BNUMBER:  B-270107
DATE:  January 24, 1996
TITLE:  Cyber Digital, Inc.

**********************************************************************

Matter of:   Cyber Digital, Inc.

File:        B-270107

Date:        January 24, 1996 

J. C. Chatpar for the protester.
Michael W. Clancy, Esq., for GTE Government Systems Corporation, an 
interested party.
Michael Briskin, Esq., Defense Logistics Agency, for the agency.
Behn Miller, Esq., and Christine S. Melody, Esq., Office of the 
General Counsel, participated in the preparation of the decision.

DIGEST

1.  Agency properly rejected facsimile best and final offer as late 
where offeror failed to allow a reasonable time for timely receipt by 
the agency.

2.  Where entire best and final offer (BAFO) was not received until 
after announced deadline, agency was not required to consider that 
portion of the BAFO received before the deadline (8 of 19 total pages) 
since it did not constitute the entire offer and did not convey 
protester's full commitment to the solicitation's requirements.

3.  Where agency properly eliminated protester from further 
consideration due to negative past performance record, protester is 
not an interested party to challenge agency's evaluation of its 
initial price proposal.

4.  Protest that awardee's prices are materially unbalanced is 
dismissed where even if this protest ground were sustained, another 
offeror would be in line for award instead of the protester.

DECISION

Cyber Digital, Inc. protests the award of a contract to GTE Government 
Systems Corporation under request for proposals (RFP) No. 
SP4700-95-R-0006, issued by the Defense Logistics Agency (DLA) for the 
installation and maintenance of a telephone system to serve four 
Defense Contract Management Offices located in the states of  Florida, 
Georgia, and Alabama.  Cyber Digital contends that DLA improperly 
rejected its best and final offer (BAFO) as late, and that the agency 
misevaluated its initial price proposal.  Cyber Digital also contends 
that GTE's proposed pricing is materially unbalanced.

We deny the protest in part and dismiss it in part.

The RFP was issued on March 27, 1995, and contemplated the award of a 
9-year, fixed-price, indefinite quantity/indefinite delivery contract 
to the offeror whose technically acceptable offer represented the 
"best value" to the government, using the evaluation factors of past 
performance and price.  In addition to technical proposals, offerors 
were required to submit the RFP's fixed pricing schedule as well as 
the RFP's "Pricing Questionnaire," which required "simple" or 
"compounded" escalation rates for each of the required services 
associated with this contract.  Offerors were also required to submit 
a "Performance Proposal" providing references for all contracts 
awarded within the last 5 years, and detailing similar past 
experience, which the agency would use in evaluating each offeror's 
past performance.  The RFP also provided that a life-cycle evaluation 
of each offeror's proposed prices would be performed.

By the May 11 closing date, three offers were received, from The 
American Telephone Company, Cyber Digital, and GTE.  For the next 
several months, numerous technical and pricing clarification requests 
were issued by the agency to each offeror.  On September 11, based on 
the offerors' responses to the clarification requests, the contracting 
officer established a competitive range which included all three 
offers.

On September 14, oral discussions were conducted with each offeror.  
Of significance to this protest, during discussions with the 
protester, DLA advised Cyber Digital that the three references listed 
in its performance proposal had advised the contracting officer that 
because of problems with Cyber Digital's performance, none would award 
another contract to the firm.  The agency gave a written summary of 
the references' remarks to Cyber Digital and advised the firm that it 
should address these negative remarks in its BAFO.

By amendment dated September 18, the agency requested that each 
offeror submit its BAFO by 4 p.m. on September 21.  The RFP authorized 
the submission of facsimile BAFOs.

On September 21, at 3:30 p.m., Cyber Digital contacted the contracting 
officer and requested a BAFO extension, which was denied.  The Cyber 
Digital representative advised the contracting officer that it "would 
try" to meet the 4 p.m. deadline.  At 3:50 p.m., DLA's facsimile 
machine began receiving Cyber Digital's BAFO; during this process, a 
Cyber Digital representative telephoned a contract specialist who was 
monitoring the agency's facsimile machine site to verify that Cyber 
Digital's facsimile was being received.  The contract specialist 
advised Cyber Digital that the transmission was proceeding, but warned 
Cyber Digital that it did not appear that the entire document would be 
received by the 4 p.m. deadline.

By 4 p.m., DLA had received the first eight pages of Cyber Digital's 
facsimile transmission which consisted solely of pricing schedule 
pages; the contract specialist and five other agency officials signed 
the cover page of the facsimile BAFO transmission in witness of the 
partial, 8-page receipt.  The remaining 11 pages of Cyber Digital's 
BAFO--including 6 pricing schedule pages, and a 4-page response to 
DLA's past performance questions--were received late.  The last 
facsimile page of Cyber Digital's BAFO was received at 4:12 p.m.

Because the entire BAFO was not timely received by the 4 p.m. 
deadline, the contracting officer rejected the BAFO as late, in 
accordance with Federal Acquisition Regulation  sec.  15.412(c).  By letter 
dated September 25, the contracting officer notified Cyber Digital 
that its BAFO was being rejected as late and that only Cyber Digital's 
initial proposal would be considered in the award evaluation process; 
on September 30, the contracting officer awarded the contract to GTE 
as the best value offer.  On October 6, Cyber Digital filed this 
protest at our Office.

Rejection of Cyber Digital's BAFO

Under FAR  sec.  15.412 and 52.215-10 (which was incorporated in the RFP), 
a BAFO received at the designated agency location after the exact 
specified closing time may not be considered unless the late receipt 
is due solely to mishandling by the government after receipt at the 
government installation.[1]  In this case, Cyber Digital argues that 
government mishandling prevented its facsimile from arriving by the 4 
p.m. deadline; alternatively, Cyber Digital maintains that the agency 
was required to accept and consider the eight BAFO pricing schedule 
pages which were timely submitted by the 4 p.m. closing deadline.

In support of its contention that government mishandling caused its 
late BAFO submission, Cyber Digital argues that DLA improperly failed 
to advise it that there were four facsimile machines available for 
transmission of BAFO documents.  We find this argument without merit.

The RFP listed two of the four available facsimile machine numbers.  
According to an affidavit provided by a DLA cost analyst who was 
monitoring the four facsimile machines, Cyber Digital submitted its 
BAFO on a third facsimile machine whose telephone number was provided 
by the agency to all three offerors during clarifications.  The cost 
analyst also reports that to the best of her recollection, "neither of 
[the two] machines [identified in the RFP was] in use" when Cyber 
Digital was submitting its BAFO on the third facsimile machine.  Thus, 
the record  shows that Cyber Digital had access to three of the four 
facsimile machines located at the closing site.

The agency was under no obligation to provide all four facsimile 
machine numbers to the protester.  The FAR requires agencies to have 
adequate procedures in place to ensure the timely receipt and delivery 
of all proposal documents--including facsimile submissions when such 
submissions are authorized.  FAR  sec.  15.411(a) and 14.202-7(a)(5); Butt 
Constr. Co., Inc., B-258507, Jan. 30, 1995, 74 Comp. Gen. ___,  95-1 
CPD  para.  45.  At the same time, however, FAR  sec.  15.412(b) places the 
burden on offerors to see that offers and any modifications to them 
reach the designated office on time.  As noted above, the agency 
provided the offerors with three facsimile numbers (two listed in the 
RFP and one provided during clarifications) for transmitting proposal 
documents; since nothing requires an agency to have more than one 
facsimile machine and since the offeror generally bears the risk of 
non-receipt of facsimile transmissions, we have no basis for finding 
any inadequacy in the agency's process for receiving facsimile 
documents.

We also have no basis to otherwise find government mishandling.  Where 
an offeror delayed transmitting a lengthy facsimile BAFO until 10 
minutes prior to the BAFO closing deadline, and the agency otherwise 
had reasonable facsimile submission procedures in place, we held that 
receipt by the agency after the BAFO closing time was solely the fault 
of the contractor.  See Brookfield Dev., Inc., Fuller and Co., and 
Colorado Nat'l Bank , B-255944, Apr. 21, 1994, 94-1 CPD  para.  273.  
Similarly here, the late receipt of Cyber Digital's BAFO was simply 
the result of the protester's failure to allow a reasonable time for 
the facsimile transmission of its BAFO, not government mishandling.  
See Phoenix Research Group, Inc., B-240840, Dec. 21, 1990, 90-2 CPD  para.  
514. 

While Cyber Digital argues that the agency should have considered the 
eight pages that were received prior to the 4 p.m. deadline, we see no 
basis to conclude that the agency was required to do so.  On the 
contrary, even if the timely received pages had been substituted for 
the corresponding pages in Cyber Digital's initial proposal, the 
agency still would have been left with an incomplete offer; we do not 
think the agency could reasonably assume that Cyber Digital's BAFO 
committed it to every CLIN in the RFP's pricing schedule--or that 
Cyber Digital had addressed the agency's concerns about the 
protester's negative past performance record--without receiving a 
complete BAFO by the designated 4 p.m. deadline.  See Inland Serv. 
Corp., Inc., B-252947.4, Nov. 4, 1993, 93-2 CPD  para.  266; Phoenix 
Research Group, Inc., supra. 

Price Evaluation Challenges

Cyber Digital also contends that the agency performed an improper 
life-cycle evaluation of its initial proposal pricing and that the 
awardee's pricing is materially unbalanced.  Because the record shows 
that Cyber Digital would not be in line for award even if these 
challenges were sustained, we will not consider these contentions 
further.

As noted above, the RFP provided that past performance was an 
important factor  in the award selection process.  In its proposal, 
Cyber Digital listed three contract references for past 
performance--which the agency determined to be unacceptable based upon 
each reference's negative assessment of Cyber Digital's performance, 
as well as each reference's recommendation that DLA exclude Cyber 
Digital from further consideration for award.  Although Cyber Digital 
was given the opportunity to address this aspect of its proposal, 
because its BAFO was received late, the agency had no basis to change 
its negative evaluation of Cyber Digital's past performance.

Under these circumstances, even if the agency did perform an improper 
life-cycle price analysis of Cyber Digital's proposed pricing, because 
Cyber Digital's negative past performance rating rendered it 
ineligible for award, the record establishes that the protester was 
not prejudiced by any alleged agency price evaluation error.  
Consequently, we will not consider this contention further.

Nor is Cyber Digital an interested party to maintain its challenge 
that the awardee's pricing is materially unbalanced.  The record shows 
that in the event we were to sustain this protest ground, another 
offeror--The American Telephone Company--would receive contract award.  
Under our Bid Protest Regulations, a protester is not an interested 
party to maintain an award challenge where it would not be in line for 
contract award were its protest to be sustained.  Section 21.0(a), 60 
Fed. Reg. 40,737, 40,739 (Aug. 10, 1995) (to be codified at 4 C.F.R.  sec.  
21.0(a)); RC 27th Ave. Corp.--Recon., B-246727.2, May 20, 1992, 92-1 
CPD  para.  455.

The protest is denied in part and dismissed in part.

Comptroller General
of the United States

1. This exception only applies if the late BAFO is received prior to 
contract award.  FAR  sec.  52.215-10(c).