TITLE:  Performance Construction, Inc., B-286192, October 30, 2000
BNUMBER:  B-286192
DATE:  October 30, 2000
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Performance Construction, Inc., B-286192, October 30, 2000

Decision

Matter of: Performance Construction, Inc.

File: B-286192

Date: October 30, 2000

Denver C. Snuffer, Esq., Nelson, Snuffer, Dahle & Poulsen, for the
protester.

Wilson J. Campbell, Esq., and Jeffrey M. Denson, Esq., Department of the
Navy, for the agency.

Guy R. Pietrovito, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

In a procurement conducted by electronic commerce, where the solicitation
materials were available only on the Internet, protest that the late
delivery of the protester's proposal was caused by the unavailability of the
agency's website on the date set for receipt of proposals and by the
agency's refusal to delay the proposal closing date is denied, where the
protester's failure to make reasonable efforts to promptly obtain the
solicitation materials was the paramount cause of the late delivery and the
reason that the protester allegedly had insufficient time to prepare its
proposal.

DECISION

Performance Construction, Inc. protests the rejection of its proposal as
late under request for proposals (RFP) No. N44255-00-R-2485, issued by the
Naval Facilities Engineering Command on the Internet, for the renovation of
family housing at the Keyport Naval Undersea Warfare Center, Washington.
Performance contends that the late delivery of its proposal was caused by
the inaccessibility of the Navy's Internet site--the only official source
for the RFP and its amendments--on the proposal closing date and the Navy's
refusal to delay proposal closing when the agency was apprised of the
inaccessibility of the Internet site.

We deny the protest.

The RFP was issued on the Internet on May 31, 2000, in accordance with
Federal Acquisition Regulation (FAR) sect. 5.102(a)(7), which provides that
"[i]f electronic commerce is employed in the solicitation process,
availability of the solicititation may be limited to the electronic medium."
Offerors were informed that the solicitation, amendments, plans and
specifications would be available only through the Internet and that "hard
copies (paper) or CD-ROM" would not be provided.
. Offerors were also
invited, but were not required, to register for the solicitation at the
website; registered offerors were advised that courtesy e-mails would notify
registered firms of solicitation amendments posted to the Internet. [1]
Offerors were also cautioned that it was the offeror's responsibility to
check the website daily for amendments or other notices. The RFP included
the standard "Instructions to Offerors--Competitive Acquisition" clause, FAR
sect. 52.215-1, which provides, in pertinent part, that late proposals would not
be considered for award.

The RFP was amended six times before the revised time set for receipt of
proposals (2 p.m., local time, July 28). Of particular relevance here,
amendment No. 6, issued July 18, 10 days before the revised proposal closing
date, made several material changes to the solicitation, including the scope
of work to be performed.

Performance states that, on July 28, its president and job site office
manager spoke with the Navy's contract specialist for this solicitation and
informed her that the Internet site was inaccessible and therefore
Performance could not timely obtain amendment No. 6, which left Performance
with insufficient time to prepare its proposal. Protest at 2; Comments at 1;
Affidavit of Protester's President. The time for delivery of proposals was
not extended, and Performance hand-delivered its proposal on July 28, at
2:53 pm, after the time set for receipt of prosposals. The Navy rejected
Performance's proposal as late. The Navy received seven other proposals by
the closing time for receipt of proposals.

The protester complains that the Navy should have excused Performance's late
delivery of its proposal because of the alleged inaccessability of the
Navy's website on the proposal closing date. [2] Performance asserts that
the inaccessibility of the website on July 28 left the protester with
insufficient time to obtain amendment No. 6 to change the content of its
proposal and to acknowledge. Performance also contends that the Navy should
have extended the closing time for receipt of proposals when the agency
learned that Performance was having problems accessing the website.

The Navy responds that its actions were not the paramount cause of
Performance's late delivery of its proposal, but that Performance's failure
to attempt to obtain the solicitation amendment until the date set for
receipt of proposals was the primary cause of the late delivery. The Navy
provided statements from its contract specialist and Internet system
administrator, which show that Performance did not register for this
solicitation and thus was not e-mailed notices of solicitation amendments,
and that the website was operating throughout the period of July 18-28 and
was "not down" on July 28. Statements of Contract Specialist and IT
Coordinator. In addition, the Navy provided a portion of its website log for
the morning of July 28 until the 2 p.m. time for receipt of proposals,
consisting of 540 pages of single-spaced lines, each line showing an
individual Internet access to the site on that date.

We agree with the Navy that it was Performance's failure to make reasonable
efforts to promptly obtain the solicitation amendment that is the paramount
cause of the late delivery of its proposal. Prospective offerors have an
affirmative duty to make every reasonable effort to obtain solicitation
materials. American Material Handling, Inc., B-281261, Jan. 19, 1999, 99-1
CPD para. 13 at 2. Here, Performance did not avail itself of the registration
opportunity presented by the Navy's website and accordingly did not receive
e-mail notice of amendment No. 6. Also, Performance apparently did not check
the Navy's website after July 18 and prior to the closing date for receipt
of proposals to determine whether the solicitation had been amended. [3]
Performance has not demonstrated that the website was not reasonably
available to offerors to timely obtain amendment No. 6. Even if we assume
that the website was unavailable on the date set for receipt of proposals,
awaiting that date to attempt to obtain the solicitation amendment does not
satisfy Performance's obligation to make every reasonable effort to obtain
solicitation materials.

Accordingly, we find reasonable the agency's decision not to extend the
proposal closing date to allow Performance additional time to prepare its
proposal. See American Material Handling, Inc., supra, at 3 (agency properly
refused to extend quotation due date where the protester only requested
necessary information for the preparation of its quotation on the due date
and the late delivery of the protester's quote was due to protester's
failure to reasonably attempt to obtain this necessary information); Latins
American, Inc., B-247674, June 15, 1992, 92-1 CPD para. 519 at 3-4 (agency
properly rejected a quotation as late and refused to extend the closing
date, where the late delivery was caused by a defective computer disk
furnished by the agency, which was necessary to prepare quotes, but the
protester was in possession of the disk 14 days prior to the closing date
and attempted to access the disk for the first time the night before the
closing date).

The protest is denied.

Anthony H. Gamboa

Acting General Counsel

Notes

1. Offerors were, however, able to obtain the RFP, amendments, and
plans/specifications from the website without registering.

2. Performance does not state the length of time that it alleges the website
was inaccessible on July 28 or whether the website was inaccessible on any
other date.

3. Any challenge to the Navy's failure to send it a copy of the amendment,
as opposed to posting the amendment on the website, is an untimely protest
of an alleged apparent solicitation impropriety (since the RFP set out the
posting method actually used), which Performance was required to protest
before the time set for receipt of proposals. 4 C.F.R. sect. 21.2(a)(1) (2000).