Decision  

Arlene Edwards for the protester.

Steven W. Feldman, Esq., and Craig R. Schmauder, Esq., U.S. Army Corps of Engineers, for the agency.

Tania Calhoun, Esq., and Christine S. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.

DIGEST
 
Post-award protest that agency should now consider protester's quotation because the agency lost and thus failed to consider it prior to award is denied; it is not permissible to make award to a firm whose quotation was lost by the government prior to the closing date because to do so would be inconsistent with preserving the integrity of the competitive system.  Protester's claim for quotation preparation and protest costs is also denied since mere negligence or lack of due diligence by the agency, standing alone, does not rise to the level of arbitrary or capricious action which provides a basis for the recovery of quotation preparation and protest costs.

DECISION
 
Safety and Health Consulting Services, Inc. (S&HC) protests the award of a purchase order to Comprehensive Safety Resource, Inc. (CSR) under request for quotations (RFQ) No. DACW87-01-Q-0013, issued by the U.S. Army Engineering and Support Center (CEHNC) to obtain a safety and health-related training course.  S&HC argues that the agency improperly lost and thus failed to consider its quotation, and asks that our Office find that the agency should now consider its quotation or, alternatively, grant it its quotation preparation costs and its costs associated with filing and pursuing its protest, including attorney's fees.

We deny the protest and the claim.

The solicitation was issued pursuant to the special test program of section 13.500 of the Federal Acquisition Regulation authorizing the use of simplified acquisition procedures for commercial items.  It is undisputed that the agency received S&HC's quotation, consisting of five 3-ring binders, on October 5, 2001, well in advance of the January 3, 2002 deadline for receipt of quotations.  The quotation was signed for by a contractor employee in the mailroom and then by the contract specialist identified in the RFQ as the point of contact for solicitation information.  This contract specialist left the agency's employment later that same month. 
 
On December 18, the husband of SH&C's president sent the contracting officer an e-mail message indicating that his e-mail messages to the contract specialist were being returned as undelivered, and asking if award had been made.  He did not identify himself as representing SH&C.  There was apparently no response to this inquiry.  On December 31, SH&C's president sent an e-mail message to the contracting officer asking if award had been made and was informed that no award had been made.^[1]
 
On January 23, 2002, the contracting officer issued CSR a purchase order for the base year of the requirements.  When SH&C learned that award had been made, it requested information on the pricing and for an explanation as to how its quotation had been rated technically as compared with that of the awardee.  On March 12, the agency informed SH&C that its quotation had not been evaluated because it was lost within the agency.  The agency confirmed that it had been received and signed for, but that a thorough search of the workspace occupied by the former contract specialist, the area where proposals are usually stored for safekeeping, as well as other potential places, failed to locate the quotation.
 
The agency acknowledges that it lost SH&C's quotation but argues that, under our decisions, SH&C is not entitled to have its quotation now evaluated or to recover its claimed costs.  We agree.
 
It is true that agencies have a fundamental obligation to have procedures not only to receive offers and quotations, but also to reasonably safeguard those actually received and to give them fair consideration.  East West Research Inc., B-239565, B-239566, Aug. 21, 1990, 90-2 CPD ¶ 147 at 4, aff'd, Defense Logistics Agency--Recon., B-239565.2, B-239566.2, Mar. 19, 1991, 91-1 CPD ¶ 298 at 2-3.  However, we recognize that, even with appropriate procedures in place, an agency occasionally will lose or misplace an offer or quotation.  While this is unfortunate and agencies must have procedures to minimize the possibility of loss, the occasional negligent loss of an offer or quotation by an agency does not entitle the firm submitting it to any relief.  Interstate Diesel Serv., Inc., B-244842.2, Sept. 27, 1991, 91-2 CPD ¶ 304 at 2; see also Advanced Seal Tech., Inc., B-280980, Dec. 14, 1998, 98-2 CPD ¶ 144 at 3. 
 
Here, SH&C does not allege that the agency deliberately lost its quotation or has a history or pattern of losing quotations (or offers), apart from the quotation here.  Further, it is clear from the record that the agency had adequate procedures in place for receiving and handling quotations.  With respect to handling quotations, the agency's procedure is to store them in the official contract files area and to account for and track each copy in the official contract file.  The procedure further provides that each time a person removes one from the official contract file, the person must sign the logbook.  Huntsville Division Acquisition Instruction 15.4, ¶ 4 (Sept. 1989).  In this case, the agency has no record that the quotation was stored in or delivered to the contract files area.  Contracting Officer's Supplemental Statement ¶ 5.  The protester is apparently correct that the procedures were not followed in this case, and that they could be improved upon, but there is no evidence that the loss of SH&C's quotation is anything more than an isolated and unfortunate incident of negligence on the agency's part.    
 
Where an agency has lost a quotation received before the submission deadline owing to mere negligence, an offeror is not permitted to submit a duplicate quote to show its price after the other prices have been exposed.  Isidor Stern Enters. Corp., B-243265, July 17, 1991, 91-2 CPD ¶ 65 at 2-3.  Displacing an otherwise successful offeror on the basis of a quote provided after the revelation of prices is generally inconsistent with maintaining the integrity of the competitive system.  Id.
 
Concerning SH&C's claim for quote preparation and protest costs, our Bid Protest Regulations provide for the award of such costs where our Office determines that a solicitation, proposed award, or award “does not comply with statute or regulation.”  4 C.F.R. § 21.8(d) (2002).  The sole basis for S&HC's claim for costs is the fact that its quote was negligently lost by the agency.  However, mere negligence or lack of due diligence on the part of an agency, standing alone, does not rise to the level of arbitrary or capricious action which provides a basis for the recovery of bid preparation or protest costs.  Interstate Diesel Serv., Inc., B-229622, Mar. 9, 1988, 88-1 CPD ¶ 244 at 3.
 
The protest and the claim are denied.
 
Anthony H. Gamboa
General Counsel