B-245017, Nov 27, 1991

B-245017: Nov 27, 1991

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DIGEST: Protester's failure to receive a message requesting best and final offers sent via telefax provides no legal basis to challenge the validity of the award where the record does not indicate that regulations concerning the dissemination of solicitation materials were violated or that significant deficiencies in the dissemination process existed. L&M argues that it was improperly eliminated from the competition because the agency failed to ask it for a best and final offer (BAFO). The RFP was issued on March 6. Technical evaluations were conducted and eight proposals were determined to be within the competitive range. Notifying them that discussions were concluded and requesting BAFOs by June 7.

B-245017, Nov 27, 1991

DIGEST: Protester's failure to receive a message requesting best and final offers sent via telefax provides no legal basis to challenge the validity of the award where the record does not indicate that regulations concerning the dissemination of solicitation materials were violated or that significant deficiencies in the dissemination process existed.

Attorneys

L&M Mercadeo Internacional, S.A.:

L&M Mercadeo Internacional, S.A. protests the award of a contract to BBD Electrical Distributors, Inc. under request for proposals (RFP) No. CNC- 090344-MK-29, issued by the Panama Canal Commission for one set of 2.4 kilovolt metal clad switchgear and 700 horsepower motor starters. L&M argues that it was improperly eliminated from the competition because the agency failed to ask it for a best and final offer (BAFO).

We deny the protest.

The RFP was issued on March 6, 1991. Fifteen offerors responded to the solicitation by the April 18 due date. Technical evaluations were conducted and eight proposals were determined to be within the competitive range. On May 6, the agency sent via telefax messages raising a number of technical concerns to L&M and the other competitive range offerors. According to the agency, on May 31, it sent a telefax message to all of the remaining competitive range offerors, including L&M, notifying them that discussions were concluded and requesting BAFOs by June 7. The agency's records show that the request for BAFOs was sent to L&M at 1:45 p.m. Also, on May 31-- apparently after the request for BAFOs was transmitted-- the agency received a telefax message from L&M inquiring whether a decision on the award had been made. According to the agency, the contract specialist replied by a telefax message sent on the same date at 2:27 p.m. The message stated "This solicitation is still under evaluation. You will be notified when an award is made." Since the agency did not receive a BAFO from L&M, the firm was not considered in the final evaluation which resulted in an award to BBD Electrical.

L&M argues that it was denied a fair opportunity to compete because it did not receive the message requesting BAFOs. L&M asserts that if the message requesting BAFOs was sent, and the agency did not receive a reply, then the agency should have called L&M. Finally, L&M states that on a previous procurement, another contracting officer had attempted to send a message via facsimile to L&M's voice phone number.

It is a contracting agency's affirmative obligation to use reasonable methods, as required by the Federal Acquisition Regulation (FAR), for the dissemination of solicitation documents, including amendments and requests for BAFOs, to prospective competitors. Western Roofing Serv., B-232666.4, Mar. 5, 1991, 70 Comp.Gen. ***, 91-1 CPD Para. 242. This, however, does not make the contracting agency a guarantor that these documents will be received in every instance. Power Eng'g Contractors, Inc., B-241341, Feb. 6, 1991, 91-1 CPD Para. 123. As a general rule, the risk of nonreceipt of an amendment or a request for BAFOs rests with the offeror. Western Roofing Serv., supra. Consequently, a prospective offeror's nonreceipt of an amendment or a request for BAFOs will not justify overturning a contract award, absent an agency's failure to comply with applicable regulations governing the distribution of solicitation documents or some significant deficiency in the dissemination process, even when the nonreceipt has the effect of eliminating the source from the competition. North Santiam Paving Co., B-241062, Jan. 8, 1991, 91-1 CPD Para. 18.

There is no evidence that the agency's dissemination process here was deficient or that it was contrary to regulation. The agency has submitted a signed statement by its clerk who states that she sent the telefax message requesting BAFOs to L&M at 1:45 p.m. on May 31. This statement is corroborated by the agency's telefax transmission logbook that indicates that two telefax messages were sent to L&M on May 31, one at 1:45 p.m. and another at 2:27 p.m. Additionally, the agency has submitted a document produced by the telefax machine when a message is sent that indicates a message was sent on May 31, at 1:45 p.m. to L&M's telefax number. Also, we note that there is no evidence that any offeror other than the protester failed to receive any of the messages. /1/ Further, contrary to the protester's argument, the agency was under no obligation to contact the offeror when it failed to respond to the BAFO request. The agency states that it does not, as a matter of policy, call any offeror to inquire why it had not submitted a BAFO, and we are aware of no requirement that it do so. Finally, the protester's reference to a previous procurement, where another contracting officer attempted to send a telefax message to its voice phone number, has no bearing on the present case.

The protest is denied.

/1/ As far as L&M's message to the agency is concerned, while it is not clear from the record what time it was received on May 31, because the agency responded to the message after it sent the request for BAFOs, it does appear that it was received shortly after the agency's BAFO request was transmitted. In view of the close proximity of the messages, we think it was reasonable for the agency to conclude that L&M transmitted its message before it had read the BAFO request rather than to have interpreted it as evidence that the BAFO request had not been received.