Comptroller General

United States General Accounting Office

Washington, DC 20548 

of the United States

Decision 

Matter of: Optelec U.S., Inc. 

File: B-400349; B-400349.2 

Date: October 16, 2008 

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 U.S., Inc. protests the rejection of its proposal as late under request for 

proposals (RFP) No. VA-797-08-RP-0002, issued by the Department of Veterans 

Affairs (VA) for closed-circuit electronic magnification devices (CCTV). Optelec 

asserts that its offer was late solely because VA improperly failed to provide it with 

timely notice of the solicitation. 

We deny the protest. 

The solicitation was posted on the FedBizOpps website on May 29, 2008, with a 

closing time of 4:00 p.m. on June 30. Offerors were required to submit technical and 

price proposals, and product samples. Agency Report (AR) at 4, 5. Optelec 

submitted its proposal via e-mail at 4:39 p.m. on June 30, followed by product 
samples on July 1 and the required technical volumes on July 15. Id. The agency 

rejected the proposal as late because it was submitted after the stated closing time.1

 

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. Id. Optelec next contacted VA on June 30, upon learning that the 

solicitation had been issued and that responses were due that day. Id. at 4. It 

proceeded to submit its proposal, but, as noted, the proposal was received after the 

stated closing time. 

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. Id. According to 

Optelec, since the agency knew that Optelec was interested in the procurement, and 

since Optelec registered with FedBizOpps as instructed, the lateness of its proposal 

is attributable to VA’s actions, and its proposal therefore should be considered. 

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. § 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. Kendall Healthcare Prods. Co., B-289381, Feb. 19, 2002, 

2002 CPD ¶ 42 at 6. In pursuit of these goals, a contracting agency has the 

affirmative obligation to use reasonable methods to publicize its procurement needs 

and to timely disseminate solicitation documents to those entitled to receive them. 

However, concurrent with the agency’s obligations in this regard, prospective 

contractors must avail themselves of every reasonable opportunity to obtain the 

solicitation documents. Laboratory Sys. Servs., Inc., B-258883, Feb. 15, 1995, 

95-1 CPD ¶ 90 at 2. Where a prospective contractor fails in this duty, we will not 

sustain its protest challenging the agency’s failure to meet its solicitation 

dissemination obligations. Wind Gap Knitwear, Inc., B-276669, July 10, 1997, 

97-2 CPD ¶ 14 at 3. In considering such situations, we consider whether the agency 

or the protester had the last clear opportunity to avoid the protester's being 

precluded from competing. Id.

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 

 1

The agency notes that, aside from the lateness of the proposal, offerors were not 

permitted to submit proposals by e-mail. 

Page 2 B-400349, B-400349.2
register with the website in order to receive information about the procurement. 

See FAR § 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 

Page 3 B-400349, B-400349.2