BNUMBER:  B-279327 
DATE:  March 24, 1998
TITLE: Peacock, Myers & Adams, B-279327, March 24, 1998
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Matter of:Peacock, Myers & Adams

File:     B-279327

Date:March 24, 1998

Deborah A. Peacock, Esq., Peacock, Myers & Adams, for the protester.
Joseph A. Lenhard, Esq., Department of Energy, for the agency.
Marie Penny Ahearn, Esq., and John M. Melody, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest is dismissed as untimely filed where sent by facsimile 
transmission, and General Accounting Office time/date stamp and other 
records indicate protest was received after 5:30 p.m.--the deadline 
for receipt of protests--on the tenth day of the timeliness period.

DECISION

Peacock, Myers & Adams protests the Department of Energy's (DOE) 
evaluation of the firm's proposal, and the award of multiple contracts 
to other offerors, under request for proposals (RFP) No. 
DE-RP02-97CH10887, for patent preparation and prosecution services.

We dismiss the protest as untimely filed.

Our Bid Protest Regulations contain strict rules for the timely 
submission of protests.  Under these rules, a protest based on other 
than alleged improprieties in a solicitation must be filed not later 
than 10 calendar days after the protester knew, or should have known, 
of the basis for protest, whichever is earlier; however, a protest, 
such as here, challenging a procurement conducted on the basis of 
competitive proposals under which a debriefing is requested and, when 
requested, is required, must be filed not later than 10 days after the 
date on which the debriefing is held in order to be timely.  4 C.F.R.  sec.  
21.2(a)(2) (1997); Professional Rehabilitation Consultants, Inc., 
B-275871, Feb. 28, 1997, 97-1 CPD  para.  94 at 2.  

The DOE conducted a debriefing with Peacock on February 11, 1998, 
during which Peacock was apprised of the information underlying its 
protest grounds.  Peacock contends that it then timely filed its 
protest with our Office on February 23, the tenth day after the 
debriefing, at approximately 5:28 p.m. Eastern Standard Time (EST) by 
facsimile (fax) transmission.  However, the DOE argues that the 
protest was untimely, since our records show that the protest was 
time/date stamped as received on February 24 at 7:17 a.m., the 
eleventh day after the debriefing.  The DOE further notes that the 
faxed protest was marked by Peacock's own fax machine with the 
notation "02/23/98 15:31" on the last (signature) page of the protest; 
according to the DOE, this indicates receipt of the last page by our 
Office on February 23 at 3:31 p.m. Mountain Standard Time (MST), or 
5:31 p.m. EST.  The DOE maintains that because the last page of the 
protest was received by our Office after our 5:30 p.m. EST closing 
time, it was properly time/date stamped as received on February 24.

The protester responds that its fax machine time/date mark should not 
be considered accurate evidence of receipt of the protest because the 
fax clock was checked on March 4 against the Department of Commerce's 
Boulder Laboratories atomic time internet site 
(http://www.bdlrdoc.gov/doc-tour/atomic_clock.html) and found to be 
approximately 3 minutes fast.  Thus, according to the protester, its 
fax time/date mark "which indicated that the last page [of the 
protest] was received at 3:31 p.m. should have actually stated 3:28 
p.m. [MST]," thus indicating timely receipt before close of business 
in our Office at 5:30 EST p.m. on February 23.  Further, the protester 
asserts that we should consider evidence of the wristwatch time of 
contemporaneous witnesses (employees of the protester) who either 
transmitted the protest or observed the fax transmission, which 
indicates that the "transmission [was] completed prior to 5:30 p.m. 
[EST]."  In this regard, the protester has submitted three employee 
affidavits stating that the fax transmission of the protest was 
completed at "3:27 p.m. [MST]," "minutes prior to 3:30 p.m. [MST]," 
and "before the half-hour (3:30 p.m.) [MST]." 

A  protest is considered "filed" on a particular day under our rules 
when it is received by our Office by 5:30 p.m. EST on that day.  4 
C.F.R.  sec.  21.0(g).  We require that the entire text of a protest be 
received prior to this deadline in order for the protest to be timely.  
See Computer One, Inc.--Recon., B-249352.7, Sept. 27, 1993,  93-2 CPD  para.  
185 at 2-3 n. 1.  Generally, to determine when a protest was filed in 
our Office we rely on our time/date stamp, unless there is other 
evidence to show actual earlier receipt.  Balimoy Mfg. Co., 
Inc.--Recon., B-250672.2, Mar. 10, 1993, 93-1 CPD  para.  220 at 4.
  
There is no viable evidence showing timely receipt.  Peacock's 
assertion that its fax time clock was 3 minutes fast and that 
transmission was completed minutes before 5:30 p.m. EST on February 23 
based on its employees' wristwatch times constitutes evidence within 
the protester's control.  Since such evidence may be developed or 
altered to support a protester's contentions, we do not consider such 
evidence sufficient to establish the time of transmission.  See 
Southern CAD/CAM, 71 Comp. Gen. 78, 80 (1991), 91-2 CPD  para.  453 at 3-4.  
(Moreover, even if the evidence otherwise were accorded some weight, 
the time of completion of the fax transmission from the protester's 
fax machine does not equate with the time of receipt of the protest at 
our Office, since the fax transmission necessarily took some time.  
See Mead Data Cent., 70 Comp. Gen. 371, 373-74 (1991), 91-1 CPD  para.  330 
at 3.) 

In the absence of independent corroborating evidence, we must rely on 
our time/date stamp which, as discussed above, shows receipt of the 
protest in our Office after 5:30 p.m. on February 23, the tenth day 
after the debriefing.  We also have examined other evidence available, 
our fax activity report, which confirms that the protest was not 
timely filed.  Specifically, the protest was 12 pages long and the 
attachments to the protest were 33 pages long.[1]  Our fax activity 
report shows two transmissions from Peacock near the close of business 
on February 23.  The first transmission, starting at 5:06 p.m., was 33 
pages long, took 16 minutes 53 seconds to transmit, and has a document 
number that matches the document number marked by our fax machine on 
the attachments to the protest.  The second transmission, starting at 
5:26 p.m., was 12 pages long, took 7 minutes 45 seconds to transmit, 
and has a document number that matches the document number marked by 
our fax machine on the protest.[2]  Thus, the fax activity report of 
this second transmission indicates that the transmission of the 
protest to our fax machine was not completed until February 23 at 5:33 
p.m., that is, after the 5:30 p.m. deadline.  We conclude that the 
protest was not timely received in our Office.  See Balimoy Mfg. Co., 
Inc.--Recon., supra, at 4.[3]

The protester asserts that, because problems were encountered in 
communicating with our fax machine, any questions as to the timeliness 
of its protest should be resolved in its favor.  However, when a 
protester opts to file its protest at the last minute by fax, the 
protester assumes the risk that the protest will not be received at 
our Office in a timely manner.  Danville-Findorff, Inc.--Recon., 
B-242934.2, Mar. 21, 1991, 91-1 CPD  para.  313 at 2.  A protester's 
inability to successfully send a fax to our Office shortly before 
closing does not provide a basis for waiving our timeliness rules.  
See Computer One, Inc.--Recon., supra, at 5.  While our timeliness 
rules may seem harsh in some cases, they reflect the dual requirements 
of giving all parties a fair opportunity to present their cases and 
resolving protests expeditiously without disrupting or delaying the 
procurement process.  Mead Data Cent., supra.   Application of the 
timeliness requirement here establishes a readily discernible rule, 
which results in fair and equal treatment of all protesters.
    
Peacock asserts that we should consider this case under our 
significant issue exception to our timeliness requirements.  4 C.F.R.  sec.  
21.2(c).  However, we will not consider the merits of an untimely 
protest by invoking the significant issue exception unless the protest 
raises an issue of first impression or one that would be of widespread 
interest to the procurement community.  The crux of Peacock's protest 
is its disagreement with the evaluation of its proposal regarding a 
proximity evaluation factor.  This issue, relating to this specific 
procurement, does not present a significant issue of widespread 
interest to the procurement community.      

The protest is dismissed.

Comptroller General
of the United States  

1. Additionally, both had one-page fax cover sheets.

2. It is not clear why the fax activity report lists one page fewer 
than the 13 total pages of the protest transmission, including the fax 
cover page.  However, this discrepancy does not change the fact that 
the report confirms that the pages accounted for were not all timely 
received.

3. Peacock suggests that its fax cover sheet could be substituted for 
the last and signature page of the protest in order to determine that 
the entire protest was filed before the 5:30 p.m. deadline.  Such a 
substitution would not be reasonable, however, in light of the fact 
that the information contained in the cover sheet is different from 
the information on the last and signature page of the protest.