the amendments had any material impact on Coulson’s ability to prepare its proposal. Id. Based on the record, we find that the agency did not unreasonably decline to extend the deadline for the submission of proposals.

While the technical requirements of the RFP are substantial, we find that offerors were reasonably apprised of the requirements and were afforded the reasonable opportunity to prepare and submit proposals. The Forest Service released a draft version of the RFP and conducted an industry day forum with prospective offerors approximately 6 months in advance of the February 2015 release of the RFP. AR, Tab 12, Draft RFP; Tab 34, NextGen 2.0 Forum Notes (Sept. 18, 2014). Offerors had substantial information to begin preparing their proposed aircraft based on the draft requirements, as demonstrated by Coulson’s own assertion that it has been working on the airtanker it intended to propose for the NextGen 2.0 procurement since at least November 2014. See Protest (Mar. 31, 2015) at 8. In this regard, Coulson fails to identify any material changes, or how any such alleged material changes, between the draft RFP released in September 2014 and the initial RFP released in February 2015 prejudiced Coulson’s proposal preparation.

Furthermore, the initial RFP complied with the requirements of the FAR to provide a response period of at least 30 days for the initial proposal response, which the agency subsequently extended by more than 2 weeks after issuing amendments to the RFP. We also note that at the industry forum for the release of the draft RFP, the Forest Service explicitly instructed potential offerors that the agency only intended for a “30 day bid period.” AR, Tab 34, NextGen 2.0 Forum Notes (Sept. 18, 2014), at 4. As for the amendments, Coulson has not explained why the amendments represented material changes to the terms of the solicitation or what it would have done differently to enhance its proposal if the changed terms had been communicated earlier. For this reason, we conclude that the protester has not demonstrated that it was prejudiced, even if the time for proposal submission was not otherwise reasonable. See JBG/Naylor Station I, LLC, B‑402807.2, Aug. 16, 2010, 2010 CPD ¶ 194 at 7; Integrity Mgmt. Enters., Inc., B‑290193, B‑290193.2, June 25, 2002, 2002 CPD ¶ 117 at 9-10. Under these circumstances, we find that the Forest Service provided offerors with a reasonable amount of time to respond to the solicitation.  (Coulson Aviation (USA), Inc. B-411306, B-411306.3, B-411306.4: Jul 8, 2015)  (pdf)

Solicitation Closing Date

Lastly, the protester contends that the agency was required to extend the closing date for the receipt of proposals in order to afford offerors adequate time to prepare their proposals, but failed to do so. In this regard, the protester points to the fact that amendment No. 20 included agency answers to 359 offeror questions only 3 days before the RFP’s closing date, and that the agency provided incumbent contractors with completed past performance questionnaires for their incumbent contracts with the agency only 2 days before the closing date.

The determination of what constitutes a sufficient amount of time for proposal preparation is a matter committed to the discretion of the contracting officer; we will not object to that determination unless it is shown to be unreasonable. See USA Info. Sys., Inc., B-291488, Dec. 2, 2002, 2002 CPD ¶ 205 at 4.

FAMS generally suggests that the “type and quantity of questions” that were answered in amendment No. 20 required additional proposal preparation time. Comments at 10. The protester, however, has not identified specific questions or answers that required additional proposal response time, nor has it identified any change to the solicitation’s terms effected by the amendment. Moreover, we fail to find the sheer number of questions and answers alone to be persuasive proof of a need for more than 3 days of proposal preparation time, especially where, as here, the answers did not revise solicitation terms and several questions were repetitious (e.g., regarding the number of contracts to be awarded, the procurement timeline, the calculation of inventory, and contracting with small businesses). See generally, Agency Report, Tab H, Questions and Answers.

Similarly, regarding the fact that FAMS--along with all other incumbent contractors--received its completed past performance questionnaire from the agency only 2 days prior to the closing date, the protester fails to identify information in that questionnaire that the firm did not already have from the agency and its CPCS data months earlier. The protester has failed to show that it could not have reasonably prepared its proposal, including an explanatory narrative of its past performance, within the 28 days between amendment No. 17’s provision of the revised past performance evaluation terms and the closing date for the receipt of proposals. In sum, the protester has provided no basis to establish that the agency acted unreasonably by not extending the solicitation closing date due to the issuance of answers to offeror questions or the release of past performance questionnaires to the incumbent contractors.

The protest is denied.  (Financial Asset Management Systems, Inc., B-409722.9: Apr 24, 2015)  (pdf)

Richen asserts that the agency did not allow sufficient time for offerors to prepare their proposals. According to Richen, the 28-day period between issuance of the solicitation and the amended closing date afforded insufficient time in which to furnish the extensive information required under the solicitation, including such items as a copy of an executed joint venture or partnership agreement for offerors proposing a contract team arrangement; most recent certified financial statement; a minimum of three past performance evaluations, completed either through the government’s Contractor Performance Assessment Reporting System or past performance questionnaires; management plan; and environmental consideration plan. See RFP at 326-31. The protester further asserts that the agency did not take the Thanksgiving holiday into consideration.

Agencies generally must allow at least 30 days from the date of issuance of the RFP for the receipt of proposals. Federal Acquisition Regulation (FAR) § 5.203(c). However, an agency may allow fewer than 30 days to respond to an RFP where, as here, it is acquiring commercial items. Id.; FAR § 12.205(c). When acquiring commercial items, the contracting officer should afford potential offerors a reasonable opportunity to respond considering the circumstances of the acquisition, such as the complexity, commerciality, availability, and urgency of the individual acquisition. FAR § 5.203(b).

Under the circumstances here, we find no basis to object to the agency’s refusal to further extend the closing date. As noted by the contracting officer, the solicitation was issued for commercial janitorial and mechanical maintenance services. COS at 1. Thus, the agency could allow fewer than 30 days to respond to the RFP, but was required to provide offerors a reasonable opportunity under the circumstances of the acquisition to prepare and submit proposals. FAR §§ 5.203(b), 12.205(c). As further noted by the agency, potential offerors were on notice of the forthcoming acquisition as of the sources sought notice published on January 14, 2014, almost 11 months before the closing date, with further detail (required services, operating hours, tenant numbers, and interior and exterior square footage) provided in the October 8 synopsis, 57 days before proposals were due. COS at 1-2. Further, under the FAR, the urgency of the acquisition is also an appropriate consideration. FAR § 5.203(b). Here, the contracting officer explains that she also considered denying the request for an extension due to the urgency of the procurement; according to the contracting officer, the procurement could not be delayed any further if continuity of services was to be maintained since the current contract had been extended for the last time, and will expire on March 31, and a 30-60 day transition period will be required for the new contract. COS at 2.

Given the commercial nature of the services, the advance notice of the requirement as set forth in the sources sought and detailed synopsis, the 28 days to respond to the RFP, and the urgency of the agency’s requirement, we find no basis to question the agency’s conclusion that the proposal response period was consistent with the FAR and provided offerors a reasonable opportunity to prepare and submit proposals. Indeed, the reasonableness of the response period is supported by the fact that the agency received 5 proposals by the closing date.  (Richen Management, LLC B-410903: Mar 10, 2015)  (pdf)

TMI Management Systems, Inc. of Easton, Pennsylvania, protests request for proposals (RFP) No. HSFEHQ-09-R-0046, issued by the Department of Homeland Security, Federal Emergency Management Agency (FEMA), for facility support services. TMI argues that FEMA's misclassification of the procurement on the Federal Business Opportunities (FedBizOpps) website prevented the firm from submitting a proposal.

(sections deleted)

The Competition in Contracting Act of 1984 (CICA) 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. 41 U.S.C. sect. 253(a)(1)(A) (2006). In pursuit of these goals, a contracting agency must use reasonable methods to publicize its procurement needs and to timely disseminate solicitation documents to those entitled to receive them. 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). An agency's notice must provide an "accurate description" of the property or services to be purchased and must be sufficient to allow a prospective contractor to make an informed business judgment as to whether to request a copy of the solicitation. See 15 U.S.C. sect. 637(f); Jess Bruner Fire Suppression, B‑296533, Aug. 19, 2005, 2005 CPD para. 163 at 4. In this regard, the FAR requires agencies to use one of the procurement classification codes identified at the FedBizOpps website to identify services or supplies in its notices on FedBizOpps, see FAR sect. 5.207(e), and contracting officers must use the most appropriate classification category. See Gourmet Distributors, B‑259083, Mar. 6, 1995, 95-1 CPD para. 130 at 2. We have found that an agency failed to effectively notify potential offerors of a procurement and to obtain full and open and competition under CICA, where the agency misclassified the procurement. See Frank Thatcher Assocs., Inc., B-228744, Nov. 12, 1987, 87‑2 CPD para. 480 at 2-3 (misclassification of procurement in the Commerce Business Daily, formerly the official public medium for identifying proposed contract actions and now replaced by FedBizOpps).

Here, FEMA classified this acquisition for support services under a miscellaneous code for products, rather than services. FEMA's contracting officer contends that none of the service codes appeared applicable to the support services for THUs sought here. We find, however, as explained below, that although no service code was an exact match, a number of service codes include services such as those solicited here, and FEMA does not reasonably explain why one of these service codes would not have been more appropriate than a miscellaneous product code, which indicated that the agency was procuring goods.

The SOW listed a number of services categories, including clerical and office support, vehicle and equipment maintenance and repair, material handling, maintenance and placement of THUs, and maintenance of buildings and facilities. RFP, SOW, at C-2-C-5. A number of service codes appear to encompass similar services, such as codes J, "Maintenance, Repair & Rebuilding of Equipment," M, "Operation of Government-owned Facilities," and R, "Professional, Administrative, and Management Support Services."

FEMA's contracting officer acknowledges that facilities support services described by NAICS code 561210 are often posted under code M, but she states that she did not use this code because "sites on which the services will take place" are not owned by FEMA, but leased from commercial or public entities. See AR, Contracting Officer's Statement, at 1. The contracting officer also did not use codes J or R, because these codes included some services that were not solicited by the RFP. Id. at 2. Although we agree that none of the service codes is an exact match for the services solicited by the RFP, it is incumbent upon the agency to classify its procurement under the most appropriate category to promote competition. Gourmet Distributors, B‑259083, supra, at 2-3. The agency has provided no reasonable explanation, and the record does not otherwise show, why code 99, a miscellaneous product code, is a better match than one of these service codes. In this regard, we found from our own review of the FedBizOpps website that a number of procurements that include NAICS code 561210 were classified under either code J, M, or R, but no procurement with this NAICS code was classified under code 99. In short, we find no reasonable basis for FEMA's classification of this procurement under product code 99.

Notwithstanding the requirement to classify procurements accurately, FEMA argues that the availability of electronic search engines has "changed the issue of who is responsible for finding notice of an acquisition when it is misclassified." AR at 3. Specifically, FEMA argues, citing our decision in Jess Bruner Fire Suppression, B‑296533, supra., that "a prudent offeror would have found the announcement regardless of the product or service classification code because of the key words used in the FedBizOpps announcement." AR at 2. Our decision in Jess Bruner did not involve a solicitation posted on FedBizOpps under an improper classification code. Product and service codes are provided to make manageable searches of large numbers of procurements; that is, the classification codes allow potential offerors to narrow their searches in a meaningful way to find procurement opportunities. Misclassifying a procurement makes difficult, if not impossible, the task of locating procurement opportunities under other search terms. Here, because TMI reasonably relied in its search on the codes that most closely represented the types of services it could provide--M and R--as a means to narrow the search results, it could not have found this listing no matter what additional search terms it entered or selected. FEMA's argument that a prudent vendor could have used various available search terms, such as the NAICS code, to locate the listing assumes the vendor would anticipate that the procuring agency might have misclassified the requirement and would therefore omit any product or service code from its search. We find this assumption unreasonable.

In conclusion, we find that FEMA's misclassification of this procurement deprived TMI of an opportunity to respond to the RFP and that FEMA therefore did not use reasonable methods to obtain full and open competition as required by CICA. Frank Thatcher Assocs., Inc., supra, at 2-3.  (TMI Management Systems, Inc., B-401530, September 28, 2009) (pdf)

A synopsis must provide an "accurate description" of the property or services to be purchased and must be sufficient to allow a prospective contractor to make an informed business judgment as to whether to request a copy of the solicitation. 41 U.S.C. sect. 416(b); 15 U.S.C. sect. 637(f); see also Pacific Sky Supply, Inc., B-225420, Feb. 24, 1987, 87-1 CPD para. 206 at 4-5 (protest sustained where a sole-source synopsis identified only 2 of 15 items included in the solicitation, thereby failing to provide an "accurate description" of the procurement, as required by the Small Business Act). In addition, the FAR requires that the description of the supplies or services be "clear and concise." FAR sect. 5.207(c), (d). Moreover, as directly relevant here, a synopsis must provide prospective alternative sources a meaningful opportunity to demonstrate their ability to provide what the agency seeks to purchase. See Sabreliner Corp., B-288030, B‑288030.2, Sept. 13, 2001, 2001 CPD para. 170 at 6-7 (protest challenging sole-source award sustained where both the justification and the published synopsis inaccurately described the requirements to overhaul helicopter engines). In short, the fundamental purpose of these notices, including in the circumstance where an agency contemplates a sole-source award, is to enhance the possibility of competition. Information Ventures, Inc., B-293541, Apr. 9, 2004, 2004 CPD para. 81 at 4. Here, the notice, as issued, did not meaningfully describe DOE’s requirements. As quoted above, the notice merely identifies the contract number that is being extended and indicates that the work involves "critical, highly specialized technical and administrative support," yet provides essentially no information about the experience and abilities that DOE believes potential sources need to have. Even though the agency’s evaluation of the two capability statements identifies numerous specific topics as being essential to successful performance, or even "of utmost importance," none of these capabilities is mentioned in the synopsis. In our view, DOE’s requirements were not adequately described in the notice, and the notice did not provide enough information to allow prospective sources a meaningful opportunity to demonstrate the ability to meet the agency’s requirements. In this regard, Thompson advises that it has extensive experience in managing classified information in the subject areas relevant to the procurement; that it has the ability to identify and retain additional staff with the required backgrounds and security clearances; and that it would have competed for the contract had the agency accurately described its needs. PMTech makes similar assertions. By providing an inadequate description of its sole-source procurement in the synopsis, DOE restricted competition in violation of statute and regulation. Moreover, DOE compounded the shortcomings of this particular notice by providing no information on the availability of a statement of work and by stating in the synopsis that the notice “is for informational purposes only and is not a request for proposals or other information.” Cf. 41 U.S.C. sect. 416(b)(4); 15 U.S.C. sect. 637(f); FAR sect. 5.207(c)(15). The protesters and the Small Business Administration (SBA) argue, and we agree, that the language of the synopsis discouraged, and may have been intended to discourage, responses. (M.D. Thompson Consulting, LLC; PMTech, Inc., B-297616; B-297616.2, February 14, 2006) (pdf)