BNUMBER:  B-270543
DATE:  December 21, 1995
TITLE:  Systems 4, Inc.

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Matter of:Systems 4, Inc.

File:     B-270543

Date:     December 21, 1995
     
Francis J. Pelland, Esq., Bell, Boyd & Lloyd, for the protester.
Arthur I. Leaderman, Esq., Smith, Pachter, McWhorter & D'Ambrosio, for 
the agency.
C. Douglas McArthur, Esq., and Christine S. Melody, Esq., Office of 
the General Counsel, GAO, participated in the preparation of the 
decision.

DIGEST

General Accounting Office will not disturb contracting officer's 
decision not to extend time for submission of proposals where 
protester fails to show the decision was unreasonable and there is no 
evidence that the decision was a result of a deliberate attempt to 
exclude the protester from the competition.

DECISION

Systems 4, Inc. protests the contracting officer's refusal to accept 
its late proposal submitted in response to solicitation No. 
NGA-95-RFP-015, issued by the National Gallery of Art for installation 
of energy management/building automation systems.[1]

We deny the protest.

Systems 4 asserts that at 3:30 p.m. on November 8, 1995, 1 hour before 
the 4:30 p.m. deadline for submission of proposals, it realized that 
it needed more time because it was having difficulties preparing its 
proposal.  Specifically, the protester explains, it was having 
problems with its office computer system/electrical power.  While, the 
protester alleges, it could have submitted an acceptable proposal by 
4:30 p.m., Systems 4 wanted to enhance the proposal with additional 
reference data.  Systems 4 states that at approximately 3:45 p.m., its 
representative called the contracting officer, who stated that he 
intended to be in his office until 6:30 p.m., and that Systems 4 
should "just get [the proposal] down here."  The protester states that 
its representative called twice more--shortly after 4:00 p.m. and 
shortly before 6:30 p.m.--to advise the contracting officer of 
continuing problems with its computer system and to seek advice on how 
to deliver the proposal after business hours.  Relying on its 
description of the telephone conversations, the protester states that 
it was "lulled" into believing that it need not submit its proposal by 
the 4:30 p.m. deadline.

The contracting officer recalls only the two later calls, both of 
which came too late for Systems 4 to be able to submit its proposal on 
time.  He denies granting the protester extra time to submit its 
proposal.

We need not resolve the factual differences in the two accounts of the 
conversations, since even accepting the protester's version of events, 
it could not reasonably assume under the circumstances here that the 
contracting officer would accept its late proposal.  Any such 
assumption would conflict with the express terms of the solicitation, 
which incorporated the provision at Federal Acquisition Regulation 
(FAR)  52.215-10, which provides that the agency may consider late 
proposals only in certain enumerated instances, none of which applies 
here.  Oral advice contrary to the terms of the solicitation does not 
bind the government, and an offeror relies upon such advice at its own 
risk.  See Selrico Servs., Inc., B-259709.2, May 1, 1995, 95-1 CPD  
224.  Further, acceptance of a late proposal from only one offeror, 
without an extension of the deadline for all offerors, would violate 
the requirement for a common cutoff date for all offerors.[2]   See  
Sunset Realty Sales Assocs., B-221390, Mar. 31, 1986, 86-1 CPD  303, 
aff'd, B-221390.2, May 27, 1986, 86-1 CPD  488.  

The protester contends that the contracting officer's decision to 
reject its late proposal was based on the erroneous position that he 
lacked authority to extend the due date for proposals once the initial 
deadline had passed.  The protester points out that our Office has 
upheld a contracting officer's discretion to extend the due date after 
the original deadline where the extension is done to enhance 
competition.  See Fort Biscuit Co., 71 Comp. Gen. 392 (1992), 92-1 CPD  
440; Varicon Int'l, Inc.; MVM, Inc., B-255808; B-255808.2, Apr. 6, 
1994, 94-1 CPD  240.  The protester argues that the contracting 
officer here has discretion to extend the due date, in order to allow 
consideration of System 4's proposal, and that the refusal to do so is 
unreasonable.

While we agree that a contracting officer may extend the due date 
under appropriate circumstances even after the original deadline is 
passed, so long as the opportunity to submit a new proposal is 
extended equally to all offerors, the agency clearly has concluded 
that it would not be appropriate to do so in this case.  Contracting 
officers are vested with discretion to determine whether and to what 
extent closing date extensions are necessary.  FAR  15.410.  We will 
not disturb a contracting officer's decision in this regard unless it 
is shown to be unreasonable or the result of a deliberate attempt to 
exclude the protester from the competition.  See Lanier Worldwide, 
Inc., B-249338, Nov. 12, 1992, 92-2 CPD  343; Trilectron Indus., 
Inc., B-248475, Aug. 27, 1992, 92-2 CPD  130.  Here, other offerors 
were able to submit timely proposals and there is no evidence of an 
attempt to exclude Systems 4 from the competition.  On the contrary, 
the record indicates that the agency extended the due date for 
submission of proposals on several occasions, from August 7 until, 
ultimately, November 8, at least partially to accommodate the 
protester's difficulties in preparing a proposal.  Thus, we have no 
basis for concluding that the contracting officer acted improperly.

The protest is denied.

Comptroller General
of the United States

1. Systems 4 also protests "improprieties in the solicitation."  Under 
our Bid Protest Regulations, section 21.2(a)(1), 60 Fed. Reg. 40,737, 
40,740 (Aug. 10, 1995) (to be codified at 4 C.F.R.  21.2(a)(1)), 
protests based upon alleged improprieties in a solicitation which are 
apparent prior to the time set for receipt of initial proposals shall 
be filed prior to that time.  This aspect of the protest is therefore 
untimely.

2. There is no suggestion even in the protester's recitation of the 
telephone conversations that the contracting officer in any way 
indicated that he had decided to extend the due date for proposals.