B-234141.9, Aug 1, 1989, 89-2 CPD ***

B-234141.9: Aug 1, 1989

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That was dismissed by General Accounting Office (GAO) as untimely because the protester failed to file the protest within 10 days after the closing date for receipt of proposals. No later than 10 days after the basis of the protest was known or should have been known. As is required by GAO Bid Protest Regulations. Will not be reopened. GAO's longstanding position is that where a contracting agency has properly synopsized a proposed procurement in the Commerce Business Daily (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 the firm is included in the competition.

B-234141.9, Aug 1, 1989, 89-2 CPD ***

PROCUREMENT - Bid Protests - GAO procedures - Released - Protest timeliness - 10-Day rule DIGEST: A protest alleging that the contracting agency improperly failed to solicit an offer from the protester, that was dismissed by General Accounting Office (GAO) as untimely because the protester failed to file the protest within 10 days after the closing date for receipt of proposals, i.e., no later than 10 days after the basis of the protest was known or should have been known, as is required by GAO Bid Protest Regulations, will not be reopened. GAO's longstanding position is that where a contracting agency has properly synopsized a proposed procurement in the Commerce Business Daily (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 the firm is included in the competition; generally, an agency is not required to place advertisements of proposed procurements in other publications unless it is anticipated that effective competition will not otherwise be obtained.

The Honorable Dean A. Gallo:

This is in response to your letter of May 31, 1989, concerning our dismissal of a protest filed by your constituent Alvin Gunneson of the Gunneson Group International in connection with request for proposals (RFP) No. 88-2795, issued by the Office of Personnel Management (OPM) for consulting and training services. You ask that we reconsider our dismissal of the protest, in which Gunneson alleged that OPM improperly failed to solicit an offer from the firm.

We dismissed the protest on May 16, 1989, because Gunneson failed to timely file its protest within 10 days of when the basis of protest was known or should have been known, as is required by our Bid Protest Regulations. In our decision we concluded that the protest basis-- the agency's failure to solicit Gunneson-- should have been known by the closing date for the receipt of proposals. The basis for our decision was our longstanding position that where a contracting agency has properly synopsized a proposed procurement in the Commerce Business Daily (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 if it is interested in participating in the competition.

You state that publication of the procurement solely in the CBD should not have been considered constructive notice of the procurement, since Gunneson had never been involved in federal procurements and the firm thus had no reason to subscribe to the CBD. You suggest that the procurement instead should have been advertised in a relevant trade publication.

The fact that Gunneson may have been unfamiliar with the CBD does not warrant application of a different legal standard in considering whether the firm should be held to have been on constructive notice of the procurement. The CBD is the publication in which, by statute and regulation, United States government agencies are required to publicize their proposed contract actions. Given this statutory requirement, we do not consider it unreasonable to hold potential offerors on federal procurements responsible for familiarizing themselves with the CBD. Although the regulations do permit contracting officers to make nonpaid announcements of proposed contract actions in newspapers or trade journals, this action is discretionary, not required.

Thus, while it is unfortunate that Gunneson was unaware of the importance of the CBD in disseminating information on proposed federal government contract actions, we have no basis to reconsider the dismissal of Gunneson's protest.

Unless you publicly announce its contents earlier, we plan no further distribution of this letter until 30 days from the date of this letter.