Please note, there may be opportunities FBO did not recognize by this search. The results returned are based on agency input. If for any reason the submitting agency did not enter the Place of Performance location information, the system will not return that opportunity in the results.

AR at 3; Protest Exh. 5 at 13.

Thus, where the protester failed to heed this warning, and relied on searches using the place of performance field, we have no basis to conclude that the protester was misled by the agency’s action, particularly where the record shows there were alternative search categories available to the protester that would have allowed it to promptly retrieve the solicitation.

The protest is denied.  (The Creative Mobility Group, LLC, B-410380.2: Dec 19, 2014)  (pdf)

As a general matter, prospective offerors bear an affirmative duty to make reasonable efforts to timely obtain solicitation materials. See UpSide Down Prods., B-243308, July 17, 1991, 91-2 CPD ¶ 66 at 3-4 (protest was denied where protester had notice that first page of amendment indicated it contained additional pages and protester failed to take sufficient steps to assure it had them). Additionally, 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 National Medical Staffing, Inc., B-244096, May 22, 1991, 91-1 CPD ¶ 503 (protest of agency’s failure to extend a closing date was dismissed where the protester, which had not requested a copy of the solicitation until 9 days before proposals were due, had constructive notice of the public posting of the issued solicitation a month before the closing date).

In arguing that the solicitation’s closing date should have been extended, Coyol highlights the delay it experienced in accessing the RFP between September 10 and 12 as a consequence of the restricted-access procedures and the need for FedBizOpps to review the matter of Coyol’s access. These procedures, however, had been clearly announced in the July 17 pre-solicitation notice as well as the August 23 solicitation announcement itself. Coyol apparently did not attempt to access the restricted solicitation until September 10, only 13 days before the scheduled closing date. Our review of the record shows that Coyol’s delay in accessing the RFP is primarily attributable to its having waited nearly 3 weeks after the RFP was posted on FedBizOpps to attempt to access it.

Since Coyol’s alleged inability to submit a proposal by the closing date was due primarily to its own failure to make reasonable efforts to timely obtain a copy of the solicitation, rather than any improper action by the agency, we have no basis to conclude that the agency’s refusal to extend the closing date was improper. See National Medical Staffing, Inc., supra. (Coyol International Group, B-408982.2, Jan 24, 2014)  (pdf)

Dell alleges that the agency failed to use reasonable procedures to disseminate amendment 0004 to the RFP and treated the offerors unequally. Dell argues that the agency should allow Dell to submit a revised cost proposal and remain in the competition. The agency responds that it utilized reasonable procedures in disseminating the amendment and that the procedures were effective. Accordingly, the agency argues that its actions were not the cause of Dell's failure to submit a revised price proposal. We agree with the agency.

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. sect. 2304(a)(1)(A) (2006), both 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 para. 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. Concurrent with the agency's obligations in this regard, prospective contractors must avail themselves of every reasonable opportunity to obtain the solicitation documents. Laboratory Sys. Servs., Inc., B-258883, Feb. 15, 1995, 95-1 CPD para. 90 at 2. Unless the record shows that the contracting agency made a deliberate effort to exclude the firm from competing or that the agency failed to follow reasonable established procedures for distribution of amendments, the prospective contractor bears the risk of not receiving solicitation amendments. Air Quality Experts, Inc., B-256444, June 15, 1994, 94-1 CPD para. 374.

As an initial matter, throughout its protest, Dell seeks to shift the blame for its failure to submit a revised proposal to the agency by advancing several arguments challenging the agency's method of disseminating amendment 0004. Specifically, Dell argues that the agency's decision to issue the amendment by e-mail was unreasonable. According to Dell, the agency was required to post the amendment on FedBizOpps. Dell also takes issue with the agency's failure to ensure that Dell's contracts administrator received the amendment.

Dell's efforts to shift blame to the agency cannot overcome the fact that Dell's contracts director, the individual who signed, and was listed as a point of contact in Dell's initial proposal, timely received the amendment in question. In addition, Dell's contracts director advised the agency, before the due date for proposal revisions, that Dell's contracts administrator, the other point of contact listed in Dell's proposal, was working on Dell's revisions. He further advised that Dell intended to submit its revisions by the closing time. In our view, any blame for Dell's failure to respond to the request for a revised proposal properly lies with Dell, not the agency. In any event, we address Dell's arguments in turn, finding each to be without merit.

Concerning the agency's decision to issue amendment 0004 by e-mail, Dell contends that the change in procedure from the first three amendments, issued via FedBizOpps, was unexpected and unreasonable. Dell contends that the offerors had no reason to expect that additional amendments would arrive by e-mail because the agency's course of dealing had established that FedBizOpps was the agency's chosen method for dissemination of amendments. Dell also argues that distributing the amendment by e-mail violated the Federal Acquisition Regulation (FAR) instruction that amendments "shall be issued to all offerors that have not been eliminated from the competition." FAR sect. 15.206(c). Dell considers it implicit in this provision that a competitive range determination must be made prior to changing the method for dissemination of amendments.

In presenting these arguments Dell ignores the principle distinction between the first three amendments and amendment 0004. The first three amendments were issued prior to the initial closing date of the solicitation and were thus required to be available to all potentially responsible offerors. In contrast, amendment 0004 was issued after the initial closing date and was not therefore required to be issued to all potential offerors via FedBizOpps; rather, it was required to be issued to all offerors remaining in the competition--that is--only to those firms that submitted timely proposals in response to the RFP. See FAR sect. 15.206(c). We see nothing unreasonable in the agency's decision to disseminate amendment 0004 via e-mail to the three firms that submitted timely proposals in response to the RFP.

Regarding Dell's argument that the agency erred in failing to ensure that Dell's contracts administrator received amendment 0004 to the RFP, Dell alleges that the contracts administrator was the designated "primary" point of contact for the proposal, and that dissemination of the amendment to Dell's contracts director, who did not have day-to-day contact with the proposal team, was inappropriate. Dell further asserts that, upon receiving notice that the e-mail message was undeliverable, the contracting specialist should have immediately followed-up with Dell to ensure that the "correct" point of contact received the amendment. Dell states that, had the contracting specialist followed-up with Dell, or otherwise investigated the undeliverable e-mail message, he would have discovered that he had added an additional letter to the contracts administrator's e-mail address, resulting in the error. We disagree for several reasons.

First, Dell's proposal cover letter, signed by the contracts director, identified both the contracts director and the contracts administrator as "persons authorized to negotiate," and provided each individuals' full contact information. On the second page of the cover letter Dell stated that "[s]hould you have any questions regarding this submission, please contact [the contracts administrator]" and again provided the contracts administrator's e-mail address and telephone number.[4] Based on this record, we do not agree with Dell's premise that its proposal clearly designated the contracts administrator as the primary point of contact, or the only appropriate contact for all correspondence related to the RFP.

Second, our review of the record shows that the error in the e-mail address originated in Dell's proposal. Although the contact information for the contracts director and contracts administrator on the first page of the proposal cover letter appears correct, on the second page of the cover letter, where Dell identified the contracts administrator as the contact for "questions regarding this submission," the e-mail address is incorrect--i.e. the address is stated in exactly the same manner the contracting specialist used to address the e-mail message transmitting the amendment.

Furthermore, we disagree with Dell's theory that because it apparently intended to identify its contracts administrator as the primary point of contact, dissemination of the amendment to another listed point of contact could be considered ineffective. As explained above, prospective contractors must avail themselves of every reasonable opportunity to obtain the solicitation documents. Laboratory Sys. Servs., Inc., supra. 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 para. 14 at 3. In considering such situations, we consider whether the agency or the protester had the last clear opportunity to avoid the protester's being precluded from competing. Id. Here, one of two of Dell's points of contact for the RFP had actual receipt of the amendment on the morning it was issued, and was later reminded of the amendment's deadline by phone. In this context, the protester had every possible opportunity to submit a revised cost proposal and avoid being precluded from continuing in the competition.

Finally, Dell argues that the Navy treated it unequally by distributing the amendment to the other offerors' "primary points of contact." This argument is not supported by the record. The record shows that the agency attempted to send to the amendment to all known contacts at each firm. Accordingly, with regard to the first offeror, the agency sent the amendment to seven individuals that had been copied on earlier e-mail inquiries from the firm concerning the RFP, and received four read receipts. AR, Tab 14. With regard to the second firm, the agency contacted the only individual for whom contact information had been provided, and received a read receipt and confirmation e-mail in response. Id., Tab 15. Concerning Dell, the agency addressed the e-mail message containing the amendment to the contracts administrator, and copied the other point of contact identified in the solicitation, the contracts director. Id., Tab 16. In response, the contracting specialist received notice of an undeliverable e-mail message concerning the contracts administrator, and a read receipt from the contracts director. Id. We do not consider these procedures to be unequal. Procuring agencies are required to treat all prospective contractors fairly and impartially, but they are not required to be treated exactly the same. FAR sect. 1.102‑2(c)(3); INDUS Technology, Inc., B-297800.13, June 25, 2007, 2007 CPD para. 116 at 6.

In sum, our Office has reviewed the arguments presented by the protester and concludes that they are without merit. We see no evidence in the record to support Dell's arguments that the agency's method of dissemination of amendment 0004 was unreasonable or otherwise improper. Where a member of the protester's contracting team had actual receipt of the amendment, and the agency contracting specialist provided a specific reminder of the revised cost proposal's due date, the protester undoubtedly had the "last clear opportunity" to ensure that its revised cost proposal was timely submitted to the agency. See Wind Gap Knitwear, Inc., supra.  (Dell Services Federal Government, Inc., B-405244; B-405244.2,September 30, 2011)  (pdf)

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. sect. 2304(a)(1)(A) (2000), both 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 para. 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. However, concurrent with the agency's obligations in this regard, prospective contractors must avail themselves of every reasonable opportunity to obtain the solicitation documents. Laboratory Sys. Servs., Inc., B-258883, Feb. 15, 1995, 95‑1 CPD para. 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 para. 14 at 3. In considering such situations, we consider whether the agency or the protester had the last clear opportunity to avoid the protester's being precluded from competing. Id.

The procurement here was conducted electronically pursuant to Federal Acquisition Regulation (FAR) subpart 4.5. VA met its obligation to publicize the procurement by posting the solicitation on the FedBizOpps website and by advising Optelec to register with the website in order to receive information about the procurement. See FAR sect. 5.102(a)(1). Optelec, however, failed to avail itself of every reasonable opportunity to obtain the solicitation. In this regard, Optelec's responsibility did not end with its registering with FedBizOpps. Rather, once the agency advised the firm that the solictation would be posted on the website, it became solely Optelec’s responsibility to take whatever steps were necessary to obtain the solicitation. This means that Optelec alone was responsible for monitoring the website for the posting of the solicitation; while Optelec could choose to await e-mail notification from FedBizOpps, the change in the website’s policy to eliminate e-mail notification did not operate to shift responsibility for obtaining the solicitation away from Optelec to VA. Since Optelec took no steps to obtain the solicitation from the end of March until the end of June, when it again contacted the agency, its failure to timely receive the solicitation, and its resultant inability to submit a timely offer, was the result of its failure to avail itself of every reasonable opportunity to obtain the solicitation. The agency therefore properly rejected Optelec's proposal as late.  (Optelec U.S., Inc., B-400349; B-400349.2, October 16, 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)
 

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 ¶ 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. (USA Information Systems, Inc., B-291488, December 2, 2002)  (pdf)

Kendall's apparent failure to receive the RFP at issue here is not evidence of any deliberate action on the part of the agency to exclude the firm from competing. The risk of nonreceipt of solicitation documents rests with the offeror, since the contracting agency is not a guarantor that these documents will be received in every instance. In short, VANAC timely publicized the acquisition in the CBD, and furnished copies of the RFP to the firms on the mailing list. The agency ultimately received eight offers as a result of its efforts and awarded the contract for the line items at issue at a price the agency has determined to be reasonable.  (Kendall Healthcare Products Company, B-289381, February 19, 2002)

An offeror bears the risk of not receiving solicitation materials unless the record shows that the contracting agency made a deliberate effort to exclude the firm from competing or failed to provide the materials after the firm availed itself of every reasonable opportunity to obtain them. Aluminum Specialties, Inc. t/a Hercules Fence Co., B-281024, Nov. 20, 1998, 98-2 CPD ¶ 116, at 3; North Santiam Paving Co., B-241062, Jan. 8, 1991, 91-1 CPD ¶ 18 at 3. Here, even accepting the protester's position that the VA misaddressed the request for the product sample, causing the request to be misdirected by Telex mailroom staff, there is no evidence that the agency made any deliberate effort to prevent Telex from competing. While the VA may have been mistaken in using the preprinted address on the offeror-provided order form, which differed from the specified address for Telex's representative, the FedEx mailing label apparently did correctly identify the individual authorized to receive the package.  (Telex Communications, Inc., B-287146, April 25, 2001)

Contrary to the protester's contentions, we think that the agency used reasonable methods here to disseminate information concerning the status of the procurement and related documents, including the solicitation. The record clearly shows that the acquisition for the aiming lights was initially synopsized in the CBDNet and the CBD as part of the requirements under RFP No. N204. The CBDNet notice advised that the solicitation and related documents could be downloaded from the agency's ASFI Internet home page, and provided a link to that site, along with the CO's e-mail address and telephone number. That CBDNet announcement thus provided potential offerors with all of the information they required to keep current on the status of the solicitation, either by reviewing the ASFI website, or by contacting the CO by e-mail or telephone. Wilcox failed to take any of these reasonable steps to keep current on the status of the procurement.

In addition, even if there were some basis to conclude that the agency had failed in its solicitation dissemination obligations, the record shows that Wilcox, not CECOM, had the last clear opportunity to obtain a copy of the solicitation. In this connection, where a contracting agency has synopsized a proposed procurement in the CBD, a potential contractor is on constructive notice of the solicitation and its contents and has a duty to make reasonable efforts to obtain a copy of the solicitation in order to ensure that it is included in the competition. L&L Oil Co., Inc., B-246560, Mar. 9, 1992, 92-1 CPD para. 270 at 2.  (Wilcox Industries Corporation, B-287392, April 12, 2001)