B-400349; B-400349.2, Optelec U.S., Inc., October 16, 2008
Decision
Robert E. Korroch, Esq., and Francis E. Purcell, Esq., Williams Mullen, for the protester.
Maura C. Brown, Esq., Department of Veterans Affairs, for the agency.
Mary G. Curcio, Esq., and John M. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest that failure to submit timely response to solicitation resulted from agency’s failure to provide timely notice of solicitation is denied where agency advised protester that solicitation would be posted on FedBizOpps website, and protester then failed to avail itself of all reasonable means to view solicitation when it was posted.
DECISION
Optelec
The solicitation was posted on the FedBizOpps website on
Optelec states that it first contacted VA in late 2006
when it learned that the agency planned to issue a solicitation for CCTV’s, and
that VA instructed the firm to register on the FedBizOpps website to receive
information on the procurement. Protest
at 3. Optelec states that it did so and also
continued to speak with the agency during 2007 and in February and March
of 2008; it was told that the solicitation was being reviewed.
Optelec states that, in investigating why it did not
receive the solicitation, it learned that FedBizOpps discontinued its e-mail
notification function in April, so that Optelec did not receive notice that the
solicitation had been issued.
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.
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.
The protest is denied.
Gary L. Kepplinger
General Counsel
[1]The agency notes that, aside from the lateness of the proposal, offerors were not permitted to submit proposals by e-mail.