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.