Matter of: Electromagnetix Corporation File: B-249623 Date: October 29, 1992

B-249623: Oct 29, 1992

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PROCUREMENT Bid Protests GAO procedures Protest timeliness Apparent solicitation improprieties PROCUREMENT Sealed Bidding Invitations for bids Amendments Notification Protest based upon alleged failure of prospective bidder to receive solicitation amendment is dismissed where (1) there is no allegation that contracting agency failed in its obligation to use a reasonable method to disseminate solicitation documents to prospective bidders. PROCUREMENT Bid Protests GAO procedures Protest timeliness Apparent solicitation improprieties Protest filed after bid opening challenging solicitation's progress payments prohibition as unduly restrictive is dismissed as untimely since alleged improprieties apparent from the face of a solicitation must be filed prior to bid opening.

Matter of: Electromagnetix Corporation File: B-249623 Date: October 29, 1992

PROCUREMENT Bid Protests GAO procedures Protest timeliness Apparent solicitation improprieties PROCUREMENT Sealed Bidding Invitations for bids Amendments Notification Protest based upon alleged failure of prospective bidder to receive solicitation amendment is dismissed where (1) there is no allegation that contracting agency failed in its obligation to use a reasonable method to disseminate solicitation documents to prospective bidders; and (2) record shows that agency complied with the Federal Acquisition Regulation requirements regarding the dissemination of colicitation documents. PROCUREMENT Bid Protests GAO procedures Protest timeliness Apparent solicitation improprieties Protest filed after bid opening challenging solicitation's progress payments prohibition as unduly restrictive is dismissed as untimely since alleged improprieties apparent from the face of a solicitation must be filed prior to bid opening.

Attorneys

DECISION

Electromagnetix Corporation (EMCOR) protests any award under invitation for bids (IFB) No. F08620-92-B-0016, issued by the Department of the Air force for four radar windows. EMCOR contends that because the firm did not receive a copy of amendment No. 0001 in time to submit a bid by bid opening, the Air force should have extended the bid opening date to permit EMCOR to compete for this requirement. EMCOR also contends that the solicitation's progress payments prohibition is unduly restrictive.

Se dismiss the protest because it fails to state a valid basis for protest. See 4 C.F.R. Sec. 21.3(m), (1992).

The solicitation was issued on June 16, 1992, and contemplated the award of a firm, fixed-price, definite quantity contract. As their bids, bidders were required to complete and submit the solicitation's one item pricing schedule and delivery schedule. With respect to contract award, section M of the solicitation, "EVALUATION FACTORS FOR AWARD," provided that award would be made to the responsible bidder whose bid, conforming to the invitation for bids, would be most advantageous to the government, considering only price. Section M also set forth Federal Acquisition Regulation (FAR) Sec. 52.232-15, "Progress Payments Not Included," which advised bidders that bids conditioned upon the inclusion of progress payments would be rejected as nonresponsive. The solicitation also advised bidders that facsimile and telegraphic bids would not be accepted.

By telephone, on July 10--and in accordance with the guidelines set forth in FAR Sec. 14.208(b)--the contracting officer notified each prospective bidder set forth on the bidder's mailing list--including the protester-- that a solicitation amendment containing technical clarifications would be issued by mail on July 13; bidders were told that if they did not promptly receive this amendment, they could request a facsimile copy. [1] Bidders were also advised that because of the amendment, the original July 16 bid opening date would be extended to July 23.

On July 23, at 8 a.m., EMCOR telephoned the contracting officer and advised him that the firm had not received amendment No. 0001. During this conversation, EMCOR asked the contracting officer whether the agency could permit a facsimile bid; relying on the facsimile bid prohibition in the solicitation, the contracting officer answered that a facsimile bid would not be accepted. EMCOR then asked the contracting officer to extend the bid opening date; the contracting officer refused. On July 31, EMCOR filed this protest with our Office.

The Competion in Contracting Act of 1984 (CICA), 10 U.S.C. Sec. 2304(a)(1)(A) (1988), 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 fair and reasonable prices. Western Roofing Serv., 70 Comp.Gen. 323 (1991), 91-1 CPD Para. 242. In pursuit of these goals, it is a contracting agency's affirmative obligation to use reasonable methods as required by the FAR for the dissemination of solicitation documents, including amendments, to prospective competitors. U.S. Pollution Control, Inc., B-248910, Oct. 8, 1992, 92-2 CPD Para. 231.

This, however, does not make the contracting agency a guarantor that these documents will be received in every instance, and concurrent with the agency's obligations in this regard, prospective contractors have the duty to avail themselves of every reasonable opportunity to obtain solicitation documents, especially in a sealed bid procurement. Family Carpet Serv., Inc.; Rubins Contractors, Inc., B-243942.3; B-243942.4, Mar. 3, 1992, 92-1 CPD Para. 255. Consequently, a prospective bidder's nonreceipt or late receipt of a solicitation amendment, and subsequent elimination as a source from the competition, will not justify overturning a contract award--or otherwise disrupting a procurement--absent evidence that the agency failed to comply with the applicable regulations governing the distribution of amendments. U.S. Pollution Control, Inc., supra.

In this case, the mailing list shows that the amendment was sent to all prospective bidders, including the protester. The protester's name and address were properly listed on the mailing list, see FAR Sec. 14.295- 1(c), additionally--as evidenced by the agency's date stamp--the mailing list demonstrates that the amendment was mailed to the protester on July 13. [2] In sum, the protester had not alleged, and there is no evidence in the record to suggest that the agency failed to comply with the FAR requirements for proper notice and distribution of solicitation documents, or otherwise acted unreasonably. Indeed, in its comments on the agency report, the protester specifically asserts that "[i]t is not the intent of EMCOR . . . to . . . criticize the procurement process or the contracting agency/officer's actions, but rather to allow EMCOR to submit [its] bid . . . ." [3] Under these circumstances, where there is no allegation or evidence that the protester's failure to receive a solicitation amendment resulted from any flaw in the agency's dissemination process, the protester must bear the risk of nonreceipt. White Storage & Retrieval Sys., Inc., B-245081, Oct. 30, 1991, 91-2 CPD Para. 409.

With respect to EMCOR's protest against the solicitation's progress payments prohibition, this challenge is untimely. Our Bid Protest Regulations require protests based on apparent solicitation defects--such as this IFB's inclusion of FAR Sec. 52.232-15--to be filed prior to bid opening. 4 C.F.R. Sec. 21.2(a)(1). Since EMCOR failed to protest this alleged defect prior to either the July 16 or amended July 23 bid opening, this protest ground is untimely.

The protest is dismissed.

1. In a "[Memorandum] for the Record" dated July 10, the contracting Officer recorded the name of the individuals at each firm with whom he spoke; as set forth in the memorandum, each individual was notified that:

"Solicitation 92-B0016 Bid Opening has been changed from 16 Jul 92 to 23 Jul 92, same time and place. This is a result of amendment 0001 that will be mailed on 13 Jul 92. If the amendment is not received in a timely manner I will fax you a copy at your request."

2. The Air Force's agency procedures require mailing lists to be date stamped once the items to be mailed are in the envelope and mailing labels affixed. Here, the Bidders Mailing List shows that the original solicitation was mailed to the protester on June 16, and the amendment was mailed on July 13.

3. In any event, we do not think that the protester availed itself of every reasonable opportunity to obtain the amendment it alleges it did not receive. Based on the protester's version of events, EMCOR did not attempt to contract the contracting officer until 8 days after the date of mailing of which the protester was aware. Moreover, although the protester states that it left telephone messages for the contracting officer on July 21 and 22 regarding this amendment, there is no evidence that the protester ever requested a facsimile copy of the amendment from the contracting office until the bid opening date. Under these circumstances, we do not believe that EMCOR acted reasonably.