Protest Alleging Inadequate Competition

A firm protested the award of an Army contract, alleging that only the awardee received a copy of a solicitation amendment and that, as a result, adequate competition was not obtained. The Army contended that the protest should be denied because a bidder assumes the risk of nondelivery of a solicitation amendment. The protester conceded that the procuring activity is not an insurer of the delivery of documents to prospective bidders who instead must bear the risk of nonreceipt of solicitations and amendments. However, the firm maintained that it should not also be expected to bear the risk of what it believes was a wholesale failure by the Army to mail copies of the amendment. GAO stated that the record must reasonably indicate that copies of the amendment were mailed in accordance with the applicable regulations if the protester is to be charged with the risk of nonreceipt of said amendment. In this respect, there was no proof on the record indicating that the contracting personnel had any knowledge that copies of the amendment were prepared or mailed. GAO concluded that, since three of the four bidders who responded to the solicitation apparently did not receive mailed copies of the amendment, the record was insufficient to establish that the Army complied with Federal regulations. Additionally, it is questionable whether adequate competition was obtained under the above circumstances. Accordingly, the protest was sustained, and GAO recommended that the Army cancel the invitation for bids and resolicit its requirement.