National Beef argues that DeCA improperly rejected its proposals as late. The protester does not dispute that the packages containing its proposals were delivered to the agency by UPS after the solicitation deadline, but raises two arguments for why its proposals should be considered timely: (1) the proposals should be considered under the custody of the government based on the time the UPS driver entered the government installation, and (2) government processes at Fort Lee were interrupted in a manner that made it impossible to deliver the proposals by the solicitation deadline. The protester also argues that because award has not been made, accepting the protester's late proposals would not unduly delay the procurement or prejudice any other offeror. For the reasons discussed below, we find no basis to sustain the protest.

The RFPs incorporated by reference FAR provision 52.212-1, which includes the following relevant terms regarding late proposal submissions:

(f) Late submissions, modifications, revisions, and withdrawals of offers.

* * * * *

(2)(i) Any offer, modification, revision, or withdrawal of an offer received at the Government office designated in the solicitation after the exact time specified for receipt of offers is "late" and will not be considered unless it is received before award is made, the Contracting Officer determines that accepting the late offer would not unduly delay the acquisition; and-

* * * * *

(B) There is acceptable evidence to establish that it was received at the Government installation designated for receipt of offers and was under the Government's control prior to the time set for receipt of offers;

* * * * *

(3) Acceptable evidence to establish the time of receipt at the Government installation includes the time/date stamp of that installation on the offer wrapper, other documentary evidence of receipt maintained by the installation, or oral testimony or statements of Government personnel.

(4) If an emergency or unanticipated event interrupts normal Government processes so that offers cannot be received at the Government office designated for receipt of offers by the exact time specified in the solicitation, and urgent Government requirements preclude amendment of the solicitation or other notice of an extension of the closing date, the time specified for receipt of offers will be deemed to be extended to the same time of day specified in the solicitation on the first work day on which normal Government processes resume.

FAR provision 52.212-1 (emphasis added); see RFP-0005 at 77; RFP-0002 at 84.

As our Office has explained, it is an offeror's responsibility to deliver its proposal to the proper place at the proper time. FAR provision 52.212-1(f)(1); Washingtonian Coach Corp., B-413809, Dec. 28, 2016, 2016 CPD ¶ 378 at 4. Moreover, in addressing protests challenging an agency's rejection of late bids or proposals, we have noted that delays in gaining access to government facilities are not unusual and should be expected. U.S. Aerospace, Inc., B-403464, B-403464.2, Oct. 6, 2010, 2010 CPD ¶ 225 at 11 n.17 (citing Econ, Inc., B-222577, July 28, 1986, 86-2 CPD ¶ 119 at 4; National Blower & Sheet Metal Co., Inc., B-194895, Oct. 3, 1979, 79-2 CPD ¶ 240 at 4). Although the rule may seem harsh, it alleviates confusion, ensures equal treatment of all offerors, and prevents one offeror from obtaining a competitive advantage that may accrue where an offeror is permitted to submit a proposal later than the deadline set for all competitors. See Inland Serv. Corp., Inc., B-252947.4, Nov. 4, 1993, 93-2 CPD ¶ 266 at 3.

Our Office has also explained that a late hand-carried offer may be considered for award if the government's misdirection or improper action was the paramount cause of the late delivery and consideration of the offer would not compromise the integrity of the competitive process. See, e.g., ALJUCAR, LLC, B-401148, June 8, 2009, 2009 CPD ¶ 124 at 3; Palomar Grading & Paving, Inc., B-274885, Jan. 10, 1997, 97-1 CPD ¶ 16 at 3. Nonetheless, even in cases where the late receipt may have been caused, in part, by erroneous government action, a late proposal should not be considered if the offeror significantly contributed to the late receipt by not doing all it could or should have done to fulfill its responsibility. See ALJUCAR, LLC, supra; Palomar Grading & Paving, Inc., supra.

Government Control of the Proposals

National Beef argues that an exception to the late proposal rule applies here because the UPS driver carrying its proposals entered Fort Lee prior to the solicitation deadline. The record does not establish, however, that the government had control of the proposals prior to the deadline.

As discussed above, the FAR states that a proposal received at the place designated for receipt of proposals may be accepted after a solicitation deadline, provided "[t]here is acceptable evidence to establish that it was received at the Government installation designated for receipt of offers and was under the Government's control prior to the time set for receipt of offers." FAR provision 52.212-1(f)(2)(i)(B). As our Office has explained, the exception applies where the proposal has been accepted by government personal, thereby putting it under government control. B&S Transport, Inc., B-404648.3, Apr. 8, 2011, 2011 CPD ¶ 84 at 4.

Here, National Beef contends that the UPS delivery truck arrived at Fort Lee sometime around 9:30 a.m. on November 15. Protest, exh. E, Letter from National Beef to Contracting Officer, Nov. 21, 2017, at 1. The protester, however, provides no evidence that the agency took custody of the proposals prior to the 3:00 p.m. deadline. Instead, National Beef contends that its proposals should be accepted as timely because the protester "relinquished control of its proposals when it delivered them to UPS," that the UPS truck entered Fort Lee prior to 3:00 p.m., and that the entry of the truck onto Fort Lee constituted government receipt and control of the proposals. Protester's Comments at 1-2, 11-12.

The protester misstates the applicable standard for receipt and control of a proposal under FAR provision 52.212-1(f). Even if there was evidence that established the time the UPS truck entered Fort Lee, and even if the entirety of Fort Lee is considered the government installation for purposes of FAR provision 52.212-1(f)(2)(i)(B), there is no evidence that the government took control of the proposals prior to 3:27 p.m. Protest, exh. D-1, UPS Tracking Slip (RFP-0002); exh. D-2, UPS Tracking Slip (RFP-0005). As our Office has explained, a hand-delivered proposal must be physically relinquished to government control by the offeror or its agent; interaction between the offeror or its agent and the agency's security personnel, or mere access to the installation does not establish government control over the proposal. See B&S Transport, Inc., supra; Immediate Sys. Resources, Inc., B-292856, Dec. 9, 2003, 2003 CPD ¶ 227 at 4. On this record, we find no basis to conclude that the government had control of National Beef's proposals prior to the 3:00 p.m. deadline, and therefore find no basis to sustain the protest.

Interruption of Normal Government Processes

Next, National Beef argues that, even if the proposals were not in government custody prior to the deadline, an interruption of "normal Government processes" precluded delivery, which required the agency to extend the time for receipt of proposals. The record does not establish, however, whether delivery of the protester's proposals was actually delayed or that the government was responsible for any such potential delay.

As discussed above, FAR provision 52.212-1(f)(4) states that if an "emergency or unanticipated event interrupts normal Government processes so that offers cannot be received at the Government office designated for receipt of offers by the exact time specified in the solicitation," and government requirements do not allow for amendment of the solicitation or notice to offerors, the deadline for receipt of proposals must be extended to the same time the following day. Where the government office designated for receipt of proposals is open for business and able to accept receipt of proposals, we will not conclude that normal government processes are interrupted. See CFS-INC, JV, B-401809.2, Mar. 31, 2010, 2010 CPD ¶ 85, at 2-3; Hunter Contracting Co., B-402575, Mar. 31, 2010, 2010 CPD ¶ 93 at 2-3. Instead, a protester must provide evidence establishing that there was an interruption and that it resulted in the protester's inability to deliver its proposal. See id.

In a letter submitted after the solicitation closing date, National Beef stated to DeCA that "[o]ur discussions with UPS indicate that the proposal[s] arrived at the Ft. Lee entrance gate around 9:30 a.m. on November 15, 2017 before passing through Military Police inspection." Protest, exh. E, Letter from National Beef to Contracting Officer, Nov. 21, 2017, at 1. The protester, however, does not explain who provided the information, e.g., the UPS truck driver or some other UPS representative. Moreover, the protester does not provide any statements from UPS or any other information from UPS aside from the tracking information. This tracking information shows the following relevant entries for November 15: (1) at 8:36 a.m., "Out For Delivery Today," (2) at 3:27 p.m., "Delivered," and (3) also at 3:27 p.m., "A required security check has delayed delivery." Protest, exh. D-1, UPS Tracking Slip (RFP-0002); exh. D-2, UPS Tracking Slip (RFP-0005).

Although National Beef contends that security and/or construction activities near the Shop Gate delayed access by the UPS truck to the base, the protester does not provide any information that could possibly explain a delay from 9:30 a.m. until 3:27 p.m., nor is there any evidence that the UPS driver was actually delayed at Fort Lee for 6 hours. In this regard, aside from the protester's unsupported statement that UPS arrived at the Fort Lee gate at 9:30 a.m., the protester does not specifically state when or how many times UPS attempted delivery of the proposals. With regard to the notation in the UPS tracking information regarding a delay associated with a security check, the tracking information entry for this event is 3:27 p.m., the same time as the delivery. Id. The tracking information, however, does not establish when the delay occurred or the length of the delay. Thus, even if there was a delay associated with security or construction, the protester has not provided adequate information to establish that there was an interruption of normal government processes in a manner that precluded submission of proposals.

In sum, National Beef does not establish that there were emergency or unanticipated events that precluded delivery of its proposals. See U.S. Aerospace, Inc., supra. In contrast, the agency states that the office for receipt of proposals was open during regular business hours on November 15, through the time for receipt of proposals specified in the solicitation. Memorandum of Law at 15. The agency also states that any construction occurring on November 15 did not affect traffic at the Shop Gate. See AR, Tab 27, Decl. of Lead Security Officer, Dec. 21, 2017, at 2-3; Supp. Documents, Tab 08a, Contractor Quality Control Report, Nov. 15, 2017, at 1. On this record, we find no basis to conclude that there was an interruption of normal government processes that prevented the protester from delivering its proposal, and therefore find no basis to sustain the protest.  (National Beef Packing Co. LLC B-415754, B-415773: Feb 16, 2018)

Extension for Submission of BAE’s Final Revised Quotation (FRQ)

As a preliminary matter, PWC contends that DHS should have rejected BAE’s FRQ as late because it was submitted 30 minutes after the 12:00 p.m., September 18, deadline. PWC Comments at 6‑10; see AR, Tab 19, BAE Discussions Letter, at 1. At issue here, BAE contacted [Department of Homeland Security] DHS shortly before FRQs were due to request a 30‑minute extension (until 12:30 p.m.) because BAE was having “outages” at its offices. See AR, Tab 34, Contract Specialist (CS) Email to Contracting Officer (CO), Sept. 18, 2017, at 10. The contracting officer granted the extension because neither the solicitation nor the request for FRQs stated that late submissions would not be considered, and because the solicitation was an RFQ, not a request for proposals (RFP). Id., CO Email to CS, Sept. 18, 2017, at 10; CS Email to BAE., Sept. 18, 2017, at 11; CO Statement (COS) at 9; MOL at 11 n.5, citing Gartner Inc., B‑408933.2; B‑408933.3, Feb. 12, 2014, 2014 CPD ¶ 67 at 2 (“It is well established that the standard for late proposals does not generally apply to requests for quotations.”).

PWC acknowledges the RFQ exception to the late proposal rule, but contends that the strict lateness rule should apply in the context of a task order competition conducted, as here, under FAR subpart 16.5, regardless of the solicitation type. PWC Comments at 6. In this respect, PWC points out that the Federal Acquisition Streamlining Act of 1994 (FASA) and the FAR stipulate that IDIQ contractors be given a fair opportunity to be considered for task and delivery orders, which, according to PWC, necessarily “require[s] a significantly greater level of procedural rigor” than task order competitions conducted under FAR subpart 8.4, Federal Supply Schedules (FSS), or FAR part 13, Simplified Acquisition Procedures. Id. at 6‑8, citing 41 U.S.C. 4106(c) and FAR subpart 16.5. PWC maintains that DHS afforded an unequal advantage and preferential treatment to BAE by granting the vendor an extension to submit its FRQ, and thereby deprived PWC of it right to a fair opportunity and fair consideration of its quotation. Id. at 7. These assertions lack merit.

The standard for late proposals is based on whether a solicitation seeks an offer that can be accepted by the government. See Team Housing Sols., B‑414106, Feb. 10, 2017, 2017 CPD ¶ 55 at 5. An RFQ, unlike an RFP or invitation for bids, does not seek offers that can be accepted by the government to form a contract. Rather, the government’s purchase order represents the offer that the vendor may accept through performance or by a formal acceptance document. DataVault Corp., B‑248664, Sept. 10, 1992, 92-2 CPD ¶ 166 at 2. It follows that language in an RFQ (or, in this case, the contracting officer’s request for FRQs) requesting quotations by a certain date cannot be construed as establishing a firm closing date for receipt of quotations, absent a late quotation provision expressly providing that quotations must be received by that date to be considered. Instruments & Controls Serv. Co., B-222122, June 30, 1986, 86‑2 CPD ¶ 16 at 3. Agencies should thus consider any quotations received prior to source selection if no substantial activity has transpired in evaluating quotations and other vendors would not be prejudiced. Id.

We find no reason here to depart from the RFQ exception to the late proposal rule. Although PWC is correct that IDIQ contractors must be given a fair opportunity to submit a quotation under a FAR subpart 16.5 task order competition, neither FASA nor the FAR, in our view, requires the application of a strict lateness rule in the circumstances presented here. Moreover, PWC cannot possibly show that it was prejudiced, where nothing in the record here indicates that any evaluation activities occurred during the half hour extension granted to BAE. We thus find that PWC has not shown that it was unreasonable or inconsistent with federal procurement laws and regulations for DHS to grant BAE a 30‑minute extension to submit its FRQ. See KPMG Consulting LLP, B‑290716, B‑290716.2, Sept. 23, 2002, 2002 CPD ¶ 196 at 11 (denying protest that agency should have rejected a late proposal modification, notwithstanding the protester’s arguments that the competition more closely resembled a negotiated procurement than a “simple FSS buy.”).  (PricewaterhouseCoopers Public Sector, LLP B-415504,B-415504.2: Jan 18, 2018)

ManTech asserts that the Air Force should be required to consider its proposal because the proposal was timely sent to the agency’s designated e-mail box, and ManTech received confirmation from its Outlook delivery system that it had been received. ManTech notes in this regard that it reviewed the tracking record for the first sent e-mail which indicates that the Cisco IronPort system opened a Simple Mail Transfer Protocol (SMTP) connection with the recipient at 13:28:47 (1:28 p.m. EDT), and received the SMPT remote response at 13:31:52 (1:31 p.m. EDT), three minutes later. Protest at 6; Decl. of ManTech Director of Network Services, at 1. According to ManTech, during these three minutes, the recipient’s server had the ability to deliver or reject the transmittal. Id. ManTech asserts that since it did not receive a bounce back indicating that the e-mail containing the proposal had been rejected, it must have been accepted by the agency’s e-mail exchange server. Id. ManTech concludes that the Air Force should be required to consider ManTech’s proposal since it made it beyond the initial point of entry to the government’s infrastructure.

In response, the Air Force reports that ManTech’s proposal was never received in the CSIACTAT@us.af.mil mailbox, the mailbox designated in the RFTOP [Request for Task Order Proposals] for the receipt of proposals. Request for Dismissal at 2. The Air Force explains that when an e-mail is sent to any recipient that is at an organization that is part of the Department of Defense, it is first scanned by the enterprise e-mail security gateway (EEMSG) for malicious content. Decl. of EEMSG Program Manager at 1. EEMSG delivers the e-mail to the recipient’s e-mail exchange server if no malicious content is found. Id. The recipient’s e-mail exchange server then performs additional scans based on the specific policies of the recipient organization. Id. at 2. The recipient’s server can block, quarantine, drop, or deliver the e-mail to the recipient’s e-mail box. Id. The Air Force reports that the e-mails sent by ManTech were received by the EEMSG system, which scanned them and attempted to deliver them to the specified Air Force e-mail address. Agency E-mail, Aug. 23, 2017 (10:44 a.m.); Decl. of EEMSG Program Manager at 1. However, based on the content, they were rejected by the Air Force server. Id. ManTech did not receive a bounce back because the EEMSG inbound system cannot initiate a connection to the internet. Decl. of EEMSG Program Manager at 1.

It is an offeror’s responsibility to deliver its proposal to the proper place at the proper time. Tele-Consultants, Inc., B-414135, Feb. 27, 2017, 2017 CPD ¶ 132 at 5. Moreover, the protester has the burden of showing that it timely delivered its proposal to the agency at the specified address. See Latvian Connection Trading & Constr., LLC, B-402410, Feb. 25, 2010, 2010 CPD ¶ 58 at 3; Lakeshore Engineering Services, B-401434, July 24, 2009, 2009 CPD ¶ 155 at 4. An agency is not required to consider a proposal where there is no evidence that the proposal was “actually received.” Tele-Consultants, Inc., supra.

Here, ManTech has demonstrated that it timely sent its proposal to the agency, and that it reached the EEMSG server. However, the RFTOP stated that proposals were to be submitted electronically via e-mail to the contract specialist, at CSIACTAT@us.af.mil. RFTOP, amend. 2, at 1. ManTech has failed to establish that its proposal was actually delivered to the agency’s designated e-mail prior to the time set for the receipt of proposals, and thus, has failed to meet its burden of showing that its proposal was timely delivered to the agency. Accordingly, the agency could not consider the proposal.[4] Tele-Consultants, Inc., supra.  (ManTech Advanced Systems International, Inc. B-414985: Oct 20, 2017)

Ghazanfar contends that DLA failed to consider its timely-submitted proposal and that the agency failed to respond to its request as to the status of the proposal. Protest at 1. In support of its position, Ghazanfar provided copies of its March 13 and April 10 e-mails to the contracting officer and contract specialist. Id., attach., Ghazanfar E-mails. Ghazanfar also provided declarations from its deputy chief executive officer (CEO) and information technology (IT) officer, as well as a screenshot demonstrating that the e-mail transmitting the proposal had been sent to the appropriate DLA officials. Comments, attachs., Deputy CEO Decl. and IT Officer Decl.

DLA states that it did not receive Ghazanfar's proposal or its April 10 e-mail retransmitting the proposal. Memorandum of Law (MOL) at 5. The agency states that it searched the e-mail inboxes and junk e-mail folders of the contracting officer and the contract specialist and found no e-mails from Ghazanfar for the dates the protester asserts that it sent e-mails. AR, Tab 5, Contracting Officer Decl., at 1-2; Tab 6, Contract Specialist Decl., at 1. The agency also states that its IT specialist searched the mailboxes as well as the correlating message tracing logs, but found no evidence of e-mails from Ghazanfar for the relevant dates. AR, Tab 7, DLA IT Specialist Decl. at 1.

It is an offeror's responsibility to deliver its proposal to the proper place at the proper time. FAR § 15.208; DJW Consulting, LLC, B-408846.3, Dec. 18, 2013, 2014 CPD ¶ 77 at 3. The protester has the burden of showing that it timely delivered its proposal to the agency. Latvian Connection Trading & Constr., LLC, B-402410, Feb. 25, 2010, 2010 CPD ¶ 58 at 3.

The record shows that Ghazanfar has failed to establish that its proposal was actually delivered to and therefore received by DLA. Although the protester has provided evidence that it sent its proposal to the agency in a timely manner and that a copy of the March 13 transmittal e-mail was received internally at Ghazanfar, this evidence does not demonstrate that DLA in fact received the proposal.

The agency states that it has conducted a search of the contracting officer's and contract specialist's e-mail inboxes and junk mail boxes, as well as a search of its message tracing logs, but has found no evidence of the e-mails in question. See MOL at 5; AR, Tab 7, DLA IT Specialist, at 1. Although neither Ghazanfar nor DLA have been able to explain what happened to the e-mails containing Ghazanfar's proposal, on the basis of the record here, we conclude that the protester has failed to satisfy its burden of showing that it timely delivered its proposal to the agency. Latvian Connection Trading & Constr., LLC, supra.  (Ghazanfar Neft Gas LTD B-414636: Jul 21, 2017)

Western Star challenges its exclusion from the competition. The protester asserts:

A timely bid package was submitted. That the [agency’s] system is not so reasonably configured that the [agency] did not in this instance receive the package until several hours after it was sent should not prejudice the Protester. The [agency] knew or should have known of potential flaws in its email receiving system or the internet in general and cautioned prospective bidders to check in some manner to confirm receipt.

Protest at 4. The protester concludes that it is “guilty of no fault,” and that “it is completely unfair and unreasonable to reject its bid because of factors beyond its control.” Id. at 4‑5.

In response, the agency explained in its report that its Information Assurance Manager had conducted an investigation of the emails in question. According to the agency,

The investigation documents that each of the four (4) emails were delayed by the Protester’s email providers prior to receipt at the initial point of entry to the Government’s infrastructure. This investigation definitively proves that the delay was not the fault or responsibility of the Government, which has no control over commercial providers used by the Protester.

AR at 4.

In its comments on the agency report, the protester disputed the agency’s findings, contending that its service provider had informed it that immediately upon receiving the email messages, the service provider had sent the messages to the agency’s “servers.” The protester further explained that the servers were “not accessible,” and that an error message “indicated a problem involving a cueing error with [the agency’s] system which was unrelated to any technical failure or delay caused by Protestor or its service provider.” In support of its position, the protester furnished a copy of a mail log from its service provider. Comments at 1-2.

It is an offeror’s responsibility to deliver its proposal to the proper place at the proper time. FAR § 52.212-1(f)(1); Washington Coach Corp., B-413809, Dec. 28, 2016, 2016 CPD ¶ 378 at 4; Lakeshore Eng’g Servs., B-401434, July 24, 2009, 2009 CPD ¶ 155 at 4. Proposals that are received in the designated government office after the exact time specified are “late,” and generally may not be considered. While the rule may seem harsh, it alleviates confusion, ensures equal treatment of all offerors, and prevents one offeror from obtaining a competitive advantage that may accrue where an offeror is permitted to submit a proposal later than the deadline set for all competitors. See Inland Serv. Corp., Inc., B-252947.4, Nov. 4, 1993, 93-2 CPD ¶ 266 at 3.

The FAR also requires an offeror, when transmitting its proposal electronically, to ensure the proposal’s timely delivery by transmitting the proposal sufficiently in advance of the time set for receipt of proposals to allow for timely receipt by the agency. Specifically, FAR § 52.212-1(f)(2)(i)(A) provides that a late proposal, received before award may be accepted if it was “transmitted through an electronic commerce method authorized by the solicitation,” and it was “received at the initial point of entry to the Government infrastructure” not later than 5:00 p.m. one working day before proposals were due. Washington Coach Corp., supra, at 4.

Here, Western Star concedes, and the record indicates, that its electronically transmitted proposal was not received by the agency by the time designated for the receipt of proposals. Protest at 4; AR at 2. While the protester and the agency differ with regard to which party bears responsibility for the failure of the protester’s proposal to reach the agency’s initial point of entry for the agency’s servers prior to the deadline, see Protest at 4-5; AR at 4, we need not resolve this issue. We have repeatedly found that it is an offeror’s responsibility to ensure that an electronically submitted proposal is received by--not just submitted to--the appropriate agency email address prior to the time set for closing. See, e.g., Washington Coach Corp., supra, at 4; Latvian Connection Trading and Construction, LLC, B-402410, Feb. 25, 2010, 2010 CPD ¶ 58 at 2; Lakeshore Eng’g Servs., supra, at 4. There is no dispute that the protester’s proposal was not transmitted electronically by 5:00 p.m. the day before proposals were due, and was not received at the agency’s servers until after the deadline for receipt of proposals. Accordingly, we conclude that the protester has failed to satisfy its burden of showing that it timely delivered its proposal to the agency.  (Western Star Hospital Authority, Inc. B-414216.2: May 18, 2017)

TCI challenges the rejection of its proposal from consideration. Although TCI acknowledges that it “did not receive the expected notice from [the SeaPort-e portal] that its proposal was submitted,” TCI asserts nonetheless that its proposal was timely submitted. Protest at 4. TCI also argues that even if its proposal was late, its proposal should have been viewed as subject to “the government control” exception of the Federal Acquisition Regulation (FAR) § 15.208. Protest at 5. Both of TCI’s arguments contend that “the archival lock on proposal files is thus acceptable evidence to establish that [its proposal] was received at the [g]overnment installation designated for receipt of proposals, [i.e., the SeaPort-e portal,] and was under the [g]overnment’s control prior to the time set for receipt of proposals.” Protest at 5.

The agency responds that because TCI never engaged the “Submit Signed Proposal” button, TCI did not submit a signed final proposal, either prior to the submission deadline or thereafter. Legal Memorandum at 5. In addition, the agency explains that it is only when an offeror engages the “Submit Signed Proposal” button that a proposal is uploaded to the government side of the portal and becomes a signed legally binding submission. As a result, the Navy contends that TCI’s proposal was not received at the government installation and was not under the government’s control at the time of closing. Id. at 7-8. Further, the agency contends that since TCI did not engage the “Submit Signed Proposal” button, it cannot know whether TCI intended to be legally bound by its proposal. Id. at 11.

In its comments on the agency report, TCI challenges the significance of engaging the “Submit Signed Proposal” button, arguing that its failure to egage the button was irrelevant because, at the time of closing, its proposal was uploaded to the correct government location, and thereby in the government’s control, as evidenced by TCI’s inability to further modify the proposal. Comments at 5-6. We disagree.

Based on the undisputed facts in the record, we conclude that TCI never actually submitted its proposal. Here, the electronic submission of a legally binding offer was not completed until an offeror engaged the portal’s “Submit Signed Proposal” button, and accepted an agreement to legally bind the company to its submission by the closing time of 2:00 p.m. Eastern Time. RFP, Amend. 1, at 1; AR, Exh. 2, Clause H.5 of SeaPort-e Multiple Award Contract, at 3; AR, Exh. 1, SeaPort Guide, at 24. Additionally, the portal does not allow a vendor to engage the “Submit Signed Proposal” button after the time set for closing--as TCI apparently tried here.

TCI does not dispute that it attempted to engage the “Submit Signed Proposal” button after 2:00 p.m. Eastern Time, and acknowledges that it did not receive notice from the portal that its proposal was submitted. See Protest at 4. Instead, the protester received an “event closed” notice stating that TCI did not complete the final submission process. Finally, the record shows that neither TCI nor the portal administrator reported technical issues that would have prevented TCI from submitting its proposal prior to the closing time. Accordingly, because TCI failed to “hit the [s]ubmit button” prior to closing--an action necessary to legally bind the offeror and to submit the proposal--we conclude that TCI’s proposal was never submitted.

It is an offeror’s responsibility to deliver its proposal to the proper place at the proper time. DJW Consulting, LLC, B-408846.3, Dec. 18, 2013, 2014 CPD ¶ 77 at 3. In addition, an agency is not required to consider a proposal where, as here, there is no evidence that the proposal was “actually received.” See Federal Acquisition Servs. Team, LLC, B-410466, December 31, 2014, 2015 CPD ¶ 20 at 4. Based on these facts, we have no basis to challenge the agency’s decision that it had not received, and could not consider, TCI’s draft proposal.  (Tele-Consultants, Inc. B-414135: Feb 27, 2017)

WCC asserts that its proposal was properly and timely submitted and the agency erred in not evaluating and considering its proposal. WCC argues that the documentation that it submitted showing that its proposal was sent by email and the return path of that email, shows that the agency received the email before proposals were due. Protest at 2-3. The protester also maintains that it followed all of the instructions for the submission of proposals in the solicitation, and that the solicitation made no mention of the size limit of its email system. Id. at 2; Comments at 1.

It is an offeror’s responsibility to deliver its proposal to the proper place at the proper time. FAR § 52.212-1(f)(1); see International Code Council, B-409146, Jan. 8, 2014, 2014 CPD ¶ 26 at 3; see M.Braun, Inc., B-298935.2, May 21, 2007, 2007 CPD ¶ 96 at 4; see Lakeshore Eng’g Servs., B-401434, July 24, 2009, 2009 CPD ¶ 155 at 4. Proposals that are received in the designated government office after the exact time specified are “late,” and generally may be considered only if received before award and the circumstances satisfy the specific requirements set forth in FAR §15.208(b)(1). While the rule may seem harsh, it alleviates confusion, ensures equal treatment of all offerors, and prevents one offeror from obtaining a competitive advantage that may accrue where an offeror is permitted to submit a proposal later than the deadline set for all competitors. See Inland Serv. Corp., Inc., B‑252947.4, Nov. 4, 1993, 93-2 CPD ¶ 266 at 3.

We view it as an offeror’s responsibility, when transmitting its proposal electronically, to ensure the proposal’s timely delivery by transmitting the proposal sufficiently in advance of the time set for receipt of proposals to allow for timely receipt by the agency. As stated above, and referenced in the solicitation, FAR § 52.212-1(f)(2)(i)(A) provides that a late proposal, received before award may be accepted if it was “transmitted through an electronic commerce method authorized by the solicitation,” and it was “received at the initial point of entry to the Government infrastructure” not later than 5:00 p.m. one working day before proposals were due.

We note that in this instance the agency received four timely proposals. While it is true that the solicitation did not include a size limit for electronic submissions, nevertheless, it is an offeror’s responsibility to ensure that an electronically submitted proposal is received by--not just submitted to—the appropriate agency email address prior to the time set for closing. See Lakeshore Eng’g Servs., supra at 4.

In sum, since WCC’s electronically transmitted proposal was not received by the contracting officer or contract specialist, at the time designated for the receipt of proposals, it is a late proposal. Further, since it was not received at the initial point of entry by 5:00 p.m. the day before proposals were due, the late proposal cannot be accepted. FAR § 52.212-1(f)(2)(i)(A); Sea Box, Inc. B-291056, Oct. 31, 2002, 2002 CPD 181 at 4; Assoc. Fabricators & Constructors, Inc., B-405872, Dec. 14, 2011, 2011 CPD ¶ 279 at 4.  (Washingtonian Coach Corporation B-413809: Dec 28, 2016)
 

Blue Glacier asserts that its quotation was properly and timely submitted, and that the agency erred in not evaluating and considering its quotation. The protester maintains that the failure of Blue Glacier’s email quotation to arrive at the email address specified in the solicitation was due to problems with the agency’s email system. Blue Glacier also contends that the agency should consider its late quotation under the “government control” exception. Protest at 8; Comments at 5. For the reasons set forth below, we find no basis to sustain the protest.

It is the vendor’s responsibility, when transmitting its quotation electronically, to ensure the delivery of its quotation to the proper place at the proper time. Advanced Decisions Vectors, Inc., B-412307, Jan. 11, 2016, 2016 CPD ¶ 18 at 5. Quotations that are received in the designated government office after the exact time specified are “late,” and generally may not be considered for award. While this rule may seem harsh in some circumstances, it alleviates confusion, ensures equal treatment of all vendors, and prevents one vendor from obtaining a competitive advantage that may accrue where a vendor is permitted to submit a quotation later than the deadline set for the competition. C2G Ltd. Co., B-411131, May 12, 2015, 2015 CPD ¶ 157 at 4.

Here, we find that Blue Glacier has failed to establish that its quotation was submitted to and received by the agency at the email address specified in the solicitation prior to the due date for receipt of quotations. The RFQ unequivocally required that quotations be submitted to the email address specified in the RFQ. RFQ, amend. No. 1, at 12. The record is clear that the contract specialist did not receive Blue Glacier’s quotation on November 9. AR, Tab 3, Affidavit of Contract Specialist (Apr. 25, 2016), at 4. It also reflects that the contract specialist did not receive a notification advising that any emails had been quarantined. Id. Blue Glacier does not argue, and the record contains no evidence showing, that the protester attempted to confirm receipt of its emailed quotation. Rather, the protester’s efforts to establish that its quotation was timely received by the agency did not begin until more than three months after quotations were due. Id. at 3. As discussed above, by that point, however, the agency’s search for information regarding the protester’s November 9 email transmission did not yield any results because the agency’s email hygiene log is only retained for 30 days. AR, Tab 4, Decl. of OCC’s Deputy Chief Information Officer (Apr. 25, 2016), at 3. Accordingly, although the Treasury Fiscal Services network indicates that an email from Blue Glacier was sent to OCC’s external server on November 9, where it appears that it may have been blocked by the OCC’s email filtering system, the record does not clearly establish what Blue Glacier communication the agency’s email filtering system blocked.

Thus, the primary evidence establishing that Blue Glacier properly submitted its quotation is the protester’s copy of an email, with two attachments, purportedly sent to the contract specialist on November 9, that appears to be a quotation in response to the RFQ. This copy, however, does not demonstrate that a quotation from the protester was received by the agency in a manner consistent with the solicitation. See International Garment Processors, B-299674 et al., July 17, 2007, 2007 CPD ¶ 130 at 7 (finding reasonable agency’s rejection of revised quotation where protester only demonstrated that quotation was transmitted, but not that it was actually timely received by the agency). Rather, as discussed above, the record reflects that the first time the contract specialist affirmatively received Blue Glacier’s quotation was on February 26, following the protester’s inquiry as to the status of the procurement. AR, Tab 3, Affidavit of Contract Specialist (Apr. 25, 2016), at 4. A submission on this date, however, clearly did not meet the solicitation’s deadline.

Blue Glacier next argues, citing FAR clause 52.212-1(f)(2)(i)(B), that the agency should consider its quotation because, even if it did not arrive at the specified email address prior to the specified time, it was “under the Government’s control” prior to the time set for receipt of quotations. The protester points out that it submitted its quotation more than three hours before the deadline specified in the solicitation, and contends that its quotation was in the government’s control as soon as it entered the Treasury Fiscal Services network.

Our Office has held that in determining whether a quotation was “under the Government’s control” prior to the time set for receipt of quotations, a vendor must have relinquished custody of the quotation to the government so as to preclude any possibility that the vendor could alter, revise or otherwise modify its quotation after other vendors’ competing quotations have been submitted. See Johnson Controls Gov’t Sys., LLC, B-411862.2, Nov. 24, 2015, 2015 CPD ¶ 357 at 4. Here, as discussed above, because Blue Glacier did not seek prompt confirmation of the agency’s receipt of its quotation, Blue Glacier’s November 9 email was automatically deleted from the agency’s system after 30 days. Accordingly, the agency has no way to confirm the contents of the Blue Glacier email that entered the Treasury Fiscal Services network on November 9; that is, it has no way to confirm that the November 9 email included a quotation identical to the quotation furnished by the protester on February 26. Whether the protester actually altered its quotation is not the issue; rather, the issue is whether, under the circumstances, there is any possibility that the protester could have altered its quotation. This requirement precludes any possibility that a vendor could alter, revise or otherwise modify its quotation after other vendors’ competing quotations have been submitted. Id. at 4-5. Because Blue Glacier was not precluded from altering its quotation here, the government control exception is inapplicable in this instance.

We also note that in order for the agency to properly accept a late proposal pursuant to FAR clause 52.212-1(f)(2)(i), the quotation must be received before award, and its acceptance must be found to not unduly delay competition. Here, the record reflects that when the contracting officer received Blue Glacier’s quotation at the end of February, she decided that, because OCC was in the final phase of decision‑making with regard to its evaluation, and had adequate competition, it was not in the best interest of the agency to include Blue Glacier’s quotation in the competition because it would unduly delay the competition. COS at 4. The protester does not challenge the agency’s determination in this regard. Accordingly, because the contracting officer found that accepting the late quotation would unduly delay the acquisition, none of the late proposal exceptions specified under FAR clause 52.212‑1(f)(2)(i) apply.

Finally, Blue Glacier argues that the late submission of its quotation arose due to a “systemic failure” of the agency’s email system, and therefore, the agency should consider its quotation. Protest at 9; Comments at 6.

Our Office has recognized a limited exception to the rule that negligent loss of proposal/quotation information does not entitle the offeror/vendor to relief. This exception generally applies where the loss was not an isolated act of negligence, but rather arises out of a systematic failure in the agency’s procedures that typically results in multiple or repetitive instances of lost information. Project Res., Inc., B‑297968, Mar. 31, 2006, 2006 CPD ¶ 58 at 2. Here, the record reflects that, on November 9, five vendors successfully submitted timely quotations, and one vendor successfully submitted a late quotation, to the designated OCC email inbox. AR, Tab 3, Decl. of Contract Specialist (Apr. 25, 2016), at 2. Although the protester contends that the vendor with the late-submitted quotation submitted an earlier email that was also blocked by the agency’s spam filter, this assertion is not supported by the record. COS at 3 (stating that the vendor’s initial email transmission was never received by the agency, and that it was unclear why the vendor then decided to resubmit its quotation as two separate emails). Accordingly, even if, as the agency IT staff surmise, Blue Glacier’s email quotation was blocked by the agency’s anti-phishing filter, we fail to find that this reflects systematic failure of the agency’s email system; rather, it reflects the proper functioning of the system to block emails that are suspect. The record also reflects that the agency conducted an investigation of its email system and found that no issues exist with external email providers. AR, Tab 4, Affidavit of OCC’s Deputy Chief Information Officer (Apr. 25, 2016), at 1-3.

The protest is denied.  (Blue Glacier Management Group, Inc. B-412897: Jun 30, 2016)  (pdf)

ADV asserts that its quotation was properly and timely submitted, and the agency erred in not evaluating and considering the quotation. In this regard, the protester represents that its quotation was emailed to the contract specialist at the email address identified in the RFQ five minutes prior to the 10:00 a.m. deadline. In support, ADV provided for the protest record a copy of the email it purportedly sent to the contract specialist. Protest at 2; exh. A, ADV Email to Contract Specialist, Sept. 8, 2015 (9:55 a.m.), at 1. In addition, the protester argues that its quotation should have been considered because it also was timely uploaded to the GSA e‑Buy portal. As evidence of its e-Buy submission, ADV submitted for the record a copy of a text message and an email from the e-Buy system confirming that the quotation had been received. Protest at 2-3; exh. C, Text Message Confirmation, at 1; exh. D, Email Confirmation, at 1.

The agency maintains that it did not receive a quotation from ADV prior to the submission deadline, and, as a result, ADV’s quotation was properly not considered during the procurement. As evidence, subsequent to ADV’s protest, the contract specialist and several other DHS personnel associated with the procurement provided for the protest record all emails (sent and received) related to the solicitation for the 24‑hour period surrounding the RFQ’s closing time. CO Statement at 4; see AR, Tab C‑1 ‑‑ C-84, Emails of Sept. 8 and 9 Relating to RFQ. In addition, a DHS information technology (IT) team conducted a similar search for emails related to the procurement. CO Statement at 4. The agency points out that none of the emails identified and produced included correspondence from ADV; in this regard, the vendor’s quotation purportedly sent to the contract specialist was not discovered during the email search. See id.; AR at 10.

The agency further explains that DHS relies on an “extensive” series of email security services that sit between the DHS headquarters email servers and the internet. Supp. AR at 1; AR, Tab F‑1, Revised DHS Incident Response Manager Statement, at 2. Some of these security services--what DHS refers to as the Edge--include anti-virus, spam, and spyware interdiction that scrutinize “many millions of inbound messages daily” prior to the emails moving forward to the DHS email servers. Id. In this respect, the Edge prevents spam and other malicious emails from ever reaching the DHS email servers and purges these potentially contaminated emails. Id. The agency reports that an “exhaustive” search of the Edge spreadsheet logs revealed what the DHS IT team referred to as an “artifact” that showed the “tracking of an email” from ADV addressed to the contract specialist. Supp. AR at 1. That is, the logs showed that an email from ADV may have reached the Edge level of IT security on September 8; however, no email from ADV passed through the Edge firewall to the DHS email servers. AR, Tab F-1, Revised DHS Incident Response Manager Statement, at 3. Moreover, because DHS purges potentially malicious emails within a week, by the time ADV filed its protest and the IT team conducted its search, the Edge no longer included a copy of any actual email from ADV. Id. at 2.

DHS also explains that no one at the agency reports receiving any notification from the GSA e-Buy system alerting the agency of the submission of a quotation for this procurement. In any event, the agency asserts more generally that to the extent ADV submitted its quotation directly to the e-Buy system, such submission was counter to the express language in the RFQ memorandum and, thus, the quotation was properly not considered. In sum, the agency maintains that it properly excluded ADV’s quotation from consideration because the contract specialist did not receive the quotation and any submission through the e-Buy system was contrary to the terms of the solicitation.

As an initial matter, we agree with the agency that whether ADV timely uploaded its quotation to the GSA e-Buy portal--and it appears that the vendor did--is of no consequence here. In this regard, it is the responsibility of each vendor to deliver its quotation to the proper place at the proper time. See Zebra Techs. Int’l, LLC, B‑296158, June 24, 2005, 2005 CPD ¶ 122 at 3. Here, the RFQ unequivocally required that quotations be submitted to the contract specialist at the email address identified in the RFQ memorandum. RFQ Memorandum at 1. Indeed, in three separate paragraphs the agency warned that quotations had to be submitted directly to the contract specialist by the deadline and that quotations not received “in the manner specified” in the memorandum would not be considered. Id. Significantly, the RFQ did not provide for alternate quotation submission procedures via the e-Buy portal. Simply put, contrary to the protester’s suggestion otherwise, e‑Buy was not the “Government installation designated for receipt of offers.” See FAR clause 52.212-1(f)(2)(i)(B). Thus, that the protester apparently submitted its quotation directly to the e-Buy system imparted no obligation on the agency to consider the quotation given that the e-Buy portal was not the proper location for electronic submissions.

Further, the contract specialist explained that while she relied on the e-Buy system to publish the RFQ, she did not otherwise interface with the system. Contract Specialist’s Statement at 1. In this regard, she reports--and the record does not evidence otherwise--that she did not access the e-Buy system to check for quotations; quotations were “received, evaluated, and awarded” outside of e-Buy. Id. In fact, the record does not show that any agency personnel had knowledge that ADV’s quotation was uploaded to e-Buy, accessed e-Buy to receive or review quotations, or ever received ADV’s quotation via the e-Buy system. The contract specialist further maintains that the text message that ADV received from the e-Buy system that referenced the contract specialist’s email address “did not result from any input from my actual email address.” Id. On this record, we decline to accept that the agency erred when it did not consider the protester’s quotation that was uploaded to the e-Buy portal. Cf. AECOM Tech. Servs., Inc., B‑411862, Nov. 12, 2015, 2015 CPD ¶ 353 at 5 (finding that where protester uploaded its proposal to the wrong electronic location, the agency nevertheless should have considered and evaluated the proposal where the agency knew that the proposal had been submitted to the wrong location, the agency received the proposal prior to the submission deadline, and there was no burden on the agency or harm in accepting the proposal).

Next, we address ADV’s purported September 8 email to the contract specialist. Here, the record is clear that the contract specialist did not receive ADV’s quotation on September 8. As discussed above, the agency’s search for emails between the protester and certain DHS officials did not yield any results. While it appears that the Edge security service may have prevented an email from ADV from reaching the DHS email servers, the record does not clearly establish what ADV communication the Edge actually blocked; the spreadsheet logs do not include a copy of the correspondence to verify the submission of ADV’s quotation.

Thus, the primary evidence establishing that ADV properly submitted its quotation is the protester’s copy of an email purportedly sent to the contract specialist on September 8 with an attachment that appears to be a quotation in response to the RFQ. This copy, however, does not demonstrate that a quotation from the protester was received by the agency in a manner consistent with the solicitation. See International Garment Processors, B‑299674 et al., July 17, 2007, 2007 CPD ¶ 130 at 7 (finding reasonable agency’s rejection of revised quotation where protester only demonstrated that quotation was transmitted, but not that it was actually timely received by the agency). Indeed, the record reflects that the first time the contract specialist affirmatively received ADV’s quotation was on October 5, following the protester’s inquiry as to the status of the procurement. See AR, Tab B‑8, Test Message from ADV to Contract Specialist, at 1. Under these circumstances, we find no basis to sustain the protest.

Lastly, to the extent that the protester contends that the agency should consider the quotation that it attached to its October 5 correspondence with the contract specialist, its contention is without merit. Where, as here, the RFQ contains a late submission provision that quotations must be received by a stated deadline to be considered, quotations cannot be considered if received after the deadline. See Turner Consulting Group, Inc., B‑400421, Oct. 29, 2008, 2008 CPD ¶ 198 at 3 (finding agency’s decision not to consider protester’s late quotation proper where RFQ provided that quotations received after the exact time specified for receipt of quotations would not be considered); see also, e.g., Data Integrators, Inc., B‑310928, Jan. 31, 2008, 2008 CPD ¶ 27 at 2 (finding agency’s consideration of late quotation improper where the solicitation incorporated a late quotation provision expressly providing that any quotation “received . . . after the exact time specified for receipt will not be considered”); M.Braun, Inc., B‑298935.2, May 21, 2007, 2007 CPD ¶ 96 at 4 (sustaining protest where agency considered late quotation despite provision in RFQ--FAR clause 52.212-1(f)--that generally precluded agency’s consideration of a late submission).

Here, we find no basis to recommend that the agency consider ADV’s quotation. In this regard, the RFQ contained strict requirements for the submission of quotations, including a firm deadline for quotations to be considered. As discussed above, the first time the contract specialist was in receipt of ADV’s quotation was on October 5, well after the submission deadline. Thus, because ADV’s quotation was not received prior to the RFQ’s firm deadline, we see no legal basis to require the agency to consider the late quotation. See Turner Consulting Group, Inc., supra.

In sum, the record shows that the agency never received ADV’s quotation prior to the submission deadline, the vendor failed to seek timely confirmation from DHS with respect to its submission, and the first time the agency affirmatively received the quotation was nearly a month after the RFQ closed and almost two weeks after the task order was issued. Under these circumstances, we find reasonable the agency’s decision not to consider ADV’s quotation.

The protest is denied.  (Advanced Decisions Vectors, Inc. B-412307: Jan 11, 2016)  (pdf)

The agency used a proposal submission web portal known as FedConnect. RFP, Amendment No. 3, at 81. FedConnect is a centralized web portal where vendors seeking to conduct business with the federal government can search for contract opportunities. Vendors also can submit solicitation responses directly through the FedConnect system. As explained in the FedConnect tutorial, and as relevant here, the FedConnect system has two distinct communication features, a “response center” for submitting proposals in response to solicitations, and a “message center,” for asking questions related to a solicitation. Proposals were due by May 13, 2015.

The record shows that, rather than submitting its proposal to the response center, AECOM submitted its proposal to the message center on May 12, 2015, one day before proposals were due. Further, the record shows that, shortly after the protester submitted its proposal to the message center, also on May 12, the agency’s contract specialist noticed AECOM’s error. He sent a message back to AECOM’s designated employee advising AECOM as follows: “In accordance with Section L.9.d of the solicitation, proposals must be submitted through the FedConnect Responses web portal, not the Message Center, to be accepted.” Agency Report (AR), exh. B-2, Contract Specialist Message to AECOM. The protester apparently did not check the FedConnect message center after submitting its proposal, and therefore never received the contract specialist’s message regarding the proper submission of its proposal before the deadline for submitting proposals had passed. Thereafter, on July 27, the agency sent AECOM a letter advising the firm that its proposal was rejected because it had not been submitted properly to the FedConnect web portal in accordance with the instructions in the solicitation. AR, exh. B-3, AECOM Proposal Rejection Letter.

The protester concedes that it was its own error that led to its proposal not being properly submitted. However, AECOM maintains that the agency should nonetheless consider its proposal because it was timely submitted to the agency, and the agency was contemporaneously aware of the fact that it had been submitted. AECOM maintains that accepting its proposal will not be prejudicial to the other offerors because AECOM gained no competitive advantage from submitting its proposal to the message center rather than the response center. In this latter connection, AECOM points out that it relinquished control of its proposal, so it was never afforded an opportunity to revise it after it was submitted. The protester therefore argues that the agency should waive the submission of its proposal to the message center rather than to the response center as a minor informality.

In support of its position, AECOM directs our attention to our decision in Abt, Assocs., Inc., B-226063, May 14, 1987, 87-1 CPD ¶ 513. In that case, the solicitation required the simultaneous submission of proposals to two locations, and the protester timely submitted its proposal to one, but not both, locations. Our Office concluded that acceptance of the proposal would be unobjectionable because Abt had timely delivered its complete proposal to the agency, such that it could be evaluated and, upon acceptance, would form a binding contract. We also concluded that none of the other offerors were prejudiced by acceptance of the Abt offer because Abt’s proposal had been timely and completely submitted to the agency.

The agency responds that it properly rejected AECOM’s proposal because the firm failed to follow the directions for its submission. The agency also states that the protester is attempting to shift responsibility for the final delivery of AECOM’s proposal to its contract specialist, and that “moving” AECOM’s proposal to the appropriate location within the agency’s acquisition computing environment (known as STRIPES) imposes an administrative burden on the agency. According to the agency, the integrity of the system and the principle of fundamental fairness would be harmed if the agency accepted the AECOM proposal because it is due solely to AECOM’s negligence that the proposal was not properly submitted. Finally, as to the question of prejudice, the agency states as follows:

Contrary to Protester’s assertion (Protest, AR Tab E.1 at 7 of 20), competitive prejudice to the other offerors would occur as there would be increased competition for the number of awards. When many firms are vying for a few awards (the "target" established by the RFP was just 12 awards (AR Tab A.4 at 91 of 97)[)], increasing the number of proposals received will arguably decrease another firm’s chance at one of those contracts.

Agency Report at 9.

Our standard in cases such as this is longstanding, and succinctly stated in Abt Assocs., Inc., supra at 2:

It is generally true, as AID [the Agency for International Development] states, that the government may impose conditions on offerors to the extent those conditions reflect the actual and reasonable needs of the agency. Bids and proposals that deviate from solicitation requirements, however, need not be rejected in every instance. When the deviation involves a matter of form rather than of substance, or when the government’s needs will be satisfied by acceptance of a deviating offer and other offerors would not be unfairly prejudiced by the acceptance, such an offer can be accepted.

Here, we agree with the agency that AECOM is directly and solely responsible for the improper delivery of its proposal to the message center rather than to the response center. That said, there is no question that the agency was in possession of the complete AECOM proposal before the deadline for proposal submission; that the proposal was out of AECOM’s control and therefore could not have been altered or revised after the deadline for proposal submission had passed; and that the agency had actual knowledge of having received AECOM’s proposal, albeit in a different electronic “location” than the location specified in the solicitation for delivery of the proposal.

In this latter connection, we recently had occasion to consider a case virtually identical to the present case, and also involving DOE’s use of the FedConnect web portal. As in this case, the protester there delivered its proposal to the web portal’s message center rather than its response center; the difference in the two cases is that in the earlier case the agency was unaware that the proposal had been submitted to the message center. Instead, the agency only discovered the protester’s proposal several months after it had been submitted. We concluded as follows:

However, Onsite’s use of the message center rather than the response center was not simply a matter of form or a minor issue--it prevented the agency from actually receiving Onsite’s proposal. We see no flaw in the agency’s failure to waive the improper submission of the protester’s proposal where the agency had no knowledge of the proposal’s existence due to an error committed by the protester itself.

Onsite OHS, B-406449, May 30, 2012, 2012 CPD ¶ 178 at 3 n.2.

Here, in contrast, the record shows that the agency timely and contemporaneously had actual knowledge that AECOM had submitted its proposal. This is demonstrated by the message from the contract specialist to AECOM on May 12, the day before the proposal submission deadline.

We also are not persuaded by the agency’s suggestion that it imposes an undue administrative burden on it to accept AECOM’s proposal. While we agree with the agency that AECOM is entirely at fault for the improper delivery of its proposal, we think the administrative burden imposed on the agency in accepting the AECOM proposal is not significant.

This result does not harm the integrity of the procurement system or violate the principle of fundamental fairness; AECOM submitted its proposal to the agency in a timely manner and was afforded no advantage over any other offeror when it submitted its proposal in one of the portal’s electronic “locations” rather than another. Once again, while we agree that AECOM is at fault for its error, the error is, in the final analysis, a harmless one.

As a final matter, as noted, the agency suggests that the other offerors will suffer competitive harm because they will be forced to compete with AECOM if the agency accepts the protester’s proposal. We note that the RFP here contemplates the award of multiple IDIQ contracts. Although the agency argues that the RFP establishes a “target” for the number of contracts the agency intends to award, there is nothing preventing the agency from making more awards in the event it concludes that an additional proposal--either one from AECOM or one from another offeror--offers a value to the government that merits the award of an additional contract. In effect, the agency is arguing that acceptance of the AECOM proposal will result in more robust competition. Inasmuch as competition is the bedrock objective of the federal acquisition system, DOE’s acceptance of AECOM’s proposal as timely will enhance competition.

In sum, where, as here, the record shows that a complete copy of a proposal was submitted to--and contemporaneously received by--the cognizant contracting personnel before the deadline for proposal submission; where the cognizant contracting personnel actually and contemporaneously were aware of having received it; where there is no significant administrative burden imposed on the agency by virtue of accepting the proposal; and where there is no harm in accepting the proposal, either to the integrity of the procurement system, or to the principle of fundamental fairness, the agency should accept the proposal. See Abt Assocs., Inc., supra; cf. Onsite OHS, supra. We therefore conclude based on the particular facts presented here that acceptance of the AECOM proposal is unobjectionable. In the final analysis, AECOM was afforded no advantage over other offerors in the submission of its proposal by virtue of the fact that it delivered it to the message center rather than to the response center, and acceptance of the AECOM proposal will result in enhanced, rather than diminished, competition. We therefore sustain AECOM’s protest.

In light of the foregoing, we recommend that the agency accept AECOM’s proposal and evaluate it along with the other proposals received; however, we do not recommend that AECOM be reimbursed the costs associated with filing and pursuing its protest. As noted, AECOM concedes that it was responsible for creating the problem. We therefore conclude that it would not be appropriate to recommend reimbursement of its protest costs here.  (AECOM Technical Services, Inc. B-411862: Nov 12, 2015)  (pdf)

Northstar challenges the agency’s rejection of its proposal as late. The protester primarily contends that since the protester’s submission allegedly provided more favorable terms than its initially submitted phase II proposal, the agency was required to accept it pursuant to Federal Acquisition Regulation (FAR) § 15.208(b)(2). Protest at 2.

As set forth in FAR § 15.208, offerors are responsible for submitting proposals, revisions, and modifications to the proper place at the proper time. Late submissions of proposals, revisions, and modifications may not be considered, except, as is pertinent here, where the late submission is received before award, and is a late modification of an otherwise successful proposal that makes its terms more favorable to the government. FAR § 15.208(a)-(b)(2); See Seven Seas Eng’g & Land Surveying, B-294424.2, Nov. 19, 2004, 2004 CPD ¶ 236 at 4. An “otherwise successful proposal” is one that is already in line for a contract award regardless of the late modification. See Philips Healthcare Informatics, B-405382.2 et al., May 14, 2012, 2012 CPD ¶ 220 at 7; see also RMS Indus., B-245539, Dec. 9, 1991, 91-2 CPD ¶ 528 at 3.

Here, Northstar’s second phase II proposal submission cannot be considered a modification to an “otherwise successful proposal” since, as established above, the agency had nullified all the initial phase II proposals due to the solicitation changes associated with the issuance of amendment 17. Amend. No. 20, Q&A Nos. 26, 91, 214, and 216. In this regard, the agency expressly advised offerors that they remained on equal standing at what amounted to a restart of the phase II competition. Amend. No. 20, Q&A No. 26 (explaining that “[p]reviously submitted proposals will not influence the evaluation process”). As a consequence, at the time of the second phase II submissions, the agency had not evaluated proposals and had not identified any otherwise successful offerors. See Team Systems Int’l, LLC, B‑410420, Dec. 19, 2014, 2014 CPD ¶ 378 at 3; LATG, Inc., B‑409679.2, July 31, 2014, 2014 CPD ¶ 226 at 3‑4; The Sandi Group, Inc., B‑401218, June 5, 2009, 2009 CPD ¶ 123 at 3‑4. Accordingly, the protester has not provided any basis to question the reasonableness of the agency’s rejection of its phase II proposal as late.

The protest is denied.  (Northstar Location Services LLC B-409722.10: May 8, 2015)  (pdf)

C2G argues that the reverse auction system “must have malfunctioned when it failed to accept C2G’s revised prices, submitted with one second remaining in the bidding period, and failed to then extend the bidding period for an additional three minutes.” Protest at 5-6. For the reasons that follow, we deny the protest.

It is an offeror’s responsibility, when transmitting its proposal electronically, to ensure the proposal’s timely delivery by transmitting the proposal sufficiently in advance of the time set for receipt of proposals to allow for timely receipt by the agency. Alalamiah Tech. Grp., B-402707.2, June 29, 2010, 2010 CPD ¶ 148 at 3. Proposals that are received in the designated government office after the exact time specified are “late,” and generally may not be considered for award. While this rule may seem harsh in some circumstances, it alleviates confusion, ensures equal treatment of all offerors, and prevents one offeror from obtaining a competitive advantage that may accrue where an offeror is permitted to submit a proposal later than the deadline set for all competitors. Id.

In determining whether a proposal was submitted late, we consider all relevant evidence in the record, including statements by parties on behalf of the protester and the agency, to ascertain whether a preponderance of the evidence shows that the proposal was at the designated location for receipt prior to the time set for closing. Caddell Constr. Co., Inc., B-280405, Aug. 24, 1998, 98-2 CPD ¶ 50 at 6. In negotiated procurements, we have held that, unless it is shown to be unreasonable, the contracting official’s declaration that a procurement is closed is determinative. U.S. Aerospace, Inc., B-403464, B-403464.2, Oct. 6, 2010, 2010 CPD ¶ 225 at 9; Caddell Constr. Co., Inc., supra, at 8.

Here, we find that C2G has failed to establish that its revised bid was submitted to and received by DLA prior to the closing time for the reverse auction, or that the reverse auction system otherwise malfunctioned. As stated above, it is an offeror’s responsibility to ensure that an electronically submitted proposal is received by--not just submitted to--an agency prior to the time set for closing. It is undisputed that an offeror had to complete three steps in order to successfully place a bid during the reverse auction. It is also undisputed that the protester did not complete the second of the three required steps until there was only two seconds left in the reverse auction. Even assuming that the system generated the prompt for C2G to “place” its bid and the protester was able to click the prompt--all within the span of two seconds--there is no evidence that the revised bid was timely received by DLA.

DLA’s agent, Procurex, represented that C2G’s revised bid--allegedly submitted with one second left in the auction--was not received prior to the closing time. Procurex Results for Reverse Auction at 2; Decl. of DLA Procurement Analyst at 4. The protester has submitted no evidence that the bid, which was “placed” (the third step in the three-step process) with one second left in the reverse auction, was actually received by the reverse auction system (i.e., successfully placed). In this regard, the protester represents that it contacted Procurex’s owner and quality assurance lead. C2G represents that the Procurex official stated that there is a lag time of a few seconds to fifteen seconds between when a bidder clicks the “place bid” button/link and the time when the system processes the bid because the system needs time to process the information inputted by the bidder and due to external factors, such as internet connections and bidders’ computer systems. Decl. of C2G COO at 1-2. We find this explanation to be consistent with common knowledge and experience that some delay is to be expected when data is transmitted across the internet and must be processed by a receiving database. It also is consistent with the fact that offerors took between 5 and 15 seconds to successfully place their bids after previewing them during the reverse auction. Therefore, we find no basis to challenge the reasonableness of DLA’s determination that C2G’s proposal was not received before the reverse auction’s closing time.

C2G also argues that DLA was required to disclose to offerors the potential lag time between the placing of a bid and when the system could process the data. See Response to Request for Dismissal (Feb. 25, 2015) at 5. We disagree. As noted above, we think the potential delay between entering data, transmitting the data across the internet, and the receiving system processing the data is readily apparent from common experience using the internet. Furthermore, an agency is not required to apprise offerors of every conceivable risk or obstacle they could face in submitting their proposals. Rather, as stated above, it is incumbent on an offeror to submit its proposal in a prompt and efficient manner to ensure timely delivery to, and receipt by, an agency. In this regard, we also note that the agency invited offerors to participate in a mock auction using the same system that was used for the actual reverse auction. The activity log for the mock auction similarly shows that offerors took several seconds between previewing and successfully placing their bids. See Procurex Results for Mock Auction at 1-2. Offerors therefore were afforded the opportunity to utilize the system that would be used in the reverse auction, and could, and should, have addressed any concerns regarding apparent lag times between previewing and successfully placing bids with DLA prior to the actual reverse auction.

The protest is denied.  (C2G Ltd. Company B-411131: May 12, 2015)  (pdf)

FAST asserts that its proposal was improperly rejected since it was submitted more than four hours prior to the closing time for receipt of proposals. FAST also contends that its transmission email was only 17.929 MB in size, less than the solicitation’s 20 MB limit, and thus should have been accepted by the agency. In addition, FAST asserts that proposal emails from other offerors may also have been improperly rejected.

The agency, relying on DISA’s records, responds that FAST’s email with proposal totaled 24.84 MB and the other offeror’s email totaled 21.39 MB, and thus “at the time [they] entered the Government computer system,” both were over the 20 MB limit set forth in the RFP. COS at 6; Supp. AR, Dec. 3, 2014, at 8.

As an initial matter, the record clearly indicates that no proposal was received by SOCOM from FAST. It is an offeror’s responsibility to deliver its proposal to the proper place at the proper time. Federal Acquisition Regulation (FAR) § 15.208; Lakeshore Eng’g Servs., B‑401434, July 24, 2009, 2009 CPD ¶ 155 at 4. Here, as noted, the record indicates that FAST’s proposal was rejected (“bounced”) by the agency’s server; was never received at the agency email address designated for receipt of proposals; and can not be retrieved from the agency’s servers. We have consistently declined to require an agency to consider a proposal where, as here, there is no evidence that the proposal was “actually received.” See, e.g., DJW Consulting, LLC, B-408846.3, Dec. 18, 2013, 2014 CPD ¶ 77 at 4 (search of servers did not identify transmittal email); Latvian Connection Trading and Constr., LLC, B-402410, Feb. 25, 2010, 2010 CPD ¶ 58 at 3 (thorough searches of agency’s email system “did not result in any finding of the protester’s proposal”); International Garment Processors, B-299674, et al., July 17, 2007, 2007 CPD ¶ 130 at 7 (check of facsimile machines provided no evidence submission was actually received at the designated location). We decline to do so here.

Moreover, we need not resolve the dispute between FAST and the agency about whether the FAST submission was under 20MB. Although DISA disputes FAST’s contention, FAST received an “undeliverable” bounce back message more than four hours prior to the closing time. Other offerors successfully responded to messages indicating their submissions were undeliverable by modifying their submissions and resending them; FAST could have done so as well.

FAST further asserts that the agency’s rejection of its proposal resulted from a systemic failure of the agency’s systems, as evidenced by the agency’s rejection of not only its proposal, but also at least one other proposal as oversized when in fact they were not. In this regard, FAST notes that we have sustained protests where the protester demonstrated that the agency’s systems suffered a “systemic failure” that violated an agency’s obligation to have procedures in place to reasonably safeguard proposals or quotations actually received and to give them fair consideration. See, e.g., S.D.M. Supply, Inc., B‑271492, June 26, 1996, 96‑1 CPD ¶ 288 at 4-5; East West Research, Inc., B‑239565, B-239566, Aug. 21, 1990, 90‑2 CPD ¶ 147, aff’d, Defense Logistics Agency--Recon., B-239565.2, B‑239566.2, Mar. 19, 1991, 91-1 CPD ¶ 298. A finding that a proposal or quotation was not received due to a “systemic failure,” however, requires more than “the occasional negligent loss” of a proposal or quotation. See East West Research, supra, at 4. For example, in S.D.M. Supply, Inc., supra, a systemic failure was found when the electronic contracting system in use at that time malfunctioned, resulting in all quotations submitted through the system not being received by the agency. Id. at 4‑5. Further, the agency in that case conceded that similar failures had occurred for other solicitations issued by the agency. Id. at 4. Similarly, in East West Research, Inc., supra, the agency lost two quotations from the same offeror within less than one week, with “no explanation” for the losses. Id. at 4-5.

Such circumstances are not present here. Rather, the agency successfully received 15 proposals, in 32 total emails containing proposal information. COS at 2; Supp. AR, Dec. 3, 2014, at 8. The record also shows that three proposals initially were rejected by the SOCOM server on September 15 for exceeding the size limit, but two of the proposals were successfully resubmitted by means of smaller emails. Supp. AR, Dec. 3, 2012, at 2-4. Only FAST made no attempt to resubmit its proposal prior to closing. Id. at 7-8. Thus, even if there were problems with respect to the agency server’s implementation of the email size limitation, those problems did not amount to a “systemic failure.” All offerors that diligently pursued submission of their proposals were eventually successful, and the agency received 15 timely proposals.

The protest is denied.  (Federal Acquisition Services Team, LLC B-410466: Dec 31, 2014)  (pdf)

TSI challenges the agency’s rejection of its proposal revision. The protester contends that the agency was required to accept the revision because the changes it made to its proposal are covered by the authority found at FAR § 15.208(b)(2). In this regard, TSI asserts that it submitted an otherwise successful offer, as demonstrated by the agency’s decision to open negotiations with the company, and that the revisions it made to its proposal make its offer more favorable to the government.

It is an offeror’s responsibility to deliver its proposal to the proper place at the proper time and late delivery generally requires rejection of the proposal. FAR § 15.208(a); PMTech, Inc., B-291082, Oct. 11, 2002, 2002 CPD ¶ 172 at 3. Proposals that are received in the designated government office after the exact time specified are late, and generally may not be considered for award unless the exceptions outlined in FAR § 15.208(b) apply. U.S. Aerospace, Inc., B-403464, B‑403464.2, Oct. 6, 2010, 2010 CPD ¶ 225 at 10-11; PM Tech, Inc., supra. While the rule may seem harsh, it alleviates confusion, ensures equal treatment of all offerors, and prevents one offeror from obtaining a competitive advantage that may accrue where an offeror is permitted to submit a proposal later than the common deadline set for all competitors. NCI Information Sys., Inc., B-405745, Dec. 14, 2011, 2011 CPD ¶ 280 at 5; U.S. Aerospace, Inc., supra; Inland Serv. Corp., Inc., B-252947.4, Nov. 4, 1993, 93-2 CPD ¶ 266 at 3.

TSI maintains that under FAR § 15.208(b)(2), the agency was required to accept its late proposal submission because TSI submitted a late modification of an otherwise successful proposal that makes its terms more favorable to the Government. In this regard, the protester views its untimely proposal revisions as a modification to its “otherwise successful” initial proposal.

Based upon our review of the record, we conclude that the protester has not demonstrated that it submitted an otherwise successful proposal; thus, the exception to the late proposal rule, proffered by TSI, is not applicable here. In this regard, our Office has held that an otherwise successful proposal is one that would result in the award of the contract to the offeror regardless of the late modification. Seven Seas Eng’g & Land Surveying, B-294424.2, Nov. 19, 2004, 2004 CPD ¶ 236 at 4. As described above, the RFP terms made clear that only those offers that were rated acceptable under all three non-price evaluation factors could be eligible for award. RFP at 20, 32. TSI’s initial offer was rated unacceptable under all three of the RFP’s non-price evaluation factors. AR, Tab 5, Competitive Range Determination, at 3. In accordance with the terms of the solicitation, the agency could not have awarded TSI a contract; thus, the protester’s initial proposal was not an otherwise successful proposal. Accordingly, the agency reasonably rejected TSI’s revised proposal as late.

The protest is denied.  (Team Systems International, LLC, B-410420: Dec 19, 2014)  (pdf)

Mr. Scott’s proposal was sent by USPS Priority Mail Express (1-day service) from Colorado Springs at 5:02 p.m. local time on July 29. CO Statement at 2. The CO states that MSC’s mailroom at the Washington Navy Yard received Mr. Scott’s proposal on July 31, at 11:00 a.m. AR, Tab 2, Mailroom Log, at 109. When the CO received the package, he noted that affixed to it was a label which indicated that the package had been received by JBAB at 2:09 p.m. on July 30.[3] Id. 107. Because the proposal was not received at the MSC mailroom by 2:00 p.m. on July 30, as required by the solicitation, the CO rejected Mr. Scott’s proposal as late. The agency notified Mr. Scott of the rejection of his proposal by email on August 1. AR, Tab 3, Letter from MSC to Mr. Scott (Aug. 1, 2014), at 152-153. This protest to our Office followed.

Mr. Scott argues that his proposal was received at the JBAB mail facility before the time set for the receipt of proposals and that the proposal was therefore under the agency’s control; for these reasons, the protester contends that its proposal should have been considered timely received by the agency. The protester also notes that the Navy maintained a chain of custody of his offer from its receipt at the JBAB facility to its receipt at the MSC facility. The protester further contends that the agency’s failure to adequately warn offerors that internal Navy procedures could cause significantly greater delays to mailed offers constitutes misdirection on the part of the agency. Protester’s Comments at 15. The protester states that the agency “sabotage[d]” mailed proposals in this regard.[4] Id.

It is an offeror’s responsibility to deliver its proposal to the place designated in the solicitation by the time specified, and late receipt generally requires rejection of the proposal. Federal Acquisition Regulation (FAR) § 15.208(a); O.S. Sys., Inc., B‑292827, Nov. 17, 2003, 2003 CPD ¶ 211 at 3; Integrated Support Sys. Inc., B‑283137.2, Sept. 10, 1999, 99-2 CPD ¶ 51 at 2. As our Office has held, a proposal that was received late may be considered if the late receipt was caused by mishandling at the government installation. Russo & Sons, Inc., B-280948, Dec. 11, 1998, 98-2 CPD ¶ 141 at 3.

Even assuming Mr. Scott’s proposal arrived at the JBAB facility prior to the solicitation’s closing time, we find no basis to sustain the protest. Our Office has clearly held that receipt of a bid or proposal at a mailroom or other receiving area does not constitute receipt at the location specified in the RFP, provided the agency has established reasonable procedures to ensure that mailed bids or proposals are routed from the mailroom to the location designated in a solicitation for receipt. See CCSC, Inc., B‑404802.3, July 18, 2011, 2011 CPD ¶ 187 at 6; General Power Eng’g Assocs., Inc., B‑292170, May 28, 2003, 2003 CPD ¶ 109 at 3; Inland Marine Indus. Inc., B‑233117, Feb. 16, 1989, 89-1 CPD ¶ 165 at 3; Fishermen’s Boat Shop, Inc., B‑223366, Oct. 3, 1986, 86-2 CPD ¶ 389.[5] An offeror must allow sufficient time for the proposal to pass through any intermediate stops and reach the designated office on time. Systems for Bus., B‑224409, Aug. 6, 1986, 86-2 CPD ¶ 164 at 3. On this record, we find no basis to conclude that the Navy improperly rejected Mr. Scott’s proposal.

Mr. Scott also contends that the Navy’s CO is responsible for this late filing because the CO did not quickly send the engineering drawings requested in Mr. Scott’s July 25 agency-level protest. Protester’s Comments at 17. Specifically, Mr. Scott argues that the CO sent the engineering drawings to at least three of his competitors by July 7, but did not provide him the drawings until July 28. Id.

In our view, the protester cannot shift responsibility for its late filing to the agency. The record shows that Mr. Scott filed his agency-level protest on July 25, and was provided documents three days later. In addition, the protester requested additional time to submit his proposal, and the agency granted the protester’s request by issuing RFP amendment No. 5, which extended the proposal due date by one day. As also discussed above, the solicitation clearly advised offerors that there was the potential for “unpredictable and lengthy routing delays” in the delivery of mailed proposals to the agency. RFP at 75. To the extent that the protester believed that he did not have sufficient time in which to prepare his proposal after the issuance of amendment No. 5, he was required to protest the lack of time prior to the July 30 closing time. Bid Protest Regulations, 4 C.F.R. ¶ 21.5(a)(1) (2014).

The protest is denied.  (Brian X. Scott, B-410195: Nov 7, 2014)  (pdf)

LATG challenges the agency’s rejection of its proposal. LATG does not dispute that it filed its [proposal revisions] PRs after 5:00 p.m. on March 27. Rather, LATG argues that even if its PRs were late, the agency should have considered its initial proposal because the PRs were not mandatory, and the changes LATG made were merely “enhancements” and “explanations” not meant to change or replace LATG’s initial proposal. Protest at 2; Comments at 1-2.

It is an offeror’s responsibility to deliver its proposal to the proper place at the proper time and late delivery generally requires rejection of the proposal. FAR § 15.208; PMTech, Inc., B-291082, Oct. 11, 2002, 2002 CPD ¶ 172 at 2. Similarly, it is an offeror’s responsibility, when transmitting its proposal electronically, to ensure the proposal’s timely delivery by transmitting the proposal sufficiently in advance of the time set for receipt of proposals to allow for timely receipt by the agency. Associated Fabricators & Constructors, Inc., B-405872, Dec. 14, 2011, 2011 CPD ¶ 279 at 3. Proposals that are received in the designated government office after the exact time specified are late, and generally may not be considered for award. U.S. Aerospace, Inc., B-403464, B-403464.2, Oct. 6, 2010, 2010 CPD ¶ 225 at 10. While the rule may seem harsh, it alleviates confusion, ensures equal treatment of all offerors, and prevents one offeror from obtaining a competitive advantage that may accrue where an offeror is permitted to submit a proposal later than the common deadline set for all competitors. NCI Information Sys., Inc., B-405745, Dec. 14, 2011, 2011 CPD ¶ 280 at 5; U.S. Aerospace, Inc., supra; Inland Serv. Corp., Inc., B-252947.4, Nov. 4, 1993, 93-2 CPD ¶ 266 at 3.

With respect to the submission of PRs, the agency held discussions with LATG, and informed LATG that it could “alter” or “explain” “those aspects of [its] proposal identified” in discussions “to materially enhance” the “proposal’s potential for award.” AR, Tab K, Agency E-Mail to LATG, March 21, 2014. Our review of the record indicates that LATG’s PRs consisted of 45 pages, including a four percent reduction in price. AR, Tabs M and N, LATG’s PRs. On this record, we believe that the agency reasonably found that LATG’s submission of the PRs demonstrated LATG’s intent to modify its initial proposal, and thereby eliminated LATG’s initial proposal (without the revisions) from further consideration. See Integrated Bus. Solutions, Inc., B-292239, July 9, 2003, 2003 CPD ¶ 122 at 4; Touchstone Textiles, Inc., B-272230.4, Sept. 5, 1996, 96-2 CPD ¶ 107 at 2.[2]

Alternatively, LATG asserts that its late PRs constituted late modifications of an otherwise successful proposal that make its terms more favorable to the government, and are therefore properly acceptable under FAR §§ 15.208-2(b)(2) and 52.215-1. Comments at 2. This assertion is equally without merit. It is well-settled that the term “otherwise successful proposal” restricts this exception to permit the government’s acceptance of a late modification offering more favorable terms only from the offeror already in line for the contract award. Environmental Tectonics Corp., B-225474, Feb. 17, 1987, 87-1 CPD ¶ 175 at 4; see The Sandi Group, Inc., B‑401218, June 5, 2009, 2009 CPD ¶ 123 at 3; Phyllis M. Chestang, B‑298394.3, Nov. 20, 2006, 2006 CPD ¶ 176 at 5 n.3. Thus, an offeror cannot avail itself of the late proposal submission provision where the agency has not already identified an otherwise successful offeror. Global Analytic Info. Tech. Servs., Inc., B-298840.2, Feb. 6, 2007, 2007 CPD ¶ 57 at 5-6.

Here, the record establishes that no award decision has been made. CO Statement at 2. Accordingly, the exception set forth in both FAR §§ 15.208-2(b)(2) and 52.215-1(c)(3)(ii) is inapplicable.  (LATG, Inc., B-409679.2: Jul 31, 2014)  (pdf)

Detailed instructions for the submission of proposals were provided, stating, as relevant here, that offerors were required to submit their proposals through the agency’s online SeaPort-e portal. RFP at 103.

(sections deleted)

ICI challenges the rejection of its proposal, arguing that the agency’s position is based on an overly rigid interpretation of the RFP’s proposal submission instructions and a strained reading of the undisputed facts. ICI argues, citing our decision in Tishman Constr. Corp., B‑292097, May 29, 2003, 2003 CPD ¶ 94, that the Navy should not have considered the submission of its revised proposal as being late. The crux of ICI’s position is that its final revised proposal was not late, given that ICI requested and was granted leave to submit its proposal by email, which it did well before the closing time for receipt of proposal revisions. ICI further states that it timely resubmitted its final revised proposal through the e-portal when instructed to do so by amendment 6.

The Navy responds that the contracting specialist’s acceptance of ICI’s revised proposal by email was invalid “because the [contract specialist] had mistakenly assumed, based on ICI’s submission of the [final proposal revision] via email, that [ICI] had experienced technical difficulties or that ICI was unable to access or use the SeaPort-e system to upload ICI[’s] [final proposal revision].” AR at 5. The agency suggests that the contract specialist was misled by ICI, because ICI did not demonstrate that the firm had difficulty in submitting its revised proposal through the portal. AR at 8. The Navy also argues that because ICI did not submit its proposal to the “Government installation designated for receipt of proposals,” that is, through the SeaPort-e portal, the proposal was late, although received by the agency prior to the closing time for submission of revised proposals.

Generally, a proposal received after the time set for receipt may not be considered for award. In this regard, “[o]fferors are responsible for submitting proposals, and any revisions, and modifications, so as to reach the Government office designated in the solicitation by the time specified . . . .” Federal Acquisition Regulation § 15.208(a). The late proposal rule alleviates confusion, ensures equal treatment of offerors, and prevents one offeror from obtaining a competitive advantage as a result of being permitted to submit a proposal later than the deadline set for all competitors. Inland Serv. Corp., Inc., B‑252947.4, Nov. 4, 1993, 93-2 CPD ¶ 266 at 3.

Although there is much disagreement in the record about such things as whether technical difficulties prevented ICI from uploading its proposal through the portal and whether the contract specialist was misled with respect to authorizing ICI’s submission of its proposal by email, we need not resolve these disagreements. As relevant and dispositive here, the record shows that the Navy installation designated for receipt of proposals was in receipt of ICI’s revised proposal by the closing time for receipt of revised proposals. In this regard, the record establishes the following facts: (1) the RFP provided an alternative means for submitting proposals when there were difficulties with the portal; (2) several offerors (including ICI and BECTech), and the agency itself, encountered technical difficulties with the portal; (3) ICI requested and received permission to submit its proposal by email and did so before the closing time for receipt of proposals; and (4) the Navy amended the RFP to allow re-submission of revised proposals, and both ICI and BECTech submitted revised proposals through the portal by the amended closing time.

We agree with ICI that our decision in Tishman Constr. Corp., supra, is applicable here. In that case, we found that the procuring agency improperly rejected the protester’s proposal as late. The solicitation in Tishman required the submission of both paper and electronic versions of proposals. Although the agency timely received the electronic version of the protester’s proposal, the paper version was not received until after the time set for receipt of proposals. Because the agency had received a timely, complete copy of the electronic version of the protester’s proposal, we found the agency’s rejection of the proposal to be unreasonable. We affirmed, as we do here, that the policy underlying the late proposal rule is to ensure fair and equal competition and avoid confusion. Although the Navy argues that accepting ICI’s proposal “without evidence that [ICI] even attempted to upload its proposal . . . would have put the other offerors at a competitive disadvantage,” AR at 11, the agency does not explain or show how other offerors would be disadvantaged, nor do we see any such possibility here.

The protest is sustained.  (ICI Services, Inc., B-409231.2: Apr 23, 2014)  (pdf)

DJW argues that the Air Force unreasonably rejected its proposal. First, the protester contends that, contrary to the agency assertion, it submitted an OCI plan. Second, DJW argues that the agency should have provided the protester an opportunity to address its failure to propose prices that complied with the applicable Service Contract Act wage determination. For the reasons discussed below, we conclude that the Air Force reasonably rejected DJW’s proposal based on its failure to submit an OCI plan; we therefore need not address the protester’s challenge to the agency’s rejection of its proposal for failing to demonstrate compliance with the applicable Service Contract Act wage determination.

It is an offeror’s responsibility to deliver its proposal to the proper place at the proper time. FAR § 15.208; Lakeshore Eng’g Servs., B-401434, July 24, 2009, 2009 CPD ¶ 155 at 4. We have found an agency’s rejection of a proposal is reasonable where, notwithstanding a protester’s claim that it emailed its proposal to the agency, the record does not show that the proposal was actually received. See Latvian Connection Trading and Constr., LLC, B-402410, Feb. 25, 2010, 2010 CPD ¶ 58 at 3.

As discussed above, the RFP required offerors to provide OCI plans in advance of their proposals. RFP at 68. The agency states, and the protester does not dispute, that submission of an OCI plan was a material requirement of the solicitation. See AR at 4; Contracting Officer’s Statement at 8-10.

DJW states that its representative submitted the protester’s OCI plan via email on May 31 to the two contracting officers responsible for the solicitation. Affidavit of DJW Representative (Nov. 1, 2013) at 2. The protester states that this individual requested an automated confirmation of delivery of that email through “our company email system.” Id. The DJW representative received the following response through the company’s email system: “Delivery to these recipients or group is complete, but no delivery notification was sent by the destination server.” Protester’s Comments, attach. 1, Receipt for email delivery (May 31, 2013).

DJW contends that the delivery receipt demonstrates it timely delivered its OCI plan. Although the documentation provided by the protester states that “no delivery notification was sent by the destination server,” id., the protester speculates that problems with the agency’s mail servers could have resulted in the failure to provide receipt confirmation. Affidavit DJW Representative (Nov. 1, 2013) at 3.

We find that the circumstances here do not provide a basis to sustain the protest. Although the protester provided an automated notice from its own email system concerning the transmission of its OCI plan, the notice, on its face, does not demonstrate that the proposal was received by the agency. See Protester’s Comments, attach. 1, Receipt for email delivery (May 31, 2013). Moreover, the Air Force states that, in response to the protest, it conducted a search of the server that supports the email accounts for the two contracting officers to see if either had received an email from DJW’s representative on May 31. Email from Agency Technical Representative to Agency Counsel (Nov. 4, 2013). This search did not identify an email from DJW during the relevant time frame, nor did the search identify any email concerning DJW’s OCI plan.[3] Id. The agency also submitted statements from the two contracting officers explaining that their email and file records were searched for DJW’s OCI plan, but that the document was not found. Contracting Officer’s Statement at 12; Decl. of Second Contracting Officer (Oct. 31, 2013). Under the circumstances here, where the agency represents that it has made reasonable efforts to search its email system for a particular email, and states that the message was not received, and where the protester does not provide any basis to question the agency’s representations, we find no basis to sustain the protest. See Latvian Connection Trading and Constr., LLC, supra.

In the alternative DJW argues that the Air Force should have contacted the protester to inquire about the missing OCI plan. As discussed above, however, the RFP advised that the agency intended to make award without discussions, and the agency did not conduct discussions with the offerors. An agency is not required to provide an opportunity for discussions or clarifications under such circumstances. See Kiewit Louisiana Co., B-403736, Oct. 14, 2010, 2010 CPD ¶ 243 at 3; Satellite Servs., Inc., B-295866, B-295866.2, Apr. 20, 2005, 2005 CPD ¶ 84 at 2 n.2. To the extent DJW contends that the agency should have provided the protester an opportunity to submit its missing OCI plan, this argument provides no basis to sustain the protest.

The protest is denied.  (DJW Consulting, LLC, B-408846.3: Dec 18, 2013)  (pdf)

MOWA-Barlovento protests that the Corps unreasonably excluded the firm from the competitive range, which prevented MOWA-Barlovento from submitting a revised proposal. See Protest at 12. The protester also complains that the agency failed to provide prompt notice of the exclusion of the firm’s proposal from the competitive range, which denied the protester certain procedural safeguards to which it argues it was entitled.

The Corps states that it did not exclude MOWA-Barlovento’s proposal from the competitive range. Instead, the Corps explains that it concluded that MOWA-Barlovento was electing to remove itself from the competition by failing to timely submit a response to the discussion letter and to acknowledge a material solicitation amendment. The Corps also states that it could not consider anything the protester submitted after it failed to timely respond to the first round of discussions, since any submission after March 27 would be late. AR at 4-5, citing Federal Acquisition Regulation (FAR) § 15.208(b)(1).

The protester argues that amendment 6 is not material, arguing that it would not have changed its proposal in response to the amendment and that a change in the period in which the optional item could be exercised is inconsequential because this “amounts to only a 20 day increase for a bid item representing ½ of 1% of the total bid price.” See Protester’s Response to Agency Request for Dismissal, exhib. B, President’s Affidavit. MOWA-Barlovento also argues that the FAR late proposal rules do not apply to proposal revisions in response to an agency’s discussions. See Protester’s Response to Intervenor’s Supp. Comments, at 2.

First, we disagree with the protester that amendment 6 was not material. Generally, an amendment is material where it imposes legal obligations on the contractor that were not contained in the original solicitation. Skyline ULTD, Inc., B297800.3, Aug. 22, 2006, 2006 ¶ 128 at 3. In this regard, changing the time within which an option can be exercised changes the rights of the parties and is therefore material. See, e.g., Peckham Vocational Indus., Inc., B‑257100, Aug. 26, 1994, 94-2 CPD ¶ 81 at 4-5.

We also do not agree with MOWA-Barlovento’s apparent belief that the agency was required, under the circumstances presented here, to allow the protester to submit a late response to the discussions letter and amendment. While the protester, and even our Office, would have preferred a more forthcoming response from the agency in answer to the protester’s April 8 and April 25 inquiries, those responses would not have changed the fact that MOWA-Barlovento failed to respond to the discussion letter or to acknowledge the solicitation amendment by March 27. Since the record here unequivocally establishes that the agency was not the cause of MOWA-Barlovento’s failure to timely respond to the agency’s discussions and to acknowledge a material amendment, we cannot say that the agency has violated any procurement law or regulation by applying the language of a cut-off date stated in the discussions letter.  (MOWA Barlovento, LLC-JV, B-408445: Sep 12, 2013)  (pdf)

ICC contends that its quotation was timely submitted, arguing that amendment 1 of the RFQ effectively changed the time for receipt of quotations to 4:30 p.m., eastern time, because the amendment extending the date for solicitation responses did not state a time for receipt of quotations. In this regard, ICC states that FAR clause 52.212-1(f)(1) provides that where no time for receipt of quotations is stated in the solicitation, the time for receipt of quotations is 4:30 p.m., local time. ICC also contends that, in any event, HUD waived the 3 p.m. time for receipt of quotations because the agency’s contract specialist informed ICC that HUD would accept ICC’s quotation if received at any time on July 26.

Generally, late quotations may be considered up to the time of issuance of the order, because an RFQ, unlike a request for proposals (or an invitation for bids), does not seek offers that can be accepted by the government to form a contract. Rather, the government’s purchase order represents an offer that the vendor may accept through performance or by a formal acceptance document. See M.Braun, Inc., B-298935.2, May 21, 2007, 2007 CPD ¶ 96 at 3. Where, as here however, an RFQ contains a late quotations clause--such as, FAR clause 52.212-1(f)--the agency’s consideration of late quotations is limited. Id.

ICC does not contend that the RFQ allowed HUD to consider late quotations. Rather, ICC’s complaint reflects its belief that, because the agency’s extension of the closing date did not restate the time for receipt of quotations, the solicitation in effect did not state a time for submission of quotations. There is no merit to this argument. We have previously found that where an amendment changes only the date for receipt of quotations or proposals, the time established for receipt is unchanged. See Sandler-Innocenzi, B-218322, 85-1 CPD ¶ 353 at 2; Pacific Coast Welding & Machine, Inc., B-205874, Jan. 15, 1982, 82-1 CPD ¶ 36 at 3-4. Here, the RFQ as issued established the hour and date for receipt of quotations as 3 p.m., eastern time, on July 23, 2013. Although amendment 1 changed the date for receipt of quotations to July 26, it did not change the time. Accordingly, the amended time for receipt of quotations was 3 p.m., eastern time, July 26, and ICC’s quotation that was received after that time was late.

We also find no merit to ICC’s contention that HUD waived the date and time for receipt of quotations because the contract specialist allegedly agreed to accept ICC’s quotation. We have repeatedly held that oral advice that would have the effect of altering the written terms of a solicitation, does not operate to amend a solicitation or otherwise legally bind the agency. See e.g., Noble Supply & Logistics, B-404731, Mar. 4, 2011, 2011 CPD ¶ 67 at 3; Systems 4, Inc., B-270543, Dec. 21, 1995, 95-2 CPD ¶ 281 at 2.  (International Code Council, B-409146, Jan 8, 2014)  (pdf)

RDT argues that its proposal was delivered before the time set for submission, and contends that the agency’s rejection was improper because of the actions of the mailroom clerk. Specifically, the protester contends that the clerk accepted the proposal before the time for acceptance of proposals had passed and then delayed in putting a date/time stamp on the proposal. The protester contends that regardless of the time indicated on the receipt, RDT’s proposal was possessed by, and under the control of, the agency for several minutes prior to the proposal submission deadline.

It is an offeror’s responsibility to deliver its proposal to the place designated in the solicitation by the time specified, and late receipt generally requires rejection of the proposal. FAR § 15.208(a); O.S. Sys., Inc., B-292827, Nov. 17, 2003, 2003 CPD ¶ 211 at 3; Integrated Support Sys. Inc., B-283137.2, Sept. 10, 1999, 99-2 CPD ¶ 51 at 2. Unless a preponderance of the evidence demonstrates that the proposal was at the designated location for receipt prior to the time set for closing, the proposal may not be considered for award. See Med-National, Inc., B-277430, Sept. 8, 1997, 97-2 CPD ¶ 67 at 3. A late hand-carried proposal may be considered for award, however, if improper government action was the paramount cause of the late delivery and consideration of the proposal would not compromise the integrity of the competitive procurement process. Caddell Constr. Co., Inc., B-280405, Aug. 24, 1998, 98-2 CPD ¶ 50 at 6. Improper government action in this context is affirmative action that makes it impossible for the offeror to deliver the proposal on time. Id.

For example, our Office has held that a late hand-carried offer may be considered for award if the government’s misdirection or improper action was the paramount cause of the late delivery and consideration of the offer would not compromise the integrity of the competitive process. See Palomar Grading & Paving, Inc., B-274885, Jan. 10, 1997, 97-1 CPD ¶ 16 at 3. A late proposal may also be accepted if it is found to have been received at the designated government installation and was under the agency’s control at the time set for receipt of proposal. Id. at 3. Nonetheless, even in cases where the late receipt may have been caused, in part, by erroneous government action, a late proposal should not be considered if the offeror significantly contributed to the late receipt by not doing all it could or should have done to fulfill its responsibility to deliver a hand-carried proposal to the specified place by the specified time. ALJUCAR, LLC, B-401148, June 8, 2009, 2009 CPD ¶ 124 at 3; O.S. Sys., Inc., supra.

Here, both the mailroom clerk’s story and RDT’s story were corroborated in part by the mailroom supervisor. On the day in question, the supervisor explains that she was taking a break from 1:45 to 2:10 p.m. in her car in the parking lot adjoining the Corps of Engineers building. AR, Tab 4, Decl. of Mailroom Supervisor (Sept. 26, 2013), at 2. The supervisor states that she saw a car driven by a man she did not know enter the parking lot and circle around looking for parking; she did not see him park the car. Id. The supervisor then saw the same man, this time with a box, at the mailroom door, which was promptly opened by the clerk. Id. The supervisor states that she then saw “the same man leave the facility a very short time later--not more than a minute or two--after he entered the building.” Id. at 2. The supervisor explains that she paid close attention to the man as he entered and exited the mailroom because she was aware that proposals were due that afternoon. Id.

As discussed above, there is no dispute in this record that the agency gave the protester a stamped and handwritten receipt showing that RTD’s proposal was received at 2:03 p.m. Protest, exh. B, Receipt (2:03 p.m., Aug. 13, 2013). The protester does not dispute the accuracy of the time stamp. Instead the protester contends that its representative entered the mailroom at “approximately 1:58 p.m.” and handed the proposal to the mail clerk. Decl. of RDT Representative (Aug. 30, 2013), at 2. The declaration of RDT’s representative does not, however, explain the basis for his statement regarding the time that he entered the building; for example, he does not state whether this time was based on his own clock or the clock in the mailroom. See id. As our Office has held, the time maintained by an agency for receiving bids or proposals is determinative, unless that time standard is found to be unreasonable under the circumstances. See U.S. Aerospace, Inc., B-403464, B-403464.2, Oct. 6, 2010, 2010 CPD ¶ 225 at 9.

In addition, the clerk states that, according to the clock in the mailroom, RDT’s representative did not enter the mailroom until after 2:00 p.m. AR, Tab 6, Decl. of Mailroom Clerk (Sept. 26, 2013), at 1. We also note that the statements provided by the mailroom clerk and the mailroom supervisor are consistent. See id. at 1-2; AR, Tab 4, Decl. of Mailroom Supervisor (Sept. 26, 2013), at 2. In the absence of any basis to question the agency’s statements about when the protester arrived--i.e., after 2 p.m.--we conclude that the preponderance of the evidence does not support the protester’s contention that the agency mishandled its proposal. See Med- National, Inc., supra; Caddell Constr. Co., Inc., supra.

We also find that the protester’s attempt to make the delivery only a couple of minutes before the time deadline was the paramount cause of the lateness.[2] RDT simply did not allow sufficient time to fulfill its responsibility to deliver its proposal by the proper time. See Wyatt & Assocs., B-243349, July 1, 1991, 91-2 CPD ¶ 5 at 2-3. In short, RDT assumed a risk in allowing so little time for delivery of its proposal here. Einhorn Yaffe Prescott, B-259552, Mar. 20, 1995, 95-1 CPD ¶ 153 at 4. In these circumstances where the protester did not act reasonably to fulfill its obligation to deliver its proposal on time, we find no basis to question the agency’s decision to reject the proposal as late.  (RDT-Semper Tek JV, LLC B-408811, Dec 9, 2013)  (pdf)

On July 9, the contract specialist, who had been out of the Office on July 8, returned to work and began to open the e-mailed proposals. She opened the e-mail message identified by the protester as e-mail 1 of 2, printed the attachment, and sent the protester an e-mail response acknowledging that the message had been received. The contract specialist also opened the protester’s second e-mail message, but found no attachments. The contract specialist did not acknowledge this e-mail message.

The contract specialist proceeded to contact the contracting officer to see whether he had received the attachment to the second e-mail. The contracting officer, who had also been out of the office on July 8 and who had not opened either of JVDB’s e-mail transmissions prior to being contacted by the contract specialist, opened both of the protester’s e-mails and verified that while the first e-mail included an attachment, the second e-mail did not.

The contract specialist then contacted the office’s computer service provider to determine whether there had been any issues with the system on July 8 that might have prevented the delivery of e-mail attachments. On July 10, the computer services provider responded that there had been no issues on the date in question.

Also on July 10, the contract specialist and the contracting officer received a third e-mail message from JVDB, which indicated that the protester had received acknowledgment of its first e-mail only, and thus was resending the second message. This third e-mail message included the protester’s price proposal, joint venture documents, and line item schedule as attachments. Because this message was received after the specified closing time, the contracting officer considered it to be untimely.

On July 11, the contracting officer notified JVDB that its proposal had been rejected as incomplete. On July 15, the protester filed an agency-level protest, in which it speculated that the Navy’s e-mail system had stripped the attachments from its message. The protester argued that if this were the case, the agency should consider the proposal. In the alternative, JVDB argued that when the contracting office received its second e-mail without the referenced attachments, the agency was on notice of a problem with the transmission and should have followed up with the protester. In JVDB’s view, since the agency failed to alert JVDB of the problem, the agency should consider its price proposal.

In response to the agency-level protest, the contract specialist again contacted the office’s computer services provider, which examined its logs. The logs showed that two e-mail messages had been received from the protester on July 8, the first of which included an attachment and the second of which did not. The logs identified the status of each message as “Legitimate,” meaning that they were delivered without alteration. In this connection, the Deputy Director of the Theater Network Operation Support Europe explained that if an attachment is stripped from an e-mail message, the word “Blocked” appears in the log instead of the word “Legitimate,” and a reply is triggered and sent to the sender informing him/her that the attachment has been removed. Declaration of the Deputy Director, Aug. 5, 2013; Exh. C to Agency-level protest decision. The Deputy Director further reported that no computer network or system errors affecting the receipt and delivery of e-mail were recorded on July 8 between 8 a.m. and 4 p.m.

By decision of August 14, the Navy denied JVDB’s agency-level protest, noting that there was no evidence that the Navy’s e-mail servers had stripped the attachments from the second e-mail. The agency further noted that its personnel had not been required to open the protester’s e-mails until after the submittal deadline had passed.

JVDB protested to our Office on August 26. The protester does not dispute the agency’s findings regarding the absence of computer or system errors, which could have affected the agency’s receipt of JVDB’s price proposal. Rather, JVDB simply argues that it was unreasonable for agency personnel not to have reviewed its e-mails--and notified it of the missing attachments--on July 8.

The protester’s argument is without merit. As an initial matter, the protester bore the burden of ensuring the timely receipt of its proposal, not the agency, and where JVDB’s proposal was received late, it could not be considered except under limited circumstances specifically set forth in the Federal Acquisition Regulation (FAR), none of which apply in this case. See FAR § 52.215-1(c)(3). To the extent the protester suggests that the lateness of its proposal should be excused because the agency’s procedures for receipt of proposals were deficient, we disagree. JVDB has cited no law, regulation, or decision by this office--nor are we aware of any--in support of the proposition that agency personnel have a duty to review e-mailed offers for completeness prior to the proposal closing date and to notify offerors of any missing sections. Ultimately, the primary cause of JVDB’s late proposal submission was the protester’s failure to attach its price proposal when it e-mailed its proposal to the agency, not the agency’s failure to alert the protester to this error on the date proposals were due. See Turner Consulting Group, Inc., B-400421, Oct. 29, 2008, 2008 CPD ¶ 198 at 4.  (JV Derichebourg-BMAR & Associates, LLC, B-408777, Nov 20, 2013)  (pdf)

Late Proposal

Philips first protests that McKesson’s proposal was ineligible for award because McKesson’s final proposal revision (FPR) was not submitted by the date and time set for receipt of FPRs. Supp. Protest at 4-5. We agree.

The record here establishes that the deadline for submission of FPRs was noon on December 2, 2011. Agency Request for McKesson Final Proposal, at 1. The record further establishes that the agency did not receive McKesson’s FPR until 1:04 pm on December 2. Second Supp. AR at 2. In transmitting its FPR, McKesson stated that it “struggled . . . to get this attachment [containing a portion of its FPR] to send properly.” First Supp. AR, Tab C, Agency E-mail correspondence with McKesson, at 2. The agency acknowledges that McKesson did not submit its FPR until after the established deadline, stating that “[a] problem with the email address, due to an uncommon spelling of the contracting officer’s name resulted in [McKesson’s proposal] not being received before Noon.” Second Supp. AR at 2.

It is an offeror’s responsibility to deliver its proposal to the proper place at the proper time and late delivery generally requires rejection of the proposal. FAR § 15.208; PMTech, Inc., B-291082, Oct. 11, 2002, 2002 CPD ¶ 172 at 2. Similarly, it is an offeror’s responsibility, when transmitting its proposal electronically, to ensure the proposal’s timely delivery by transmitting the proposal sufficiently in advance of the time set for receipt of proposals to allow for timely receipt by the agency. Associated Fabricators & Constructors, Inc., B-405872, Dec. 14, 2011, 2011 CPD ¶ 279 at 3. Proposals that are received in the designated government office after the exact time specified are late, and generally may not be considered for award. U.S. Aerospace, Inc., B-403464, B-403464.2, Oct. 6, 2010, 2010 CPD ¶ 225 at 10. While the rule may seem harsh, it alleviates confusion, ensures equal treatment of all offerors, and prevents one offeror from obtaining a competitive advantage that may accrue where an offeror is permitted to submit a proposal later than the common deadline set for all competitors. NCI Information Sys., Inc., B-405745, Dec. 14, 2011, 2011 CPD ¶ 280 at 5; U.S. Aerospace, Inc., supra; Inland Serv. Corp., Inc., B-252947.4, Nov. 4, 1993, 93-2 CPD ¶ 266 at 3.

The agency contends that it was entitled to accept McKesson’s late proposal because the language of Federal Acquisition Regulation (FAR) § 52.212-1(f)(2)(i) “allows late offers to be considered if they are received before award and would not unduly delay award.” Second Supp. AR at 2; Second Supp. CO Statement at 1. The agency also argues that its acceptance of McKesson’s late proposal was permissible under FAR § 52.212-1(f)(2)(ii), which allows the agency to accept a late modification of an “otherwise successful proposal” that makes its terms more favorable to the government.

The agency is mistaken with regard to both assertions. With regard to the agency’s first argument, FAR § 52.212-1(f)(2) states in its entirety:

(2)(i) Any offer, modification, revision, or withdrawal of an offer received at the Government office designated in the solicitation after the exact time specified for receipt of offers is “late” and will not be considered unless it is received before award is made, the Contracting Officer determines that accepting the late offer would not unduly delay the acquisition; and—

(A) If it was transmitted through an electronic commerce method authorized by the solicitation, it was received at the initial point of entry to the Government infrastructure not later than 5:00 p.m. one working day prior to the date specified for receipt of offers; or

(B) There is acceptable evidence to establish that it was received at the Government installation designated for receipt of offers and was under the Government’s control prior to the time set for receipt of offers; or

(C) If this solicitation is a request for proposals, it was the only proposal received.

(ii) However, a late modification of an otherwise successful offer, that makes its terms more favorable to the Government, will be considered at any time it is received and may be accepted.

FAR § 52.212-1(f)(2) (emphasis added).

In short, FAR § 52.212-1(f)(2)(i) provides that, in order for the agency to properly accept a late proposal pursuant to this provision, the proposal must be received before award, its acceptance will not unduly delay the acquisition, and one of the alternatives listed in subsections (A), (B), or (C) must apply. Here, the agency has not asserted that any of the alternatives in subsections (A), (B), or (C) apply, and our review of the record confirms that none is applicable. Accordingly, the agency’s acceptance of McKesson’s late proposal does not fall under the exceptions specified in FAR § 52.212-1(f)(2)(i).

Next, the agency’s assertion that McKesson’s late FPR constituted a late modification of an otherwise successful proposal that makes its terms more favorable to the government, and is therefore properly acceptable pursuant to FAR § 52.212-1(f)(2)(ii), is equally without merit. This exception applies only to an “otherwise successful proposal.” The Sandi Group, Inc., B-401218, June 5, 2009, 2009 CPD ¶ 123 at 3. It is well-settled that the term “otherwise successful” restricts this exception to permit the government’s acceptance of a late modification offering more favorable terms only from the offeror already in line for the contract award. Environmental Tectonics Corp., B-225474, Feb. 17, 1987, 87-1 CPD ¶ 175 at 4; see The Sandi Group, Inc., supra; Phyllis M. Chestang, B-298394.3, Nov. 20, 2006, 2006 CPD ¶ 176 at 5 n.3. Thus, an offeror cannot avail itself of the late proposal submission provision where the agency has not already identified an “otherwise successful offeror.” Global Analytic Info. Tech. Servs., Inc., B-298840.2, Feb. 6, 2007, 2007 CPD ¶ 57 at 5-6.

Here, the record establishes that, prior to the agency’s review of FPRs, the agency had not identified any offeror as being in line for award. To the contrary, even after receipt of FPRs, the source selection authority stated that there was “no clear-cut choice.” AR, Tab 2, SSDD, at 7. Accordingly, the exception set forth in FAR § 52.212-1(f)(2)(ii) is inapplicable, and there was no basis for the agency to accept McKesson’s late proposal.

We sustain the protest on this basis.  (Philips Healthcare Informatics, B-405382.2, B-405382.3, B-405382.4, May 14, 2012)  (pdf)

NCI contends that Harris was ineligible for award because Harris’s FPR was not submitted by the date and time set for receipt of FPRs. Comments at 9-13. Specifically, NCI argues that the agency set the due date for FPRs as the close of business on August 31, and because the contracting officer’s notice did not provide a specific time for “close of business,” the language of FAR § 52.215-1(c)(3) and the solicitation dictate that the time for receipt of FPRs was 4:30 p.m. Protester’s Comments at 9.

The agency contends that a specific time--close of business--was provided in the contracting officer’s memorandum, and therefore the FAR clause (which provides that 4:30 p.m. is the closing time if no time is specified) does not apply here. Citing a decision by the General Services Board of Contract Appeals (GSBCA) from 1987, the agency argues that “close of business” means that proposals would be received on the specified date at “any time prior to when the office closed for the day . . . so long as an employee remained in the office during that employee’s regularly scheduled duty hours.” Federal Sys. Group, Inc., GSBCA No. 9240-P, 88-1 BCA ¶ 20334. The agency argues that since the contracting officer’s flextime hours are from 7:00 a.m. to 5:00 p.m. on Wednesdays (the day FPRs were due), close of business that day was 5:00 p.m. The agency also argues that GAO implicitly adopted the Federal Systems Group rule in 120 Church Street Assoc.--Recon., B-232139.4, May 23, 1989, 89-1 CPD ¶ 490, in which GAO distinguished the facts of that case from the facts of Federal Systems Group, holding that where agency employees do not work flextime schedules and there is an agency order establishing an agency-wide closing time, the time specified in the order controls.

Under negotiated procurements, the FAR provides generally that a proposal or revision received after the time set for receipt shall not be considered. FAR § 15.208(b)(1). Our Office has long held that the late proposal rule alleviates confusion, ensures equal treatment of offerors, and prevents one offeror from obtaining a competitive advantage as a result of being permitted to submit a proposal later than the deadline set for all competitors. Sunrise Medical HHG, Inc., B-310230, Dec. 12, 2007, 2008 CPD ¶ 7 at 8; Tishman Constr. Corp., B-292097, May 29, 2003, 2003 CPD ¶ 94 at 3. FAR § 52.215-1(c)(3)(i) states that if no time for submission is specified in the solicitation, the time for receipt is 4:30 p.m., local time. In 120 Church Street Assoc.--Recon., supra, our Office stated that this FAR provision establishes 4:30 p.m. local time “as the close of business where the solicitation does not state a specific time for receipt of proposals.” Id. at 3.

Here, we find that the agency’s reference (in its request for FPRs) to the “close of business” did not state a specific time for receipt of proposals. We decline to adopt the Federal Systems Group rule that where an agency has no established time for the close of business and allows its employees to work flextime schedules, close of business means any time so long as an employee remains in the office during his or her duty hours. Adoption of such a rule would result in confusion and a lack of uniformity, where, as here, employees work different schedules on different days.

Where, as in 120 Church Street, the agency has established official working hours, then “close of business” means the end of the official day. Where, as here, an agency does not have official working hours, then pursuant to FAR § 52.215-1(c)(3)(i), 4:30 p.m. local time is considered to be the close of business where the solicitation does not state a specific time for receipt of proposals. In this way, the exact date and time for submission of proposals will be easily ascertainable to all potential offerors.

The contracting officer’s e-mail, which was sent only to Harris, cannot be considered an amendment to the solicitation’s due date, and we have held that an offeror acts unreasonably when it relies on the informal advice of a contracting officer rather than following the solicitation’s instructions. See Noble Supply & Logistics, B-404731, Mar. 4, 2011, 2011 CPD ¶ 67 at 3 (offeror acted unreasonably where it relied on contracting officer’s oral permission to submit proposal after stated closing time); Radva Corp., B-219595, July 26, 1985, 85-2 CPD ¶ 101 at 2 (“even if the contracting officer had told [the offeror] that its late proposal would be accepted, the contracting officer in fact lacked the authority to accept the late proposal”); see also Diamond Aircraft Industries, Inc., B-289309, Feb. 4, 2002, 2002 CPD ¶ 35 (holding that informal advice sent via e-mail to only one offeror could not amend the solicitation, and offerors who rely on such informal advice do so at their own risk).

While application of the late proposal rules may sometimes seem harsh, the rules are aimed at ensuring equal treatment of all offerors, and promoting confidence in the competitive system, thereby protecting the integrity of the procurement process--goals that are of greater importance than the possible advantage gained by considering a late proposal in a single procurement. U.S. Aerospace, Inc., B-403464, B-403464.2, Oct. 6, 2010, 2010 CPD ¶ 225 at 10 n.16. The rationale underlying strict application of the late proposal rules is to prevent even the slightest possibility of any offeror gaining an unfair competitive advantage by being able to make material changes in its offer after the cutoff date and time. Computer Sciences Corp., B-190632, Aug. 4, 1978, 78-2 CPD ¶ 85.

The awardee here submitted its FPR after the time set for receipt, and the agency should have rejected it as late. We therefore sustain the protest.  NCI Information Systems, Inc., B-405745, December 14, 2011.  (pdf)
 

AFC does not dispute that the FPI official designated for receipt of proposals was located in the eastern time zone. Nor does AFC dispute that its proposal was first received by FPI after 2:00 pm eastern time on September 23. The protester nevertheless contends that its proposal was not late and should not have been rejected as untimely because it met the RFP requirements, as AFC understood them. In support of its position AFC argues that: (1) it first sent its proposal by 2:00 pm central time; and (2) it believed the closing time was 2:00 pm central time because contract performance was to occur in the central time zone. The protester also essentially maintains that the timeliness of its proposal should be measured by when AFC submitted its proposal, rather than when the designated contracting official received it. We disagree.

It is an offeror’s responsibility to deliver its proposal to the proper place at the proper time. FAR § 15.208(a) (offerors are responsible for submitting proposals so as to reach the designated government office by the specified time); PMTech, Inc., B-291082, Oct. 11, 2002, 2002 CPD ¶ 172 at 2; Integrated Support Sys. inc, B-283137.2, Sept. 10, 1999, 99-2 CPD ¶ 51 at 2. Similarly, it is an offeror’s responsibility, when transmitting its proposal electronically, to ensure the proposal’s timely delivery by transmitting the proposal sufficiently in advance of the time set for receipt of proposals to allow for timely receipt by the agency. PMTech, Inc., supra. Proposals that are received in the designated government office after the exact time specified are “late,” and generally may not be considered for award.3 While the rule may seem harsh, it alleviates confusion, ensures equal treatment of all offerors, and prevents one offeror from obtaining a competitive advantage that may accrue where an offeror is permitted to submit a proposal later than the common deadline set for all competitors. Inland Serv. Corp., Inc.
, B-252947.4, Nov. 4, 1993, 93-2 CPD ¶ 266 at 3.

Here, the RFP established a closing date and time of 2:00 pm eastern time on September 23. The solicitation also informed prospective offerors in unambiguous terms that the controlling event was the agency’s receipt--as opposed to an offeror’s submission--of proposals by the due date and time. However, the record reflects that the FPI contracting officer did not receive AFC’s proposal until 4:21 pm eastern time, well after both 2:00 pm eastern time and 2:00 pm central time. In sum, the fact that AFC believed that it had sent its proposal in advance of the designated closing time is not determinative of the proposal’s timeliness.

Lastly, although AFC does not dispute that the RFP twice expressly stated that the time for receipt of proposals was 2:00 pm eastern time, AFC argues that the language on the Standard Form 1449 (“OFFER DUE DT/LOCAL TIME, 9/23/2011 2:00 PM”) was ambiguous. Comments, Oct. 18, 2011, at 1-2. To the extent there was any ambiguity in the RFP regarding the closing time, we find that AFC was required to protest this apparent solicitation defect prior to the time for receipt of initial proposals. 4 C.F.R. § 21.2(a)(1) (2011); see Sea Box, Inc. , B-401523, B-401523.2, Sept. 25, 2009, 2009 CPD ¶ 190 at 4 (conflict regarding solicitation closing date constituted a patent ambiguity that was readily apparent prior to the time set for receipt of submissions).

In sum, since AFC’s electronically transmitted proposal was not received until 4:21 pm eastern time, after the time set for receipt of proposals, it is a late proposal. Further, since it was not received at the initial point of entry by 5:00 pm the day before proposals were due, the late proposal cannot be accepted. FAR § 52.212-1(f)(2)(i)(A); Sea Box, Inc., B-291056, supra
, at 4.  (Associated Fabricators & Constructors, Inc., B-405872, December 14, 2011)  (pdf)

ERC asserts that the agency should not have rejected its proposal as late because the late delivery of its proposal was caused by not allowing ERC to self deliver its proposal with its own employee. ERC contends that other offerors were permitted to have their own employees or agents (as distinguished from third-party commercial carriers) hand deliver their proposals, yet ERC was not given the same opportunity to ensure that its proposal was timely delivered.

It is an offeror's responsibility to deliver its proposal to the proper place by the proper time, and late delivery generally requires rejection of the proposal. Federal Acquisition Regulation sect. 15.208; The Staubach Co., B-276486, May 19, 1997, 97-1 CPD para. 190 at 3. A proposal delivered to an agency by a commercial carrier is considered to be hand-carried and, if it arrives late, can only be considered for award if it is shown that some government impropriety during or after receipt by the government was the sole or paramount cause of the late arrival at the designated place. On-Site Envt'l, Inc.; WRS Infrastructure & Env't., Inc., B-294057, B-294057.2, July 29, 2004, 2004 CPD para. 138 at 3. Improper government action in this context is affirmative action that makes it impossible for the offeror to deliver the proposal on time. Caddell Constr., Co., Inc., B-280405, Aug. 24, 1998, 98-2 CPD para. 50 at 6. Nevertheless, even in cases where the late receipt may have been caused, in part, by erroneous government action, a late proposal should not be considered if the offeror significantly contributed to the late receipt by not acting reasonably in fulfilling its responsibility to deliver a hand-carried proposal to the proper place by the proper time. O.S. Sys., Inc., B-292827, Nov. 17, 2003, 2003 CPD para. 211 at 3.

ERC argues that it was treated unequally and prejudiced by the Air Force's instructions to mail, rather than self deliver, its proposal to the contracting officer at the address designated in the RFP. However, the record evidences that ERC did not follow this advice, but chose to have its proposal delivered by a commercial carrier. As indicated above, this is considered to be hand delivery of a proposal by an agent of the offeror. On-Site Envt'l, Inc.; WRS Infrastructure & Env't., Inc., supra.

Even conceding that the agency may have caused ERC to use a commercial carrier rather than self delivering the proposal by its own employees or agents, the record evidences that the delivery driver contributed significantly to the late delivery of the proposal. In this regard, ERC admits that the delivery driver arrived at the gate to Hanscom in sufficient time to deliver the proposal to the proper place at the proper time, but chose not to enter the base at that time to avoid waiting in a long line. It is apparent that this was the paramount cause that ERC's proposal was delivered late, not improper government action. Accordingly, we conclude that the Air Force properly rejected ERC's proposal as late.  (ERC Inc., B-405563, November 18, 2011)  (pdf)

CCSC's current protest argues that the firm followed the delivery directions in the RFP which permitted the use of FedEx but did not make offerors aware of the existence of either the [consolidated remote delivery site] CRDS or the attendant screening delay. CCSC argues that following the RFP directions was the paramount cause of the late delivery of the firm's proposal. Protester's Comments at 3, 13. CCSC emphasizes that its proposal was addressed as specified in the RFP, submitted to FedEx for delivery by 8:30 a.m. on December 14, and that FedEx sought permission from the contracting officer to complete the delivery before the closing time. Protest at 2; Protester's Comments at 4. Thus, CCSC argues, its actions would have resulted in timely delivery of the proposal at issue except that the [United States Customs and Border Protection] CBP procedures allegedly made that impossible. Protester's Comments at 19.

The CBP responds that RFP proposal submission instructions were "appropriate" and were not the primary cause of CCSC's late proposal. AR at 1. The CBP argues that it did not mishandle the proposal or make delivery impossible. AR at 7. Instead, the agency maintains that CCSC should have expected security delays due to package screening, and thus it should not have delayed shipping the proposal until after 6 p.m. on December 13, the night before it was due. AR at 8.

It is an offeror's responsibility to deliver its proposal to the proper place at the proper time, and late delivery generally requires rejection of the proposal. Federal Acquisition Regulation (FAR) sect. 15.208; O.S. Sys., Inc., B-292827, Nov. 17, 2003, 2003 CPD para. 211 at 3. A proposal delivered to an agency by FedEx or other commercial carrier is considered to be hand-carried and, if it arrives late, can be considered if it is shown that some government impropriety during or after receipt at the government installation was the sole or paramount cause of the late arrival at the designated place. Chappy Corp., B-252757, July 20, 1993, 93-2 CPD para. 44 at 3. Improper government action in this context is affirmative action that makes it impossible for the offeror to deliver the proposal on time. Lani Eko & Co., CPAs, PLLC, B-404863, June 6, 2011, 2011 CPD para. 118 at 3.

To establish that government mishandling was the sole or paramount cause of the late receipt of a proposal, an offeror must first establish that it did not significantly contribute to the late delivery by not allowing enough time to permit a timely submission. Wyatt & Assocs., B‑243349, July 1, 1991, 91‑2 CPD para. 5 at 2-3. Even in cases where the late receipt may have been caused, in part, by erroneous government action, a late proposal should not be considered if the offeror significantly contributed to the late receipt by not doing all it could or should have done to fulfill its responsibility to deliver a hand-carried proposal to the specified place by the specified time. ALJUCAR, LLC, B-401148, June 8, 2009, 2009 CPD para. 124 at 3; O.S. Sys., Inc., supra., at 3.

Offerors are responsible for allowing a reasonable time for proposals to be delivered from the point of receipt to the location designated for receipt of offers; failure to do so, resulting in late arrival at the designated location, cannot be attributed to governmental mishandling. CSLA, Inc., B-255177, Jan. 10, 1994, 94‑1 CPD para. 63 at 2-3. Furthermore, delays in gaining access to a government building are not unusual and should be expected. Bergen Expo Sys., Inc.; Techniarts Eng'g, B‑236970; B-236970.2, Dec. 11, 1989, 89-2 CPD para. 540 at 3; see also ALJUCAR, LLC, supra., at 4 (proposal properly rejected as late when delivered after closing time although courier arrived at security gate 8 minutes before closing time); Kesser Int'l, B-296294, June 30, 2005, 2005 CPD para. 127 at 2 (proposal properly rejected as late when delivered after closing time although courier was delayed 20 minutes at security checkpoint); Wyatt & Assocs., B-243349, July 1, 1991, 91-2 CPD para. 5 at 3 (proposal properly rejected as late when delivered after closing although courier arrived at security desk 10 minutes before closing time). Therefore, an offeror that does not submit a proposal sufficiently in advance of the closing time runs the risk that the agency's reasonable internal delivery procedures will not get the proposal to the proper location by the required time. Bay Shipbuilding Corp., B‑240301, Oct. 30, 1990, 91‑1 CPD para. 161 at 3 (bid sent overnight was properly rejected as late when it arrived late at bid opening room, even though delivered to agency mailroom 6 hours before bid opening time); see also CSLA, Inc., supra., at 3; cf. Power Connector, Inc., B‑256362, June 15, 1994, 94-1 CPD para. 369 at 4 (agency reasonably considered late bid where mishandling by agency mailroom caused late arrival at bid opening room).

The record here provides several significant facts demonstrating that CCSC was, in large part, responsible for its proposal arriving late. First, the protester did not bring its proposal to FedEx until after 6 p.m. on the day before it was due, and CCSC has not shown that it was impossible for it to have sent its proposal earlier to allow for potential security screening. Second, CCSC placed no identification on the packaging identifying that a proposal was inside, and there is no evidence that the FedEx representative identified to the agency that the company was attempting to deliver a proposal when the representative called the contracting officer on the morning of delivery. Third, the protester should have expected delays due to security screening, particularly considering that the proposal was being submitted to DHS, an agency involved in national security that would be expected to have tight security. Finally, the RFP did not warrant that delivery by FedEx or any other express courier would actually reach the contracting officer on the day of delivery. On these facts, we cannot conclude that the agency's conduct was the paramount cause of the late receipt of CCSC's proposal.

CCSC argues that the rerouting of its proposal to Maryland is akin to the situation addressed by our decision in Dale Woods, B-209459, Apr. 13, 1983, 83-1 CPD para. 396. In that decision, we determined that an agency improperly changed the location for the submission of bids without adequately informing prospective bidders. Although all other bidders noticed a sign specifying the new location, the protester arrived only 20 minutes before the closing time, and it did not notice the signs. Our Office concluded that the agency had not satisfied its duty to establish reasonable procedures for the timely receipt of bids when it changed the delivery location without adequate notice, and we therefore sustained the protest. Id. at 3, 5. CCSC argues that the CBP's actions were similar. Protest at 11. We disagree.

Unlike in Dale Woods, the CBP here did not change the location for submission of proposals, but rather only required deliveries to be screened off-site prior to delivery to the specified location in the RFP. Mail screening is common in government facilities, and should have been expected in an agency such as DHS. Accordingly, our decision in Dale Woods is distinguishable and is not persuasive here.

CCSC also argues that our decision in Hospital Klean of Texas, Inc., B‑295836, B‑295836.2, Apr. 18, 2005, 2005 CPD para. 185, provides support for its protest. In that case, we held that an agency properly considered proposals that were due on a Saturday, but were not delivered by FedEx until Monday, because the agency had not provided adequate means for the FedEx courier to obtain entry into the building on Saturday. Protest at 12. CCSC argues that the CBP similarly failed to provide a means for FedEx to deliver to the specified address for receipt of proposals here.

However, unlike the situation in Hospital Klean where the delivery courier encountered a locked door preventing his entry, CCSC has not shown that it was physically impossible for its proposal to reach the contracting officer at the designated location by the closing time set forth in the RFP. Rather, the delivery of CCSC's proposal was delayed for security screening, which CCSC should have expected. By not allowing sufficient time for screening at the CRDS, CCSC bears the responsibility for its late proposal.

In sum, the CCSC has not shown that the RFP's failure to describe the agency's mail screening policy was the primary cause of the late proposal submission.

Instead, as described above, the protester failed to take reasonable steps to ensure timely delivery.  (CCSC, Inc., B-404802.3, July 18, 2011)  (pdf)

SGS asserts that the agency's rejection of its FPR due to the late submission of its subcontractor was improper because, according to SGS, "even without [DELETED] revised business proposal spreadsheets, SGS's proposal was complete." Protester's Comments at 3. We agree.

Offerors are responsible for submitting proposals, and any modifications to them, so as to reach the government office designated in the solicitation by the time specified in the solicitation. Federal Acquisition Regulation (FAR) sect. 15.208(a). Proposals, and modifications to them, that are received in the designated government office after the exact time specified are "late," and will be considered only if received before award, and if the circumstances meet the specific requirements of the provision at FAR sect. 52.215-1. FAR sect. 15.208(b). Portions of proposals that are submitted late may not be considered by the agency, and if the proposal is unacceptable as timely submitted, it should be rejected as late. See Inland Serv. Corp., Inc., B-252947.4, Nov. 4, 1993, 93-2 CPD para. 266 at 4 (proposal was late and not acceptable where the technical proposal was received on time but the price proposal was late); Panasonic Comms. & Sys. Co., B-239917, Oct. 10, 1990, 90-2 CPD para. 279 (initial proposal was properly rejected because it did not contain a significant required bid sample). On the other hand, a proposal which does not provide all items required by the solicitation may not be automatically rejected if the proposal information received by the deadline is sufficient to constitute an acceptable proposal. See Wetlands Research Assocs., Inc., B-246342, Mar. 2, 1992, 92-1 CPD para. 251 at 5, n.7.

SGS contends that its proposal was acceptable, even without [DELETED] revised business proposal spreadsheets. According to SGS, [DELETED] was a minor subcontractor included for the purpose of adding [DELETED] under one of the least important non-cost evaluation factors. [DELETED] proposal included a total of [DELETED] FTEs and was [DELETED] percent of SGS's total cost. Protester's Comments at 21.

According to SGS, the changes to [DELETED] proposal were reflected in SGS's Business FPR. For example, in response to discussion questions indicating that [DELETED] may have [DELETED] proposed FTEs/hours for its [DELETED] position, SGS's FPR showed that the [DELETED] position had been [DELETED]. Protest, exh. 7, Discussion Response, at 9-11; Protester's Comments, exh. 1, SGS Bus. FPR, vol. 1, Task Order 1, at I-6; exh. 2, SGS Bus. FPR, vol. I, Task Order 2, at I-8. Moreover, SGS's FPR business spreadsheet for each task order reflects the number of FTEs, number of hours, and the total costs for each labor category (there was only [DELETED]) proposed by [DELETED]. Protester's Comments, exh. 3, SGS FPR Task Order 1 Business Spreadsheet; exh. 4, SGS FPR Task Order 2 Business Spreadsheet.

Here, the record reflects that the agency did not consider whether SGS's FPR was acceptable without [DELETED] revised business proposal spreadsheets. AR, Tab J-1, CMS Letter to SGS (Mar. 9, 2011); Tab J-2, CMS Letter to SGS (Mar. 17, 2011) ("given the plain language in the solicitation, I believe it remains appropriate to treat the entire proposal as late when any part, no matter how small, was late."). However, as discussed above, SGS asserts that its FPR was complete and acceptable because it contained all of [DELETED] costs.

Our review confirms SGS's assertion that the information included in [DELETED] revised business spreadsheet was reflected in SGS's business proposal. Thus, [DELETED] submission could appropriately be viewed as backup supporting material for SGS's proposed costs. In addition, we note again that the [DELETED] submission at issue here represents approximately [DELETED] percent of SGS's total costs--and [DELETED] FTEs. In circumstances like these, where an agency finds that an offeror's proposed costs on a cost reimbursement contract are not reasonably supported, an agency, as part of the cost realism analysis, can adjust the proposed costs to account for this lack of supporting information. See Magellan Health Servs., B-298912, Jan. 5, 2007, 2007 CPD para. 81 at 13-14; Earl Indus., LLC, B-309996, B-309996.4, Nov. 5, 2007, 2007 CPD para. 203 at 8‑9; Metro Mach. Corp., B-295744, B-295744.2, Apr. 21, 2005, 2005 CPD para. 112 at 10; General Offshore Corp.--Riedel Co., A Joint Venture, B-271144.2, B‑271144.3, July 2, 1996, 96-2 CPD para. 42 at 11.

In sum, we conclude that the agency improperly rejected SGS's entire FPR as late without considering whether the proposal was acceptable without the subcontractor's revised business proposal, and we sustain the protest on this basis.  (SafeGuard Services, LLC, B-404910, June 28, 2011)  (pdf)

Lani Eko contends that its representative arrived at the Jemal Building with its proposal package prior to the closing time on March 2, and that the agency improperly refused to accept its proposal. In support of its position, the protester relies on its representative's timing of events, and maintains that consistent with the language of the solicitation, the firm's representative was "in line" at the loading dock prior to 3 p.m. As such, the agency improperly determined that its proposal was late. Protester's Comments at 1-2. We disagree.

It is an offeror's responsibility to deliver its proposal to the place designated in the solicitation by the time specified, and late receipt generally requires rejection of the proposal. Federal Acquisition Regulation (FAR) sect. 15.208(a); O.S. Sys., Inc., B‑292827, Nov. 17, 2003, 2003 CPD para. 211 at 3; Integrated Support Sys. Inc., B‑283137.2, Sept. 10, 1999, 99-2 CPD para. 51 at 2. Unless a preponderance of the evidence demonstrates that the proposal was at the designated location for receipt prior to the time set for closing, the proposal may not be considered for award. See Med‑National, Inc., B-277430, Sep. 8, 1997, 97-2 CPD para. 67 at 3. A late hand-carried proposal may be considered for award, however, if improper government action was the paramount cause of the late delivery and consideration of the proposal would not compromise the integrity of the competitive procurement process. Caddell Constr. Co., Inc., B-280405, Aug. 24, 1998, 98-2 CPD para. 50 at 6. Improper government action in this context is affirmative action that makes it impossible for the offeror to deliver the proposal on time. Id. Even in cases where the late receipt may have been caused, in part, by erroneous government action, a late proposal should not be considered if the offeror significantly contributed to the late receipt by not doing all it could or should have done to fulfill its responsibility to deliver a hand-carried proposal to the specified place by the specified time. ALJUCAR, LLC, B-401148, June 8, 2009, 2009 CPD para. 124 at 3; O.S. Sys., Inc., supra. We find no basis to conclude that Lani Eko timely delivered its proposal or that improper government action was the paramount cause for the late submission of its proposal.

The agency reports that on March 2, three contract specialists were present at various times throughout the day at the loading dock in the Jemal Building to receive proposal packages. At approximately 2:58 p.m., one of the contract specialists declares that she began processing a hand-carried proposal package from another vendor which she completed just after 3 p.m. Agency Report (AR) exh. 28, Decl. of Contract Specialist A, Apr. 19, 2011; see also, exh. 29, Decl. of Contract Specialist B, Apr. 19, 2011 at 2. According to this individual, at 3:01 p.m., after acknowledging that the closing time had passed, a third contract specialist stepped out of the door to the loading dock. The second contract specialist declares that no offerors were waiting at the security desk at 3 p.m. AR, exh. 29, Decl. of Contract Specialist B, Apr. 19, 2011, at 1. When the security desk phone registered 3:01 p.m., the contract specialists concluded that the submission deadline had passed, and the third contract specialist went to the top of the loading dock stairs to inform all offerors that the submission deadline had expired. Id. The third contract specialist, who in fact engaged Lani Eko's representative outside the loading dock, declares that no offerors were waiting inside or outside of the loading dock at 3:01 p.m. (he verified the time via his wristwatch, cell phone and security guard desk phone), and that approximately six offerors, including Lani Eko's representative, approached the loading dock door with their proposals as he was standing there. AR, exh. 27, Decl. of Contract Specialist C, Apr. 19, 2011, at 2. After approximately a minute of conversation, the offerors asked which clock he was using and the third contract specialist indicated "the guard desk clock," which verified the time as 3:02 p.m. Id. Because the offerors arrived after the closing time and were considered late, the contracting specialist refused to accept their proposals. Id.

We conclude that the protester has failed to demonstrate by a preponderance of evidence that it arrived at the place designated for delivery of proposals by the 3 p.m. deadline established by the RFP. In this regard, the protester offers no evidence, other than the declaration of its own representative, to support its assertion that it had arrived at the Jemal loading dock area by 3 p.m. Moreover, the protester's assertion of timely delivery is based solely on the time that its representative observed on her personal cell phone. This is not the relevant time, however, since the official time maintained by the agency is controlling absent a showing that it was unreasonable. See U.S. Aerospace, Inc., B‑403464, B-403464.2, Oct. 6, 2010, 2010 CPD para. 225 at 9. With regard to the official time, the protester's representative reports having observed a time of 3:02 p.m. after being informed that its proposal was late. This is consistent with the declarations submitted by the agency, which represent that an agency representative was waiting at the loading dock door at 3:01, the protester arrived just after 3:01 p.m., and that, after a conversation of approximately 1 minute, he showed her the official time, which then was 3:02. On this record, we find nothing unreasonable in the agency's determination that Lani Eko's proposal was delivered late.

The protester also contends that its delivery was frustrated by the agency's use of a security guard phone clock to determine the closing time. Protest at 2. Lani Eko argues that use of this device was unreasonable since there was a "1-2 minute discrepancy maintained on that device versus on various cell phones." Id. at 2. This argument is without merit. As noted above, we have held that the time maintained by the agency official responsible for receiving bids or proposals is determinative, unless it is shown to be unreasonable under the circumstances. U.S. Aerospace, Inc., B‑403464, B-403464.2, supra. Here, there was nothing inherently unreasonable with the agency's use of a security guard desk phone clock to determine the solicitation's closing time. Notwithstanding the protester's suggestion to the contrary, there simply is no requirement for the time maintained by the agency to be synchronized with the protester's personal cell phone, or any other cell phone. Moreover, it is apparent that the paramount cause of Lani Eko's late delivery of its proposal stemmed from the fact that Lani Eko's representative arrived at the Jemal Building, according to her own version of events, with approximately 1 minute to spare. By allowing herself so narrow a margin of time, Lani Eko's representative assumed the risk that any number of events might intervene to prevent the timely submission of the proposal. See Pat Mathis Constr. Co, Inc., B-248979, Oct. 9, 1992, 92-2 CPD para. 236 at 4. Accordingly, we have no basis on which to object to the agency's actions.  (Lani Eko & Company, CPAs, B-404863, PLLC, June 6, 2011)  (pdf)

B&S contends that DLA should accept its proposals because the agency was the primary cause of the late filing, and because the courier was under the control of the agency at the time he arrived at the VPC. We find no merit to these arguments.

It is an offeror's responsibility to deliver its proposal to the proper place at the proper time; proposals that are received after the exact time specified are "late" and must generally be rejected. Federal Acquisition Regulation (FAR) sect. 52.212-1(f); O.S. Sys., Inc., B-292827, Nov. 17, 2003, 2003 CPD para. 211 at 3; Integrated Support Sys. Inc., B-283137.2, Sept. 10, 1999, 99-2 CPD para. 51 at 2. The late proposal rules include limited exceptions under which late proposals may be considered. Our Office has held that a late hand-carried offer may be considered for award if the government's misdirection or improper action was the paramount cause of the late delivery and consideration of the offer would not compromise the integrity of the competitive process. See U.S. Aerospace, Inc., B-403464, B-403464.2, Oct. 6, 2010, 2010 CPD para. 225 at 11; ALJUCAR, LLC, B-401148, June 8, 2009, 2009 CPD para. 124 at 3. A late proposal may also be accepted if it is found to have been received at the designated government installation and was under the agency's control at the time set for receipt of proposals. FAR sect. 52.212-1(f)(1)(B); U.S. Aerospace, Inc., supra, at 12. Nonetheless, even in cases where the late receipt may have been caused, in part, by erroneous government action, a late proposal should not be considered if the offeror significantly contributed to the late receipt by not doing all it could or should have done to fulfill its responsibility. See U.S. Aerospace, Inc., supra; ALJUCAR, LLC, supra.

Here, we conclude that the protester's actions were the paramount cause for the late delivery. As discussed above, the RFPs stated that if an offeror intended to hand deliver its proposal, the offeror must provide notice to DLA a day in advance of delivery in order to be sponsored and be entered into the VNS. RFP, encl. 6, at 3; RFP, Q&A No. 8. The RFPs further advised offerors that visitors would be required to check in at the VPC, and that any delays encountered at the VPC would not be a basis for accepting a late proposal. RFP, Q&A No. 8.

Despite the instructions and warnings in the RFPs, the record shows that B&S's courier was not entered into the VNS system prior to his arrival, nor did the courier have the appropriate contact information to obtain a sponsor for entry into the VNS. Moreover, the courier arrived at the VPC less than 10 minutes before the proposal receipt deadline. On this record, we conclude that the protester's actions, rather than the agency's actions, were the paramount cause of the late receipt. See ALJUCAR, LLC, supra, at 4 (a protester contributes significantly to a delay where it fails to provide sufficient time for delivery at a secure government facility).

To the extent that B&S contends that DLA's actions were the paramount cause of the late delivery, we disagree. First, the protester argues that the agency was responsible for the late filing because the acquisition specialist directed the protester's courier to the wrong building. As discussed above, the agency does not dispute that the courier was initially directed to Building 21, instead of Building 20. See AR at 3. However, the videotape shows that the courier did not leave the VPC until 1:03 p.m. On this record, we think it is clear that the courier would not have made a timely delivery of the proposals, even if he had been directed to the correct building.

Next, B&S contends that personnel at the VPC directed the courier to call "a person who had nothing to do with the matter," thus resulting in delay in the courier's departure from the VPC. Protester's Comments at 3. As discussed above, however, the call to the DLA Small Business Office was suggested by the security officer because the courier was unable to provide the appropriate contact information. Moreover, as discussed above, the RFPs instructed offerors to contact DLA the day before an attempted delivery in order to enter couriers into the VNS, and warned that any delays encountered at the VPC were the responsibility of the offeror. We do not think that the security officer's suggestion to call the Small Business Office was the paramount cause of the delay.

Finally, the protester argues that the courier was under the control of the government as of the time the courier arrived at the VPC, and thus the proposals should have been deemed as timely received. In determining whether a late-submitted proposal was "under the Government's control" prior to the time set for receipt of proposals, our Office has held that an offeror must, at a minimum, have relinquished physical custody of the proposal. See U.S. Aerospace, Inc., supra; ALJUCAR, LLC, supra. This requirement is an obvious necessity in order to preclude any potential that an offeror could alter, revise, or otherwise modify its proposal after other offerors' competing proposals have been submitted. B&S's argument misapprehends the legal standard: the issue is not whether the courier was under the control of the government personnel, but instead whether the proposal had been accepted by government personal, thereby putting it under government control. The record here shows that the courier did not relinquish control of the proposals until his arrival at Building 20 at 1:20 p.m. CO's Memorandum Re: Late Bids, Jan. 24, 2011, at 3. For this reason, as well as those stated above, we find no merit the protester's arguments.

The protest is denied.  (B&S Transport, Inc., B-404648.3, April 8, 2011)  (pdf)

The RFP set the closing date for receipt of proposals as 4:30 p.m. on December 22, 2010. The protester explains that on December 21, it delivered its proposal package to UPS to be shipped using "Next Day" service, but that when it checked on the status of the delivery the following morning, UPS advised it that severe weather would delay delivery of the package to the 23rd. According to Noble, it then located a UPS store in Minot, North Dakota and spoke with an employee of the store, who advised it that he would be able to print, package, and deliver a copy of the proposal to the base prior to the 4:30 p.m. closing time.

Before implementing this alternative plan for delivering its proposal, however, the protester contacted the contracting officer and explained its situation. According to Noble, the contracting officer advised that she understood the protester's problem and stated "that if the proposal was delivered on December 23, it would still be evaluated." Protest at 5. Based on this advice, the protester elected not to implement its alternative plan for proposal delivery. UPS delivered the proposal to Minot AFB at 11:05 a.m. on December 23.

By letter of January 3, the contracting officer notified Noble that its proposal had been received after the specified closing time and would not be considered. On January 13, Noble protested to our Office.

The protester argues that its proposal was not late because the contracting officer orally amended the RFP on December 22 to extend the closing date to December 23. In the alternative, Noble argues that even if its proposal was late, the agency should have considered it, because the late delivery was the result of incorrect information furnished by the contracting officer.

The protester's first argument is without merit. While it is true that a contracting officer may provide oral notice of a solicitation amendment "when time is of the essence," see Federal Acquisition Regulation (FAR) sect. 15.206(f), Noble has not alleged that the contracting officer ever in fact advised Noble that she would "amend" the solicitation to extend the closing date until December 23. Rather, Noble essentially argues that it understood the contracting officer's oral assurance that its proposal would be evaluated even if submitted on the 23rd as implying that the RFP would be amended since there would not otherwise have been any basis for the contracting officer to consider its proposal. However, absent an unambiguous statement from the contracting officer conveying her intent to amend the closing date for all offerors, Noble could not reasonably disregard the solicitation's express closing date and instead rely on an implied understanding of the contracting officer's oral assurances, which were otherwise inconsistent with the terms of the RFP. We have repeatedly held that oral advice that would have the effect of altering the written terms of a solicitation, even from the contracting officer, does not operate to amend a solicitation or otherwise legally bind the agency, ESCO Marine, Inc., B‑401438, Sept. 4, 2009, 2009 CPD para. 234 at 8, and that an offeror relies on such oral advice at its own risk. TRS Research, B-274845, Jan. 7, 1997, 97-1 CPD para. 6 at 3.

Turning then to Noble's second argument, while it is an offeror's responsibility to deliver its proposal to the proper place at the proper time, and late delivery generally requires rejection of the proposal, see FAR sect. 15.208, O.S. Sys., Inc., B-292827, Nov. 17, 2003, 2003 CPD para. 211 at 3, a hand-carried proposal that arrives late may be considered if improper government action was the paramount cause of the late submission and consideration of the proposal would not compromise the integrity of the competitive procurement process. Hospital Klean of Texas, Inc., B-295836, B‑295836.2, Apr. 18, 2005, 2005 CPD para. 185 at 4-5.

The protester argues that it was the incorrect information furnished by the contracting officer regarding the acceptability of submitting its proposal a day after the specified closing date that led it to forego its alternative approach to delivering the proposal by the December 22 deadline, and that improper government action was thus the paramount cause for the late submission. We disagree. Even assuming that the contracting officer did incorrectly advise the protester regarding the acceptability of delivery on the 23rd, this misinformation did not prevent the protester from delivering its proposal on time, and thus was not the paramount cause of the late submission; rather, it was the protester's decision to rely on the contracting officer's erroneous oral advice, which was at Noble's own peril as explained above, and thereby forego its alternative approach to delivering its proposal that resulted in the proposal being received late. Because the agency's actions were not the paramount cause for the late receipt of Noble's proposal, the agency properly rejected it as late.  (Noble Supply and Logistics, B-404731, March 4, 2011)  (pdf)
 

Metters protests that its proposal should not have been rejected as late, arguing that a complete copy of its proposal (with the paper versions of the subcontractors' proposals) was submitted to the agency before 3 p.m. Metters contends that, to the extent that its proposal was considered late because it did not submit its subcontractors' proposals on CDs until after 3 p.m., the RFP was ambiguous as to what format must be used for the submission of the subcontractors' proposals. Protest at 9.

It is an offeror's responsibility to deliver its proposal to the proper place at the proper time, and late delivery generally requires rejection of a proposal. Slates Roofing Corp., B-286052, Nov. 8, 2000, 2000 CPD para.182 at 4. The late proposal rule alleviates confusion, ensures equal treatment of offerors, and prevents one offeror from obtaining a competitive advantage as a result of being permitted to submit a proposal later than the deadline set for all competitors. Inland Serv. Corp., Inc., B‑252947.4, Nov. 4, 1993, 93-2 CPD para. 266 at 3; Phelps-Stokes Fund, B-194347, May 21, 1979, 79-1 CPD para. 366 at 5-6.

Here, the record shows that the agency did not receive a complete proposal in the correct format from Metters until after the closing time specified in the solicitation, and therefore its proposal was late.[3] Although Metters notes the agency had received all but the subcontractors' proposals by the 3 p.m. closing time, offerors were required to submit their complete proposal to the agency by the closing time, and timely delivery of part of a proposal does not constitute the timely submission of the proposal. See Inland Serv. Corp., Inc., supra, at 3-4.

We do not agree that the protester's late submission of a complete proposal was caused by some ambiguity in the RFP.[4] A solicitation ambiguity exists where two or more reasonable interpretations of the terms of the solicitation are possible. Ashe Facility Servs., Inc., B-292218.3; B-292218.4, Mar. 31, 2004, 2004 CPD para. 80 at 10. Here, the RFP stated that:

If any of the work under the cost reimbursable CLIN will be subcontracted for $650,000 or more, the subcontractor(s) shall prepare and submit a cost breakdown and cost proposal. If the subcontractor(s) considers the data to be company proprietary, the cost proposal shall be submitted directly to the Contracting Officer with a concurrent redacted copy and notification to the offeror.

RFP, Proposal Submission Instructions, at 12. This provision simply informed offerors that they would be required to submit separate proposals for their major subcontractors under the cost reimbursement CLIN, and did not address what form those proposals must take. Rather, the proposals' format was addressed elsewhere in the RFP's proposal preparation instructions, where offerors were instructed that they must submit their proposals on CDs, that paper copies were not permitted, and that submission of proposals by email or facsimile was not authorized.[5] See id. at 1.

In short, we find that the RFP required that subcontractors' proposals, like the offerors' own proposals, be submitted on CDs. Because Metters did not deliver its subcontractors' proposals on CDs to the agency until after the specified closing time, its proposal was late.

Metters also argues that its late proposal should have been considered by the agency under Federal Acquisition Regulation (FAR) sect. 15.208(b)(1)(ii), which provides an exception for late proposals where there is evidence establishing that the late proposal was received at the government installation designated for receipt and was under the control of the agency prior to the time set for receipt of proposals.Even assuming the application of this provision to the task order competition here, Metters failed to deliver a complete proposal in the correct format into the agency's control prior to the closing time for receipt of proposals. Thus, this exception to the late proposal rule does not provide a basis for considering the protester's proposal.

Metters also argues that, because the contract specialist informed its subcontractor that it could submit its proposal after the specified closing time, this effectively waived the RFP's proposal submission time. The Army disputes that its contract specialist informed Metters that the agency would consider the subcontractor's proposal submitted after the closing time for receipt of proposal. We need not resolve this conflict because the contract specialist does not have the authority to amend the solicitation or waive the deadline for proposal submission. See Heath Constr., Inc., B-403417, Sept. 1, 2010, 2010 CPD para. 202. Moreover, such a waiver or amendment of the closing time for receipt of proposal for only one offeror would be wholly inconsistent with the purpose of the late proposal rule, which is intended to assure fair and equal treatment of offerors.  (Metters, Incorporated, B-403629, November 10, 2010)  (pdf)

Agency Determination that Proposal was Not Timely Submitted

USAI first protests that its proposal was, in fact, delivered by 2 p.m. on July 9. In this regard, USAI offers no evidence to support its assertion other than its messenger's representations regarding the timing of events prior to proposal submission, and the messenger's conclusion that "the proposal was submitted by 2 p.m." Statement of USAI Messenger at 2. Rather, USAI notes that the [contracting officer's representative] COR relied on his wrist watch in determining that the proposal was late and argues that the evidence the agency considered, including the COR's wrist watch, is inadequate to establish the time of receipt, arguing, among other things, that the agency has failed to present a "standard metered timestamp showing the exact Coordinated Universal Time ('UTC') of actual receipt of the bid." Comments at 1 (italics in original). USAI asserts that the agency's determination was unreasonable because the agency has not demonstrated that the COR's wrist watch reflected the "exact [time], accurate or synchronized to UTC." Id. at 2. Thus, USAI maintains that "the purported time shown on the watch is not legally trustworthy, cannot establish the exact time of receipt, and is not admissible to support the determination that the bid was late." Id. We disagree.

This Office has repeatedly held that the declaration of the agency official responsible for receiving bids or proposals is determinative with regard to the time a bid or proposal is received, absent a showing that the agency official's declaration was unreasonable. See, e.g., Pat Mathis Constr. Co., Inc., B-248979, Oct. 9, 1992, 92-2 CPD para. 236 at 3; Robert R. Nathan Assocs., Inc., B-230707, June 28, 1988, 88-1 CPD para. 615 at 2-3; Chattanooga Office Supply Co., B-228062, Sept. 3, 1987, 87-2 CPD para. 221 at 2.

Here, as discussed above, the agency COR specifically concluded that USAI's proposal was not received until 2:05 p.m., advised USAI's messenger of that determination, and provided the messenger written notification reflecting the 2:05 p.m. receipt. USAI's messenger did not dispute the accuracy of the COR's determination at that time. Further, as noted above, the record contains an email from another USAI representative to agency personnel stating that "Messenger with Bid is lost" and providing the messenger's name and cell phone number; the face of that email states that it was sent at 1:58 p.m. AR, Tab 8, Email from USAI representative to Agency, July 9, 2010, at 1. Consistent with the time reflected on the USAI email, the COR's cell phone records show that the first call he placed to the messenger was made at 1:59 p.m. AR, Tab 12, Verizon Wireless Record. Thereafter, the COR drove to the messenger's location, spoke with him, directed the messenger to follow him (the COR) back to the building 570 parking lot, and drove to that lot--at which point the messenger handed the proposal to the COR. Statement of USAI Messenger at 2-3. On this record, we find nothing unreasonable in the agency's determination that the proposal was received after the 2 p.m. deadline. USAI's protest to the contrary is denied.

Alleged Government Delay and Misdirection

As noted above, USAI's messenger complains that he was delayed in entering the AFB and asserts that he was provided directions by the Wright-Patterson guard to 1755 Eleventh Street, building 570, which he followed, but that, upon turning onto Eleventh Street, "the road dead ended into a building." Statement of USAI Messenger at 2. Additionally, USAI complains that maps provided by the agency in response to USAI's protest are "incorrect and/or outdated." USAI Opposition to Dismissal at 2. USAI states that currently available photographic maps of Wright-Patterson AFB reflect a "missing section of Eleventh Street, which has been . . . removed since the Air Force maps [provided in response to the protest] were drawn," further noting that USAI's photographic maps indicate that another building has been "built over the missing section of Eleventh Street." Id. Accordingly, USAI asserts that:

[T]he paramount cause of delay here is the fact that the street address listed on the RFP does not exist (or, incredibly, the address still exists, even though the street no longer does), and that the Air Force maps of Area B are wrong. . . . [T]he pertinent section of Eleventh Street was removed years ago; a new building was built where the road used to be, and the street now dead ends more than a block before Building 570.[] It is impossible to find [building 570] without already knowing where it is.

. . . . .

The time that [USAI's] messenger arrived on base is not the determining factor here. [USAI's] messenger could have arrived minutes--or hours--earlier, and he still never would have found the building until Air Force personnel either provided accurate directions or took him there.  Comments at 7.

It is an offeror's responsibility to deliver its proposal to the proper place at the proper time; proposals that are received after the exact time specified are "late" and must generally be rejected. Federal Acquisition Regulation (FAR) sect. 15.208(a); O.S. Sys., Inc., B-292827, Nov. 17, 2003, 2003 CPD para. 211 at 3; Integrated Support Sys. Inc., B-283137.2, Sept. 10, 1999, 99-2 CPD para. 51 at 2. The late proposal rules include limited exceptions under which late proposals may be considered. Specifically, this Office has held that a late hand-carried offer may be considered for award if the government's misdirection or improper action was the paramount cause of the late delivery and consideration of the offer would not compromise the integrity of the competitive process. See, e.g., ALJUCAR, LLC, B-401148, June 8, 2009, 2009 CPD para. 124 at 3; Palomar Grading & Paving, Inc., B‑274885, Jan. 10, 1997, 97-1 CPD para. 16 at 3; AABLE Tank Servs., Inc., B‑273010, Nov. 12, 1996, 96-2 CPD para. 180 at 3; Select Inc., B‑245820, Jan. 3, 1992, 92-1 CPD para. 22 at 4. Nonetheless, even in cases where the late receipt may have been caused, in part, by erroneous government action, a late proposal should not be considered if the offeror significantly contributed to the late receipt by not doing all it could or should have done to fulfill its responsibility. See ALJUCAR, LLC, supra; O.S. Sys., Inc., supra; Palomar Grading & Paving, Inc., supra.

Here, USAI has not demonstrated that the alleged government misdirection and/or delays associated with its messenger's entry at gate 19B was the paramount cause of the late delivery of USAI's proposal. To the contrary, the record indicates that, even accepting USAI's assertions that the gate guard provided inaccurate directions which delayed the submission of USAI's proposal, USAI's own actions significantly contributed to the late submission of its proposal. As discussed above, it was USAI's decision to attempt entry to Wright-Patterson AFB, a secure military facility, at gate 19B--a gate designated for admission of personnel with military credentials--rather than at gate 1B--the entrance at which visitors without military credentials were directed to arrive. In addition to its decision to attempt entry at a gate not designated for use by non-military visitors, USAI's messenger arrived at the entrance gate with less than an hour remaining before proposals were due, did not obtain advance approval for entry, and failed to previously ascertain the location of, and directions to, the building designated for proposal submission. On this record, we conclude that USAI's own actions were significant contributing factors to the late receipt of its proposal, and we reject USAI's assertion that any delay in obtaining admission through gate 19B and/or the gate guard's alleged misdirection was the paramount cause of the late proposal submission. USAI's protest that the agency was required to accept its proposal because of the government's actions is denied.

Agency Control of the Proposal

Finally, USAI protests that USAI's proposal was "under Air Force control" prior to the 2 p.m. closing time. Protest at 2. In this regard, USAI refers to FAR sect. 52.215‑1(c)(3), which was incorporated into the solicitation and addresses the late submission of proposals. In pertinent part, FAR sect. 52.215-1(c)(3) states:

(ii)(A) Any proposal, modification, or revision received at the Government office designated in the solicitation after the exact time specified for receipt of offers is "late" and will not be considered unless it is received before award is made, the Contracting Officer determines that accepting the late offer would not unduly delay the acquisition; and—

. . . . .

(2) There is acceptable evidence to establish that it was received at the Government installation designated for receipt of offers and was under the Government's control prior to the time set for receipt of offers; or
(3) It is the only proposal received.  FAR sect. 52.215-1(c)(3).

In determining whether a late-submitted proposal was "under the Government's control" prior to the time set for receipt of proposals, it is clear that an offeror must, at a minimum, have relinquished physical custody of the proposal. See, e.g., ALJUCAR, LLC, supra; Einhorn Yaffe Prescott, B-259552, Mar. 20, 1995, 95-2 CPD para. 153; see also Shirlington Limousine & Transp., Inc. v. United States, 77 Fed. Cl. 157 (2007). This requirement is an obvious necessity in order to preclude any potential that an offeror could alter, revise, or otherwise modify its proposal after other offerors' competing proposals have been submitted.

Here, as discussed above, USAI's messenger did not relinquish physical custody of its proposal until it handed the proposal to the COR in the parking lot outside of building 570. As also discussed above, the agency reasonably determined that such transfer of physical custody did not occur until after the 2 p.m. proposal submission deadline. Accordingly, the prerequisite for consideration of a late proposal contained in FAR sect. 52.215-1(c)(3)(ii)(A)(2)--that is, that the proposal "was under the Government's control prior to the time set for receipt of offers"--has not been met, and USAI's assertion that the agency was required to consider USAI's proposal on the basis of that FAR provision is without merit.  (U.S. Aerospace, Inc., B-403464, B-403464.2, October 6, 2010)  (pdf)

ATG does not dispute that its proposal was received by DRMS after 10:00 a.m. local time on April 28. The protester nevertheless contends that its proposal was not late and should not have been rejected because ATG met the RFP requirements, as the offeror understood them, by electronically transmitting its proposal by 10:00 a.m. local time. In support of its position, ATG points to the language of the RFP amendments that stated the time to "submit"--which ATG interprets as "send"--proposals was 10:00 a.m. local time. We disagree.

It is an offeror's responsibility to deliver its proposal to the proper place at the proper time. FAR sect. 15.208(a) (offerors are responsible for submitting proposals so as to reach the designated government office by the specified time); PMTech, Inc., B-291082, Oct. 11, 2002, 2002 CPD para. 172 at 3; Integrated Support Sys. inc, B-283137.2, Sept. 10, 1999, 99-2 CPD para. 51 at 2. Similarly, we view it as an offeror's responsibility, when transmitting its proposal electronically, to ensure the proposal's timely delivery by transmitting the proposal sufficiently in advance of the time set for receipt of proposals to allow for timely receipt by the agency. PMTech, Inc., supra, at 3-4. Proposals that are received in the designated government office after the exact time specified are "late," and generally may not be considered for award. While this rule may seem harsh in some circumstances, it alleviates confusion, ensures equal treatment of all offerors, and prevents one offeror from obtaining a competitive advantage that may accrue where an offeror is permitted to submit a proposal later than the deadline set for all competitors. Inland Serv. Corp., Inc., B-252947.4, Nov. 4, 1993, 93-2 CPD para. 266 at 3.

Here, the RFP provisions established that offerors' proposals were to be received by the designated agency contracting official by April 28 at 10:00 a.m. local time. The email by which DRMS distributed the RFP likewise informed prospective offerors that the defining event was the agency's receipt--rather than an offeror's submission--of proposals by the due date and time. Moreover, to the extent ATG is now alleging that the solicitation as amended was ambiguous about whether the established time was for the submission of proposals, as opposed to the receipt of proposals, ATG was required to protest this apparent solicitation defect prior to the next closing time for receipt of proposals following their incorporation. 4 C.F.R. sect. 21.2(a)(1) (2010); see Sea Box, Inc., B-401523, B-401523.2, Sept. 25, 2009, 2009 CPD para. 190 at 3-4 (conflict regarding solicitation closing date constituted a patent ambiguity that was readily apparent prior to the time set for receipt of submissions). Having failed to seek clarification or file a protest before the closing time of the RFP, ATG may not now assert that its understanding of the solicitation requirements regarding the submission of proposals is controlling. See id. at 4; Kellogg Brown & Root, Inc., B-291769, B-291769.2, Mar. 24, 2003, 2003 CPD para. 96 at 8-9.

ATG also argues that the timing of the actual delivery of its proposal was beyond its control--that the 11-minute transmission times were due to Internet delays and the large files that made up each of its three emails. The protester notes that it is operating in Kuwait City where it has had emails take hours, if not almost all day, to arrive at their destinations. ATG Response to DRMS Dismissal Request, June 11, 2010, at 3.

In our view, the record shows that the primary cause of ATG's late delivery of its electronic proposal was that the offeror delayed attempting to transmit its proposal until shortly before the time set for the receipt of proposals; as noted above, two parts of its proposal were sent 8 minutes and 3 minutes before 10:00 a.m., respectively, and the third was sent at 10:00 a.m. An offeror's responsibility to deliver its proposal to the proper place at the proper time includes allowing a reasonable amount of time for the delivery of the proposal. PMTech, Inc., supra. Here, we conclude that ATG did not act reasonably in waiting to transmit its electronic proposal until minutes before the time set for receipt of proposals, especially when the offeror was apparently aware of the potentially long email delivery times common to its location. We think an offeror accepts the risk of late receipt and rejection of a proposal where it delays transmitting its proposal until the last few minutes before the time set for receipt of proposals. Id.

In sum, since ATG's electronically transmitted proposal was not received in full until 10:11 a.m. (after the time set for receipt of proposals), it is a late proposal; since it was not received at the initial point of entry by 5:00 p.m. the day before proposals were due, the late proposal cannot be accepted. See Sea Box, Inc., B-291056, supra.  (Alalamiah Technology Group, B-402707.2, June 29, 2010)  (pdf)

Due to major winter storms in the Washington D.C. area on February 5 and 6 and again on February 9 and 10, federal agencies in the Washington D.C. area were closed from Monday, February 8 through Thursday, February 11. On February 9, several offerors, including CFS, attempted to hand deliver their proposals to the Triangle Service Center in Washington, D.C., but could not because the agency was closed. On Friday, February 12, federal agencies in Washington D.C. reopened, but Federal employees were allowed to arrive for work up to 2 hours later than they would normally arrive, and employees who could not report for work were allowed to take unscheduled leave. OPM Federal Government Archived Operating Status in the Washington, D.C. Area (Feb. 11, 2010).

On February 12, when GSA reopened, the contracting officer determined that under FAR sect. 52.212-1(f)(4)--the provision included in the RFP--the due date for receipt of proposals was extended from February 9 at 2 p.m. to February 12, at 2 p.m., "because GSA was open for business and ready to accept bids well before 2 p.m. on February 12, 2010." Contracting Officer's Statement at 2. Multiple proposals were submitted by the February 12 closing time. The protester submitted its proposal on February 12, at 2:24 p.m, and it was rejected as late. This protest followed.

CFS contends that the due date for proposals should have been extended until 2 p.m. on Tuesday, February 16, because this was the first day that normal government processes resumed. Therefore, the protester argues that the contracting officer determination to reject CFS's proposal as late was in error. The protester essentially contends that "normal government processes" could not be said to have resumed on a day when the federal agency was operating under a 2-hour delayed arrival/unscheduled leave policy.

We agree with the agency that normal Government processes resumed on February 12. The agency states it "went on with the pursuit of its normal business following a morning that permitted Federal employees some additional time to safely commute to work" and was able to accept proposals at 2 p.m. Agency Report at 6. Contrary to the protester's allegations, the fact that Federal employees were allowed to delay arrival or take unscheduled leave does not mean that the Government had not resumed its normal processes. In fact, procedures of the Office of Personnel Management recognize that situations that allow for delayed arrival or unscheduled leave are different from the situations where the "Federal agencies are closed." OPM Washington, D.C. Area Dismissal or Closure Procedures (Nov. 2009) at 11.

We therefore find that the agency reasonably rejected CFS's proposal as late because it was received after 2 p.m. on "the first work day on which normal Government processes resume[d]."  (CFS-INC, JV, B-401809.2, March 31, 2010) (pdf)
 

The RFP, as amended, required offerors to submit proposals to the CBP's Arlington, Virginia office by 3 p.m. (eastern time), Friday, February 12, 2010. Hunter mailed its proposal from Tucson, Arizona on February 10 via the United States Postal Service's "Next Day Noon Express." Due to severe inclement weather in the Washington D.C. area, airplane flights were cancelled and federal agencies were closed February 8-11. On Friday, February 12, federal agencies reopened, but were operating on a "delayed arrival/unscheduled leave" policy. Hunter's proposal was delivered to the CBP on the morning of Tuesday, February 16--the next business day following February 12. The agency rejected Hunter's proposal as late, and this protest followed.

The protester argues that, given the inclement weather and resulting closures, the CBP should have accepted its proposal under Federal Acquisition Regulation (FAR) sect. 15.208(d). This section provides that

[i]f an emergency or unanticipated event interrupts normal Government processes so that proposals cannot be received at the Government office designated for receipt of proposals by the exact time specified in the solicitation, and urgent Government requirements preclude amendment of the solicitation closing date, the time specified for receipt of proposals will be deemed to be extended to the same time of day specified in the solicitation on the first work day on which normal Government processes resume.

Hunter argues that, consistent with this FAR provision, its proposal was timely submitted because CBP received the proposal prior to 3 p.m. on the first work day that normal government processes resumed.

We agree with the agency that FAR sect. 15.208(d) does not apply to the circumstances here. The CBP concluded that normal government operations resumed on February 12 because the government was open that entire day. Since the government was open on February 12, the earlier closures that Hunter cites did not prevent the CBP from receiving proposals "by the exact time specified in the solicitation." FAR sect. 15.208(d). Indeed, the record shows that the CBP had an individual in place to receive proposals beginning at 8 a.m. on February 12, and CBP received a number of proposals prior to the 3 p.m. closing time. Motion to Dismiss at 2. While Hunter points to the "delayed arrival/unscheduled leave" policy to show that government processes were interrupted on February 12, the relaxed arrival and leave policy did not mean the government had not resumed normal operations, and, in fact, had no bearing on the agency's ability to receive proposals by the specified closing time. Because Hunter did not timely deliver its proposal to the CBP, the proposal was late and properly rejected. See FAR sect. 52.215-1(c)(3); PMTech, Inc., B‑291082, Oct. 11, 2002, 2002 CPD para. 172 at 3 ("It is an offeror's responsibility to deliver its proposal to the proper place at the proper time.")  (Hunter Contracting Company, B-402575, March 31, 2010)  (pdf)

Latvian Connection asserts that contrary to the agency's records, it timely submitted its proposal by e-mail on November 12 at 1:19 a.m. Protest at 4. In support of this assertion, the protester states that its "'sent' e-mail folder confirms the transmission of [Latvian Connection's] proposal," and that it "continued to utilize (without incident) the same e-mail address in its post-proposal submission communications" with the agency. Id. The protest also includes the declaration of Latvian Connection's Chief Executive Officer (CEO), which states that he transmitted the proposal as an attachment to an e-mail "at '1:19 [a.m.]' on 'Thursday, November 12, 2009,'" and that his e-mail records do not "in any way suggest[] that the e-mail and attachments were rejected as undeliverable or otherwise not sent." Protest, exh. 6, Declaration, at 1. The protester asserts that the agency's actions in awarding the contract to any other offeror were unreasonable because, in the protester's view, "[t]he evidence of [Latvian Connection's] timely submission of its lower-priced proposal to the address specified in the RFP is clear, cumulative and undisputed." Protest at 6.

It is an offeror's responsibility to deliver its proposal to the proper place at the proper time. Federal Acquisition Regulation sect. 15.208; Lakeshore Eng'g Servs., B‑401434, July 24, 2009, 2009 CPD para. 155 at 4. Although the protester has submitted certain evidence, including the declaration of its CEO, in support of its assertion that it timely sent its proposal to the agency, there is no evidence establishing that the proposal was actually received by the agency. In this regard, the agency states that in response to Latvian Connection's initial inquiries and protest, searches of the agency's e-mails were performed on five different occasions by four different individuals, including the contracting officer, the cognizant senior systems administrator, and the cognizant information management officer, and that these searches did not result in any finding of the protester's proposal. Contracting Officer's Statement at 2.

On the basis of the record here, we conclude that the protester has failed to satisfy its burden of showing that it timely delivered its proposal to the agency. Lakeshore Eng'g Servs., supra; International Garment Processors, B-299674 et al., July 17, 2007, 2007 CPD para. 130 at 7. Accordingly, we have no basis on which to object to the agency's actions.  (Latvian Connection Trading and Construction, B-402410, LLC, February 25, 2010) (pdf)

The protester contends that it timely submitted part 10 of its cost/price proposal via e-mail and that its delivery receipt proves that the agency received the e-mail prior to the submission due date. In support of its argument, Lakeshore's network administrator submitted a statement that, to the best of his knowledge, the protester's e-mail server was fully functional and operational on May 8, and was capable of sending and receiving e-mail. Protester's Comments, exh. E. The network administrator also confirms that it was Lakeshore's server that generated the delivery status notification, which the protester refers to as a "delivery receipt." Id. The network administrator states that to the best of his knowledge, Lakeshore's May 8 e-mail was delivered to the agency. Id. Therefore, the protester believes that the agency improperly excluded its proposal from the competitive range.

The Navy argues that the protester has shown only that it timely sent part 10 of its proposal, not that the proposal was timely delivered. The Navy contends that it never received the protester's May 8 e-mail. AR, Tab 3, CO's Statement at 3. The agency states that its e-mail system was properly functioning on May 8, and that other incoming e-mails were received in the e-mail box immediately prior to and shortly after the time that protester sent its proposal. AR, Tab 4 at 1; Tab 5 at 1. Therefore, the Navy concludes that the protester failed to timely deliver the proposal in accordance with the terms of the solicitation and FAR sect. 52.215-1.

The Navy's Information Technology (IT) Specialist has submitted a statement explaining that the delivery receipt submitted by the protester is only a relay message, as opposed to a delivery message. According to the IT Specialist, relay messages indicate that an e-mail message was relayed or sent from the sending server (i.e., Lakeshore's server). AR, Tab 7. Thus, the IT Specialist states that the message generated by Lakeshore's server merely confirmed that the e‑mail had been sent or relayed by Landmark's server, but it does not indicate whether the e-mail was received by the NMCI server. Id. Accordingly, the Navy argues that Lakeshore has failed to show timely delivery of part 10 of its cost/price proposal.

It is an offeror's responsibility to deliver its proposal to the proper place at the proper time. FAR sect. 52.215-1(c)(3); PMTech, Inc., B-291082, Oct. 11, 2002, 2002 CPD para. 172 at 3. While the protester has shown that it timely sent part 10 of the proposal, there is no evidence that it was received by the agency prior to the due date for proposal submissions. As explained above, protester's "delivery receipt," which was sent by the protester's own e-mail server, confirms only that the message was successfully relayed from Lakeshore's system. It does not confirm that the proposal arrived at the agency's e-mail system.

Because there is no evidence that part 10 of the protester's cost/price proposal was successfully delivered to the agency's e-mail box prior to the due date for receipt of proposals, the protester has failed to satisfy its burden of showing that it timely delivered its proposal to the agency. Accordingly, we conclude that the agency reasonably excluded the protester's proposal from the competitive range.  (Lakeshore Engineering Services, B-401434, July 24, 2009)  (pdf)

TSG argues that the agency did not have any reasonable grounds to eliminate TSG from the competition prior to evaluation of offers. TSG asserts that the agency was required to consider its late modification pursuant to the RFP provision stating that "a late modification of an otherwise successful proposal that makes its terms more favorable to the government will be considered at any time it is received and may be accepted." RFP at L-2. TSG also contends that at the time it was eliminated from the competition, the agency had not selected an awardee and that TSG, like all other offerors at that point in the procurement, was "in line for award" when it submitted its modification to the agency.

TSG's argument is without merit. Under negotiated procurements, the FAR provides generally that a proposal received after the time set for receipt shall not be considered. FAR sect. 15.208(b)(1). Our Office has long held that the late proposal rule alleviates confusion, ensures equal treatment of offerors and prevents one offeror from obtaining a competitive advantage as result of being permitted to submit a proposal later than the deadline set for all competitors. Tishman Constr. Corp., B-292097, May 29, 2003, 2003 CPD para. 94 at 3. The FAR provides a limited exception for receipt of late proposals that are submitted by the "otherwise successful offeror" and which provide more favorable terms. This exception to the general "late is late" rule is intended to allow the government to receive the benefit of a more advantageous proposal from the offeror who has been selected for award, without offending the general rule that offerors must be treated equally.

As an initial matter, we disagree with TSG's assertion that the limited exception for receipt of late proposals applies here. An "otherwise successful proposal" is one that would result in the award of the contract to the offeror regardless of the late modification; generally, this means that the government may accept a favorable late modification only from the offeror already in line for award. Seven Seas Eng'g & Land Surveying, B-294424.2, Nov. 19, 2004, 2004 CPD para. 236 at 4. This exception is not available for every proposal submitted.

Furthermore, an offeror cannot make itself the "otherwise successful offeror" by submitting a late proposal modification; instead the offeror must already be the offeror in line for award prior to the time the late proposal modification is submitted. Phyllis M. Chestang, B-298394.3, Nov. 20, 2006, 2006 CPD para. 176 at 5 n.3. In this regard, an offeror cannot avail itself of the late proposal submission provision where the agency has not already identified an "otherwise successful offeror." Global Analytic Info. Tech. Servs., Inc., B-298840.2, Feb. 6, 2007, 2007 CPD para. 57 5-6.

Here, the agency had only begun its evaluation of proposals when it was advised by TSG that its project manager was no longer available to perform the contract, or to attend the scheduled oral presentation. Without this individual TSG's proposal was deficient, and TSG can not be viewed as, the "otherwise successful offeror." On this record, we conclude that the agency's determination not to accept TSG's late proposal modification was entirely consistent with the RFP and reasonable under these circumstances.

TSG also argues that the agency's cancellation of its oral presentation and elimination of its proposal from the competition were unreasonable. Where a protester challenges an agency's evaluation of a proposal's technical acceptability, our review is limited to considering whether the evaluation is reasonable and consistent with the terms of the RFP and applicable procurement statutes and regulations. National Shower Express, Inc.; Rickaby Fire Support, B-293970, B‑292970.2, Jul. 15, 2004, 2004 CPD para. 140 at 4-5.

TSG's argument that the agency's decision to reject its proposal was unreasonable is primarily based on its contention that the agency improperly refused to accept its late modification. TSG does not argue that the agency should have evaluated its proposal as originally submitted. In any event, the record shows that once TSG advised the contracting officer that the individual it proposed as its project manager was no longer available, TSG's proposal did not meet the RFP requirement that the proposal identify at a minimum, the key individual responsible for the overall contract, and a letter of commitment for that key person. Under these circumstances, we cannot say that the rejection of TSG's proposal was unreasonable or violated the terms of the RFP.

As a final matter, we recognize that the protester and the agency disagree about whether TSG was attempting to identify for the first time a new key position, director of operations, when TSG advised the agency that it needed to substitute a new project manager. Compare Initial Protest at 5 n.1 (TSG says it was not identifying this individual as one of its key personnel) with Agency Memorandum of Law at 7 n.8 (the agency concluded that by submitting a new resume, a letter of commitment and a request that its director of operations attend the oral presentation, which was only to be attended by key personnel, TSG was identifying a new key position). While TSG may not have intended to identify its new director of operations as a key employee, its actions, at a minimum, created an ambiguity about the extent to which TSG was seeking to modify its proposal weeks after the proposal submission date. We see nothing unreasonable about the agency’s decision not to allow either of these modifications.  (The Sandi Group, Inc., B-401218, June 5, 2009) (pdf)

The protester states that two principals of ALJUCAR arrived at the security checkpoint at 1:52 p.m. to deliver the firm's proposal to building 421 before the scheduled 2 p.m. closing; the protester estimates that it is a 3-5 minute drive to the building from the checkpoint. The protester states there was a delay at the checkpoint, however, because a security guard there determined that one of the protester's representatives did not have adequate identification. According to the protester, the guard would not allow the individual to remain at the security checkpoint or walk unescorted to the base exit at Gate 4; rather, the individual was to be driven back to the nearby exit.

At that point, the protester states, one of its representatives called the contracting officer from the security checkpoint to notify him of the matter, and the contracting officer informed him that the contracting specialist would come to the security checkpoint to receive the firm's proposal. ALJUCAR does not state what time it was when its representative gave its proposal to the contracting specialist at the security checkpoint. The contracting specialist, on the other hand, reports that it was after 2 p.m. when she received the contracting officer's request to leave building 421 to drive to the security checkpoint to receive the proposal. After the firm's proposal was loaded in the contracting specialist's car, she apparently spent several minutes speaking to one of the protester's representatives, then she returned to building 421 where the proposal was logged in as delivered at 2:29 p.m., 29 minutes after the scheduled closing time.

By letter of January 5, 2009, the agency informed ALJUCAR that, since the firm's proposal had not been under government control prior to the time set for the receipt of proposals, it was rejected as late. On January 7, ALJUCAR filed an agency-level protest asserting that the security guard's improper decision not to allow one of ALJUCAR's representative to either walk to the base exit unescorted or remain at the security checkpoint while the other representative delivered the proposal made it impossible for the firm to deliver its proposal on time. The agency denied the protest on February 23, finding that the protester's allegation of improper government action was not adequately supported and concluding that, since the contracting specialist reported she did not receive the proposal from the protester at the security checkpoint until after 2 p.m., the proposal (logged in as delivered at 2:29 p.m.) was late. This protest followed.

It is an offeror's responsibility to deliver its proposal to the proper place at the proper time, and late delivery generally requires rejection of the proposal. Integrated Support Sys. inc, B-283137.2, Sept. 10, 1999, 99-2 CPD para. 51 at 2. However, a hand-carried proposal that arrives late may be considered if improper government action was the paramount cause for the late submission, and where consideration of the proposal would not compromise the integrity of the competitive process; improper government action in this context is affirmative action that makes it impossible for the offeror to deliver the proposal on time. Id. Nonetheless, even in cases where the late receipt may have been caused, in part, by erroneous government action, a late proposal should not be considered if the offeror significantly contributed to the late receipt by not acting reasonably in fulfilling its responsibility to deliver a hand-carried proposal to the proper place by the proper time. See O.S. Sys., Inc., B‑292827, Nov. 17, 2003, 2003 CPD para. 211 at 3.

Our review of the record here shows no evidence that the ALJUCAR proposal was in fact received by the agency prior to the 2 p.m. closing time. The contracting specialist reports arriving after 2 p.m. to retrieve the proposal. While the protester states it was on the telephone with the contracting officer minutes before closing, it has not shown that the proposal was under government control prior to 2 p.m. Rather, the protester argues that the sole cause of the proposal's untimely receipt was the delay caused by the guard at the security checkpoint. ALJUCAR contends that the guard's failure to allow the firm's representative who lacked adequate identification to either wait at the checkpoint or leave the checkpoint, unescorted, to exit the base was improper government action. ALJUCAR disagrees with the agency's position that the guard's action was appropriate under the agency's general security policies regarding access and movement controls at a secure facility such as the Space Center. As the agency points out, however, even if the guard acted in error, we cannot conclude that his action was the sole or paramount cause of the proposal being received late, since the representatives of the protester--which had the primary responsibility for delivering its proposal on time--significantly contributed to the lateness of the proposal.

Despite numerous RFP instructions emphasizing the offeror's responsibility for timely submission, including that the offeror should anticipate it taking up to an hour to complete the required security screening for proposal submissions, the protester's representatives arrived on the base only 8 minutes before closing. ALJUCAR simply did not allow sufficient time to fulfill its responsibility to deliver its proposal by the proper time. See Wyatt and Assocs., B‑243349, July 1, 1991, 91-2 CPD para. 5 at 2-3. Given the RFP warnings and the secure nature of the NASA installation, the protester should have reasonably anticipated delay in gaining access to the facility. See, e.g., Einhorn Yaffee Prescott, B‑259552, Mar. 20, 1995, 95-1 CPD para. 153 at 4. In short, ALJUCAR assumed a risk in allowing so little time for delivery of its proposal here. Id. In these circumstances, where the protester did not act reasonably to fulfill its obligation to deliver its proposal on time, we find no basis to question the agency's decision to reject the proposal as late.  (ALJUCAR, LLC, B-401148, June 8, 2009)  (pdf)

Rehal objects in its protest to our Office that its proposal was "mislaid following delivery and consequently was not evaluated," arguing that it was "clearly stated under Amendment 0001 to the Solicitation that all required documentation required to be submitted" could be delivered to Camp Arifjan. In this regard, Rehal complains that the proposal delivery instructions were very complicated and misleading.

We do not agree with Rehal that amendment 1 changed the RFP delivery instructions that required offerors to submit their technical and price proposals to two different locations. Rather, reading the relevant question and answer included in amendment 1 within the context of the RFQ as a whole, the solicitation informed offerors that they were still required to submit one copy of their technical proposal and all of the copies of their price proposals to the Army Sustainment Command at Rock Island.[2] In this regard, the RFP, as amended, continued to inform offerors that receipt of proposals by the Army Sustainment Command at Rock Island, the only location that was designated to receive both the technical and cost proposals, would determine whether offerors' proposals were timely submitted.

Here, it is undisputed that the protester did not deliver its technical and price proposals to the Army Sustainment Command at Rock Island, as directed by the RFP, for the purpose of establishing the timeliness of the proposal. It is an offeror's responsibility to deliver its proposal to the proper place by the proper time. Shirlington Limousine & Transp., Inc., B-299241.2, Mar. 30, 2007, 2007 CPD para. 68 at 2. Because Rehal did not submit its proposal in accordance with the solicitation instructions, we find reasonable the Army's rejection of Rehal's proposal.

With respect to Rehal's complaint that the RFP's proposal instructions were complex and that it was misled by the solicitation's instructions, even were we to accept Rehal's arguments, these arguments, at best, would establish a patent ambiguity, i.e., one that is obvious from the face of the solicitation. Offerors have an affirmative obligation to seek clarification prior to the first due date for submission of proposals following introduction of an ambiguity into a solicitation. See Bid Protest Regulations, 4 C.F.R. 21.2(a)(1) (2008). Protests of a patent solicitation ambiguity that are not filed before the time set for receipt of initial proposals are untimely and will not be considered by our Office. See Kellogg Brown & Root, Inc., B-291769, B‑291769.2, Mar. 24, 2003, 2003 CPD para. 96; Bank of Am. , B-287608, B-287608.2, July 26, 2001, 2001 CPD para. 137 at 10. The requirement that protests of patent ambiguities be filed prior to time set for receipt of initial proposals is intended to facilitate clarification of legitimate questions prior to preparation of submissions. Since Rehal sought no such clarification of this matter prior to responding to the solicitation, its complaints about being misled by the solicitation instructions are untimely.  (Rehal International Transportation, B-401090, April 7, 2009) (pdf)

With respect to the first issue, we find that HUD correctly concluded that Urban Title’s FPR was late. As explained above, both of Urban Title’s attempts to submit its FPR were received after the time specified by the agency for receipt of FPRs. Although Urban Title objects that the agency has provided no explanation of the anomaly that resulted in the apparent delay of the protester’s first e-mail for 5 weeks, the protester does not dispute that it occurred, and the contracting specialist has provided the facts in a sworn declaration to our Office.

HUD argues that the only exception for a late proposal revision received by electronic means is found in FAR sect. 52.215-1(c)(3)(ii)(A), which could only apply if Urban Title’s electronic submission had reached the “initial point of entry to the Government infrastructure” by 5 p.m. a day before the due date. HUD points out that Urban Title confirms that its FPR submissions were sent on the due date (not a day early), and thus the exception is unavailable.

Urban Title argues HUD elected to limit offerors to submitting FPRs only by e-mail, and that by doing so, HUD was obliged to ensure that its e-mail system was reasonably reliable. In Urban Title’s view, the facts here suggest that HUD failed in meeting that duty.

In our view, the protester’s argument is foreclosed by the specific treatment of the issue in FAR sect. 52.215-1(c)(3)(ii)(A). See Sea Box, Inc., B-291056, Oct. 31, 2002, 2002 CPD para. 181 at 3 (other exception necessarily applies only to proposals not delivered by electronic means). Moreover, any objection to HUD’s decision to specify that FPRs be submitted by e-mail is an allegation of a patent solicitation defect,[3] which is therefore untimely when raised for the first time now, after award.[4] 4 C.F.R. sect. 21.2(a)(1) (2008). Accordingly, Urban Title’s protest to the treatment of its FPR as late is denied.  (Urban Title, LLC, B-311437.3, January 7, 2009) (pdf)

Sector One asserts that it sent its proposal by express mail to the address in the RFP for hand-delivery or courier. The protester has provided the USPS Express Mail label from the package indicating that it had the correct hand-carried address provided by the RFP and that USPS made two attempts to deliver the package, one of which was after the date and time for submission of proposals. The protester argues that express mail is delivered by courier and that someone at the agency marked “refused” in the employee signature box.

It is the responsibility of each firm to deliver its proposal to the proper place at the proper time, and late delivery generally requires rejection of the submission. Sencland CDC Enters., B-252796, B-252797, July 19, 1993, 93-2 CPD para. 36 at 3. Where late receipt results from the failure of a vendor to reasonably fulfill its responsibility for ensuring timely delivery to the specified location, the late offer may not be considered. Aztec Dev. Co., B-256905, July 28, 1994, 94-2 CPD para. 48 at 3. An offer that arrives late may only be considered if it is shown that the paramount reason for late receipt was improper government action, and where consideration of the proposal would not compromise the integrity of the competitive procurement process. Caddell Constr. Co., Inc., B-280405, Aug. 24, 1998, 98-2 CPD para. 50 at 6. Improper government action in this context is affirmative action that makes it impossible for the offeror to deliver the proposal on time. Id.

As an initial matter, the agency denies receiving or rejecting the Sector One proposal submission that was the subject of the alleged delivery attempt by the USPS carrier. As explained above, since USPS does not deliver mail to the building where the Office of Acquisition is located, the RFP contained a P.O. box for mailed proposals, and allowed for hand-carried proposals provided delivery was coordinated with the contracting officer. By its own admission, the protester did not follow the instructions in the RFP for submission of its proposal in that it made no arrangements with the contracting officer for hand-carried delivery.

In our view, the evidence submitted by the protester does not establish that the agency actually received the protester’s submission or that there was an attempt to deliver the proposals to the agency before the closing time established in the solicitation. As explained above, the record here, at best, only demonstrates that the USPS carrier attempted to deliver the protester’s submission to some DOS location and does not specifically demonstrate whether anyone at DOS refused to accept delivery. The record shows that the paramount reason for the nonreceipt of the protester’s submission is the protester’s failure to follow the solicitation instructions to either mail its proposal to the designated P.O. box number or make the proper arrangements for hand-carried delivery. In short, there is nothing in the record showing that any affirmative government action deprived the protester of the ability to make a proper delivery of its proposal.  (Sector One Security Solution, B-400728, December 10, 2008) (pdf)

Late Quote:  The RFQ contemplated the award of an order to a General Services Administration Federal Supply Schedule vendor in accordance with Federal Acquisition Regulation (FAR) Subpart 8.4. The RFQ required that vendors submit their quotations electronically to the contract specialist and the contracting officer by 12 p.m. on Monday, July 21, 2008; email addresses were provided for both agency recipients. Vendors were cautioned that they were responsible for ensuring that quotations were received by the agency at the specified date and time, and that “[q]uotes received after the exact time specified for receipt of quotes shall not be considered.” RFQ sect. L.2.

Turner states that on Sunday, July 20 at 10:12 p.m. (the evening before the due date for receipt of quotations), its vice president (VP) transmitted the firm’s quotation, consisting of an e-mail with five attached files in Adobe portable document format (pdf), to the contract specialist and contracting officer at the email addresses specified in the RFQ. Turner also transmitted copies of this email to two other, non‑agency recipients, one of whom automatically forwarded his email to a government email account that is sponsored by the Office of Management and Budget (OMB) for his work on another project. This addressee received the email and all its attachments at his OMB mailbox a few minutes after Turner’s transmission. Protest at 7.

Turner states that, after sending its quotation to these four recipients, the firm sent a second email to the contract specialist and contracting officer, informing them that Turner had submitted its quotation. Turner did not receive any messages from its email system, informing the firm of errors or problems with the delivery of these emails. After transmitting these emails, Turner’s VP called the contract specialist and left a telephone voicemail message requesting confirmation that the agency had received Turner’s quotation. Turner did not receive any response to this voicemail request.

On Monday, July 21, at 10:05 a.m., Turner again called the contract specialist and left a second voicemail message seeking confirmation of the receipt of its quotation; one minute later, Turner left a similar message with the contracting officer. The contract specialist states that she arrived in her office at 8:10 a.m. but was in another building from 9:30 a.m. until 11:35 a.m. She also states that she received an “unintelligible [voicemail] message” at 10:16 p.m., on Sunday night, and Turner’s 10:05 a.m. Monday voicemail message. She states that after hearing the latter message at 11:35 a.m. on Monday, she searched her email for Turner’s quotation, but did not find it. She did, however, see Turner’s second email (which had no attachments) stating that Turner had submitted its proposal. The contract specialist states that she was still trying to locate Turner’s quotation at 12:25 p.m., after the closing time for receipt of quotations, when Turner’s VP called her, and she informed him that the agency had not received the firm’s quotation. Agency Report, Declaration of Contract Specialist, at 2.

Turner immediately re-sent the email with the five attached pdf files, comprising its quotation, which the agency again did not receive. The contract specialist suggested that Turner separate the attachments and send the quotation in multiple emails. Turner did so, and four of the five attachments were successfully delivered to the contract specialist’s email account. Turner eventually converted the remaining pdf file to a Microsoft Word document, which Turner successfully transmitted to the contract specialist. Id.

Two other firms successfully transmitted quotations to the agency by the noon deadline for receipt of quotations.

The contract specialist contacted the agency’s Office of the Chief Information Officer and requested assistance in investigating the situation, asking whether there was any way to determine whether the agency’s server had rejected Turner’s email with its attachments. After being told that a search of the office’s records had detected no problems in the agency’s server and that there was no record of having received the email, even at the outermost point of entry in the agency’s system, the contracting officer rejected Turner’s quotation as late. This protest followed.

Turner does not dispute that its quotation was received late; rather, the crux of Turner’s protest is that some unspecified error in the agency’s internet system prevented the timely delivery of Turner’s quotation. Turner maintains that, because its email to the agency was simultaneously and successfully transmitted to the two other non-agency recipients, the paramount cause of its quotation not reaching the designated agency email accounts must be something in the agency’s email system or server, such as, Turner speculates, an arbitrary blocking of pdf files or other arbitrary fault in the agency’s system.

DOE does not dispute that Turner attempted to send its quotation by email before the noon deadline, or that Turner took reasonable steps to confirm its delivery. Rather, the agency argues that there is no evidence that Turner’s email ever reached its server and that, since other offerors successfully submitted pdf files, the problem most likely was caused by some technical “glitch” in one of Turner’s pdf files. In this regard, the agency notes that when, after the closing date for receipt of quotations, Turner separately transmitted its attachments, all but one of the attachments was successfully transmitted. That one attachment had to be converted to a different format to be successfully delivered to the agency. Legal Memorandum at 4.

FAR provisions in Parts 14 and 15, governing the late delivery of bids and proposals, generally do not apply to the late delivery of a quotation. However, where as here the RFQ contains a late submission provision that quotations must be received by a stated deadline to be considered, quotations cannot be considered if received after the deadline. See Data Integrators, Inc., B-310928, Jan. 31, 2008, 2008 CPD para. 27 at 2.  (emphasis added by Wifcon.com)

Here, there is no question that Turner’s quotation was not received by the agency by the time required for submission of quotations. Although Turner contends that something in DOE’s internet system prevented the timely receipt of Turner’s quotation, there is no evidence in the record to support this contention. Rather, DOE states that its investigation found no problems with the agency’s servers that would prevent the timely receipt of quotations, and that the agency timely received other emailed quotations which included pdf files, see Contracting Officer’s Statement at 3, which lends support to this view. Moreover, Turner’s late delivery of its quotation could not be completed until after the protester had changed the format of one of its email attachments, which also lends support to the agency’s view that Turner’s inability to timely deliver its quotation to the agency was more likely the result of a corrupted file. We recognize that Turner disputes that its attachments were corrupted and that it continues to contend that it timely transmitted its quotation to DOE; this, however, does not demonstrate that DOE timely received the firm’s quotation or was responsible for Turner’s inability to timely deliver its quotation to the agency. In short, given that there is no evidence in the record to show actual timely receipt of the Turner’s quotation, we have no basis to find unreasonable the agency’s rejection of the quotation as late. See International Garment Processors, B-299674; B-299743; B‑299746, July 17, 2007, 2007 CPD para. 130 at 7.  (Turner Consulting Group, Inc., B-400421, October 29, 2008) (pdf)

On August 5, 2008, the Navy posted the RFQ on the FedBizOpps website. The RFQ specified a closing date and time of 2 p.m., August 21. The RFQ contained instructions for submission of quotations, including the notice that “[e]lectronic bids may be submitted to the following email address: roicc_chpt_ktr_bids@navy.mil by the time stated on the [standard form] 18.” RFQ at 7. The electronic version of the RFQ included a blue, underlined hyperlink for the email address. With the cursor placed over the hyperlink for the email address, it appears as roicc_chpt_ktr_bids@navy.mil, clearly showing the underscoring of the otherwise blank spaces between characters. The agency received one quotation, from Mid-Atlantic Crane, which received the award on September 3.

On September 5, PHC contacted the agency to ask about this procurement and was told that the agency had not received a quotation from PHC and that award had been made to another vendor. PHC maintained that it had sent its quotation by email on August 21, at 11:52 a.m., to the following address: roiccchptktrbids@navy.mil, eliminating the spaces created by the underscoring in the email address as set out in the RFQ. That same day, PHC submitted its quotation directly to the contracting officer, as well as information to show the August 21 submission of its quotation. Upon review of the information provided by PHC, the contracting officer determined that PHC’s quotation had not been received because it was sent to the wrong email address. Because the agency first received PHC’s quotation on September 5, after award already had been made, the agency did not consider PHC’s quotation further.

The protester does not dispute that its quotation was received late and after award. Rather, the protester argues that the circumstances surrounding the late receipt of its quotation compel the agency to consider it. In this regard, the protester argues that the error in the email address it used was the result of the unclear manner in which the address was set out in the RFQ. Moreover, the protester asserts that the email address it used must exist because the protester received a notice of receipt of its email, similar to notices of receipt that it has received in response to other email submissions that were known to have been properly received.

We have long held that the requirement to obtain competition to the maximum extent practicable means that language requesting quotations by a certain date cannot be construed as establishing a firm closing date for the receipt of quotations absent a provision--which was not present here--expressly providing that quotations must be received by that date to be considered. Instruments & Controls Serv. Co., B-222122, June 30, 1986, 86-2 CPD para. 16 at 3. Instead, agencies should consider any quotations received prior to source selection if no substantial activity has transpired in evaluating quotations and other vendors would not be prejudiced. Id. See also KPMG Consulting LLP, B-290716, B-290716.2, Sept. 23, 2002, 2002 CPD para. 196 at 11. Here, where the agency had already made an award prior to its receipt of the protester’s quotation, we see no reason to object to the agency’s refusal to consider that quotation. John Blood, B-274624, Dec. 19, 1996, 96-2 CPD para. 233 at 2.

The protester’s argument that the email address used by the agency for receipt of quotations was “complicated and error-prone,” Comments at 2, and that if the address had been clear the protester would not have made the entry error, does not compel a different result. As noted above, the email address, with the underscoring, was clearly visible in the electronic version of the RFQ once the cursor was placed over the address. To the extent the underscoring was not apparent to PHC, PHC nevertheless failed to act reasonably in the electronic submission of its quotation, which directly resulted in the agency not timely receiving its quotation. Without first raising the issue with the agency, PHC simply assumed that what it perceived as blank spaces between the characters in the agency’s email address were unintended and immaterial--as noted above, the email address used by PHC for the submission of its quotation simply eliminated the underscored spaces. It was unreasonable for PHC to make this assumption and thereby modify the email address designated in the RFQ for the submission of quotations. Given PHC’s own actions, we have no basis to conclude that the agency acted unreasonably by rejecting PHC’s late quotation.  (Piedmont Hoist & Crane, B-400563, October 8, 2008) (pdf)

The protester is one of three offerors whose proposals were included in the most recent competitive range created by the agency. At issue is the mode of transmission permitted by the RFP. As a general matter, offerors may use any transmission method authorized by the solicitation. Federal Acquisition Regulation (FAR) sect. 15.208(a). The solicitation nowhere authorized the use of electronic methods of submission for the original proposal and contemplated the use of facsimile submissions only for revisions of offers. RFP at 2. The RFP did clearly contemplate submission in paper form. See id. (listing the mailing address for offers and instructions for hand delivery, including delivery by courier).

The record shows that throughout this competition the agency has made no objection to the submission by e-mail of proposal revisions by the protester and at least one other offeror. On May 13, 2008, DSCP transmitted amendment 7 to Labatt as an attachment to an e-mail that instructed Labatt to “review, sign, and return this amendment along with your proposal no later than 20 May 2008.” Protest, Exh. 9. The attached amendment specified a deadline of 2:00 p.m. Eastern Standard Time (EST), May 20. Amendment 7 increased the guaranteed minimum and maximum order quantities by over 20 percent and made several changes to the solicitation which directly addressed Labatt’s previous protest. The other two offerors submitted proposals by the 2:00 p.m. deadline; Labatt transmitted its proposal at 4:27 p.m. On May 22, the agency informed the protester that its proposal was transmitted by e-mail, which was not an authorized transmission method, and that it was submitted late. This protest followed.

Labatt does not contest that it failed to meet the 2:00 p.m. solicitation deadline. Rather, Labatt argues that, because the e-mail transmitting the amendment was created after the amendment and did not bear the 2:00 p.m. deadline, Labatt reasonably understood the deadline to be 4:30 p.m. In support of its position, Labatt relies on FAR sect. 52.212-1(f)(1) (incorporated into the RFP here), which provides that “[i]f no time is specified in the solicitation, the time for receipt is 4:30 p.m., local time, . . . on the date that offers or revisions are due.” The protester met that deadline, and thus its proposal was not late, Labatt argues. We disagree. The FAR clause quoted above also stated that “[o]fferors are responsible for submitting offers, and any modifications, revisions, or withdrawals, so as to reach the Government office designated in the solicitation by the time specified in the solicitation.” Solicitation at 75. The “time specified in the solicitation,” specifically, amendment 7, was 2:00 p.m., irrespective of what the transmittal e-mail said, and the protester failed to meet that deadline.

The protester argues that, assuming all of the offerors made submissions via e-mail, which, as noted above, was not a transmission method permitted by the solicitation, the agency was required to reject all of the proposals. We disagree. Even where an agency clearly should have amended a solicitation or otherwise apprised offerors that it had effectively waived a requirement, our Office will not sustain a protest unless the protester demonstrates a reasonable possibility that it was prejudiced by the agency’s actions. 4-D Neuroimaging, B-286155.2; B-286155.3, Oct. 10, 2001, 2001 CPD para. 183 at 9-10. Here, the agency allowed each of the offerors to submit proposals by e-mail, which was not a method permitted by the solicitation; the protester, in fact, benefited from the agency’s decision to relax the transmission method. The protester has not shown how it was harmed by the agency’s acceptance of the offerors' submissions by e-mail. (Labatt Food Service, Inc., B-310939.6, August 18, 2008) (pdf)

Acceptance of the late quotation was improper. GPO is correct that solicitation language setting a certain date and time for submission of quotations generally does not establish a firm deadline for receipt of quotations. However, where the solicitation contains a late submission provision expressly providing that quotations must be received by the stated deadline in order to be considered, quotations cannot be considered if received after the deadline. See M.Braun, Inc., B‑298935.2, May 21, 2007, 2007 CPD para. 96; DataVault Corp., B-248664, Sept. 10, 1992, 92-2 CPD para. 166 at 2; Instruments & Controls Serv. Co., supra. Here, the solicitation stated that “GPO Contract Terms (GPO Pub. 310.2, effective December 1, 1987 (Rev. 6-01)) applies.” AR, Tab B. The referenced GPO contract terms, in section 7(a) under “Solicitation Provisions,” included a late submission provision providing that any bid “received … after the exact time specified for receipt will not be considered” (except under specified exceptions not applicable here). This is precisely the type of provision that we have held precludes an agency from accepting a quotation submitted after the stated deadline. Although section 7 refers to “bids,” it is clear from GPO’s incorporation of this provision in the solicitation that it was intended to apply to the quotations received here. We conclude that, since TDC’s quotation was received after the deadline set forth in the solicitation, it could not be accepted; issuance of the purchase order to TDC therefore was improper. See M.Braun, Inc., supra. On December 13, 2007, GPO advised us by letter that it had determined “continued performance under the purchase order issued for the Quotation Request at issue to be in the best interests of the Government.” Where, as here, an agency determines that it is in the best interest of the government to proceed with performance in the face of a protest to our Office, and we sustain the protest, we are required by the Competition in Contracting Act of 1984, 31 U.S.C. sect. 3554(b)(2) (2000), to make our recommendation for corrective action without regard to any cost or disruption from terminating the contract, or recompeting or reissuing the solicitation. Department of the Navy--Modification of Remedy, B-274944.4, July 15, 1997, 97-2 CPD para. 16 at 2-4. Ordinarily, therefore, we would recommend that GPO cancel the purchase order issued to TDC and issue an order to Data Integrators based on its lowest-priced, timely quotation. See, e.g., e-LYNXX Corp., B-292761, Dec. 3, 2003, 2003 CPD para. 219 at 9-10 (agency directed to conduct new source selection decision and cancel order if necessary).  Here, however, shipment was required by December 31, 2007, and we have been advised by GPO that delivery has been completed. Under these circumstances, we cannot recommend that GPO cancel TDC’s purchase order and issue a new order to Data Integrators, since there is no substantial part of the purchase order remaining to be performed. See Information Ventures, Inc., B-293518, B-293518.2, Mar. 29, 2004, 2004 CPD para. 76 at 5 (GAO cannot recommend disturbing award where contract for educational services was largely completed); International Data Sys., Inc., B‑277385, Oct. 8, 1997, 97-2 CPD para. 96 at 5 (corrective action not available when contract for personal computers fully performed). Accordingly, we recommend that Data Integrators be reimbursed its costs of quotation preparation and of filing and pursuing the protest, including reasonable attorneys’ fees. Bid Protest Regulations, 4 C.F.R. sect. 21.8(d)(1), (2) (2007). Data Integrators should submit its certified claim for costs, detailing the time expended and costs incurred, directly to GPO within 60 days after the receipt of this decision. (emphasis added) (Data Integrators, Inc., B-310928, January 31, 2008) (pdf)

Northwest first argues that the agency should accept and evaluate its submissions because, in the protester’s view, the USPS records show that delivery was attempted prior to the closing time, but could not be completed. Thus, the protester contends that the agency must have failed to make proper arrangements to receive submissions. The protester also argues that since its submissions were not proposals, but merely A-E Qualifications Statements--the evaluation of which are used only to qualify potential vendors for inclusion on a list for issuance of task orders at future dates--acceptance and evaluation of its submissions despite their late receipt causes no harm to other offerors.  It is the responsibility of each firm to deliver its proposal (or here A-E Qualifications Statements) to the proper place at the proper time, and late delivery generally requires rejection of the submission. Sencland CDC Enters., B-252796, B-252797, July 19, 1993, 93-2 CPD para. 36 at 3. Where late receipt results from the failure of a vendor to reasonably fulfill its responsibility for ensuring timely delivery to the specified location, the late offer may not be considered. Axtec Dev.Co., B-256905, July 28, 1994, 94-2 CPD para. 48 at 3. An offer that arrives late may only be considered if it is shown that the paramount reason for late receipt was improper government action, and where consideration of the proposal would not compromise the integrity of the competitive procurement process. Caddell Constr. Co., Inc., B-280405, Aug. 24, 1998 , 98-2 CPD para. 50 at 6. Improper government action in this context is affirmative action that made it impossible for the offeror to deliver the proposal on time. Id.  As an initial matter, the agency denies receiving or rejecting the Northwest submission package that was the subject of the alleged delivery attempt by the USPS carrier. Instead, NPS explains that it followed its standard procedure for receipt and acceptance of proposals on December 22, 2006. In this regard, since the designated installation is a secured facility manned by security personnel on a 24-hour basis, deliveries entering the building lobby are stopped at the security desk, while the guard calls the NPS mailroom to advise that a package had arrived, and needs to be retrieved. CO’s Statement at 3. If mailroom personnel are not available, the practice is for building security personnel to call the contracting and general services offices directly. Moreover, the agency provided a declaration from the security guard who covered the post on the date and time in question, and the guard states that no notice of an attempted delivery was left by the USPS on that date, and that there were no delivery problems that day. Declaration of Security Guard, Apr. 11, 2007 . In addition the CO states that several other proposals were hand-carried to the agency on December 22, and that, in each case, security personnel called to advise that a package had arrived. Upon receipt of these calls, the CO personally greeted individuals seeking to deliver the submissions and took possession of the submissions in the building lobby. Finally, the CO explains that both mailroom and security personnel were aware that the CO was receiving proposals that day.  In our view, the evidence submitted by the protester does not establish that the agency actually received the protester’s submissions or that there was ever an attempt to deliver the submissions to the NPS facility before the closing time established in the solicitation. As explained above, the record here, at best, only demonstrates that the USPS carrier attempted to deliver the protester’s submissions somewhere in Oakland at 11:22 a.m. on December 22. There is also no evidence that the NPS failed to make proper arrangements for deliveries, or in any way mishandled the submissions. Instead, numerous other proposals were received throughout the day, and the security guard on duty has submitted a sworn statement explaining that there were no delivery problems that day. Under these circumstances, we think the agency properly refused to accept the protester’s submissions when they were subsequently delivered by FEDEX.  Alternatively, Northwest asserts that since the submissions here were only Qualifications Statements, and not proposals, no harm will result from the agency evaluating its untimely submissions. For the reasons below, we disagree.  The FedBizOpps notice specifically stated a date and time for delivery of these submissions and warned vendors that late responses would be handled in accordance with FAR sect. 15.208. We have recognized that even when the submissions at issue are not proposals, the late submission rules alleviate confusion, ensure equal treatment of all competitors, and prevent one firm from obtaining any unfair competitive advantage that might accrue where only one firm is permitted additional time to prepare its submissions for evaluation by the agency. See Zebra Techs. Int’l, LLC, B-296158, June 24, 2005, 2005 CPD para. 122 at 3. (agency reasonably declined to waive a late submission of past performance information--requested by the solicitation prior to quotes, and by a date certain--because waiving the clear submission deadline for the protester would effectively confer a competitive advantage not provided to other offerors). While the government may lose the benefit of more advantageous terms included in a late submission, protecting the integrity of the competitive procurement process by ensuring fair and equal treatment among competitors is of greater importance than the possible advantage to be gained by considering a late submission in a single procurement. Id.  Lastly, the protester maintains that it is a veteran-owned emerging small business and may suffer material harm if it is denied the opportunity to be considered as a potential provider of such services. While we recognize that denying the protester an opportunity to participate in these procurements may have an adverse affect on the protester, acceptance of the protester’s untimely submissions is unfair to other vendors who timely submitted responses and inconsistent with protecting the integrity of the procurement system.  (Northwest Heritage Consultants, B-299547, May 10, 2007) (pdf)

It is an offeror’s responsibility to deliver its proposal to the proper place by the proper time, and late delivery generally requires rejection of the proposal. Federal Acquisition Regulation (FAR) sect. 15.208; The Staubach Co., B-276486, May 19, 1997, 97-1 CPD para. 190 at 3. However, a hand-carried proposal that arrives late may be considered if improper government action was the paramount cause for the late submission, and where consideration of the proposal would not compromise the integrity of the competitive procurement process. Caddell Constr. Co., Inc., B-280405, Aug. 24, 1998, 98-2 CPD para. 50 at 6. Improper government action in this context is affirmative action that makes it impossible for the offeror to deliver the proposal on time. Id. Here, as explained below, we find no basis to conclude that improper government action caused the late submission of Shirlington’s proposal.  The record shows that once the inconsistency in the delivery addresses listed in the original RFP was brought to the agency’s attention, the agency issued an amendment clarifying where proposals were to be delivered. Thus, there simply is no support for the protester’s assertion that the agency’s failure “to provide sufficiently clear delivery instructions,” Comments at 3, caused Shirlington to submit its bid late. The protester argues that its past pattern of dealing with the agency, which made it unique among the offerors, led it to conclude that the proper delivery address was the bid room at 7th and D Streets. Whatever the protester may have done to satisfy proposal delivery requirements in prior procurements does not excuse the protester from its burden to ensure timely delivery of its proposal at the location specified in the solicitation. See Schmid & Kalhert GmBH & Co. KG, B‑233467, Feb. 13, 1989, 89-1 CPD para. 148 at 3. In short, there is nothing in the record showing that any affirmative government action deprived the protester of the ability to make proper delivery of its proposal. The protester also asserts that the agency treated offerors unfairly because DHS employees “may have provided more explicit instructions to other offerors without sharing this information with Shirlington.” Comments at 3. As explained above, two offerors received minimal assistance with directions to the proposal delivery locations after calling the contract specialist on the proposal due date. That a contracting official or other agency employee, in response to an inquiry from a prospective offeror, provides that offeror with directions to the proposal delivery location does not form a valid basis of protest. See Aztec Dev. Co., B-256905, July 28, 1994, 94-2 CPD para. 48 at 4 (noting that courier could have called the contracting officer for additional directions to the delivery location). The protester, of course, could have availed itself of the same opportunity to obtain directions.  The protester asserts, alternatively, that its proposal was received and under the government’s control prior to the submission deadline so that an exception to the rule that late proposals must be rejected applies. In this regard, FAR sect. 15.208(b)(1) states that any proposal that

is received at the designated Government office after the exact time specified for receipt of proposals is “late” and will not be considered unless it is received before award is made, the contracting officer determines that accepting the late proposal would not unduly delay the acquisition; and—

* * * * *

(ii) There is acceptable evidence to establish that it was received at the Government installation designated for receipt of proposals and was under the Government’s control prior to the time set for receipt of proposals . . . .

This exception may apply, if all other conditions are also met, when a proposal is late but at the office designated for receipt of proposals, and under the government’s control, before the time set for receipt of proposals. See States Roofing Corp., B-286052, Nov. 8, 2000, 2000 CPD para. 182 at 4-5. This exception clearly does not apply here given that the proposal was not, in fact, at any time delivered to “the designated Government office,” i.e., the address listed in amendment 3 of the RFP; in fact, it was delivered to an entirely different location.  (Shirlington Limousine & Transportation, Inc., B-299241.2, March 30, 2007) (pdf)

Omega asserts that the agency was required to consider its late FPR pursuant to a solicitation provision stating that “a late modification of an otherwise successful proposal that makes its terms more favorable to the government will be considered at any time it is received and may be accepted.” RFP sect. L-1 (incorporating Federal Acquisition Regulation (FAR) sect. 52.215-1). Omega maintains that its proposal was the only acceptable one--and thus was the “otherwise successful proposal” prior to the request for second FPRs--because it was the only one that offered the required OEM warranties; based on discussions it had with component manufacturers, Omega believes GDC4S’s proposal could not have included the required OEM warranties. Omega’s argument is without merit. An “otherwise successful proposal” is one that would result in the award of the contract to the offeror regardless of the late modification; generally, this means that the government may accept a favorable late modification only from the offeror already in line for award. Seven Seas Eng’g & Land Surveying, B‑294424.2, Nov. 19, 2004, 2004 CPD para. 236 at 4; Robotic Sys. Tech., B‑271760, May 14, 1996, 96-1 CPD para. 229 at 3. The record shows that Omega’s proposal would not have been in line for award prior to the late modification. In this regard, the agency informed Omega in its August 17 discussions (prior to the second FPR) that its price proposal was “unreasonably high, relative to the other offerors, and is potentially non‑competitive.” Agency Report (AR), exh. 16. Since the agency found that pricing changes were necessary in order for Omega’s proposed price to be deemed reasonable, and required offerors to respond to the amended solicitation, its proposal was not the “otherwise successful proposal,” and there thus was no basis for the agency to accept its late FPR. (Omega Systems, Inc., B-298767, November 6, 2006) (pdf)

On August 23, 2006, Symetrics transmitted its FPR electronically to the contracting officer’s e-mail address. At 2:58 p.m., the president of Symetrics phoned the contracting officer to notify her that Symetrics had submitted its FPR. Protest, Symetrics’ President’s Affidavit. The contracting officer received the e-mail while on the phone with Symetrics’ president and told him that it was received at 3:01 p.m, according to her computer. The e‑mail, according to the contracting officer’s computer, showed the e-mail message forwarding the FPR was sent at 2:54 p.m. Agency Report, attach. 2, Declaration of Contracting Officer. Symetrics’ computer mail server records evidence that at 14:55:42 p.m. Symetrics commenced transmission, at 14:55:44 p.m. the intended recipient was identified and located, at 14:58:30 p.m. Symetrics’ transmission to the destination was identified as complete, and finally at 14:58:31 p.m. Symetrics’ mail server returned the following message: “SMTP session successful.” Protest, exh. B, Affidavit of Information Technology Specialist Contracted by Symetrics; attach.  The Government’s e-mail relay report showed Symetrics’ FPR was accepted at the server at Wright-Patterson Air Force Base, Ohio at 2:57:41 p.m. and delivered to the contracting officer’s e-mail box at 3:01:00 p.m., and that the process was completed at 3:01:00 p.m. Agency Supplemental Report, Declaration of Computer System Analyst; Agency Report, attach. 2A, E-mail Relay Report. Symetrics argues that the rejection of its FPR was unreasonable because it was within the control of the government by the deadline for receipt of FPRs. However, a late proposal revision submitted electronically may only be accepted if one of the exceptions contained in FAR sect. 52.215-1(c)(3) is applicable. See Sea Box, Inc, B‑291056, Oct. 31, 2002, 2002 CPD para. 181.

Under the first exception to FAR sect. 52.215-1(c)(3), a late proposal submitted via electronic means is late, unless accepting the late offer would not unduly delay the acquisition, and it was received at the initial point of entry to the Government infrastructure not later than 5 p.m. 1 working day prior to the date specified for receipt of proposals. FAR sect. 52.215-1(c)(3)(ii)(A)(1). This exception does not apply, as Symetrics FPR was not submitted by 5 p.m. on August 22, 2006. Our Office has previously determined that the second exception, FAR sect. 52.215‑1(c)(3)(ii)(A)(2), which allows for consideration of proposals received at the Government installation designated for receipt of offers and under the Government's control prior to the time set for receipt of offers, is not applicable to electronic proposals. Sea Box, Inc, supra, at 3. Although not expressly stated in the regulation, we found that the second exception necessarily applies only to proposals delivered by other than electronic means. This is so because if the Government considered a late electronic proposal under the second exception, regardless of whether it was received by 5 p.m. the previous working day, the first exception would effectively be rendered meaningless. Id. Since Symetric’s FPR was not received in the e-mail mailbox of the contracting officer until 3:01:00 p.m., which was validated by the Government’s e-mail relay report, the late proposal cannot be accepted. Id. (Symetrics Industries, LLC, B-298759, October 16, 2006) (pdf)

The protest is without merit because there is no evidence of mishandling or any other improper agency action. USAID’s Director of Mail Management denies receiving or rejecting the Castle proposal package, and reports that the contractor’s mailroom supervisor and mailroom staff also deny handling the package. Director’s Affidavit, paras. 7-8. In this regard, there is no marking on the returned package to indicate it was handled by USAID’s mailroom. Further, as noted by the Director, USAID mailroom procedures do not include handwritten notations for returns but, rather, involve the use of a special “return to sender” label (Id. at para. 6) which, we note, does not appear on the photocopy of the returned package’s label. Further, the package’s tracking information and the returned label both indicate that the package was refused at zip code 20460, which is assigned to the Environmental Protection Agency (EPA), another tenant in the Ronald Reagan Building with its own mailroom. Since, aside from the protester’s speculation, there is no evidence that USAID mishandled the proposal package or contributed in any way to the failed delivery attempt, the agency’s subsequent refusal to accept the late proposal was proper. We find that the record supports the alternative explanation--suggested by the agency--that Castle’s mislabeling of the proposal package may have caused the failed delivery. In this regard, the Reagan Building, where USAID is located, is the second largest federal building in the country, and is shared by three other federal agencies and more than 50 private businesses. There are five separate mailrooms and zip codes for the building--one for each federal agency and one for the private businesses. USAID’s zip code--as stated in the RFP--is 20523 and its mailroom is located on the 13½ Street side of the building, while the private business tenants share the 20004 zip code--the zip code on Castle’s mailing label--and have their mailroom on the Pennsylvania Avenue side. According to USAID’s Director, the mail for each federal agency is delivered by USPS directly to the particular agency’s mailroom. Given the zip code on Castle’s proposal package and the absence of the agency’s name, it appears that USPS may have attempted delivery to the mailroom for the private business tenants, rather than to USAID’s mailroom. The Director explains that, when USAID mail is misdirected to other agencies in the building, those agencies’ staff “will sometimes bring pieces of misdirected mail to our attention--provided, of course, that the address on the letter or package makes clear that it is intended for receipt by USAID.” Id., paras. 3-5. The Director further states that, in his experience, it is uncommon for USAID mail to be misdirected to the private business tenants, and even less common for those firms to alert USAID staff when it does happen. Id. at para. 5. Thus, while it appears that Castle’s proposal package arrived at the proper street address--1300 Pennsylvania Avenue--it also appears that Castle’s failure to use the correct zip code and agency name may have prevented delivery of its proposal. Castle asserts that we should find “government mishandling” based on the “malfunctioning” Click-N-Ship® program, and USPS’s failure to deliver its Express Mail package by the guaranteed time and taking 7 days to return the package to Castle. Supplemental Comments at 5. None of these matters constitute government mishandling. First, we view the alleged Click-N-Ship® problems as a failure on the protester’s part, not the government’s, since the protester chose to use the Click-N-Ship® program to print its mailing label. Castle was responsible for choosing a means of addressing its proposal package--such as simply handwriting all necessary information on an Express Mail envelope and having the postage affixed at the nearest post office--that would result in the package being correctly addressed. Further, any delay connected with USPS’s handling of the Express Mail delivery is not considered to be mishandling by the government; the word “government” in the context of proposal mishandling refers to the procuring agency, not USPS, and the mishandling must occur after the proposal is received at the government installation. California State Univ., Fullerton, B-243040.2, May 9, 1991, 91-1 CPD para. 452 at 2. (The Castle Group, B-297853, March 21, 2006) (pdf)

We find the agency’s action was the paramount cause for the late delivery of the proposal revision on Monday, May 17. In this regard, the agency extended closing to Saturday, May 15, but failed to establish adequate procedures to ensure that reasonable attempts to deliver hand‑carried proposals prior to closing would be received at the place designated for delivery. Specifically, Saturday was not a normal business day for the agency and the doors to the agency were locked. The agency did not post instructions outside the locked door stating that agency personnel would be present to receive deliveries, or how to contact them. Therefore, when a courier attempted to enter the locked doors and received no response from within, it was reasonable for the courier to assume that delivery at that address on Saturday was not possible. While the record shows that Saturday delivery was possible at other times on that day (as evidenced by the single proposal that the agency did receive on that day), delivery was impossible at the time Federal Express attempted to deliver Integrity’s proposal revision (as evidenced by the note left on the locked door by Federal Express), and the circumstances of the locked door and lack of posted instructions regarding delivery of proposals did not create a reasonable basis upon which the courier should have concluded that delivery would be possible later that day. But for the agency’s action here, Integrity’s hand-carried proposal revision would have been delivered prior to the required closing date, and we therefore conclude that the agency’s action was the paramount cause of the late delivery. See Palomar Grading & Paving, Inc., B‑274885, Jan. 10, 1997, 97‑1 CPD para. 16 at 3-4 (agency’s incorrect delivery instructions was the reason for a failed timely hand-carried delivery of bid and the paramount cause of late delivery); Richards Painting Co., B‑232678, Jan. 25, 1989, 89‑1 CPD para. 76 at 2-4 (agency failure to staff room designated for receipt of bids up to the exact time specified for bid opening was the paramount cause of late delivery); Sun Int’l, B‑208146, Jan. 24, 1983, 83‑1 CPD para. 78 at 2-4 (agency failure to apply reasonable procedure for accepting delivery of bids on weekends was the paramount cause of late bid delivery); cf. Bergen Expo Sys., Inc.; Techniarts Eng’g, B‑236970, B‑236970.2, Dec. 11, 1989, 89-2 CPD para. 540 at 2-3 (where courier failed to wait a reasonable time for agency personnel to respond to security guard’s call and courier did not attempt re-delivery later that same business day, agency’s action--restricting access and delay in responding to call--was not the paramount cause of late delivery). We also find that consideration of the late proposal revision did not compromise the integrity of the competitive procurement process. The proposals were not publicly opened and Integrity’s proposal remained in the possession of Federal Express during the time between the attempted delivery on Saturday and the actual delivery by that carrier the following Monday; therefore, there is no evidence that Integrity had an opportunity to alter its submission after closing. See Palomar Grading & Paving, Inc., supra, at 4; Sun Int’l, supra, at 4. (Hospital Klean of Texas, Inc., B-295836; B-295836.2, April 18, 2005) (pdf)

An offer is late if its does not arrive in the office designated in the solicitation by the time specified in the solicitation. Sencland CDC Enters., B-252796, B-252797, July 19, 1993, 93-2 CPD paragraph 36 at 3. An offer that arrives late may only be considered if it is shown that the paramount reason for late receipt was improper government action, and where consideration of the proposal would not compromise the integrity of the competitive procurement process. Caddell Constr. Co., Inc. , B-280405, Aug. 24, 1998, 98-2 CPD paragraph 50 at 6. Here, FedEx records provide the only evidence that the FedEx truck was stopped at a random security checkpoint on the base; the agency maintains it has no record of such a stop. Agency Report (AR), Tab 16. However, even assuming there was a security stop, this would not necessarily constitute improper government action, since a 20 minute security delay on a military base is not on its face unreasonable. Rather, we think this is a situation where an offeror should reasonably anticipate such a delay. We have recognized that delays in gaining access to government facilities are not unusual and should not be unexpected. See , e.g., Einhorn Yaffee Prescott , B-259552, Mar. 20, 1995, 95-1 CPD paragraph 153 at 3. In any case, we do not view the government's actions here as the paramount cause of the late receipt of Kesser's proposal. In this regard, the alleged security delay took place at approximately 11:40 a.m. Thus, the courier still had 2 hours to timely deliver the package once he was allowed to proceed. The courier explained to the CO that, after he was stopped by the military police, he continued to follow his usual route until he received a call from his dispatcher, instructing him to deliver to Building 6 before making his scheduled stop at Building 4. AR, Tab 11. He then proceeded to deliver Kesser's package at that time. Given these circumstances, the paramount cause for the package's late delivery was the courier's decision to continue on his normal route after the alleged security delay--rather than deliver Kesser's proposal at that time--and not the government's actions. (Kesser International, B-296294, June 30, 2005) (pdf)

The record here provides no basis to question the reasonableness of the rejection of Zebra's quotation for failure to timely submit its past performance information. First, since the RFQ's late quotation provision expressly applied to the past performance submission, it is clear that the agency's rejection of Zebra's quotation for failing to meet the closing time specified for that submission falls squarely within the terms of the solicitation. Moreover, the protester has not shown that its failure to meet the mandatory past performance submission deadline was only a minor informality that must be waived, as Zebra argues, as a matter of form over substance. Rather, our review of the record confirms the reasonableness of the agency's position that the RFQ's deadline for the past performance submissions was material to the agency's actual needs, and thus, was not merely a matter of form. This is evident, for example, from the repeated emphasis given in the RFQ (as well as its cover letter, and several answers to vendor questions published by the agency) to the agency's need to prevent any delay in the procurement from the substantial past performance evaluation efforts that were anticipated under the RFQ, including the management and review of the multitude of past performance reference questionnaires for each of the many vendors expected under each of the multiple award groups. (Zebra Technologies International, LLC, B-296158, June 24, 2005) (pdf)

Seven Seas submitted its reply to CECOM's IFNs on July 27, after the required date for its reply; Seven Seas also acknowledged amendment 2 at the same time. The record shows that the protester's IFN responses would have revised the firm's proposal in a number of regards. Comments, attach. H. CECOM did not consider the protesters late response to the IFNs or its late acknowledgment of amendment 2. In the absence of a timely response to the IFNs, CECOM concluded that Seven Seas proposal was technically unacceptable based upon deficiencies and weaknesses identified in all three technical subfactors, and based upon the missing past performance information. AR, Tab K, Letter from CECOM to Seven Seas (Aug. 2, 2004). CECOM rejected Seven Seas proposal, and this protest followed. Seven Seas acknowledges that its reply to the agency's IFNs was late, but protests that the contracting officer should have considered the protesters late response. Seven Seas argues, citing Federal Acquisition Regulation (FAR) 15.307, that the contracting officer is required to establish a common cut-off date for only the receipt of final proposal revisions, and that, because the IFNs did not request the firm's final proposal revisions, the contracting officer had latitude to relax time constraints for the submission of proposal revisions before the final revision. Comments at 4-6. On this basis, Seven Seas contends that the contracting officer could waive the late submission of the firms proposal revisions as a minor informality under FAR14.405. Seven Seas does not contend that its late response to the IFNs was due to any action or inaction by the agency. We disagree with Seven Seas apparent belief that the contracting officer was required to consider the protester's late IFN responses or was required to waive the protesters late proposal revisions. Although it is true that FAR 15.307(b) provides for a common cut-off date only for receipt of final proposal revisions, this does not mean that an offeror is permitted to submit other proposal revisions (not the final proposal revision) after the time specified by an agency. FAR 15.208 provides in this regard that offerors are responsible for submitting proposals, revisions, and modifications to the proper place at the proper time and that late submissions of proposals, revisions, and modifications may not be considered, except, as is pertinent here, where the late submission is received before award, and is a late modification of an otherwise successful proposal that makes its terms more favorable to the government. An otherwise successful proposal is one that would result in the award of the contract to the offeror regardless of the late modification. RMS Indus., B-245539, Dec. 9, 1991, 91-2 CPD 528 at 3. Here, Seven Seas initial proposal was not technically acceptable and therefore could not be considered an otherwise successful proposal. In the absence of any action by the agency causing the protester's late response to the IFNs, we conclude that the contracting officer did not act unreasonably in rejecting Seven Seas late IFNs responses. (Seven Seas Engineering & Land Surveying, B-294424.2, November 19, 2004) (pdf)

It is well established that the standard for late proposals does not generally apply to requests for quotations. An RFQ, unlike a request for proposals (or an invitation for bids), does not seek offers that can be accepted by the government to form a contract. Rather, the government's purchase order represents the offer that the vendor may accept through performance or by a formal acceptance document. DataVault Corp., B-248664, Sept. 10, 1992, 92-2 CPD 166 at 2. It follows that language in an RFQ requesting quotations by a certain date cannot be construed as establishing a firm closing date for receipt of quotations, absent a late quotation provision expressly providing that quotations must be received by that date to be considered. Instruments & Controls Serv. Co. , B-222122, June 30, 1986, 86-2 CPD 16 at 3. An agency may consider late quotations or quotation modifications, so long as the award process has not begun and other offerors would not be prejudiced. KPMG Consulting LLP , B-290716, Sept. 23, 2002, 2002 CPD 196 at 11. Here, AMC considered AFMOs submission substituting that firm for Tactical Gear Now. AMCs action was consistent with the RFQ, which did not contain a late quotation provision. Further, the substitution of AFMO for Tactical Gear Now was received on May 28, only 2 days after the closing time on May 26, and apparently before start of the selection process. Since there is no apparent basis to find that any competitor was prejudiced by the agencys acceptance of the substitution of AFMO for Tactical Gear Now, we find that AMC acted properly when it accepted AFMOs late modification of the quotation. (Armed Forces Merchandise Outlet, Inc., B-294281, October 12, 2004) (pdf)

The FedEx courier arrived at the DOT building with InfoGroup's package (and, apparently, numerous other packages) at around 9:30 a.m. on Friday, August 13. Security personnel x-rayed and date-stamped the package, and the courier then signed in at 9:37 and proceeded into the building to deliver the packages, unescorted, to individual rooms. While at the building, according to the courier, he attempted to telephone the contracting officer at the number on InfoGroup's proposal package to find out the room number to which the package should be delivered, but there was no answer. Letter from FedEx to Protester, Sept. 9, 2004. Before leaving the building at 2:30 p.m., the courier placed a second call to the contracting officer; again, however, there was no answer. The courier therefore left the building and returned to the FedEx office with the package. FedEx telephoned the agency again on the afternoon of Tuesday, August 17, and learned the room number at that time. The proposal package finally was delivered on August 18 at 12:11 p.m. Since this was well after the August 16 closing time, the agency rejected the proposal as late. The protest is without merit. There is no evidence of improper agency action. The RFP clearly set forth the precise location for delivery of proposals, and InfoGroup's courier arrived at the proper address and was permitted access to the building for purposes of delivering packages. While the protester points to the agency's failure to escort the courier or to be available to provide information to the courier, the agency was not required to perform these functions. Rather, the agency fulfilled its responsibility by providing the protester with complete delivery information, including the room number, and then providing the protester's courier with access to the building for purposes of delivering the proposal. The fact that the agency did not proceed in accordance with InfoGroup's understanding regarding DOT building policy is not improper agency action; the RFP did not state that couriers would be escorted to the designated room, and there simply was no basis for the protester to plan the delivery of its proposal using that assumption. InfoGroup, on the other hand, did not reasonably fulfill its responsibility for ensuring timely delivery. The solicitation informed offerors that proposals were to be received in room 5301. InfoGroup failed to list the room number on the proposal package and this, as the record shows, led to the courier's inability to deliver the package. In this regard, as noted above, FedEx states in a September 9 letter sent to the protester in connection with this protest that the courier was unable to deliver the proposal package on August 13 due to the absence of a room number on the package. We note that this explanation is consistent with the courier's attempts to contact the contracting officer while he was in the DOT building on August 13. (InfoGroup Inc., B-294610, September 30, 2004) (pdf)

The dispositive question here is when Immediate’s president relinquished control of its proposal. Even if we agree with the protester that Immediate’s BAFO was properly logged in by the guard at 2 p.m., Immediate’s president retained control of the proposal after the guard signed for the package, because the president (not the guard) delivered the proposal to the contracting specialist. We do not agree with the protester that the brief exchange between the guard and Immediate’s president qualifies as relinquishment of control. See J.C.N. Constr. Co., Inc., B-250815, Feb. 23, 1993, 93-1 CPD ¶ 166 at 3. Since Immediate’s president did not relinquish control of the BAFO until 2:14 p.m., after the time set for the receipt of BAFOs, to the contract specialist, its BAFO was properly rejected as late. (Immediate Systems Resources, Inc., B-292856, December 9, 2003)  (pdf)

In the context of negotiated procurements, such as the one at issue here, there is, of course, no bid opening and thus no requirement that a government official announce when the time for receipt of submissions has arrived. However, just as we believe that it would have been reasonable for a government official, had this been a sealed bid acquisition, to announce bid opening at any point between 14:00:00 and 14:00:59, we believe that the RFP’s reference to a closing time of 14:00 hours could reasonably be interpreted either as requiring that proposals be received by 14:00:00, or as requiring that they be received by 14:00:59. To the extent that is viewed as an ambiguity in the solicitation, it was one that was obvious from the face of the RFP, and we have repeatedly held that an offeror who chooses to compete under a patently ambiguous solicitation does so at its peril and cannot later complain when the agency proceeds in a manner inconsistent with one of the possible interpretations. Wackenhut Servs., Inc., B‑276012.2, Sept. 1, 1998, 98‑2 CPD ¶ 75 at 5.  The protester contends that the fact that the RFP referenced the closing time for receipt of the part 1 proposals as “14:00:00” indicates that the agency intended the reference to “1400 hours” in the instructions for receipt of part 2 proposals to be interpreted as 14:00:00. This argument is not persuasive. It could be argued equally reasonably that the agency’s dropping of the zeroes in the seconds place in the time specified for receipt of part 2 proposals signified that it did not intend that reference to be interpreted as 14:00:00. Accordingly, if the record establishes that Gray’s proposal was received prior to 14:01:00, we think that the agency need not have rejected it as late.  Turning then to our second question, we think that the record here establishes that Gray’s proposal was received by the agency prior to 14:01:00. A proposal is received at the time that the offeror relinquishes control of it to the government. See Weeks Marine, Inc., B-292758, Oct. 16, 2003, 2003 CPD ¶ __; Carothers Constr., Inc., B-235910, Oct. 11, 1989, 89-2 CPD ¶ 338 at 4. Gray’s messenger relinquished control of Gray’s proposal package to the designated contracting official by placing it on her desk in her presence, which, according to the contracting official’s uncontroverted statement, occurred prior to the time/date stamp clock turning to 14:01. The fact that the contracting official may not have picked up the package prior to 14:01 is irrelevant since an individual may gain effective control over an item without actually taking it into his or her hands. The case cited by the protester for the proposition that an offeror does not relinquish control of its proposal by placing it on a desk in the opening room, George W. Kane, Inc., B-245382.2, Feb. 4, 1992, 92-1 CPD ¶ 143, is distinguishable from the case at hand. In the Kane case, no government official was present at the desk at the time the bidder placed its bid on it; thus, placing the bid on the desk did not transfer it to the control of an appropriate government official. (The Haskell Company, B-292756, November 19, 2003) (pdf)

Improper government action in this context is affirmative action that makes it impossible for the offeror to deliver the proposal on time. Id. Nevertheless, even in cases where the late receipt may have been caused, in part, by erroneous government action, a late proposal should not be considered if the offeror significantly contributed to the late receipt by not acting reasonably in fulfilling its responsibility to deliver a hand-carried proposal to the proper place by the proper time. Integrated Support Sys., Inc., B-283137.2, Sept. 10. 1999, 99-2 CPD ¶ 51 at 2. Here, as explained below, we find no basis to conclude that improper government action was the paramount cause for the late submission of O.S.’s proposal. Even conceding that USSOCOM may have complicated delivery of hand-carried proposals by not including more explicit instructions in the RFP and by designating a location with restricted access for receipt of proposals, the record evidences that the delivery driver contributed significantly to the late delivery of the proposal. Indeed, the record indicates that the main reason that the proposal was received late was because the delivery driver was unfamiliar with the exact address on MacDill AFB, and decided to make another delivery first and then to attempt to find the filing location unaided, rather than seeking advice concerning the address and location of the contracting officer immediately upon entering the facility. It was only after this effort proved unsuccessful that the delivery driver attempt to contact the contracting officer (just prior to 2 p.m.), and to seek the assistance of other personnel, including those in the mailroom at the designated address.[3] The delivery driver ultimately was able to deliver the proposal to the contracting officer, albeit 30 minutes after the designated time for receipt of proposals, which evidences that the delivery driver could have delivered the proposal to the proper place at the proper time if he had more prudently utilized his time upon entering the facility. Thus, we find that the delivery driver significantly contributed to the late receipt of O.S.’s proposal, and that improper government action was not the paramount cause of its late receipt.  (O.S. Systems, Inc., B-292827, November 17, 2003)  (pdf)

As a general matter, offerors may use any transmission method authorized by the solicitation. Federal Acquisition Regulation (FAR) § 15.208(a). Here, the RFP incorporated by reference FAR § 52.215-1, which provides in pertinent part as follows:  "Unless other methods (e.g., electronic commerce or facsimile) are permitted in the solicitation, proposals and modifications to proposals shall be submitted in paper media . . . ."  FAR § 52.215-1(c)(1). The solicitation nowhere authorized the use of electronic methods of submission, and in fact clearly contemplated submission in paper form. See RFP § A2 (listing the mailing address for offers and instructions for hand delivery). Accordingly, since the RFP did not authorize submission of offers by e-mail or other electronic methods, NSF properly rejected IBS's electronically submitted FPR. See Environmental Control Div., Inc., B-255181, Feb. 16, 1994, 94-1 CPD ¶ 115 at 4 (facsimile best and final offer (BAFO) was properly rejected where RFP did not provide authorization for facsimile submissions); G.D. Searle & Co., B-247077, Apr. 30, 1992, 92-1 CPD ¶ 406 at 3.  In any event, even if the RFP had authorized electronic submission of offers, the record shows that at the submission deadline--10:30 a.m., March 13--NSF's server had received only the technical portion of IBS's proposal. Two minutes after the deadline, NSF's server received the remaining cost portion.[1] Proposals received after the exact time specified for receipt of proposals are late and will not be considered by the government unless the exceptions outlined in FAR § 15.208(b)(1) apply. PMTech, Inc., B-291082, Oct. 11, 2002, 2002 CPD ¶ 172 at 2.  Nothing in the record suggests that those exceptions apply here. Thus, NSF was under no obligation to consider the submission it received at 10:30 a.m. because that submission was missing a material portion. Cyber Digital, Inc., B-270107, Jan. 24, 1996, 96-1 CPD ¶ 20 at 4. (Integrated Business Solutions, Inc., B-292239, July 9, 2003)

We have always viewed the underlying policy for application of the late proposal rules as ensuring fair and equal competition and avoiding confusion. See, e.g., Phelps-Stokes Fund, B‑194347, May 21, 1979, 79-1 CPD ¶ 366 at 5 (prior to Abt); see also PMTech, Inc., B‑291082, Oct. 11, 2002, 2002 CPD ¶ 172 at 3. Given that HHS had received, by means specifically authorized by the RFP, a complete copy of Tishman's proposal prior to the time set for receipt of proposals, we fail to see how the late proposal rule or policy would be violated by consideration of Tishman's proposal.  HHS argues that consideration of Tishman's proposal would reflect an unequal treatment of those offerors that were able to timely submit both an electronic and paper version of its proposals. HHS neglects, however, to consider that such “unequal treatment,” as asserted by the agency here, is not material nor does it present any possibility that Tishman could obtain competitive advantage over other offerors, given that it undeniably submitted a proposal by the closing time. Rather, as we found in Abt, the protester's failure to timely deliver more than one complete copy of its proposal is nothing more than a minor informality. Moreover, contrary to HHS's suggestion, since no one denies that Tishman's electronic proposal was timely submitted and was identical to its paper proposal, there is nothing that indicates any possible confusion.  (Tishman Construction Corporation, B-292097, May 29, 2003)

It is the contracting agency's right to determine when the negotiation and offer stage of a procurement is finished, and an offeror has no legal right to insist that negotiations be reopened after final proposal revisions have been submitted. Independent Bus. Servs. Inc., B-235569.3, Nov. 2, 1989, 89-2 CPD ¶ 413 at 3. The record shows that more than 2 months after submission of final proposal revisions Dismas requested a site change on the basis that its proposed site was unavailable and had been sold to another party. Nothing in the record suggests that the agency acted unreasonably or in a way inconsistent with the solicitation in deciding not to accept Dismas's proposal revision.  A late proposal modification may be accepted only if the late modification makes the terms of an otherwise successful proposal more favorable to the government. Environmental Tectonics Corp., B-225474, Feb. 17, 1987, 87-1 CPD ¶ 175 at 4. Here, notwithstanding the statement in the agency report that Dismas was “apparently in line for award,” there is nothing in the contemporaneous evaluation record showing that the agency had concluded that the Dismas revised proposal was the “otherwise successful” proposal. Since, as the agency report to our Office indicates, a recommendation concerning Dismas “was being reviewed,” it is not clear from the record which offeror was actually in line for award based on revised proposals. The documents referred to by the agency in its report do not identify any “otherwise successful” proposal. Agency Report, Tab 9B. More importantly, at the time Dismas requested the site change, its revised proposal was no longer acceptable because its proposed facility was no longer available. Thus, under these circumstances, the RFP provision cited by Dismas does not provide a basis to accept Dismas's request for a site change.  (Dismas Charities, Inc. , B-291868, April 23, 2003)  (pdf)

Here, the RFQ's call for “technical proposals” due on the next business day may well have been objectionable in other circumstances.  In the context of the unique facts of this case, however, we do not find the agency's actions to be objectionable.  During a telephonic hearing that our Office conducted, Warden admitted that it could have timely prepared and submitted the requested technical proposal; instead, according to the protester, the critical issue was the medium of submission, not its ability to prepare a technical proposal in the limited time.  Warden apparently believed that it could prepare and submit its proposal by the deadline, if the agency would accept e-mail submission.  Warden was unwilling, however, to fax its proposal (as the contracting officer suggested) because it was concerned that even if transmission began before 1 p.m., the last faxed page might not be received by 1 p.m.  Warden did not raise this concern about facsimile transmission with the SBA during the September 30 telephone calls, and concedes that it probably could have faxed the proposal before 1 p.m., although it would have been close to that deadline.  Furthermore, the contracting officer stated during the telephonic hearing that she would have stood by her offer to accept the facsimile of Warden's submission.  Warden's company personnel nevertheless decided to file a protest instead.  In other words, Warden could have made a timely submission to the contracting agency, but instead chose not to.  (Warden Associates, Inc., B-291440; B-291440.2, December 27, 2002)

Sea Box does not dispute that its proposal could not be accepted under the first exception, FAR § 52.215-1(3)(ii)(A)(1), since it was not transmitted by 5:00 p.m. the working day before the due date. See PMTech, Inc., B-291082, Oct. 11, 2002, 2002 CPD ¶ __ at 2-3 (electronic proposal transmitted 13 minutes prior to deadline for submitting proposals properly rejected). Sea Box argues, however, that its proposal nevertheless could be accepted under the second exception, FAR § 52.215-1(3)(ii)(A)(2).  While the second exception may be broad enough to encompass situations involving electronic commerce delivery methods, we do not read the regulation as providing two alternative means for determining whether a late electronically transmitted proposal may be accepted. The first exception applies, by its express terms, to situations where a proposal has been submitted by an electronic commerce method, and unqualifiedly permits such a late proposal to be considered for award only if it was received at the initial point of entry to the government infrastructure no later than 5:00 p.m. the preceding working day. Although not expressly stated in the regulation, we think the second exception necessarily applies only to proposals delivered by other than electronic means. This is so because, under the protester's alternative interpretation, late electronically transmitted proposals could be considered for award under the second exception whether or not they were received at the initial point of entry by the preceding working day; this would essentially render the first exception a nullity. Since the first exception expressly applies to electronically transmitted proposals, there is no reason to assume that such a result was intended. Moreover, such an interpretation would be inconsistent with the fundamental principle that statutes and regulations must be read and interpreted as a whole, thereby giving effect to all provisions. See Waste Mgmt. of North Am., B-225551, B-225553, Apr. 24, 1987, 87-1 CPD P: 435 at 5. We conclude that the two exceptions are complementary, each addressing the circumstance of a late proposal, depending upon the method of proposal submission. Since Sea Box's electronically transmitted proposal was received at the specified e-mail destination after the time set for receipt of proposals, it is a late proposal; since it was not received at the initial point of entry by 5:00 p.m. the day before proposals were due, the late proposal cannot be considered for award.  (Sea Box, Inc., B-291056, October 31, 2002)  (pdf)

We view it as an offeror's responsibility, when transmitting its proposal electronically, to ensure the proposal's timely delivery by transmitting the proposal sufficiently in advance of the time set for receipt of proposals to allow for timely receipt by the agency.  In our view, the record shows that the primary cause of PMT's late delivery of its electronic proposal was that PMT delayed attempting to transmit its proposal until only 13 minutes before the time set for the receipt of proposals.  An offeror's responsibility to deliver its proposal to the proper place at the proper time includes allowing a reasonable amount of time for the delivery of the proposal.  Thus, we have found that where an offeror delayed transmitting a lengthy facsimile best and final offer until 10 minutes prior to the closing deadline, and the agency otherwise had reasonable facsimile submission procedures in place, the late receipt of the offeror's facsimile transmission was the fault of the offeror and not the government.  See Brookfield Dev., Inc. et al., B-255944, Apr. 21, 1994, 94-1 CPD ¶ 273 at 3; see also Cyber Digital, Inc., supra, at 4 (late receipt of facsimile transmission of best and final offer was offeror's fault where offeror waited until 30 minutes before the closing time to request an extension, which was denied, and thereafter transmitted the proposal).  (PMTech, Inc., B-291082, October 11, 2002)  (pdf)

We do not think the agency was required to anticipate that faxing would make the intended due date unclear such that potential offerors could be misled.[³] We note in this regard that agencies are not guarantors that solicitation documents will be received by offerors in every instance--the risk of nonreceipt rests with offerors. Chem-Fab Corp., B-277795, Oct. 27, 1997, 97-2 CPD ¶ 120. It follows, we think, that agencies are not guarantors that information sent by fax will be accurately printed by an offeror's fax machine. We conclude that the agency properly rejected Centro's offer as late.  (Centro Management, Inc., B-287107, March 9, 2001)

The timeliness of SRC's proposal turns solely on the sequence of two events--the contracting officer's time-stamping of the sheet of paper at 4:01, and the protester's arrival in Suite 100. If SRC arrived prior to the time-stamping, its proposal was timely submitted, since the contracting officer used the time-stamping to signify that the closing time had passed; [4] if the protester's delivery of its proposal occurred after the sheet of paper was time-stamped, it was late. The most probative evidence of the sequence of these events is the statement of the daughter, who undisputedly was actually in Suite 100 during the entire time in question, and was the only person who saw both the contracting officer time-stamp the piece of paper at 4:01, and SRC deliver its proposal. As noted, the daughter states that she observed the contracting officer and chief return from the porch and time-stamp the sheet of paper, and that it was not until after this happened, and the agency officials left Suite 100, that she observed SRC's representative enter with the firm's proposal.  (States Roofing Corporation, B-286052, November 8, 2000)

Here, the contracting officer denies that the agency received the protester's quote, and the protester's facsimile transmission report is inadequate, by itself, to establish receipt by the agency. This is so because our Office does not regard a transmission record within the protester's control, such as this one, to be definitive evidence of transmission, since such a record can be created or altered to support a protester's contention.  (W&W Logistics, B-283998, December 30, 1999)

Agency reasonably rejected protester's hand-delivered proposal as late where the protester significantly contributed to the late receipt of the proposal by failing to allow sufficient time for timely delivery of the proposal.  (Integrated Support Systems inc, B-283137.2, September 10, 1999)

The solicitation at issue here incorporates the Federal Acquisition Regulation (FAR) 48 C.F.R. § 52.212-1. Subsection (g) of that FAR provision provides that in making a contract award decision: “The Government may reject any or all offers if such action is in the public interest; accept other than the lowest offer; and waive informalities and minor irregularities in offers received.” See AR 130-132. As plaintiff notes, the text of the regulation does not define the terms “informalities” or “minor irregularities.” See ECF No. 19-1 at 32.

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The fact that an agency is permitted to waive the submission format requirement, of course, does not mean it is required to do so. In order to make a determination of whether defendant’s refusal to grant plaintiff a waiver had a rational basis, given the relevant factors, the court must conduct a review of the facts at hand. See Bowman Transp., 419 U.S. at 285 (stating that “[a] reviewing court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment”) (internal citation omitted); Weeks Marine, 575 F.3d at 1368- 69 (stating that under rational basis review, the court will “sustain an agency action evincing rational reasoning and consideration of relevant factors”).

Both parties acknowledge in this case that the contract specialist had indicated, in writing, that the late delivery of plaintiff’s paper copies and compact disc would be waived as inconsequential. Specifically, the contract specialist wrote that the delayed delivery of the paper copies and the compact disc was “not a problem, [as] we understand that FedEx deliveries are beyond your control. Your receipt from FedEx shows that you shipped your proposal prior to the due date/time so we will be able to accept the hard copies when they arrive, even if FedEx delivers them after 4:00 pm today.” See ECF No. 1 at 10 (citing to ECF No. 1, Ex. 1). Based on this representation, plaintiff discontinued efforts to have a local employee print and deliver paper copies to the designated office.

See id., Ex. 6. Defendant then, after conceding the contract specialist’s statements, reversed course, and rejected plaintiff’s proposal specifically because of the late delivery. See AR at 502.

The letter rejecting plaintiff’s proposal identified two problems. It stated: “Submission via email was not authorized. Additionally, had email been authorized, the electronic submission was not submitted in accordance with the solicitation requirements as ‘Schedule B’ was not submitted in the proper format.” See id. Despite the mention here of the nonconformity of Schedule B, the focus of the remainder of the letter makes clear that the untimeliness of the physical submission was the primary basis for its rejection. According to defendant, it had no choice but to reverse course because 48 C.F.R. § 52.212-1 required it to reject late proposals, and no permitted exceptions applied.

The court recites, for ease of reference, the relevant part of the letter again here:

3. Government email correspondence indicating that the electronic submission discussed above would be acceptable was further reviewed by the contracting officer and legal office. During the course of that review, it was determined that, while good intentioned, that response lacked the authority to materially alter the proposal submission requirements contained in “ADDENDUM TO FAR 52.212-1—INSTRUCTIONS TO OFFERORS—COMMERCIAL ITEMS (Jan 2017)”.

4. In the solicitation, FAR Provision 52.212-1(f)(2)(i) states that, with three potential exceptions, “Any proposal, modification, or revision, that is received at the designated Government office after the exact time specified for receipt of proposals is “late” and will not be considered . . . “ In this situation, FAR Provision 52.212-1(f)(2)(i) further describes the potential exceptions, in which none of the exceptions apply; as the exceptions outline (A) that the proposal was not transmitted through an electronic commerce method authorized by the solicitation, (B) the proposal was not received at Sheppard AFB, TX and under the government’s control prior to the time set for receipt of proposals, and (C) this proposal was not the only proposal received.

5. Therefore, FAR provision 52.212-1, contained in the solicitation, precludes the government from accepting your late proposal. Your proposal will not be further considered or evaluated.

AR at 502.

The court finds that the contracting officer’s reasoning is, at best, incomplete. While it is true that the exceptions listed by defendant do in fact appear in 48 C.F.R. § 52.212-1(f)(2)(i), defendant wholly failed to address the possibility of waiver which appears in the very next subsection, 52.212-1(g). This omission from the articulated reason for rejecting plaintiff’s proposal is particularly glaring in light of the email correspondence from the contract specialist indicating that the agency would waive its strict adherence to the submission format or the delivery deadline. And despite the fact that the regulation does not explicitly define what an agency should consider as a waivable “informality” or “minor irregularity,” the agency here made clear to plaintiff its view of what constituted a minor—and thus an appropriately waivable—informality. As plaintiff stated in its briefing, “the plain terms of the Contract Specialist’s written assurance indicate[] that the contracting office had decided that the delivery of the written copies was a ‘minor informality.’” ECF No. 21 at 16.

That an agency can permissibly waive its strict adherence to a submission format as a minor informality comports with guidance previously set forth by this court. See EOR, 104 Fed. Cl. at 166 (noting that 48 C.F.R. § 14.405 states that “[a] minor informality or irregularity is one that is merely a matter of form and not of substance. It also pertains to some immaterial defect in the bid . . . that can be corrected or waived without being prejudicial to other bidders.”); Progressive Indus., 129 Fed. Cl. at 474 (concluding that “waiving, as an informality, the submission format requirement,” would be a proper exercise of agency discretion). In addition, the court observes that waiving the submission format requirement in this case would afford plaintiff no competitive advantage. The record indicates that plaintiff’s email submission was complete, its paper copies and the compact disc had already been shipped, and plaintiff had no opportunity to make changes or improvements to its proposal. Furthermore, the award had not been made prior to the delivery of plaintiff’s proposal, and the government’s consideration of more proposals would tend to preserve the benefits gained from healthy competition. See EOR, 104 Fed. Cl. at 167 (identifying “fairness and preservation of competition” as the primary concerns as to whether informalities or irregularities should be waived to allow consideration of an additional proposal). The court finds problematic here that defendant apparently exercised its discretion in the first instance only to reverse its position without an explanation of why it changed its view on the specific matter of the appropriateness of a waiver. Accordingly, the court finds—on the facts of this case—that defendant erred in failing to consider and document whether a waiver of the late delivery of plaintiff’s paper copies as a mere informality or minor irregularity was proper in this circumstance.

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The court finds error in defendant’s failure to adequately consider and document—in this particular circumstance—whether a grant of a waiver for the late delivery of its paper copies and compact disc, as an informality or minor irregularity, was proper. But the court makes no findings and draws no legal conclusions with regard to plaintiff’s additional arguments relating to (1) the government control exception, see ECF No. 19-1 at 26, and (2) the violation of various regulations that govern fair treatment of offerors, see id. at 33. For the reasons set forth above, plaintiff’s motion for judgment on the administrative record is GRANTED, and defendant’s cross-motion for judgment on the administrative record is DENIED. (T Square Logistics Services Corp. v. U. S. No. No. 17-744C October 16, 2017.)

Johnson Controls asks the Court to find that DOE was unreasonable in rejecting Plaintiff’s proposal as late, or in the alternative, in failing to apply the exceptions to timely filing contained in the FAR. Plaintiff requests the Court to compel DOE to accept the proposal for full evaluation and consideration for award. Plaintiff maintains that its filing in the FedConnect electronic system was timely because it met the specifications set forth in the Solicitation that documents be “uploaded and received” in the “FedConnect Responses” web portal by the specified time, and that DOE could not reasonably expect vendors to understand that further actions to complete submission to the agency were required. 2 In response, Defendant argues that Plaintiff ignores the language in that same paragraph of the Solicitation which explains that it “is imperative that the Offeror read and understand how to submit its quote using the FedConnect web portal by going to www.fedconnect.net.” It seems that no one on Plaintiff’s staff carefully or fully read the instructions found at FedConnect, because the steps necessary for delivery of a proposal were not taken. For this reason Johnson Controls’ proposal remained undelivered until five days after the deadline. The FAR provisions on timing of submission of proposals, known as “late is late”, provide that “[o]fferors are responsible for submitting proposals, and any modification or revisions, so as to reach the Government office designated in the solicitation by the time specified in the solicitation.” FAR 52.215-1(c)(3)(i). While the wording of DOE’s Solicitation perhaps could have been clearer to avoid confusion, it remains Plaintiff’s responsibility to understand the proposal submission requirements, including educating itself on the use of the electronic filing system specified in the Solicitation. For this reason, the Court must find that DOE reasonably rejected Plaintiff’s proposal as untimely.

Plaintiff argues in the alternative, that even if its filing in the FedConnect system is determined to be untimely, an exception to the timeliness requirement found in the FAR should be applied here. FAR 52.215-1 provides an exception permitting consideration of an otherwise late proposal, if four conditions are met: the proposal must be received before award is made, and the Contracting Officer must determine that accepting the late offer would not unduly delay the acquisition. In addition, if the offer was transmitted electronically, it must have been received “at the initial point of entry to the Government infrastructure not later than 5:00 p.m. one working day prior to the date specified for receipt of proposals,” and there must be “acceptable evidence” that the proposal was under the Government’s control prior to the time set for receipt of offers. FAR 52.215-1(c)(3)(ii)(A). It is the last condition, often called the “Government control exception,” that is the main source of dispute here. Our Court has defined “Government control” in this context as occurring when “the offeror relinquishes control over the proposal such that the offeror no longer can modify the proposal.” Electronic On-Ramp, Inc. v. United States, 104 Fed. Cl. 151, 163 (2012); see also Watterson Const. Co. v. United States, 98 Fed. Cl. 84, 97 (2011). Plaintiff argues that, because its proposal was entered into the FedConnect system, any later modifications it might have made would be clearly recorded, and in fact, Plaintiff could have but did not change or withdraw its proposal after filing. However, as Defendant points out, DOE was not in possession of the proposal and had no way of accessing it until Plaintiff submitted it to the agency, and thus the proposal was clearly not “under the Government’s control” as required by the FAR. To construe the instant facts where Plaintiff uploaded the proposal but did not send it, as within the Government’s control, is stretching the language of the FAR beyond reason, and there would be no tangible limit to the time an offeror could hold an uploaded (albeit unmodified) proposal before submitting.

For these reasons, the Court finds that DOE acted reasonably in rejecting Plaintiff’s proposal as untimely, and GRANTS Defendant’s Cross-Motion for Judgment on the Administrative Record. Plaintiff’s Motion for Judgment on the Administrative Record is DENIED.  (Johnson Controls Government Systems, LLC v. U. S., No. 15-1440C, February 19, 2016)  (pdf)

Plaintiff has moved for judgment on the administrative record, arguing primarily that the receipt of its proposal by the DISA server before the submission deadline required the agency to accept and consider the proposal under the Government Control exception. See Mot. J. Admin. R. (Pl.’s Mot.) at 12–16. Plaintiff maintains that SOCOM’s rejection of its proposal was arbitrary and capricious, as the Government Control exception was used to accept [Offeror O’s] proposal, and problems with the agency’s server prevented the e-mails of FAST and six other offerors from reaching the CO. Id. at 21–28. The government has cross-moved for judgment, contending that FAST’s proposal was never received or controlled by the agency, and that this was because the e-mail containing the proposal was too large when sent by FAST. Def.’s Cross-Mot. J. on Admin. R. & Opp’n to Pl.’s Mot. J. on Admin. R. (Def.’s Mot.) at 15–23, 25–29.

(sections deleted)

The main issue presented by this protest is whether the Government Control exception, 48 C.F.R. § 52.215-1(c)(3)(ii)(A)(2), applies to the circumstances of FAST’s proposal submission. The record shows that FAST’s proposal, contained in five files that were measured to total 17.93 megabytes when e-mailed to the SWMS@socom.mil address, see AR at 620, was received four hours and thirty-one minutes before the deadline by the first government server that processes e-mails addressed to SOCOM, AR at 681. After the e-mail, measured at 24.84 megabytes when received, was scanned for viruses and spam, four minutes later it was forwarded to, and was rejected by, the SOCOM server, due to its size. AR at 680–81. The record also shows that four other offerors had proposals rejected due to the size limit, although the files measured less than 20 megabytes when sent. See AR at 825, 837, 862, 884, 887. As explained below, the Court concludes that the Government Control exception does apply, and that SOCOM acted arbitrarily in not accepting plaintiff ’s proposal.

1. The Government Control Exception

The relevant FAR provision governing the timing of proposal submission, incorporated into the solicitation by reference, see AR at 474, states that “[o]fferors are responsible for submitting proposals, and any modifications or revisions, so as to reach the Government office designated in the solicitation by the time specified in the solicitation.” 48 C.F.R. § 52.215-1(c)(3)(i) (2015). The next sub-clause provides that “[a]ny proposal, modification, or revision, received at the Government office designated in the solicitation after the exact time specified for receipt of offers is ‘late’ and will not be considered,” unless certain exceptions apply. Id. § 52.215-1(c)(3)(ii)(A). Referred to collectively as the “late is late” rule, see Insight Sys., 110 Fed. Cl. at 574, these provisions are generally taken to bar the consideration of any proposal that arrives even moments after the deadline, with the goal of “alleviat[ing] confusion, ensur[ing] equal treatment of all offerors, and prevent[ing] one offeror from obtaining a competitive advantage that may accrue where an offeror is permitted to submit a proposal later than the common deadline set for all competitors,” Philips Healthcare Informatics, B-405382.2 et al., 2012 CPD ¶ 220, 2012 WL 3611711, at *4 (Comp. Gen. May 14, 2012).

Taken together, the language of these provisions has been interpreted by both the GAO and our court to impose upon the offeror the obligation of ensuring that any proposal it submits by electronic means --- when allowed or required by the terms of a solicitation --- is received before the deadline, taking into account the possibility of reasonably foreseeable circumstances which may delay the delivery of its proposal. See Insight Sys., 110 Fed. Cl. at 574 (“[I]t is an offeror’s responsibility, when transmitting its proposal electronically, to ensure the proposal’s timely delivery by transmitting the proposal sufficiently in advance of the time set for receipt of proposals to allow for timely receipt by the agency.” (quoting Philips Healthcare, 2012 WL 3611711, at *4)).

The FAR itself, however, enumerates certain exceptions to the “late is late” rule. Section 52.215-1 states that a late proposal may be considered if:

it is received before award is made, the Contracting Officer determines that accepting the late offer would not unduly delay the acquisition; and

(1) If it was transmitted through an electronic commerce method authorized by the solicitation, it was received at the initial point of entry to the government infrastructure not later than 5:00 p.m. one working day prior to the date specified for receipt of proposals; or

(2) There is acceptable evidence to establish that it was received at the Government installation designated for receipt of offers and was under the Government’s control prior to the time set for receipt of offers . . . .

48 C.F.R. § 52.215-1(c)(3)(ii)(A)(1)–(2).16 Of these two exceptions, the former does not apply, because FAST concededly did not attempt to transmit its proposal by 5:00 p.m. the work day before the proposal deadline. See AR at 640 (showing proposal was sent at 11:56 am on the day proposals were due).

It is not disputed that the two qualifying conditions for the application of an exception to the “late is late” rule are met. Because of CICA stays triggered by GAO protests, and the agency’s voluntary stay to accommodate this protest, an award had not been made prior to the Court’s oral decision in this case. Thus, the order that the agency accept FAST’s proposal for evaluation resulted in the agency receiving the proposal before award and the procurement was not unduly delayed. See 48 C.F.R. § 52.215-1(c)(3)(ii)(A). Nor did the government argue that the Government Control exception cannot apply to e-mailed proposals, as it recognized that “[r]ecent precedents of this Court clearly indicate that the control exception applies to email proposals.” Def.’s Mot. at 21–22 (citing Insight Sys., 110 Fed. Cl. at 574–81, and Watterson Constr., 98 Fed. Cl. at 95–97).

In any event, the Court is persuaded by the reasoning contained in the two precedents discussed by the parties and concludes that the Government Control exception does apply to proposals that are sent by e-mail. The opinion in Watterson Construction Co. convincingly explains, through analysis of the text and the regulatory history, that the FAR’s retention of the “Electronic Commerce exception,” 48 C.F.R. § 52.215-1(c)(3)(ii)(A)(1), should not be construed as removing e-mailed proposals from the protection of the Government Control exception. See Watterson Constr., 98 Fed. Cl. at 95–97. And the opinion in Insight Systems Corp., construing the substantively-equivalent version of the exceptions from the provision employed in commercial items procurements, see 48 C.F.R. § 52.212-1(f)(2)(i)(A)–(B), is extremely persuasive in concluding that the Government Control exception applies to proposals submitted electronically. See Insight Sys., 110 Fed. Cl. at 574–81. The Court adopts the reasoning detailed in those portions of the opinions without reservation. Of particular note is the latter opinion’s explanation why application of the Government Control exception to electronic submissions does not render the Electronic Commerce exception superfluous --- as the latter would apply when a transmission is rejected by the first server in the government system, while “control” of the proposal for purposes of the former requires more, such as the first server running security checks on a message and attempting to forward it to the next government server. See id. at 577, 579 n.20.

This protest turns on whether, under the Government Control exception, FAST’s proposal “was received at the Government installation designated for receipt of offers and was under the Government’s control prior to the time set for receipt of offers.” 48 C.F.R. § 52.215-1(c)(3)(ii)(A)(2). Plaintiff argues that it was, following the reasoning of the two precedents discussed above. See Pl.’s Mot. at 13–16; Pl.’s Reply in Supp. Mot. J. on Admin. R. (Pl.’s Reply) at 6–9. Defendant maintains that it wasn’t, attempting to distinguish those precedents. See Def.’s Mot. at 15–23; Def.’s Reply to Pl.’s Resp. to Def.’s Cross-Mot. (Def.’s Reply) at 2–5.

In Watterson Construction Co., after examining the historical background of the Government Control exception, the court determined that “neither the text of [the Government Control exception] nor the regulatory history supports a construction that would require an offeror, after relinquishing control of an e-mail proposal, to be responsible for the risk of late delivery when technical problems arise after an e-mail proposal reaches the e-gateway to a designated Government office.” Watterson Constr., 98 Fed. Cl. at 97. In that case, an e-mail containing a proposal was timely received by “the first of four Army Corps servers,” which was described as an “e-mail gateway,” but made it to the e-mail inbox thirty-five minutes later (and four minutes too late) because the Army Corps’s “bridgehead e-mail servers” had “come to a crawl” due to excessive traffic. Id. at 87 & n.4.

Insight Systems Corp. looked more closely at the mechanics of the electronic transmission process in considering the Government Control exception in the context of that case. There, e-mails sent to the agency had to pass through three levels of computer servers before delivery to the recipient. Insight Sys., 110 Fed. Cl. at 570. The offerors’ e-mails only reached the first level of servers, which performed security screening on the e-mails but were unable to forward them to the next level of servers (the “bridgehead” servers) and on to the destination e-mail address (via the “mailbox” servers) until after the deadline. Id. at 570–71. The court first found that the initial servers, operated under contract by a private entity, see id., constituted a “government installation” for purposes of the Government Control exception, id. at 578 (“[M]uch like a mail room or other depository in a building, to which paper proposals can be delivered --- a server controlled by the government most certainly can be an ‘installation’ that receives electronic submissions.”). The court then found that the “proposals in question were ‘received’ when the [initial] server ‘took’ the electronic messages submitted by plaintiffs, submitted them to security checks, and, once those checks were passed, attempted to forward them, albeit unsuccessfully, to the second server in [the agency’s] mail system.” Id. at 577.

The government contends that Watterson Construction Co. and Insight Systems Corp. can be distinguished from the circumstances presented in this case, based on the fact that the initial government server chosen by the Department of Defense to be the entry point to SOCOM’s e-mail system is operated by DISA, a separate, autonomous entity within the department. Def.’s Reply at 3–5; Def.’s Mot. at 17–20. The Court fails to see how this is a material distinction --- after all, the FAR provision applies to proposals “under the Government’s control,” 48 C.F.R. § 52.215-1(c)(3)(ii)(A)(2), and is not limited to proposals “under the procuring agency’s control” or “the contracting officer’s control.” In addition, the proposal must, before the deadline, be “received at the Government installation designated for receipt of offers,” id., rather than at “the Government office designated in the solicitation.”

Defendant maintains that the language from the earlier of the two opinions, applying the exception “when technical problems arise after an e-mail proposal reaches the e-gateway to a designated Government office,” Watterson Constr., 98 Fed. Cl. at 97, requires that the proposal be received by a server within the procuring agency that can deliver the proposal to the e-mail address inbox. See Def.’s Reply at 2–3. But that opinion did not define “the e-gateway” in those terms, and while some detail was lacking, it suggested that the e-mailed proposal needed to pass to at least one additional server before being delivered. See Watterson Constr., 98 Fed. Cl. at 87.20 All we can know for sure is that the proposal was timely received by one government server that was “located directly behind [an agency] firewall facing the Internet.” Id. (internal quotations omitted). The implication is that this was the first government sever to receive the proposal, and whether that server was within the agency or not was not the important point.  Instead, what mattered was this occurred after the offeror “relinquish[ed] control of [its] e-mail proposal.” Id. at 97.

On this point, the Court finds the more detailed explanation of the mechanics of e-mail delivery in the Insight Systems Corp. opinion to be more useful. In that case, a private server operated under a contract with the agency was the only server to have received the e-mailed proposal prior to deadline. Insight Sys., 110 Fed. Cl. at 570. Government control was based on the security check, and the attempt to forward the message to the second of three servers in the system. See id. at 576–77, 579 n.20. The receiving server was found analogous to a mail room, id. at 578, even though, like the DISA server, it could not forward the message directly to an e-mail inbox. Here, the DISA server performed the security check and unsuccessfully attempted to forward the message to the server which could deliver it to e-mail inbox. AR at 507, 681–82. As noted above, the Court does not see how the receipt of and control over FAST’s proposal by the DISA server can be distinguished from the actions of the private server used in Insight Systems Corp. To the contrary, the facts in this case seem even more compelling, because the server was owned and operated by the government, and only one layer of servers stood between it and the recipient’s e-mail inbox. The choice of the government to use a server located outside of the procuring agency is of no significance. Accordingly, the Court holds that when an e-mailed proposal is received by the first server designated by the government to receive e-mails directed to the address contained in a solicitation, it has been “received at the Government installation designated for receipt of offers,” 48 C.F.R. § 52.215-1(c)(3)(ii)(A)(2), for purposes of the Government Control exception.

The record contains “acceptable evidence to establish that” the proposal was timely received. Id. A government computer record indicates that FAST’s e-mail was received by the DISA server at 11:58 a.m., was scanned for viruses, and was forwarded to and bounced back from the SOCOM server at 12:02 p.m. AR at 681–82. This sufficiently demonstrates government control over the proposal. See Insight Sys., 110 Fed. Cl. at 576–81.

The Court also finds that FAST’s e-mail complied with the instruction that attached files total no more than 20 megabytes in size. See AR at 477. A computer record generated by plaintiff shows that the files totaled 17.93 megabytes when sent. AR at 620. This was confirmed by Mr. Mohammed, who took the extra step of determining that the data in the e-mail itself, including “MIME formatting,” could not have been more than one megabyte. AR at 716. This evidence is credible, in light of the fact that four other offerors had similarly represented that their e-mails were rejected due to the size limit, although attached files measured less than 20 megabytes when sent. For instance, [Offeror I] received a “size limit exceeded” notice regarding an e-mail containing the fourth part of its proposal, when the two versions sent separately apparently measured 8 and 18 megabytes. See AR at 837–38. And an [Offeror L] e-mail with a 15 megabyte file was rejected. AR at 862.

Most telling, however, is the government’s own documentation concerning the other two offerors who encountered this problem. [Offeror D] claimed that the files containing its proposal totaled approximately 17 megabytes, but its e-mail was rejected due to size. AR at 825. The DISA server measured the e-mail to contain 21.39 megabytes. AR at 679. Yet when the same files were split among two separate e-mails, the two e-mails totaled less than 16 megabytes when received by the agency. AR at 726 (Offeror D), 828. Similarly, the e-mail containing the proposal of [Offeror N] was rejected as too large, see AR at 884, but when its files were spread among two e-mails, the agency measured them to be 10 and 6 megabytes in size when received, AR at 726 (Offeror N), 887. At least for purposes of measuring data, it seems the government servers found whole proposals to be greater than the sums of their parts.

The experiences of these other offerors not only corroborate FAST’s claim as to the size of its proposal, but also prove that the agency was the source of the offerors’ problems. The Solicitation informed offerors that “[t]he maximum size of any files coming through on any one email is 20MB.” AR at 477. The DISA server either improperly measured the size of e-mails containing files totaling 15 megabytes and greater, or did something to enlarge such files by more than one-third. In either event, an offeror can only know the size of files when they are sent, not when they are received by the government, and the agency misled offerors into believing that files totaling up to 20 megabytes in size could be sent on one e-mail, as the actual limit was clearly much lower. Indeed, the size instruction was itself arbitrary, as the Contracting Officer admitted that she “did not test whether SWMS@SOCOM.mil would accept files up to 20MB.” Stevens Decl. ¶ 3. The Court concludes that the agency acted arbitrarily and capriciously in not applying the Government Control exception to accept FAST’s proposal.

2. The Agency’s Arbitrary Actions were Prejudicial

The proposal submitted by FAST was not delivered to the agency e-mail inbox for the procurement, because the government’s servers failed to accept files totaling up to 20 megabytes as advertised. Although the e-mail containing this proposal was timely received by the DISA server, and was under the government’s control when safety checks were performed and the forwarding of the e-mail was attempted, the government arbitrarily decided not to accept the proposal under the Government Control exception to the lateness rule, 48 C.F.R. § 52.215-1(c)(3)(ii)(A)(2). This clear violation of the FAR was prejudicial to FAST, for it is “beyond peradventure” that an agency’s arbitrary refusal to accept a proposal for evaluation imposes “a ‘non-trivial competitive injury which can be addressed by judicial relief.’” Insight Sys., 110 Fed. Cl. at 581 (quoting Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1361 (Fed. Cir. 2009) (internal quotation omitted)).

On this point too, however, the government attempts to distinguish Insight Systems Corp., on the ground that plaintiff was sent an error message within six minutes of the government’s receipt of FAST’s e-mail. See Def.’s Br. at 17–18; Def.’s Reply at 7.22 In contrast, Insight Systems Corp. “was unaware of the problem” with its submission. Def.’s Br. at 18 (quoting Insight Sys., 110 Fed. Cl. at 570). But while that decision described the Government Control exception as “safeguarding contractors which, through no fault of their own, find themselves unable to deliver their proposal to the government office designated for receipt of proposals,” Insight Sys., 110 Fed. Cl. at 579, the Court does not read that precedent as finding fault when contractors fail to take extraordinary steps to work around proposal receipt problems caused by the government. Rather, that opinion cast doubt on the applicability of the exception to “a contractor which waits until the last moment before emailing its proposal.” Id. at 581.

Here, FAST met its “responsibility, when transmitting its proposal electronically, to ensure the proposal’s timely delivery by transmitting the proposal sufficiently in advance of the time set for receipt of proposals to allow for timely receipt by the agency.” Insight Sys., 110 Fed. Cl. at 574 (quoting Philips Healthcare, 2012 WL 3611711, at *4). Its proposal was sent at 11:56 a.m., see AR at 579, more than four and one-half hours before the deadline and significantly earlier than the offerors in the Insight Systems Corp. and Watterson Construction Co. cases. See Insight Sys., 100 Fed. Cl. at 570–71 (one proposal e-mailed one hour and twenty-two minutes before the deadline, and the other twenty-one minutes before the deadline); Watterson Constr., 98 Fed. Cl. at 87 (proposal e-mailed fifty-nine minutes before the deadline). This is not a situation where the offeror waited until the last moment so it could put the final touches on the bid and was stymied by a normal processing delay or a minor glitch in the system. Cf. Symetrics Indus., LLC, B-298759, 2006 CPD ¶ 154, 2006 WL 2946848, at *2–3 (Comp. Gen. Oct. 16, 2006) (denying protest when offeror sent proposal five minutes before deadline and it arrived one minute late); PMTech., Inc., B-291082, 2002 CPD ¶ 172, 2002 WL 31303100, at *2–3 (Comp. Gen. Oct. 11, 2002) (denying protest when offeror attempted transmission thirteen minutes before deadline and receipt was delayed by a one-time malfunction).

Plaintiff acted responsibly in submitting its proposal with more than four hours to spare, and in following the instruction by attaching files that did not exceed twenty megabytes in total. AR at 477. The Court rejects the unsupported contention that FAST was required to resolve e-mail receipt problems that were the government’s own doing.

While the government’s refusal to accept FAST’s proposal for evaluation constitutes sufficient prejudice to support plaintiff ’s motion for judgment, the Court notes additional prejudice to plaintiff due to the agency’s actions. When FAST’s protest was before the GAO, the agency failed to inform that body of four additional offerors who had experienced difficulty transmitting proposals. See AR at 854–90. Two of these, [Offeror L], AR at 862–68, and [Offeror N], AR at 883–87, had e-mails with files below the 20 megabyte limit rejected due to the size limit. There is no record of DISA having received an e-mail from another offeror, [Offeror O], addressed to SWMS@socom.mil, yet a proposal from that offeror was accepted for evaluation. See Stevens Decl. ¶ 1.

But one ground for FAST’s protest was the “systemic failure” exception, see, e.g., AR at 616 (citing S.D.M. Supply, Inc., B-271492, 96-1 CPD ¶ 288, 1996 WL 349513 (Comp. Gen. June 26, 1996)), which the GAO has found stems from the “agency’s obligation to have procedures in place to reasonably safeguard proposals or quotations actually received and to give them fair consideration.” FAST, 2014 WL 7660997, at *3; AR at 758 (citing S.D.M. Supply, 1996 WL 349513, and East West Research, Inc., B-239565 et al., 90-2 CPD ¶ 147, 1990 WL 278424 (Comp. Gen. Aug. 21, 1990)). The GAO --- believing that only “three proposals initially were rejected,” that “the agency successfully received 15 proposals,” and that “[a]ll offerors that diligently pursued submission of their proposals were eventually successful, and the agency received 15 timely proposals” --- found that there was no systemic failure. See FAST, 2014 WL 7660997, at *3; AR at 758. As we have seen, there were actually seven proposals initially rejected, and only thirteen were received in full at the proper address by the deadline.

The GAO stated in its decision that “[a] finding that a proposal or quotation was not received due to a ‘systemic failure,’ . . . requires more than ‘the occasional negligent loss’ of a proposal or quotation.” FAST, 2014 WL 7660997, at *3; AR at 758 (citing E.W. Research 1990 WL 278424, at *3). But as explained in Project Resources, Inc., B-297968, 2006 CPD ¶ 58, 2006 WL 846353 (Comp. Gen. Mar. 31, 2006), the GAO:

has recognized a limited exception to the rule that negligent loss of proposal information does not entitle the offeror to relief. The exception generally applies where the loss was not an isolated act of negligence, but was the result of a systemic failure resulting in multiple or repetitive instances of lost information.

Id. at *3 (citing E.W. Research, 1990 WL 278424) (emphasis added). The GAO went on to note that the exception did not apply in the case of Project Resources because “[t]here is no evidence that the agency, for example, lost the proposal information submitted by other offerors in this procurement.” Id. (emphasis added).

Perhaps had the GAO been told the actual number of offerors which had e-mailed proposals rejected, it would have reached a different conclusion. Or it might have done so, had it been informed that at least one e-mail sent by [Offeror I] was not accounted for, see supra note 14, or that there was no record of any e-mail sent by [Offeror O] to the e-mail address designated in the Solicitation. On this last point, the Court is particularly concerned that the GAO, which does not recognize the extension of the Government Control exception to cover e-mailed proposals, see Sea Box, Inc., 2002 WL 31445297, at *2, was not told that the agency employed this exception to accept the [Offeror O] proposal. The GAO found FAST’s proposal “was never received at the agency email address designated for receipt of proposals,” FAST, 2014 WL 7660997, at *2; AR at 757, yet the same was true of [Offeror O’s] proposal. Knowledge that an exception was made for [Offeror O] may have resulted in a different outcome before the GAO. Cf. Philips Healthcare, 2012 WL 3611711, at *4 (explaining that one of the purposes of the “late is late” rule is that it “ensures equal treatment of all offerors”). Although not necessary for FAST to prevail, the Court concludes that the agency’s failure to disclose to the GAO the full extent of problems encountered by offerors in e-mailing their proposals, and its application of the Government Control exception to the benefit of another offeror, was to plaintiff ’s prejudice by preventing a fully informed consideration of the protest grounds raised by FAST.  (Federal Acquisition Services Team, LLC v. U. S., No. 15-78C, February 16, 2016)  (pdf)

The RFP stated that proof of adequate zoning was to be submitted with an offeror’s bid or within sixty days of the initial submission, and “[a]n offeror’s failure to establish and maintain proof may result in elimina-tion [sic] prior to award and termination for default following award.” AWS did not submit valid proof of zoning by April 27, 2012, sixty days after the initial submission. Instead, AWS included with its bid a copy of its zoning permit application and a schedule delineating the expected timeline for receiving approval from the City of Fayetteville for its Special Use Permit. On April 30, 2012, AWS updated BOP on the projected timing of its permit approval and requested a thirty-day extension to submit proof of zoning, although BOP did not respond to protestor’s request. On June 4, 2012, AWS informed BOP that its Special Use Permit had been approved and forwarded the zoning letter documenting the approval to BOP. On June 15, 2012, however, the contracting officer sent AWS a letter informing AWS that its zoning information was late and, that in accordance with FAR 15.208 (2012), it would not be considered. On the same date, June 15, 2012, however, BOP issued Amendment No. 2 to the solicitation, extending the deadline to submit proof of zoning to 150 days after the close of submissions. Nonetheless, on June 26, 2012, in an e-mail exchange with AWS, BOP reiterated to AWS that its zoning proof was late and would not be considered. BOP ultimately opted to keep AWS in the competitive range and allow AWS to provide late proof of zoning during discussions, citing AWS’s efforts to keep BOP informed of its progress with respect to obtaining the Special Use Permit, BOP’s institutional knowledge that such permits can often be challenging and time-consuming to obtain, and BOP’s interest in avoiding a sole-source situation, if reasonably possible.

BOP had the authority to keep AWS in the competitive range despite its zoning deficiency. The solicitation stated that an offeror’s failure to establish and maintain proof of adequate zoning “may” result in elimination. Notably, the word in the solicitation “may” indicates that elimination was not required, as it would have been if the solicitation had said failure to submit adequate zoning “will” result in elimination, “shall” result in elimination, or “must” result in elimination. The plain language of the solicitation provided the contracting officer with discretion in this decision. Furthermore, the solicitation stated, “[t]he Government reserves the right to conduct discussions if the Contracting Officer determines them necessary.” Although when issued the solicitation established a timeline for submitting valid proof of zoning within sixty days after the date of proposal submission, the reservation in the solicitation of the right to conduct discussions and the use of the word “may” did provide the contracting officer with leeway to accept proof of zoning from AWS at a later date, during discussions. At best, conduct of the procurement lacked coordination, but it was within the agency’s discretion. There appears to have been a stark lack of communication at the agency, as twice, the agency indicated that AWS’s proof of zoning was late and would not be accepted, once even after the June 15, 2012 amendment to the solicitation was issued extending the submission deadline. Even in the solicitation, however, the sixty-day submission timeline was established with flexibility, preserving the agency’s discretion not to eliminate proposals for failure to submit proof of zoning within sixty days and the agency’s right to conduct discussions. Ultimately, the contracting officer retained the right to do what she did when she accepted AWS’s proof of zoning prior to award of the contract.

Protestor also argues that the discretion the agency identified in the solicitation, whereby it “may” eliminate an offeror for failure to submit timely zoning documentation, is at odds with FAR 15.208, which, according to the protestor, states that the late submission of proposals, or modifications to proposals, “will not be considered.” Defendant argues in response that protestor is foreclosed from arguing that “FAR 15.208 was inconsistent with the RFP provision giving the contracting officer discretion to keep an offeror who failed to establish proof of zoning within the competitive range and conduct discussions instead.” Defendant asserts that any conflict between the solicitation and the FAR, if it existed, was patent on the face of the solicitation, and Bannum, therefore, had its opportunity to raise this challenge during the bid process, but failed to do so.

Regardless of defendant’s waiver argument, the conflict protestor raises does not exist. Although FAR 15.208(b)(1) indicates that a late “proposal, modification, or revision . . . will not be considered,” that phrase is followed immediately by, “unless it is received before award is made, the contracting officer determines that accepting the late proposal would not unduly delay the acquisition,” and meets one of three conditions, which do not apply in this case. See FAR 15.208(b)(1). This language is followed, however, by FAR 15.208(b)(2), which states, “[h]owever, a late modification of an otherwise successful proposal, that makes its terms more favorable to the Government, will be considered at any time it is received and may be accepted.” Under the FAR, the agency had the discretion to accept AWS’s June 4, 2012 submission of its proof of meeting local zoning requirements. Based on a review of the record before the court, the agency’s decision to keep AWS in the competitive range and accept its zoning submission when offered, even beyond sixty days after submission of the original proposal, was permissible and not arbitrary, capricious, or not in accordance with law.  (Bannum, Inc. v U. S. and The Alston Wilkes Society, No. 14-822C, December 5, 2014)  (pdf)

Plaintiff argues that [Defense Commissary Agency] DeCA violated FAR 52-212.1(f)(4) by failing to consider its proposal because it was delivered late. FAR 52.212-1(f)(4) provides:

If an emergency or unanticipated event interrupts normal Government processes so that offers cannot be received at the Government office designated for receipt of offers by the exact time specified in the solicitation, and urgent Government requirements preclude amendment of the solicitation or other notice of an extension of the closing date, the time specified for receipt of offers will be deemed to be extended to the same time of day specified in the solicitation on the first work day on which normal Government processes resume.

48 C.F.R. 52.212-1(f)(4) (2012). FAR 52.212-1(f)(4) thus sets out an exception to the general rule that a late offer will not be considered by the Government. See 48 C.F.R. 52.212-1(f)(2)(1); Labatt Food Serv. v. United States, 577 F.3d 1375, 1381 (Fed. Cir. 2009).

Plaintiff contends that the delay in delivery of its proposal “was caused by the FAA’s restriction of aircraft ground operations at Mobile and Pensacola due to the flood emergency in the extreme weather.” Pl.’s Mot. for Judgment on the AR at 6, 11.5 Plaintiff’s argument that its proposal should not be considered late because there was an interruption of normal Government processes near its offices in Florida or Alabama, where the storm delayed aircraft, is unavailing. The clear language of FAR 52.12-1(f)(4) permits acceptance of late proposals where an “emergency or unanticipated event interrupts normal government processes so that offers cannot be received at the Government office designated for receipt of offers by the exact time specified in the solicitation . . . .” Here, the Government office designated for receipt of offers was in Fort Lee, VA, and normal Government operations were not interrupted in that location.

In a decision affirmed by the Federal Circuit, this Court rejected the interpretation of this FAR clause that Plaintiff is now advancing. Conscoop-Consoriza Fra Coop. Di Prod. E. Lavoro v. United States, 62 Fed. Cl. 219, 221 (2004), aff’d 159 F. App’x. 184 (Fed. Cir. 2005) (per curiam). Conscoop concerned a proposal submitted by email one hour and 41 minutes after the deadline. Id. at 221-224. The solicitation in question, which was only issued online, stated that the deadline was “5 Aug 2003, 1400” and that the hours were stated in local time, which was Italian time. Id. at 221.6 Conscoop emailed its proposal at 1:58 p.m. Italian time, but it was not received until 3:41 p.m. Italian time. Id. at 223. Conscoop, citing FAR 52.215-1(c)(3)(iv), argued that the power outage at its location was an unanticipated event that delayed the Government’s ability to receive the proposal. Id. at 241. However, the Court of Federal Claims was not persuaded and held that normal Government processes must be interrupted at the agency’s location, not the bidder’s. Id. Because the agency’s email system was fully functional throughout August 5, 2003, there was no interruption of normal government processes at the delivery site and no basis to apply the exception. Id. As the Court clarified in Conscoop “the FAR provision focuses upon whether unforeseen events prevent the Government from receiving proposals at the site designated, not on whether unforeseen events prevent the offeror from transmitting its proposal.” Id. In a per curiam opinion, the Federal Circuit affirmed and noted that the exception invoked by Conscoop “focus[es] on the government’s ability to receive offers.” Conscoop, 159 F. App’x. at 186. The Federal Circuit held that “no emergency events existed that interrupted the agency’s ability to receive offers at the required time and location.” Id. Here, as in Conscoop, no emergency or unanticipated event interrupted normal Government processes at the site designated for receiving proposals in Fort Lee, Virginia. As DeCA was open and able to receive offers “at the required time and location,” Plaintiff is not entitled to consideration of its proposal under FAR 52.212-1(f)(4). Conscoop, 159 F. App’x. at 186.

Finally, Plaintiff argues in its reply brief that a common law exception to the timeliness rule should apply. Pl.’s Reply at 9-11.7 In addition to the exceptions set out in the FAR, this Court and the Government Accountability Office have recognized a “common law” exception to the general rule that a late proposal will not be considered by the agency. The Elec. On-Ramp, Inc. v. United States, 104 Fed. Cl. 151, 162 (2012) (internal citations omitted). This “common law” exception provides that a “late proposal may be considered if ‘government misdirection or mishandling’ was the ‘paramount cause’ of the delay and consideration of the proposal would not compromise the competitive process.” Id. However, there is no evidence that any misdirection or mishandling of Global’s proposal on the part of the Government caused the delay. Therefore, the common-law exception to the timeliness rule does not apply.  (Global Military Marketing, Inc. v. U. S., No. 14-622C, September 29, 2014)  (pdf)

B. Should Plaintiffs’ Quotations Have Been Rejected by USAID?

For procurements of commercial items, FAR § 52.212-1(f)(1) states that “[o]fferors are responsible for submitting offers, and any modifications, revisions, or withdrawals, so as to reach the Government office designated in the solicitation by the time specified in the solicitation.” Amplifying this rule, FAR § 52.212-1(f)(2)(i) provides that “[a]ny offer . . . received at the Government office designated in the solicitation after the exact time specified for receipt of offers is ‘late’ and will not be considered.” As defendant points out, these provisions often have been construed narrowly, summed up by the aphorism “late is late.” See Brian G. Walsh & Nooree Lee, “Is Late Always Late? Recent COFC and GAO Decisions Introduce Uncertainty in Protests Requesting Consideration of ‘Late’ Proposals,” 48 Procurement Law. 11, 11 (2013). Under these provisions, undoubtedly, “it is an offeror’s responsibility, when transmitting its proposal electronically, to ensure the proposal’s timely delivery by transmitting the proposal sufficiently in advance of the time set for receipt of proposals to allow for timely receipt by the agency.” Philips Healthcare Informatics, 2012 C.P.D. ¶ 220 (2012); see also Associated Fabricators & Constructors, Inc., 2011 C.P.D. ¶ 279 (2011).

Briefing and argument in this case suggest that defendant approaches questions involving the timeliness of an electronic submission under FAR § 52.212-1(f)(1) with the zeal of a pedantic schoolmaster awaiting a term paper. It maintains, for example, that if a solicitation specifies that proposals should be directed to a particular email account, an offer must be received in that addressee’s inbox in order for it to be timely received under the regulation. See also Symetrics Indus., LLC, 2006 C.P.D. ¶ 154 (2006). In its view, a proposal is late, even if it is successfully and iteratively processed through several agency mail servers, if the last of those servers delays the delivery of the email to the recipient’s inbox; indeed, at oral argument, defendant went so far as to contend that such a proposal would be late if, owing to the design of the agency’s email system, the email was not distributed to the recipient’s inbox because he or she had turned off their computer before the deadline and did not reboot until the deadline passed. Presumably, defendant would have the same view if the contracting officer’s email program experienced a loss of network connectivity, an internal programming error, a failure of the associated hardware, or one of a host of other problems that might affect the ability of that program to receive email.

There are, however, exceptions to the “late is late” rule. A series of these are contained in FAR § 52.212-1(f)(2)(i), which provides that the “late is late” rule will not apply if the proposal –

is received before award is made, the Contracting Officer determines that accepting the late offer would not unduly delay the acquisition; and—

(A) If it was transmitted through an electronic commerce method authorized by the solicitation, it was received at the initial point of entry to the Government infrastructure not later than 5:00 p.m. one working day prior to the date specified for receipt of offers; or

(B) There is acceptable evidence to establish that it was received at the Government installation designated for receipt of offers and was under the Government’s control prior to the time set for receipt of offers; or

(C) If this solicitation is a request for proposals, it was the only proposal received.

See also FAR § 15.208(b)(1) (providing a similar rule for negotiated procurements); FAR § 52.215-1(c)(3)(ii)(A) (same for competitive acquisitions).11 The first two of the three exceptions in subparagraph (i) are commonly known as the “Electronic Commerce” and “Government Control” exceptions, respectively. A fourth regulatory exception, known as the “Emergency/ Unanticipated Event” exception, comes from FAR § 52.212-1(f)(4), which states –

If an emergency or unanticipated event interrupts normal Government processes so that offers cannot be received at the Government office designated for receipt of offers by the exact time specified in the solicitation, and urgent Government requirements preclude amendment of the solicitation or other notice of an extension of the closing date, the time specified for receipt of offers will be deemed to be extended to the same time of day specified in the solicitation on the first work day on which normal Government processes resume.

See also FAR §§ 15.208(d); 52.215-1(c)(3)(iv). A fifth, and final, exception has been fashioned by the GAO, which has long-held that a “hand-carried proposal that arrives late may be considered if improper government action was the paramount cause of the late submission and consideration of the proposal would not compromise the integrity of the competitive procurement process.” Noble Supply & Logistics, 2011 C.P.D. ¶ 67 (2011).

(sections deleted)

Though not controlling, from a policy perspective, it must be observed that defendant’s cramped construction of the Government Control exception makes little sense. If defendant is correct, one must conclude that the drafters of the FAR decided to impose on contractors the risk that, without warning, an agency computer could fail, causing a proposal electronically transmitted with reasonable time for it to be received to instead be declared late and out of the competition. The only way for a contractor to avoid this risk, according to defendant, is for it to file its proposal by 5:00 pm on the day before the submission is due – essentially, suggesting that whenever a solicitation or its equivalent requires electronic transmission, the due date should be viewed as being a day earlier than actually stated. Defendant provides no explanation why the drafters of the FAR would want to do this – why they would want to impose unique burdens on companies submitting electronic proposals by providing them with less protection than is afforded to contractors who submitted their proposals in paper form? Compare FAR § 4.502(a) (“The Federal Government shall use electronic commerce whenever practicable or cost-effective.”). Finally, the limitations that defendant would have this court engraft onto the FAR would leave those rules out of harmony with the commercial rules generally applied to electronic transmissions – among them the Uniform Electronic Transactions Act (UETA), see Uniform Law Comm’n, Uniform Elec. Transactions Act §15b (1999). The UETA, which has been adopted in almost every state, holds that an electronic document is received when it enters the recipient’s computer system. Can it be that the drafters of the FAR intended a dramatically different rule to apply to contractors conducting electronic transactions in the Federal procurement sphere?

While these incongruities provide no reason to deviate from the terms of the regulation to expand the Government Control exception, they most certainly do not warrant confining the operation of that exception within narrower limits than its words connote. “Late is late” is no excuse for doing this either, as that phrase would become little more than an empty mantra if it justified myopic interpretations of the FAR that led to arbitrary results. The court must turn a deaf ear to defendant’s siren song of regulatory nullification.

This is not to gainsay that a contractor which waits until the last moment before emailing its proposal should benefit from this exception. Rather, the court merely holds that, in the case of an electronic delivery, the Government Control exception applies where the electronic proposal is received by a government server (or comparable computer) and is under the agency’s control prior to the deadline. See Watterson Constr., 98 Fed. Cl. at 97. This opens no Pandora’s (mail)box – it merely applies that exception, as written, to the technology that agencies themselves choose to employ. Because USAID did not give the exception its proper sway in rejecting the quotes in question, its actions were inconsistent with the FAR and thus arbitrary, capricious, an abuse of discretion, and contrary to law. See, e.g., Lab Corp. of Am., 108 Fed. Cl. at 567-68; BH & Assocs., 88-1 B.C.A. ¶ 20340 (1987). It is beyond peradventure that this action prejudiced plaintiffs – that they have suffered a “non-trivial competitive injury which can be addressed by judicial relief.” Weeks Marine, 575 F.3d at 1361 (quoting WinStar Commc’ns, Inc. v. United States, 41 Fed. Cl. 748, 763 (1998)); see also Sys. Application & Techs., Inc. v. United States, 691 F.3d 1374, 1382 (Fed. Cir. 2012). Accordingly, it falls to this court to remedy their injuries.  (Insight Systems Corp. and CenterScope Technologies, Inc. v. U. S., No. 12-863C and 12-883C, May 6, 2013)  (pdf)

‘“If you knew Time as well as I do,’ said the Hatter,
‘you wouldn’t talk about wasting IT. It’s HIM.’”

‘“I don’t know what you mean,’ said Alice.”

‘“Of course, you don’t,’ the Hatter said, tossing his head contemptuously.
‘I dare say you never even spoke to Time!’”

‘“Perhaps not,’ Alice cautiously replied:
‘but I know I have to beat time when I learn music.’”

‘“Ah! that accounts for it,’ said the Hatter. ‘He won’t stand beating.
Now, if you only kept on good terms with him, he’d do almost anything you liked with the clock. For instance, suppose it were nine o’clock in the morning, just time to begin lessons:
you’d only have to whisper a hint to Time, and round goes the clock in a twinkling!
Half-past one, time for dinner!’”

* * * * *

I. BACKGROUND

The administrative record in this case reveals the following:

On May 1, 2012, the VA issued Solicitation VA255-12-Q-0268 (solicitation or RFQ) for establishing a Blanket Purchase Agreement to provide laboratory testing services to the Veteran Integrated Services Network’s fifteen medical centers located in Kansas, Missouri, and Illinois. The solicitation described the due date for submitting a quotation in a box which indicated: “OFFER DUE DATE/LOCAL TIME 05-31-2012 2:00 pm CST.”5 It said that offers would be submitted to a VA Contracting Office in Leavenworth, Kansas, but did not specify a method for submitting an offer. The VA posted the solicitation on the e-Buy website run by the General Services Administration (GSA).

On May 17, 2012, the VA amended the solicitation via Amendment P00001. The amendment indicated that “[t]he hour and date specified for receipt of Offers . . . is not extended.” An addendum to the amendment provided answers to questions that had been submitted by potential offerors. One of the questions was “[s]hould proposals be uploaded in the GSA e-Buy system or submitted via email?,” to which the contracting officer responded that “[s]ubmission through GSA e-Buy is required.” A second question posed was “[d]oes VISN 15 require a hard copy of all signed documents?,” to which the contracting officer responded, “VISN 15 will only accept documents through e-Buy.” All told, the addendum to the amendment answered eight questions.

On May 31, 2012, at 11:30 a.m. CDT, Stephen Harbaugh, a contracting specialist for LabCorp, began to upload the company’s offer onto e-Buy. At this point, he noticed, for the first time, that the e-Buy website listed the closing time for receipt of proposals as 2:00 p.m. EDT. Mr. Harbaugh experienced technical difficulties in trying to upload the offer, and, at approximately 12:10 p.m. CDT, called Sean Jackson, the contracting officer at the VA. The The two discussed the fact that the e-Buy system listed the bid closing time as 2:00 p.m. EDT. Mr. Jackson confirmed that he was located in the Central Time Zone and that the bid was due at 2:00 p.m. CDT that day.

Notwithstanding Mr. Jackson’s representation, at 1:00 p.m. CDT (2:00 p.m. EDT), e-Buy shut down the bidding system for this solicitation. At 1:03 p.m. CDT, Michelle Ballentine (another LabCorp employee who had been enlisted to help upload the bid) completed uploading all of the files constituting the offer to e-Buy, and then clicked “continue” on the e-Buy screen. She received a message from e-Buy stating “Sorry, the RFQ closed on Thursday, May 31, 2012 at 2:00PM. No additional quotes can be accepted at this time.” At 1:02 p.m. CDT, Mr. Jackson received an email generated by the e-Buy website indicating that “Subject RFQ for [VISN 15] is now closed. 2 quotes were received. To view and evaluate quotes, please login at www.e-Buy.gsa.gov.” Shortly before 1:10 p.m. CDT, Mr. Harbaugh called Mr. Jackson at the VA and left him a voicemail explaining that e-Buy had closed the procurement prematurely and asking that LabCorp be allowed to submit its proposal by alternative means. Within a few hours, a follow-up email was sent to Mr. Jackson with a similar request. The following day, June 1, 2012, after receiving another email from another member of the LabCorp team, Mr. Jackson finally responded via email: “I will have to consult our legal department. It will be next week at the earliest before I can respond to your request.”

(sections deleted)

3. Was the VA’s action in rejecting the proposal arbitrary, capricious, an abuse of discretion, or otherwise contrary to law?

As noted above, the Competition in Contracting Act specifies that a “solicitation . . . shall at a minimum include . . . in the case of competitive proposals . . . the time and place for submission of proposals.” 10 U.S.C. § 2305(a)(2)(B)(ii)(II). Logic and common sense suggest that in enacting this requirement, Congress intended that agencies would accept offers that were submitted properly before the deadline specified in a solicitation. Beyond this, “[i]t is hornbook law that agencies must evaluate proposals and make awards based on the criteria stated in the solicitation.” Banknote, 56 Fed. Cl. at 386 (discussing 10 U.S.C. § 2305); see also Elec. Data Sys., LLC v. United States, 93 Fed. Cl. 416, 430 (2010); NEQ, 88 Fed. Cl. at 47; PGBA, LLC v. United States, 60 Fed. Cl. 196, 207, aff’d, 389 F.3d 1219 (Fed. Cir. 2004). If this principle means anything, it must be that an agency may not reject, as untimely, an offer that is received prior to the deadline specified in the solicitation. Otherwise, full and open competition does not occur. See H.R. Rep. No. 98-1157, at 17 (1984) (“Full and open competition is accomplished only when . . . all qualified vendors are allowed . . . to submit offers on Federal procurements . . . .”); see also Cal. Marine Cleaning, Inc. v. United States, 42 Fed. Cl. 281, 296-97 (1998) (a bid is “timely” if it is “delivered to the place specified in an IFB on or before the time and date specified in the IFB”).

Here, the solicitation indicated that offers were due by 2:00 p.m. CDT. Plaintiff attempted to submit its offer through the e-Buy website at 1:03 p.m. CDT. The offer was refused by the e-Buy system as untimely. It was not untimely. Defendant’s action in rejecting the offer, therefore, was arbitrary, capricious, an abuse of discretion, and contrary to law. See, e.g., BH & Assocs., 88-1 B.C.A. ¶ 20340 (1987). It is beyond peradventure that this action prejudiced plaintiff – that it has suffered a “non-trivial competitive injury which can be addressed by judicial relief.” Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1361 (Fed. Cir. 2009) (quoting WinStar Commc'ns, Inc. v. United States, 41 Fed. Cl. 748, 763 (1998)); see also Sys. Application & Techs., Inc. v. United States, 691 F.3d 1374, 1382 (Fed. Cir. 2012). And it falls to this court to remedy defendant’s misfeasance.

III. CONCLUSION

Unlike someone on good terms with the Mad Hatter’s Time, the officials at the VA could not whisper a hint to Time and make the clock on this procurement go round, in a twinkling, to a time different than that listed in the solicitation. There is nothing on this side of the looking glass to support the VA’s rejection of plaintiff’s offer. It is time, via an injunction, for defendant to return to reality.  (Laboratory Corporation of America v. U. S., No. 12-622C, January 14, 2013)  (pdf)

B. Was EOR’s Paper Proposal Late or Does it Qualify for an Exception to the General Rule?

As a general rule, it is the offeror’s responsibility to submit its proposal so as to reach the “the Government office designated in the solicitation by the time specified in the solicitation.” FAR § 15.208(a). Any proposal that is “received at the designated Government office after the exact time specified for receipt of proposals is ‘late’ and will not be considered . . . .” FAR § 15.208(b). The FAR provides that an offeror may submit a proposal “us[ing] any transmission method authorized by the solicitation (i.e., regular mail, electronic commerce, or facsimile). . . .” FAR § 15.208(a).

In this case, EOR timely submitted a complete copy of its proposal via email, as required by the RFP. The issue is whether EOR timely submitted the paper and CD copies of its proposal. EOR concedes that its paper proposal did not reach the [Defense Intelligence Analysis Center] DIAC building, which is the government office designated for delivery in the RFP, until after the submission deadline. Pl.’s Mot. J. AR at 5. EOR asserts, however, that it qualifies for the Government Control exception, which essentially provides that a “late” proposal may be considered if “it was received at the Government installation designated for receipt of proposals and was under the Government’s control prior to the time set for receipt of proposals.” FAR § 15.208(b)(1)(ii). EOR asserts, and the Government does not dispute, that [Joint Base Anacostia-Bolling] JBAB is the relevant government installation.  In support of its argument that the exception applies, EOR points to several facts: its emailed proposal was submitted prior to the deadline, the security officer’s time-stamped note proves EOR’s courier was at JBAB prior to the deadline, and its proposal was under [Defense Intelligence Agency] DIA’s control prior to the deadline because Ms. Richards stated she would send someone to meet the courier. Pl.’s Mot. J. AR at 1, 3-4.

The Government argues that a proposal is not under government control until the offeror relinquishes control over the proposal by permanently transferring control to the government. The Government argues that while EOR’s courier may have been at the Base’s Visitor’s Center prior to the submission deadline, he did not relinquish control of the proposal to the Government until after the deadline had passed. The Government cites to several CFC and GAO decisions that it contends support its interpretation of government control.

To determine whether the Government Control exception applies, the Court first looks to the plain language of the regulation. Lockheed Corp. v. Widnall, 113 F.3d 1225, 1227 (Fed. Cir. 1997) (stating that “to interpret a regulation we must look at its plain language and consider the terms in accordance with their common meaning”). The exception applies if a proposal (1) “is received before award is made,” (2) “the contracting officer determines that accepting the late proposal would not unduly delay the acquisition[,]” (3) “it was received at the Government installation designated for receipt of proposals,” and (4) “was under the Government’s control prior to the time set for receipt of proposals.” § 15.208(b)(1). It is undisputed that DIA received EOR’s proposal before an award was made. The CO did not consider the delay issue because she concluded on other grounds that the proposal was late. However, the Contract Specialist was willing to send someone to pick up the “stragglers,” indicating that a brief delay would not be problematic for DIA. The Court observes that DIA received 28 other proposals, which would take a significant amount of time to evaluate. The Court finds that the short delay in receiving EOR’s proposal would not have unduly delayed the acquisition.

There is no question that EOR’s emailed proposal was submitted prior to the deadline. The issues here are whether prior to the deadline EOR’s paper proposal was “received at the Government installation” and was “under the Government’s control.”

1. EOR’s Paper Proposal Was Received at the Government Installation Designated for Receipt Prior to the Deadline.

Although the FAR does not specifically define what it means for a proposal to have been “received at the Government installation,” because it distinguishes between “received” and “control,” it follows that a proposal may be “received” without being under government “control.”9 The FAR also specifies the type of evidence that can be sufficient to prove when a proposal has been received: “[a]cceptable evidence to establish the time of receipt at the Government installation includes the time/date stamp of that installation on the proposal wrapper, other documentary evidence of receipt maintained by the installation, or oral testimony or statements of Government personnel.” FAR § 15.208(c). The acceptable evidence provision indicates that a proposal can be considered received at the government installation in several different circumstances; a proposal could be received if a government agent stamps the proposal, if a courier and the proposal are logged-in at the installation, or if a courier is given permission by a guard or front desk to enter the installation to deliver the proposal.

The Court concludes that a proposal can be received at the government installation when an offeror’s courier logs in with a security guard or front desk and proffers the proposal for delivery. This interpretation is consistent with the ordinary definition of the word “receive,” which can mean both “to take possession or delivery of” and “to admit or accept in some character or capacity,” among other definitions. Webster’s Third New Int’l Dictionary 1894 (3d ed. 2002). In reaching this conclusion, the Court recognizes that determining when a proposal is received is a fact specific inquiry that depends on the instructions contained in the solicitation and the nature of the agency’s facilities.

In this case, it is uncontested that EOR’s courier and its paper proposal were present at the Base’s Visitor’s Center prior to the submission deadline. EOR’s courier identified himself to the security guard and stated that he was there to deliver the proposal. The security guard gave the courier a note documenting his presence before the submission deadline. The courier anticipated receiving permission to enter the Base and he waited while the guard made several phone calls to the CO’s office in an attempt to notify the CO that the courier was there. Although the guard was unable to contact the CO, an EOR officer spoke with Ms. Richards, the Contract Specialist, several minutes before the submission deadline. Ms. Richards acknowledged that EOR’s proposal was at the JBAB, although there was some confusion as to exactly where the courier was, and she said that she would send someone to meet him. AR 2300. The Court finds that the evidence establishes that EOR’s proposal was received at the government installation prior to the submission deadline. Although EOR’s paper proposal was received prior to the submission deadline, it will not qualify for the exception unless it also was “under the Government’s control.”

2. EOR’s Paper Proposal Was Under the Government’s Control Prior to the Deadline.

The FAR does not provide any guidance as to what it means for a proposal to be “under the Government’s control.” In the absence of regulatory guidance, the Court relies on the underlying principles of the late proposal rule, which are fairness and the preservation of competition. See Labatt Food Serv., 577 F.3d at 1381. An offeror should not receive an advantage by late submission, such as by having access to post-deadline information or having more time to prepare its proposal. Id. And similarly, an offeror should not be put at a disadvantage because it timely submitted a proposal. Further, the late proposal rule should be simple and easy to apply to promote uniform application and avoid confusion. The purpose of the lateness rule is to “‘alleviate[] confusion, ensure[] equal treatment of all offerors, and prevent[] one offeror from obtaining [the] competitive advantage that may accrue’” from the late submission of an offer. Argencord Mach. & Equip., Inc. v. United States, 68 Fed. Cl. 167, 173 (2005) (quoting PMTech, Inc., B-291082, 2002 CPD ¶ 172, at 2 (Comp. Gen. Oct. 11, 2002)); see Pl.’s Mot. J. AR at 5.

Extra time to submit a proposal is seen as an inherent benefit to an offeror. Orion Tech., Inc. v. United States, -- Fed. Cl. --, 2011 WL 6370029, *13 (Fed. Cl. Dec. 1, 2011) (stating that “had the Army accepted plaintiff’s late submissions, the Army would have given plaintiff an unfair competitive advantage by bestowing a benefit—additional time to submit a complete proposal—exclusively on plaintiff”). Offerors often value those last few hours, or even minutes, in working on their proposals. As the Government’s reply explains, “an offeror who delivers its hard-copy proposal late . . . has more time to prepare its final offer than the other offerors.”  Def.’s Reply at 7. EOR, no doubt, would have valued additional time to complete its proposal as EOR’s president states in an email that some of its personnel was “working all day and night before the proposal submission.” AR 2212.

The FAR recognizes, however, that in certain situations, late submission neither benefits the offeror nor prejudices other offerors, and it provides for several explicit exceptions to the late rule. In addition, consistent with the purpose of the late proposal rule, both the CFC and GAO have recognized a “common law” exception to the rule. A late proposal may be considered if “government misdirection or mishandling” was the “paramount cause” of the delay and consideration of the proposal would not compromise the competitive process. E.g., Hosp. Klean of Texas, Inc. v. United States, 65 Fed. Cl. 618 (2005); ALJUCAR, LLC, B-401148, 2009 CPD ¶ 124 (Comp. Gen. June 8, 2009); see generally Cibinic, Nash & Yukins, Formation of Government Contracts, at 764-66 (4th ed. 2011). In sum, the law reflects that in some circumstances it is more faithful to the preservation of competition to consider a late proposal than it is to reject it.

Consistent with the purpose of the late proposal rule, the Court concludes that a proposal is under the government’s control when the offeror relinquishes control over the proposal such that it no longer can modify the proposal. Stated otherwise, a proposal is under government control if the government has sufficient control over the proposal that it can prevent post-deadline modifications. When an offeror permanently transfers physical possession of a proposal to the government, there is little question that the proposal is under the government’s control. The Courts finds, however, that when an offeror timely submits one complete proposal in accordance with the terms of the RFP but retains physical possession of another copy of the proposal, the proposal can be under the government’s control. The timely delivered copy can ensure that the offeror does not take advantage of any post-deadline information and does not take extra time to complete its proposal. Where the government already has one complete copy of a proposal, if the offeror modified the other copies, that modification would appear from a comparison of the two proposals.

As previously mentioned, the Government argues that the agency must have physical possession of a proposal before the proposal is under its control. The Government cites to several decisions that it claims are analogous to this case. At the outset, the Court notes that the cases the Government cites are both non-binding and not quite on point. Specifically, unlike in this case, the offerors in the cited cases did not timely submit a copy of their proposals via another transmission method.

The Government argues that in Castle-Rose v. United States, 99 Fed. Cl. 517, 526-27 (2011), the CFC stated that a proposal is not under the government’s control until the offeror permanently transfers possession of the proposal to the government. Although the case does have language to that effect, that language appears to be dicta. The main issue in the case was the failure of the plaintiff to prove that its courier arrived in the lobby of the building designated for delivery prior to the deadline. The CFC found that “Notwithstanding whether the courier had to physically turn over [the] proposal to the government by [the deadline] or merely reach the lobby [], Castle-Rose has failed to establish the single fact crucial to its success in this case—that its courier arrived in the lobby on time.” Id. at 525. Altogether missing from the case was the fact of a timely prior electronic submission of a proposal provided for by the RFP.

In ALJUCAR, the GAO determined that a proposal properly was rejected as late. In that case, the offeror’s agent’s arrived at the security gate several minutes before the submission deadline but was not permitted to enter. B-401148. The offeror then contacted the contracting officer, who then sent someone to retrieve the proposal. The agency picked up the proposal from the offeror at the gate, but not until the deadline already had passed. The GAO found that the proposal was late because the RFP stated that “the offeror should anticipate it taking up to an hour to complete the required security screening for proposal submissions, [but] the protester [] arrived on the base only 8 minutes before closing.” Id. at *2. In this case, DIA’s RFP contained no instructions warning of delay and EOR arrived on the base 35 minutes before closing. More important, there is not mention of a timely prior electronic submission provided for by the RFP.

The government also cites to Immediate Systems Resources, Inc., B-292856, 2003 CPD ¶ 227 (Comp. Gen. Dec. 9, 2003). That case involves the submission of a best and final offer (“BAFO”), where the offeror had already submitted an initial proposal. Several minutes before the submission deadline, the offeror’s president arrived at the installation’s security guard station and had the security guard log-in and date-stamp the BAFO. The offeror then took back the proposal and proceeded to deliver it to the contract specialist, but it was delivered 14 minutes after the deadline. The GAO found that, even if the BAFO was properly logged in by the security guard prior to the deadline, the proposal was late because “[the offeror’s] president retained control of the proposal after the guard signed for the package, because the president (not the guard) delivered the proposal to the contracting specialist [in the building].” Id. at *3. But, the contracting officer did not disqualify the offeror from competition, and instead considered the timely received initial offer as the offeror’s BAFO. Id.

Finally, the Government asserts that U.S. Aerospace, Inc., B-403464, 2010 CPD ¶ 225, at *8 (Comp. Gen. Oct. 6, 2010), shows that government control requires physical possession. In that case, the GAO did indeed find that a proposal was not under government control until the offeror relinquished custody of the proposal, but, significantly, it noted that the physical control requirement was “an obvious necessity in order to preclude any potential that an offeror could alter, revise, or otherwise modify its proposal after other offerors’ competing proposals have been submitted.” Id.

The cases cited by the Government do not require this Court to ignore the purpose of the government control requirement and to adhere woodenly to a physical possession test, especially in the circumstances of this case where there is a timely prior electronic version of the proposal, as provided for in the RFP. The Court concludes that the proper focus of its inquiry, then, is whether the government has control over the proposal such that the offeror has no ability to modify the proposal and not merely whether the offeror retains physical possession of the proposal.

In this case, the Court finds that EOR’s paper proposal was under government control. Although EOR’s courier retained physical possession and control over EOR’s paper proposal, EOR already had submitted a complete copy of its proposal electronically. The submission of the proposal by email was not only an authorized method of submission, it was a required method. Because the CO had a complete version of the proposal, any post-deadline changes to the paper proposal would be readily detectible, and therefore, DIA had the ability to prevent EOR from modifying the paper proposal. While the proposals are not identical, as discussed above, the differences arose because EOR made clerical adjustments to the emailed copy of its proposal after it printed the paper proposal and not because EOR was making last-minute or post-deadline adjustments to the terms of its paper proposal. Therefore, this is not a case where “the offeror is merely present at the facility before the deadline expires but still has the ability to manipulate the proposal . . . .” Def.’s Reply at 5.

Additionally, not only was EOR’s courier present at the facility, but prior to the submission deadline the Contract Specialist instructed the courier to wait where he was while she sent someone to pick up the proposal. There was a miscommunication, however, and a DIA representative was sent to the wrong place. Meanwhile, EOR was under the impression that a DIA representative was on her way. EOR’s courier had possession of the paper copy of the proposal, but he was expecting to hand it over to the DIA’s agent as soon as the agent arrived. Given that DIA had the emailed copy of the proposal and the courier was expecting a DIA representative at any minute, it would be difficult to believe that EOR was frantically making last-minute adjustments to its proposal. To its credit, EOR was respectful of the fact that the CO had many other things going on, and it waited patiently for the DIA’s agent to pick up the proposal. After waiting for a little over an hour, EOR followed up with Ms. Richards. At that point, Ms. Richards dispatched someone to the correct location on the installation to pick up the paper copy of the proposal from EOR’s courier.

Furthermore, consideration of EOR’s proposal is consistent with the principles of fairness and the preservation of competition. Because EOR’s proposal was received at the government installation before the submission deadline, this is not a case where an offeror obtained a competitive advantage by taking more time to complete its proposal than other offerors. EOR’s courier arrived at the security gate 35 minutes prior to the submission deadline and prior to the submission deadline Ms. Richards acknowledged his presence. The courier had the proposal, the RFP, and the contracting officer’s contact information, and he expected that those documents would be sufficient to gain entry. Even the CO thought that the RFP should have been sufficient for EOR’s courier to gain access. AR 2256 (in an email to EOR’s president, the CO stated that “a printed document that showed the office location, point-of-contact person, and phone number (such as the RFP) would have been sufficient to gain access to the JBAB installation”).  The security officer tried to contact the CO but could not because the CO was, quite reasonably, busy accepting and processing proposals from other offerors. Unfortunately, EOR’s courier was unable to enter.

The Government argues that the timely submission of the emailed proposal is irrelevant because the RFP provides that, in the case of inconsistencies, the hard copy will control and the two proposals are not identical. However, as discussed above, the differences did not occur because EOR was making post-deadline changes to its paper proposal but rather because EOR made changes to the emailed proposal prior to the submission deadline but after it had printed its paper proposal. The RFP did not prohibit making such changes, and all other offerors could have done the same. Had EOR made any material changes to its paper proposal, those changes would be clear based on a comparison to the emailed proposal.

The Government also contends that the agency should not have to compare the paper proposal to the emailed proposal to determine whether there are differences or whether EOR made changes to its paper proposal. It argues that the only way to determine whether the proposals are the same is to compare them line by line, which is a labor intensive effort. The Government argues that agency need not make such a comparison for the timely submitted proposals. Def.’s Mot. J. AR at 27.

The Court does not sympathize with the agency. Agencies have a fair amount of discretion in determining the procedures for submission of proposals and DIA exercised that discretion here. DIA chose to require submission of proposals in three different formats: an electronic version via email, an electronic version via compact disc, and a paper version plus four copies. DIA also chose to provide that “In the case of a conflict between the electronic and the hard copy, the hard copy will be considered the correct version,” instead of requiring offerors to certify that the various versions of the proposals were identical. Where an agency chooses to include redundant submission procedures in its solicitation, it cannot reasonably complain that checking compliance with those procedures is burdensome. The solicitation put no restrictions on submitting non-identical versions of the proposals and EOR should not be punished for acting pursuant to the terms of the RFP.

When all the circumstances of this case are considered, the Court finds that EOR’s proposal should not be rejected as late because EOR’s proposal was “received” and “under the Government’s control” prior to the submission deadline. The administrative record shows that the CO rejected EOR’s proposal as untimely because “a complete and responsive proposal was required to be delivered via e-mail [] and a hard copy delivery to the DIAC” and “[EOR’s] hard copy proposal was not delivered to the DIAC . . . by 11:00 A.M. . . .” AR 2250. EOR’s president asked the CO to reconsider, citing the Government Control exception, the Contract Specialist’s instructions for the courier to wait-in-place, and the fact that its paper proposal was the same as the submitted emailed proposal. AR 2252. The CO still found that the proposal was late. AR 2271. The record shows that the CO’s decision was based solely on the delivery of the hard copy and she did not give proper consideration to the timely received emailed copy, her office’s instructions to EOR, nor the Government Control exception. Therefore, the Court finds that that the CO did not consider important aspects of the problem and her decision to reject the proposal as late was arbitrary, capricious, or an abuse of discretion.

C. Because EOR Timely Submitted a Version of Its Proposal Via Email, DIA Should Have Waived the Late Delivery of the Paper Copy as a Minor Informality.

Even if EOR’s proposal was not under government control, the minor informality rule provides an independent basis for concluding that EOR’s proposal must be considered.

EOR argues that the RFP authorized submission of proposals via email and DIA timely received an original copy of EOR’s proposal via an accepted delivery method. EOR asserts that because it timely submitted a complete copy of the proposal, the late delivery of the other originals and copies should have been waived as a “minor informality.” Pl.’s Mot. J. AR at 7. It also argues that if some of the differences between the copies of its proposal are material, DIA should have treated the timely submitted emailed proposal as the “correct version” or official copy.

The Government argues that, because the solicitation provides that the paper proposal will control if there are any inconsistencies between the versions, the untimely delivery of the paper proposal disqualifies EOR from consideration for an award. Where the controlling copy differs from the other copies, “the agency should not be required to perform the extra work of determining which differences are material for the purpose of establishing whether the timeliness provision can be waived.” Def.’s Mot. J. AR at 15. Therefore, the Government argues, the minor informality provision does not apply.

The FAR provides that an offeror may submit a proposal “us[ing] any transmission method authorized by the solicitation (i.e., regular mail, electronic commerce, or facsimile). . . .” FAR § 15.208(a). The FAR does not specify whether an offeror must submit every copy of a proposal or whether partial submission of a proposal is sufficient. DIA’s solicitation incorporates FAR § 52.215-1 “Instructions to Offerors--Competitive Acquisitions,” which provides guidance as to when an offeror should be disqualified for failure to comply with the terms of the solicitation. AR 2, 234. FAR § 52.215-1(f)(3) explains that, even if a proposal does not adhere to the exact terms of the solicitation, “[t]he Government may waive informalities and minor irregularities in proposals received.”

Part 15 of the FAR does not provide any clarification on what types of “informalities” or “irregularities” can be waived. In interpreting ambiguous provisions in Part 15 of the FAR, the Federal Circuit has used similar provisions in Part 14, which governs sealed-bid procurement, to inform its interpretation of the ambiguous provision. Centech, 554 F.3d at 1038 (using FAR § 14.405 in a negotiated procurement to determine whether a requirement was a material term of an RFP). FAR § 14.405 contains language similar to FAR § 52.215-1. FAR § 14.405 provides that “A minor informality or irregularity is one that is merely a matter of form and not of substance. It also pertains to some immaterial defect in a bid . . . that can be corrected or waived without being prejudicial to other bidders.” (emphasis added.) FAR § 14.405 goes on to provide some examples of minor informalities or irregularities, “includ[ing] failure of a bidder to . . . return the number of copies of signed bids required by the invitation . . . .” The provision further provides that a defect is “immaterial when the effect on price, quantity, quality, or delivery is negligible in contrast to the . . . scope of [the solicitation].” Id.; see Centech, 554 F.3d at 1038 (relying on FAR § 14.405 to find that compliance with a term of the solicitation was material because it affected cost evaluation).

Based on the regulations, the Court concludes that the timely submission of one complete copy of a proposal via an accepted transmission method can satisfy the requirement for timely delivery. The failure of an offeror to submit the correct number of copies of a proposal is a minor informality, which can be waived or corrected but only if it would not be prejudicial to other offerors. To determine whether permitting an offeror to submit copies of a proposal after the submission deadline would be prejudicial, the Court looks to the late proposal rule. As discussed above, the underlying principles of the late proposal rule are fairness and the preservation of competition. The timely submission of a complete copy of a proposal in accordance with the terms of the RFP can ensure that the offeror does not take advantage of any post-deadline information. However, before the agency may consider the proposal, the agency must look at the facts and determine that the offeror did not gain any other advantage, such as having more time to complete its proposal. If the agency determines that waiving the failure to comply with the terms of the solicitation would neither provide the offeror with a competitive advantage nor prejudice any competing offeror, the agency should waive the late delivery of the copies as a minor informality or irregularity.

The Court observes that, in applying the minor informality rule to the late delivery of copies of a proposal, the GAO also has relied on the purpose of the late proposal rule. For example, in Tishman Constr. Corp., B-292097 (Comp. Gen. May 29, 2003), the GAO found that a bid should not have been rejected as late when the offeror submitted the electronic copy of the proposal on time but submitted the paper copy 73 minutes late. Like DIA’s solicitation in this case, the Tishman RFP incorporated FAR § 52.215-1. The RFP required each offeror to submit both a paper proposal and an electronic proposal, but the RFP stated that the “paper copy is the official copy for recording timely receipt of proposals.” Tishman, at *1. The GAO found that the timely submission of the electronic copy, which was identical to the paper copy, was sufficient to satisfy the timeliness requirement. The GAO stated, “Given that [the agency] has received, by means specifically authorized by the RFP, a complete copy of Tishman’s proposal prior to the time set for receipt of proposals, we fail to see how the late proposal rule or policy would be violated by consideration of Tishman’s proposal.”

In another case, Abt Associates, the GAO found that the “timely submission of a complete proposal to one of the specified locations” could “legally represent the submission of an offer to the government that could be evaluated . . . .” 66 Comp. Gen. 460, at 462 (1987). In that case, the solicitation required offerors to submit proposals to two different offices of the Agency for International Development located in two different African countries. Id. Although the offeror’s proposal arrived at one office by the deadline, its identical proposal sent to the other office arrived five days late. Id. The GAO concluded that, because the offeror had timely submitted a complete and identical proposal to one office, the offeror gained no advantage in preparation time and there was no possibility that it could have taken advantage of changed circumstances or new information. Id. The GAO found that no harm to the competitive system would result from consideration of the proposal and the late delivery should have been waived as a minor informality. Id.

In contrast, where a timely submitted proposal is not complete, the GAO typically has rejected the proposal. E.g., Inland Serv. Corp., B-252947, 93-2 CPD ¶ 266 (Comp. Gen. Nov. 4, 1993) (finding that where a solicitation required an offeror to submit both a technical proposal and price proposal to two different agency offices, timely submission of only the technical proposal to one office could not excuse the late delivery of the technical proposal and price proposal to the other office); see also KSEND v. United States, 69 Fed. Cl. 103, 117 (2005), aff’d per curiam, 184 Fed. Appx. 965 (Fed. Cir. 2006) (finding that where the solicitation clearly required bidders to submit overhead transparencies for a presentation, the agency properly rejected as non-responsive a bid that did not include transparencies).

Here, EOR timely submitted a complete copy of its proposal via email. EOR also submitted paper and CD copies of the proposal, as required by the RFP, but it delivered the copies late. DIA may waive the failure to timely submit the proper number of copies of the proposal but only if EOR did not gain a competitive advantage by the late submission of the copies. While the emailed proposal guarantees that EOR did not incorporate post-deadline information in its paper proposal, consideration of EOR’s proposal will not be proper unless the facts show that EOR did not take extra time to complete its proposal than other offerors. As discussed, the Court finds that EOR did not obtain a competitive advantage by taking more time to complete its paper proposal than other offerors because EOR’s paper proposal and its courier arrived at JBAB’s security gate 35 minutes prior to the submission deadline. EOR’s paper proposal was late because its courier experienced an unexpected delay at JBAB’s security gate.

The record shows that EOR gained no advantage by the late delivery of its paper proposal. This was not a case where EOR did not allow sufficient time to make the delivery or where EOR was trying to make last minute changes to its paper proposal. Therefore, the Court finds that EOR gained no advantage from the late delivery of the paper proposal and other offerors would not be prejudiced by the consideration of EOR’s proposal. Consequently, the late submission of the paper proposal is a waivable minor informality. The Court finds that consideration of EOR’s proposal would further the competitive process and that there is no basis for concluding that consideration of EOR’s proposal would be unfair to other offerors.

The Court does not, however, agree with EOR that DIA should consider the emailed copy, which was the timely submitted copy, as the proposal of record. By treating the timely submitted emailed proposal as the proposal of record, instead of the untimely paper copy, EOR would gain a competitive advantage over other offerors. The RFP provides that the paper copy will govern any inconsistencies between the paper and electronic proposals. All other offerors are bound by this provision. The process of printing, collating, and preparing a paper proposal takes time, and it must be started in advance of the deadline. All other offerors had to stop working on their proposals ahead of the submission deadline to allow time to print and prepare the proposal and physically deliver the proposals as well. Electronic proposals submitted by email are not bound by the same constraints: electronic proposals do not need to be physically printed and email essentially is delivered instantaneously.

By treating EOR’s emailed proposal as the proposal of record, EOR would have more time to work on its proposal than other offerors. While other offerors will be evaluated based on their paper proposals, which had to be finished much earlier to allow time to deliver them, EOR was able to continue working on its electronic proposal before sending it via email.  In sum, while under applicable law it is unreasonable to exclude EOR’s proposal from consideration under the circumstances of this case where EOR will not gain an advantage, it does not follow from this determination that EOR may avoid the application of the printed copy priority provision of the RFP to the disadvantage of its competitors.

Accordingly, the Court finds that DIA’s determination to exclude EOR’s proposal from consideration was contrary to law and that EOR has shown “a clear and prejudicial violation of applicable statutes or regulations.” Impresa, 238 F.3d at 1332-33 (quotation omitted). The Court declines, however, to order the Government to consider the emailed copy as the controlling copy of EOR’s proposal.  (The Electronic On-Ramp, Inc. v. U. S., No. 12-22C, March 28, 2012)  (pdf)

Castle-Rose makes four arguments that its proposal should not have been have been considered late. Principally, Castle-Rose argues that its courier reached the proper location to submit proposals on time. Additionally, Castle-Rose argues that its proposal should have been accepted under the “government control” exception of F.A.R. § 15.208(b)(1)(ii), that its proposal was delayed due to unanticipated events, and that its proposal was delayed due to improper governmental action.

1. Place and time of proposal delivery.

Castle-Rose argues that the solicitation was ambiguous as to the location to which hand-delivered proposals had to be delivered and that “the place for submission of hand-carried [c]ompetitive [p]roposals in response to the [s]olicitation was . . . the first-floor lobby of . . . 4735 East Marginal Way South.” Pl.’s Br. at 11-12. Item eight of the solicitation specified that “[h]and[-]carr[ied]” offers should be brought to “Seattle District, USACE[;] 4735 E. Marginal Way South.” AR 15-92. Correspondingly, item nine of the solicitation specified, “Sealed offers . . . will be received at the place specified in Item 8, or if hand[-]carried, in the depository located in Contracting Division, 2nd Floor, Col C-5 until 2:00 PM local time July 7, 2010.” AR 15-92. Castle-Rose maintains that, because it was the practice of the Corps to accept proposals in the lobby of the building, all that should have been required of its courier was reaching the lobby of 4735 E. Marginal Way by 2:00 p.m., in accord with the requirement of item eight. However, items eight and nine of the solicitation must be read together. Castle-Rose was required to deliver the proposal to the second floor of 4735 E. Marginal Way, although F.A.R. § 15.208(b)(1)(ii) would permit the proposal to be turned over to a government official in the lobby. However, the government was not obliged to accept proposals in the lobby.

Notwithstanding whether the courier had to physically turn over Castle-Rose’s proposal to the government by 2:00 p.m. or merely reach the lobby by 2:00 p.m., Castle-Rose has failed to establish the single fact crucial to its success in this case — that its courier arrived in the lobby on time.

Castle-Rose maintains its courier arrived in the lobby before 2:00:59 p.m. and argues that the decision by GAO in Haskell Co., B-292756, 2003 CPD ¶ 202, 2003 WL 22740610 (Comp. Gen. Nov. 19, 2003), supports the argument that a proposal due at “2:00 p.m.” is not late until after 2:00:59 p.m. In Haskell, a protestor challenged an award to its competitor, arguing that the competitor’s proposal should have been rejected as late. 2003 WL 22740610, at *1. The solicitation had stated that the deadline for receipt of proposals was 2:00 p.m., and the challenged award had been granted to a proposal accepted between 2:00:00 p.m. and 2:00:59 p.m. Id., at *2. Haskell held,

[T]he [Request for Proposal]’s reference to a closing time of 14:00 hours could reasonably be interpreted either as requiring that proposals be received by 14:00:00, or as requiring that they be received by 14:00:59. To the extent that is viewed as an ambiguity in the solicitation, it was one that was obvious from the face of the [Request for Proposal], and we have repeatedly held that an offeror who chooses to compete under a patently ambiguous solicitation does so at its peril and cannot later complain when the agency proceeds in a manner inconsistent with one of the possible interpretations. . . . Accordingly, if the record establishes that [the allegedly late] proposal was received prior to 14:01:00, we think that the agency need not have rejected it as late.

Id., at *3. Haskell explains that a 2:00 p.m. deadline could reasonably be interpreted as either 2:00:00 p.m. or 2:00:59 p.m. Because either deadline is reasonable, Haskell does not stand for the proposition that the government must hold open a 2:00 p.m. solicitation period until 2:00:59 p.m., but rather that it may.

But regardless of whether a proposal arriving during the specified minute of a relatively precise deadline is late, Castle-Rose’s position that the courier arrived before 2:01 p.m. is unsupported by the facts in the administrative record. Ms. Frees, the procurement technician, avers that she left the lobby when the lobby clock struck 2:00 p.m. and that she received the phone call from the security guard to meet with Castle-Rose’s courier, Mr. Kessler, at 2:06 p.m. AR 2.3-9 (Frees Mem.). The boxes in which the proposals arrived were marked as arriving at 2:06 p.m. as well. See AR 3.1-10 to 3.6-15. There is no evidence in the administrative record supporting the claim that Mr. Kessler arrived before 2:00:59 p.m. other than hearsay. Mr. Smith wrote in emails, “[W]e were [told] by our bid runner — he was inside the building at the bid due time.” AR 4.2-20; see also AR 4.2-19 (“[The courier’s] version of events is that he was inside the door at bid time.”).

Ms. Frees states she was called from the lobby at 2:06 p.m. and received Castle-Rose’s proposal at that time. When the proposal was brought to Mr. Britt’s desk, he marked the proposals as “LATE.” See AR 2.1-6; AR 3.1-10 to 3.6-15. Mr. Britt determined that the proposal had arrived late. Given the facts in the administrative record, the court cannot say that this determination was an error in judgment. Castle-Rose bears the burden of showing its proposal arrived on time and that the Corps should have determined its arrival was timely. Based on the factual record in hand, Castle-Rose has failed to meet this burden.

2. Government-control exception.

Castle-Rose relatedly contends that the “government control” exception of F.A.R. § 15.208(b)(1) indicates that its proposal should have been evaluated. This regulatory provision states, in pertinent part:

Any proposal . . . that is received at the designated [g]overnment office after the exact time specified for receipt of proposals is “late” and will not be considered unless it is received before award is made, the contracting officer determines that accepting the late proposal would not unduly delay the acquisition; and . . . [t]here is acceptable evidence to establish that it was received at the [g]overnment installation designated for receipt of proposals and was under the [g]overnment’s control prior to the time set for receipt of proposals.

F.A.R. § 15.208(b)(1)(ii); see also F.A.R. § 52.215-1(c)(3)(ii)(A) (same).

Castle-Rose argues that the proposal was “received” and “under the [g]overnment’s control prior to the time set for receipt of proposals.” Pl.’s Br. at 40. As explained in the previous section, there is not sufficient evidence that Castle-Rose’s courier, Mr. Kessler, arrived at the lobby before 2:01 p.m., and Castle-Rose’s argument that the proposal was received before 2:01 p.m. resultingly fails.

However, even if Castle-Rose’s courier had arrived on time, Castle-Rose’s argument regarding the government-control exception still fails to be persuasive. Castle-Rose avers that the court should find the proposal was under government control the moment Mr. Kessler stepped into the lobby. Castle-Rose cites no law or precedent supporting the proposition that a proposal can be under government control while it physically remains in the hands of the bidder. To the contrary, “[i]n non-electronic commerce cases, the GAO has determined that the [g]overnment receives a bid at the time the bidder relinquishes control.” Watterson Constr. Co. v. United States, __ Fed. Cl. __, __, 2011 WL 1137330, at *6 (Mar. 29, 2011) (citing Weeks Marine, Inc., B- 292758, 2003 CPD ¶ 183, 2003 WL 22383046 (Comp. Gen. Oct. 16, 2003)). To “relinquish control” of a hand-delivered proposal, the offeror must permanently transfer control of the proposal to the government. See Immediate Sys. Res., Inc., B-292856, 2003 CPD ¶ 227, 2003 WL 22922370, at *3 (Comp. Gen. Dec. 9, 2003); Weeks Marine, 2003 WL 22383046, at *3.

Castle-Rose’s courier did not relinquish control of the proposal until 2:06 p.m., past the deadline for receipt of proposals. Had Castle-Rose’s courier given its proposal to the guard when he entered the lobby, the result of this analysis might have been different. But under the facts before the court, Castle-Rose cannot rely on the government control exception to prevail.

3. Unanticipated-events exception.

Castle-Rose also argues its proposal should be considered under the “unanticipated events” exception to the late-is-late rule. F.A.R. § 15.208(d) provides, “If an emergency or unanticipated event interrupts normal [g]overnment processes so that proposals cannot be received at the [g]overnment office designated for receipt of proposals by the exact time specified in the solicitation, and urgent [g]overnment requirements preclude amendment of the solicitation closing date, the time specified for receipt of proposals will be deemed to be extended.” See also F.A.R. § 52.215-1(c)(3)(iv). This exception “focuses upon whether unforeseen events prevent the government from receiving proposals at the site designated, not on whether unforeseen events prevent the offeror from transmitting its proposal.” Conscoop-Consorzia Fra Coop. Di Prod. E Lavoro v. United States, 62 Fed. Cl. 219, 241 (2004), aff’d, 159 Fed. Appx. 184 (Fed. Cir. 2005). Castle-Rose contends that Ms. Frees’ leaving the lobby when the clock struck 2:00 p.m., rather than at 2:00:59 p.m., was an “unanticipated event.” See Pl.’s Br. at 43-44.

Ms. Frees’ leaving the lobby at 2:00 p.m. would be expected and reasonable when she was sitting in the lobby to collect proposals which were due at 2:00 p.m. See Haskell Co., 2003 WL 22740610, at *3 (“[A] closing time of 14:00 hours could reasonably be interpreted either as requiring that proposals be received by 14:00:00, or as requiring that they be received by 14:00:59.”). Additionally, F.A.R. § 15.208(d) only applies when “urgent [g]overnment requirements preclude amendment of the solicitation closing date.” There is no indication, nor has Castle-Rose argued, that urgent requirements precluded amendment of the solicitation. As a result, Castle-Rose cannot succeed in applying the “unanticipated events” exception.

4. Improper-government-action exception.

Finally, Castle-Rose alleges that improper government action caused Castle-Rose’s timing of delivery. When “improper government action was the paramount cause for the late submission, and where consideration of the proposal would not compromise the integrity of the competitive process,” a late, hand-carried proposal may be considered for a contract award. ALJUCAR LLC, B-401148, 2009 CPD ¶ 124, 2009 WL 1588827, at *2 (Comp. Gen. June 8, 2009); see also Shirlington Limousine, 77 Fed. Cl. at 168-69. Improper government action is “affirmative action that makes it impossible for the offeror to deliver the proposal on time.” ALJUCAR, 2009 WL 1588827, at *2; see also Shirlington Limousine, 77 Fed. Cl. at 170 (citing Hospital Klean of Tex., Inc. v. United States, 65 Fed. Cl. 618, 622-24 (2005)). The government’s action does not qualify as the “paramount” cause for late submission where “the offeror or its agent contributed significantly to the late receipt by not acting reasonably in fulfilling its responsibility to deliver a hand-carried proposal to the proper place by the proper time, even though late receipt may have been caused in part by erroneous government action.” Shirlington Limousine, 77 Fed. Cl. at 169 (quoting Hospital Klean, 65 Fed. Cl. at 622) (internal quotation marks omitted).

Castle-Rose claims that a 2:00 p.m. deadline is really a 2:00:59 p.m. deadline and that it was improper for Ms. Frees to leave the lobby of the building before 2:00:59 p.m. Ms. Frees was not under any legal obligation to wait in the lobby to accept proposals. Although the government concedes that it is standard practice for one of its employees to accept hand-delivered proposals in the lobby near the proposal deadline, Ms. Frees’ stated decision to leave the lobby when the clock struck 2:00 p.m. cannot be deemed “improper.” Indeed, Ms. Frees did not have to be standing in the lobby at all because the terms of solicitation specified that proposals had to be delivered to the second floor of 4735 E. Marginal Way South, not to the lobby.  (Castle-Rose, Inc. v. U. S., No. 11-163C, June 28, 2011) (pdf)

1. Whether Plaintiff’s March 16, 2010 E-Mail Proposal Was “Late.”

a. The Plaintiff’s Argument.

The Army Corps’ March 12, 2010 Amendment No. 0009 provided that phase 2 revisions were “due on March 16, 2010 at 12:00 PM [noon] Alaska Time.” AR 288. The Administrative Record evidences that Watterson’s March 16, 2010 e-mail proposal was received by the Army Corps’ server no later than 11:29 a.m., and perhaps as early as 11:01 a.m. AR 412, 416, 419. The fact that it did not arrive in the CO’s e-mail inbox until March 16, 2010 at 12:04 p.m. was not Watterson’s fault. Pl. Mot. at 14-15; Pl. Rep. at 3.

In non-electronic commerce cases, the GAO has determined that the Government receives a bid at the time the bidder relinquishes control. See Weeks Marine, Inc., B-292758, 2003 CPD ¶ 183 (Comp. Gen. Oct. 16, 2003) (“[I]n order for the government to receive a bid, a bidder must relinquish control of the bid to the government (i.e., by transferring it to an appropriate official or by placing it in [an] officially designated location for the submission of bids such as a bid depository box).”). Accordingly, if Watterson’s proposal had been sent “by regular mail and received at the designated Army Corps P.O. Box by the deadline or had Watterson’s proposal been sent by express mail and arrived at the designated street address by the deadline, those proposals would have been considered timely[,] even though they had not arrived at [the CO’s] desk by the appointed time.” Pl. Mot. at 12 n.15.

Watterson argues that the “designated office” in this case either was the CO’s physical Post Office Box address or the CO’s e-mail address. Pl. Rep. at 3 (citing AR 14-15, 269-70, 366). Watterson also emphasizes that there was no express requirement in the Solicitation that the CO actually receive proposals by March 16, 2010 at 12:00 p.m. Pl. Mot. at 11. Sending an e-mail proposal to the Army Corps designated e-mail address was analogous to an offeror’s placing a proposal in a depository box or a P.O. Box, rendering actual possession by the CO unnecessary for the bid to be timely. Pl. Mot. at 12, 14; see also California Marine Cleaning v. United States, 42 Fed. Cl. 281, 297 (1998) (“A timely bid does not become late simply because the [G]overnment overlooks the bid in a bid box . . . .”). Therefore, whether the CO in this case could physically access the e-mail bid is irrelevant, because the proper inquiry is to ascertain when the offeror relinquished control over the proposal. Pl. Mot. at 15-16 (citing Haskell Co., B-292756, 2003 CPD ¶ 202 (Comp. Gen. Nov. 19, 2003) (“A proposal is received at the time that the offeror relinquishes control to the [G]overnment. . . . [The offeror’s] messenger relinquished control of [the offeror’s] proposal package to the designated contracting official by placing it on her desk in her presence. . . . The fact that the contracting official may not have picked up the package [until one minute after the deadline] is irrelevant since an individual may gain effective control over an item without actually taking it into his or her hands.”)); see also Matter of Leland and Melvin Hopp, B-211128, 84-2 CPD ¶ 410 (Comp. Gen. Feb. 15, 1984) (“[A]lthough the . . . bid [previously stored in the Agency’s locked safe] was not discovered until after bid opening, it was timely received and was not a late bid.”).

b. The Government’s Response.

The Government’s response is that the “Government office designated in the solicitation” was the CO’s office or the CO’s e-mail inbox. Gov’t Mot. at 10; AR 380. Since Watterson’s e-mail proposal was not delivered to the CO’s e-mail inbox until 12:04 p.m., it was late. Gov’t Mot. at 11. Delivery to an agency’s gateway server is not analogous to depositing a proposal in a designated box, because the CO could not see or access the proposal until it physically was delivered to the CO’s e-mail inbox. Gov’t Resp. at 3.

c. The Court’s Resolution.

The threshold issue in this case is whether Watterson’s revised proposal was late. FAR 52.215-1(c)(3)(i-ii), the governing regulation, provides:

Offerors are responsible for submitting proposals, and any modifications or revisions, so as to reach the Government office designated in the solicitation by the time specified in the solicitation. . . . Any proposal, modification, or revision, received at the Government office designated in the solicitation after the exact time specified for receipt of offers is “late” and will not be considered . . . .

48 C.F.R. § 52.215-1(c)(3)(i)-(ii) (emphasis added)

Therefore, to ascertain whether a proposal is “late,” the court must determine: what is the “Government office designated in the solicitation”; what time the solicitation specified; and whether the proposal “reached” or was “received” by the designated Government office in specified time. Id.

As to the first element, the July 27, 2009 RFP provided that proposals “will be received until the date and time specified” at either a P.O. Box address or a physical street address. AR 14-15. The RFP did not encourage hand delivery because of “heightened security.” AR 14. Significantly, the RFP anticipated that at least the date and time could change by “subsequent amendment.” AR 14. Amendments 0001-0006 made no changes to the designated Government office. AR 231-57. On August 17, 2009, however, Amendment 0007 provided that revised proposals could be submitted either by express mail delivery to a physical street address or to the CO’s e-mail, Donna.[x.xxxx]@usace.army.mil. AR 263. The cover letter to Amendment 0008 provided: “Please submit your response no later than February 19, 12:00 p.m., Alaska time to the attention of Donna [xxxx] by e-mail to Donna.[x.xxxx]@usace.army.mil.” AR 283. The cover letter did not indicate that offerors could submit proposals by methods other than e-mail. Id. Amendment 0009 did not change the instructions of Amendment 0008 other than to provide: “Please mark the outside of envelope which proposal is submitted to show Amendments received.” AR 288. This could be read to suggest that proposals be sent to the physical address in an envelope, although an e-mail proposal could contain the required acknowledgment of the Amendment, suggesting that an e-mail response would be acceptable. The cover letter to Amendment 0009 was an e-mail. AR 383. Since neither Amendment 0009 nor its cover letter changed the prior instructions in Amendment 0007 to send revised proposals to the CO’s e-mail address, the court has determined that the “Government office designated in the solicitation,” as amended, was the CO’s e-mail address.

As to the second element, there is no dispute that the “time specified in the solicitation,” as amended, was March 16, 2010 at 12:00 p.m., Alaska Time. AR 288.

As to the third element, i.e., whether the proposal “reached” or was “received” at the designated Government office within the specified time, the United States Court of Federal Claims has considered the timeliness of proposals in two other cases. See Conscoop–Consorzia Fra Cooperative Di Prod. E Lavoro v. United States, 62 Fed. Cl. 219, 238 (2004), aff’d 159 Fed. Appx. 184 (Fed. Cir. 2005); California Marine Cleaning, 42 Fed. Cl. at 298. Neither these cases, nor any precedent of the United States Court of Appeals for the Federal Circuit, has reconciled the text in FAR 52.215-1(c)(3)(i-ii) that first speaks to a proposal being sent “so as to reach the Government office,” but subsequently uses the phrase “received at the Government office.” The verb “reach” is defined as “to arrive at.” MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 1035 (11th ed. 2003). In contrast, “received” means “to come unto possession of.” Id. at 1038. In any case, the distinction between “reach” and “receive” is not dispositive, because the proposal was both reached and received by the Government’s e-mail servers before the due date. AR 412, 414, 417. Therefore the proposal reached the Government office designated in the Solicitation by the time specified therein. Accordingly, the court has determined that Watterson’s March 16, 2010 proposal submitted by e-mail was not late.

2. Assuming, Arguendo, That Plaintiff’s March 16, 2010 E-Mail Proposal Was Late, Whether FAR 52.215-1(c)(3)(ii) Excuses That Lateness.

a. The Plaintiff’s Argument.

Assuming, arguendo, that Watterson’s e-mail proposal was late, Watterson argues that it should have been excused under the “Government Control” exception set forth in FAR 52.215-1(c)(3)(ii)(A)(2), despite the fact that the GAO previously has determined that the “Government Control” exception does not apply to e-mail proposals.  Pl. Mot. at 30. Watterson contends that these GAO decisions disregard the plain meaning of FAR 52.215-1(c)(3)(ii)(A), because either the “Electronic Commerce” exception or the “Government Control” exception may be applied to electronic proposals. Pl. Mot. at 22.

Watterson asserts that the regulatory history of the late proposal exceptions in the FAR support this reading. Pl. Mot. at 19. Specifically, in 1995, the FAR regulations governing late proposals were located in 48 C.F.R. § 52.215-10. See 54 FED. REG. 48,978, 48,994 (Nov. 28, 1989), 60 FED. REG. 34,735, 34,738 (July 3, 1995) (codified at 48 C.F.R. § 52.215-10). At that time, the FAR recognized five exceptions that excused late proposals, including an “Electronic Commerce” exception and an “Only Proposal” exception.
Id. Each of these exceptions was tied to a specific method of delivery, except for the “Only Proposal” exception. Id.

In 1997, the so-called “Late Proposal Rule” was moved from 48 C.F.R. § 52.215-10 to 48 C.F.R. § 52.215-1(c)(3). See 62 FED. REG. 51,223, 51,259-51,260 (Sept. 30, 1997). The 1997 version, set forth below in its entirety, included all of the five pre-1997 exceptions and added a “Government Control” exception (E):

(i) Any proposal received at the office designated in the solicitation after the exact time specified for receipt of offers will not be considered unless it is received before award is made and—

(A) It was sent by registered or certified mail not later than the fifth calendar day before the date specified for receipt of offers (e.g., an offer submitted in response to a solicitation requiring receipt of offers by the 20th of the month must have been mailed by the 15th);

(B) It was sent by mail (or telegram or facsimile, if authorized) or hand-carried (including delivery by a commercial carrier) if it is determined by the Government that the late receipt was due primarily to Government mishandling after receipt at the Government installation;

(C) It was sent by U.S. Postal Service Express Mail Next Day Service-Post Office to Addressee, not later than 5:00 p.m. at the place of mailing two working days prior to the date specified for receipt of proposals. The term "working days" excludes weekends and U.S. Federal holidays;

(D) It was transmitted through an electronic commerce method authorized by the solicitation and was received at the initial point of entry to the Government infrastructure not later than 5:00 p.m. one working day prior to the date specified for receipt of proposals; or

(E) There is acceptable evidence to establish that it was received at the activity designated for receipt of offers and was under the Government's control prior to the time set for receipt of offers, and the Contracting Officer determines that accepting the late offer would not unduly delay the procurement; or

(F) It is the only proposal received.

Id.

The 1997 version of the FAR provided four “safe harbor” provisions applicable to five delivery methods, i.e., hand-delivery, facsimile, telegram, certified or registered mail, and electronic commerce. Pl. Mot. at 19; 62 FED. REG. at 51,259-51,260. In addition, the “Government Control” exception and the “Only Proposal” exception were intended to be applicable regardless of the method of delivery. Pl. Mot. at 19; 62 FED. REG. at 51,259-51,260. Therefore, Watterson reasons that if Sea Box were correct that the “Government Control” exception only applies in the absence of a “safe harbor” provision, then between 1997 and 1999, the “Government Control” exception would be unnecessary since the FAR contained “safe harbor” provisions for every possible method of delivery. Pl. Mot. at 20; Pl. Rep. at 9. Accordingly, Conscoop-Consorzia, 62 Fed. Cl. 219, and Seabox, B-291056, 2002 CPD ¶ 181 (Comp. Gen. Oct. 31 2002), were wrongly decided, and would have been resolved differently if they had addressed the regulatory history. Pl. Mot. at 23 n.23.

Watterson reads the current version of the FAR to apply the “Electronic Communication” exception to “information on the Proposer’s side of the Government firewall,” while the “Government Control” exception addresses “the risks and available information on the Government’s side of its firewall.”Pl. Mot. at 28.

b. The Government’s Response.

The Government responds that the “Government Control” exception does not apply to proposals submitted by e-mail. Gov’t Mot. at 14-15 (citing Conscoop–Consorzia, 62 Fed. Cl. at 239-40);20
see also Sea Box, B-291056, 2002 CPD ¶ 181 (Comp. Gen. Oct. 31 2002). Therefore, the court should adopt the GAO’s Sea Box construction of the “Government Control” exception, because it does not disregard the plain meaning of the FAR and gives effect to all FAR provisions. Gov’t Rep. at 4. The Government also disputes that the “Government Control” exception was a “dead letter” between 1997 and 1999, because it still applied to non-electronic communications. Id.

c. The Court’s Resolution.

Assuming, arguendo, that Watterson’s e-mail proposal was “late,” FAR 52.215-1(c)(3)(ii)(A)(2) excuses “late” proposals, when there is “acceptable evidence to establish that it was received at the Government installation designated for receipt of offers and was under the Government's control prior to the time set for receipt of offers.” FAR 52.215-1(c)(3)(ii)(A)(2). This exception does not by its express terms exclude proposals submitted by e-mail. Id.

Here, the regulatory history is instructive. See Roberto v. Dep't of Navy, 440 F.3d 1341, 1350 (Fed. Cir. 2006) (when the plain meaning of the regulation is clear, “no further inquiry is required into agency interpretations or the regulatory history to determine its meaning”). As of December 28, 1989, late proposals were governed by FAR 52.215-10, including three exceptions based on the method that the proposal was submitted, and a fourth exception to allow an agency to consider a late proposal, if it was the only proposal received. See 54 FED. REG. 48,978, 48,993 (Nov. 28, 1989) (codified at 48 C.F.R. § 52.215-10).

On December 30, 1993, a FAR amendment was proposed “to remove any barriers to the use of Electronic Data Interchange (EDI)22 in Government Contracting.” 58 FED. REG. 69,588, 69,591 (proposed Dec. 30, 1993) (to be codified at 48 C.F.R. § 52.215-10). Under this rule, late proposals submitted by EDI could be excused either under the “Government Mishandling” or “Only Proposal” exceptions. Id. This amended rule, however, was never promulgated.

On March 6, 1995, another rule was proposed to address “the use of electronic commerce/electronic data interchange in Government contracting.” 60 FED. REG. 12,384, 12,384 (proposed Mar. 6, 1995). This proposed rule would amend FAR 52.215-10 to include an “Electronic Commerce” exception to allow consideration of a late proposal that was “transmitted through an electronic commerce method authorized by the solicitation and was received by the Government not later than 5:00 p.m. one working day prior to the date specified for receipt of proposals.” Id. at 12,389 (to be codified at 48 C.F.R. § 52.215-10). The rule, however, was targeted “to accommodate the use of electronic systems which batch-process communications overnight and therefore, require receipt of information one day in advance to ensure timely delivery to the designated address.” Id. at 12,384 (emphasis added). This proposal was promulgated on July 3, 1995. 60 FED. REG. 34,735, 34,738 (July 3, 1995) (codified at 48 C.F.R. § 52.215-10).

Again, on September 12, 1996, another amendment to the FAR was proposed to allow consideration of proposals received after the agency’s deadline, but only in the discretion of the contracting officer, thereby eliminating the existing “Late Proposal Rule.” 61 FED. REG. 48,380, 48,381 (proposed Sept. 12, 1996). This proposed rule was never promulgated. Instead, during the following year, the “Government Control” exception was added to the FAR as a catch-all provision that was not limited to any specific delivery method:

There is acceptable evidence to establish that it was received at the activity designated for receipt of offers and was under the Government's control prior to the time set for receipt of offers, and the Contracting Officer determines that accepting the late offer would not unduly delay the procurement.

62 FED. REG. 51,224, 51,259-51,260 (Sept. 30, 1997) (codified at 48 C.F.R. § 52.215-1(c)(3)(i)(E)) (emphasis added).

The last time the relevant portion of FAR 52.215-1 was modified was in 1999. In this version, only three exceptions applied to late proposals: the “Electronic Commerce” exception, the “Government Control” exception, and the “Only Proposal” exception.  64 FED. REG. 51,837, 51,841 (Sept. 24, 1999) (codified at 48 C.F.R. § 52.215-1(c)(3)(ii)(A)).

As the regulatory history shows, in all versions of the FAR from late 1995 to the present, the “Electronic Commerce”exception has required that proposals be submitted by 5:00 p.m. on the preceding business day. See 48 C.F.R. § 52.215-1(c)(3)(ii)(A)(1) (2010); 62 FED. REG. 51,224, 51,259-51,260; 60 FED. REG. 34735, 34738. But, the raison d’être was concern about “electronic systems which batch-process communications overnight and therefore, require receipt of information one day in advance to ensure timely delivery to the designated address.” 60 FED. REG. at 12,384.

For e-commerce methods of delivery that are not batch-delivered overnight, nothing in the text of FAR 52.215-1(c)(3)(ii)(A) or the regulatory history prohibits application of the “Government Control” exception, particularly since it was intended to be a general exception to be applied when a delay was caused by Government error. See 64 FED. REG. 51,837 (Sept. 24, 1999) (FAR Councils indicating that the “Government Control” exception is intended “to permit consideration of late offers if the Government mishandled the offer”). Moreover, the “Government Control” exception is not limited to any particular method of delivery. Id.

Today, e-commerce electronic communications are transmitted instantaneously in the ordinary course of business. Accordingly, neither the text of FAR 52.215-1(c)(3)(ii)(A) nor the regulatory history supports a construction that would require an offeror, after relinquishing control of an e-mail proposal, to be responsible for the risk of late delivery when technical problems arise after an e-mail proposal reaches the e-gateway to a designated Government office. For these reasons, the court has determined that, in cases of non-batch delivered electronic commerce, late proposals may be excused under any of the three exceptions in FAR 52.215-1(c)(3)(ii)(A). It is particularly appropriate that the “Government Control” exception be available to offerors where there is “acceptable evidence” to establish that the offeror’s e-mail proposal “was received at the Government installation designated for receipt of offers and was under the Government's control prior to the time set for receipt of offers,” as was the case here. See 48 C.F.R § 52.215-1(c)(3)(ii)(A)(2).

Therefore, assuming, arguendo, that Watterson’s e-mail proposal was late, the court has determined that lateness is excused by the “Government Control” exception in 48 C.F.R § 52.215-1(c)(3)(ii)(A)(2).

3. Assuming, Arguendo, That Plaintiff’s E-Mail Proposal Was Late And FAR 52.215-1(c)(3)(ii)(A)(2) Does Not Excuse That Lateness, Whether Plaintiff Was Entitled To A One-Day Extension Of Time To Submit Its Proposal, Pursuant To FAR 52.215-1(c)(3)(iv).

a. The Plaintiff’s Argument.

Further, assuming arguendo that the “Government Control” exception does not apply, Watterson argues that FAR 52.215-1(c)(3)(iv) would excuse a late e-mail proposal. Pl. Mot. at 31. FAR 52.215-1(c)(3)(iv) provides:

If an emergency or unanticipated event interrupts normal Government processes so that proposals cannot be received at the office designated for receipt of proposals by the exact time specified in the solicitation, and urgent Government requirements preclude amendment of the solicitation, the time specified for receipt of proposals will be deemed to be extended to the same time of day specified in the solicitation on the first work day on which normal Government processes resume.

48 C.F.R. § 52.215-1(c)(3)(iv); see also CFS-INC, JV, B-401809.2, 2010 CPD ¶ 85 (Comp. Gen. March 31, 2010) (allowing the proposal delivery date to be postponed for three days while agency offices were closed due to snow storm).

Watterson contends that the March 16, 2010 “e-mail storm” was an “emergency or unanticipated event” that was sufficiently severe to cause the entire Army Corps e-mail system to “come to a crawl” for “several hours.” Pl. Mot. at 31 n. 38 (citing AR 415, 417).

b. The Government’s Response.

The Government responds that FAR 52.215-1(c)(3)(iv) does not apply, because the e-mail storm was not an “emergency” or “unanticipated event” that “interrupted normal Government processes.” Gov’t Mot. at 11. Instead, this was a situation where an e-mail was “sent to many Department of Defense users, some of whom replied back to everyone on the e-mail’s distribution list.” Gov’t Mot. at 11 (citing AR 415). Nevertheless, assuming that FAR 52.215-1(c)(3)(iv) applies, the text states that “the time specified for receipt of proposals will be deemed to be extended to the same time of day specified in the solicitation on the first work day on which normal Government processes resume.” FAR 52.215-1(c)(3)(iv). Because “normal Government processes” resumed on the same day that the disruption began, the Government insists that proposals were still due on the original due date of March 16, 2010 by 12:00p.m. Gov’t Mot. at 12.

c. The Court’s Resolution.

The GAO has considered the “emergency” or “unanticipated event” exception in a number of cases, usually involving weather emergencies. See, e.g., Hunter Contracting Co., B-402575, 2010 CPD ¶ 93 (Comp. Gen. March 31, 2010) (emergency or unanticipated event exception did not apply to a mailed proposal that was not delivered due to a snow storm, since the Government office was open and receiving proposals at the time the proposals were due); CFS, JV, B-401809.2, 2010 CPD ¶ 85 (Comp. Gen. March 31, 2010) (agency correctly gave only a one-day extension due to snowstorms, because normal Government activity resumed the following day); Educ. Planning & Advice, Inc., B-274513, 96-2 CPD ¶ 173 (Comp. Gen. Nov. 5, 1996) (concluding that emergency or unanticipated event exception did not apply even though State required business to close at noon due to a hurricane, because four bidders successfully submitted bids and the Army was able to proceed with bid opening); Unitron Eng’g Co. Inc., B-194707, 79-2 CPD ¶ 155 (Comp. Gen. Aug. 27, 1979) (emergency exception did not apply to a late delivery, even when a common carrier closed offices due to “an emergency at nearby nuclear electric generating plant,” because mail delivery was normal, other offerors submitted bids, and the agency’s workday was not affected).

The only relevant case concerning e-mail proposal delivery before the United States Court of Federal Claims is Conscoop–Consorzia, 62 Fed. Cl. at 241. In that case, the court held that the “emergency” or “unanticipated event” exception would apply if “normal Government processes” were interrupted. Id. The Administrative Record in that case, however, did not evidence any disruption in the Navy’s electronic mail system. Id.

In this case, however, the Administrative Record evidences that at the same time that Watterson submitted its e-mail proposal, the Army Corps’ mail server was “flooded” and e-mail delivery had “come to a crawl.” AR 418. In some cases, e-mail was delayed for several hours. AR 417. An IT Specialist for the Army Corps recalled, “It was certainly something we don’t normally see.” AR 418. Therefore, the “mail storm” was an “unanticipated event [that] interrupt[ed] normal Government processes so that proposals cannot be received at the office designated for receipt of proposals by the exact time specified in the solicitation.” FAR 52.215-1(c)(3)(iv).

It is true that at the time proposals were due, the Army Corps Office was open for business and proposals could have been delivered by hand. AR 405. The court, however, does not construe the phrase “proposals cannot be received” to mean that it must be impossible for the Government to receive proposals, before the “emergency” or “unanticipated event” exception applies. See 48 C.F.R § 52.215-1(c)(3)(iv).

The Government contends that since “normal Government processes” resumed on the same day the mail storm began, proposals were still due on the original due date of March 16, 2010 by 12:00 p.m. Gov’t Mot. at 12. The Government, however, misreads 48 C.F.R. § 52.215-1(c)(3)(iv), because such an interpretation would not allow time extensions for disruptions of “normal Government processes” that occur at the time a proposal is due, if the “emergency” or “unanticipated event” abates later in the day. The text of 48 C.F.R. § 52.215-1(c)(3)(iv) does not compel an absurd outcome. If the “mail storm” were not ongoing at the time that proposals were due, this might be a closer question. But that was not the case. AR 417-18. The “first work day on which normal Government processes resume” necessarily is the following day, and, therefore, under these circumstances, Watterson’s proposal was not due until March 17, 2010 at 12:00 p.m. See 48 C.F.R § 52.215-1(c)(3)(iv).

Accordingly, Watterson’s proposal was improperly eliminated from the competition, as the disturbance in the Army Corps’ servers entitled Watterson to a one-day time extension.  (Watterson Construction Company v. U. S., 10-587C, March 29, 2011)  (pdf)

Plaintiff asserts that because the Amendment extended the deadline for receipt of offers and Plaintiff met that new deadline, it was irrational for the Army to reject its proposal. Specifically, Plaintiff argues that the Amendment changed the deadline for receipt of proposals, extinguishing the original deadline and starting the procurement anew. Pl.’s Posthearing Br. at 5-6. Such was not the import of this amendment. Once Argencord’s initial proposal was late, it could not be revived by a subsequent timely acknowledgment of an amendment Argencord never should have received. By issuing the Amendment to Plaintiff, the Army did not waive its right to reject Plaintiff’s original offer as untimely. In Hausted, Inc., B-257087, 94-2 CPD ¶ 49, GAO found that an agency which did not discover that the protestor’s initial proposal had been submitted late until 19 months after the original deadline, properly rejected the protestor’s proposal as late at that juncture. Id. at 3. The Comptroller General reasoned: To the extent that Hausted suggests that the length of time between the initial closing date and decision to cancel the solicitation (approximately 19 months), coupled with the protestor’s submission of two BAFOs, cures its failure to submit a timely proposal, we disagree. In an analogous situation where an agency had negotiated with an offeror for nearly 1 year, including requesting two BAFOs, we held that the agency correctly rejected the proposed awardee’s proposal as late when it ultimately determined that there had not been timely receipt of the initial proposal, because the subsequent BAFOs, even if considered “new offers,” were ineffective to cure the problem as they too were submitted after the initial closing date. See G.D. Searle & Co., B-247077, 92-1 CPD ¶ 406.Id. This court, applying GAO’s sound analysis in Hausted, concludes that Argencord’s timely offer in response to Amendment 1 did not cure its late original offer. As GAO succinctly recognized in Hausted: “An extended period of negotiation that includes the submission of revised proposals cannot legally cure an initial late submission.” Id. (Argenicord Mach. & Equip., Inc., No. 05-731C, October 7, 2005) (pdf)