TITLE:  Telex Communications, Inc., B-287146, April 25, 2001
BNUMBER:  B-287146
DATE:  April 25, 2001
**********************************************************************
Telex Communications, Inc., B-287146, April 25, 2001

Decision

Matter of: Telex Communications, Inc.

File: B-287146

Date: April 25, 2001

Kristine L. Bruer, Esq., for the protester.

Phillipa L. Anderson, Esq., Philip S. Kauffman, Esq., and Merilee D.
Rosenberg, Esq., Department of Veterans Affairs, for the agency.

Paula A. Williams, Esq., and Michael R. Golden, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Rejection of protester's proposal is unobjectionable where required product
sample was received by contracting agency after the time stated in the
solicitation. Although the protester argues that the agency failed to
properly address the sample request so that the request was allegedly
misdirected, the offeror generally bears the risk of not receiving
solicitation materials, and, in any event, the protester shares the blame
for any misdirection that occurred.

DECISION

Telex Communications, Inc. protests the elimination of its proposal under
request for proposals (RFP) No. 791-03-00, issued by the Department of
Veterans Affairs (VA) to obtain hearing aids. The VA rejected Telex's
proposal because, although the text of the protester's proposal was received
by the proposal due date, the required product sample was not submitted by
the time established in the RFP. Telex contends that actions by the agency
were the paramount cause for the late delivery of its product sample.

We deny the protest.

The RFP, issued on September 18, 2000, provided for the award of multiple
indefinite-delivery/indefinite-quantity contracts for a 2-year period. The
successful contractors under the RFP will provide various types of hearing
aids for all VA medical facilities and other government agencies worldwide.
Technical requirements for the hearing aids were stated in the RFP's
commercial item description. As amended, the RFP proposal preparation
instructions directed offerors to submit their technical, pricing, and
customer support data by November 15, the extended closing date for receipt
of proposals. As part of the technical proposal submissions, offerors were
to submit ordering forms for customer in-the-ear hearing aids to the VA's
Audiology and Speech Pathology Service. RFP sect. E.15.10. The RFP also
instructed offerors that they would have to submit a sample hearing aid
(i.e., a product sample) for testing to the VA's Audiology and Speech
Pathology Service in Washington, DC. RFP sect. E.15.10.

Specifically, the solicitation provided, in relevant part, as follows:

The Audiology and Speech Pathology Service shall provide to the offerors the
order forms using the audiological data, shown in Table II, and Knowles
Electronics Manikin for Acoustic Research (KEMAR) ear impressions for
fabrication of hearing aids.

Offerors shall provide a hearing aid sample as follows:

A low profile [in-the-ear] hearing aid built for the hearing loss provided
in Table II.

Offerors shall submit the sample described above with an Attachment A,
within 10 days after receipt of the audiological data and KEMAR ear
impression.

RFP sect. E.15.11. The RFP further stated that the product sample would be
"ordered by Government sources within 30 calendar days after proposals are
due to the Government." Id. sect. B.13. The solicitation included the full text
of the standard "Late Submissions, Modifications, Revisions, and Withdrawal
of Offers" clause, Federal Acquisition Regulation (FAR) sect. 52.212-1, which
provides, in pertinent part, that late offers or submissions generally will
not be considered for award. RFP sect. E.1(f).

The agency received timely proposals from several firms, including Telex, by
November 15. As is relevant here, Telex's proposal included an ordering form
that contained a preprinted designation as "VA ORDER FORM," a preprinted
contract number representing the protester's existing contract with the VA,
and a preprinted address for Telex in Rochester, Minnesota. On November 30,
the VA's Audiology and Speech Pathology Service sent the request for a
product sample to Telex using the order form provided by the firm via
Federal Express (FedEx) for next day delivery; the package was addressed to
Telex's designated representative at the Rochester address. [1] The agency
reports that the package included a KEMAR ear impression, the Telex order
form marked "KEMAR I" as the addressee and "See Prototype Loss," and a copy
of a table containing information such as "20 Band Target Frequencies,"
"Prototype Loss," and "Interpolated 20 Band Targets"; in other words, Table
II of the solicitation. In addition, the name and phone number for the VA
audiologist in Washington, DC was listed on the order form. Agency Report
(AR) exhs. 8, 13. Telex received the VA's request for a product sample on
December 1, and according to the terms of the solicitation, which required
that an offeror submit the sample with 10 days of its receipt of the
request, the product sample was to be submitted to the designated VA office
in Washington, DC no later than December 15.

On December 18, after learning that a product sample had not been received
from Telex, the contracting officer contacted Telex's representative and
discovered that the agency's request for a product sample had not been
delivered to the named recipient but was processed through Telex's normal VA
order process. In an undated letter sent by facsimile to the contracting
officer on December 19, the protester's representative indicated that the
product sample "was completed in a timely fashion, but was sitting in
shipping waiting for a purchase order." He further indicated that "I had not
expected to see the KEMAR order until around December 15," since under the
solicitation, the product sample would be ordered within 30 days after
proposals were due. AR exh. 6. Telex's product sample was eventually
delivered to the agency on December 20. Because the product sample was
received after the December 15 submission due date, Telex's proposal was
eliminated from further consideration by the contracting officer, who
determined that none of the exceptions for consideration of late submissions
set forth in FAR sect. 52.212-1(f) was applicable. Telex requested a pre-award
debriefing and subsequently filed an agency-level protest on January 3,
2001. The agency denied the protest by letter of January 17, and this
protest followed.

Telex contends that the agency's own actions made compliance with the
product sample submission date "virtually impossible." Comments at 2.
Specifically, the protester asserts that the VA erroneously sent the request
for a product sample to the firm's Rochester factory address rather than to
the Burnsville mailing address listed in its proposal for the Telex
representative. According to the protester, this error was compounded by the
VA's failure to reasonably identify the order as a request for a product
sample under the RFP by referencing the RFP number on the order form, or
deleting the preprinted contract number, or providing a cover letter with
the order as had been done previously. As a result, the firm's Rochester
factory personnel manufactured a hearing aid pursuant to the terms of the
existing Telex/VA contract, which was placed in stock pending receipt of a
VA purchase order. Comments at 2-6.

We see no basis for sustaining the protest. An offeror bears the risk of not
receiving solicitation materials unless the record shows that the
contracting agency made a deliberate effort to exclude the firm from
competing or failed to provide the materials after the firm availed itself
of every reasonable opportunity to obtain them. Aluminum Specialties, Inc.
t/a Hercules Fence Co., B-281024, Nov. 20, 1998, 98-2 CPD para. 116, at 3; North
Santiam Paving Co., B-241062, Jan. 8, 1991, 91-1 CPD para. 18 at 3. Here, even
accepting the protester's position that the VA misaddressed the request for
the product sample, causing the request to be misdirected by Telex mailroom
staff, there is no evidence that the agency made any deliberate effort to
prevent Telex from competing. While the VA may have been mistaken in using
the preprinted address on the offeror-provided order form, which differed
from the specified address for Telex's representative, the FedEx mailing
label apparently did correctly identify the individual authorized to receive
the package. [2]

Telex nonetheless argues that the product sample order was similar to other
orders received under its existing VA contract, and believes the agency
should have done more to identify the order as a request to manufacture and
submit a product sample for testing. To support its position, the protester
points to prior solicitations for hearing aids under which the VA sent a
cover letter with its request for a product sample. While such a cover
letter or other identifying information may have been desirable and was used
by the agency in the preceding procurement, we are aware of no requirement
that the agency provide such information, and the protester has cited no
supporting authority in this regard.

Although the VA's use of the Telex order form with the preprinted contract
number may have been confusing to Telex's production staff, we think Telex
shares responsibility for any confusion that arose. The protester is correct
that the solicitation contains no clear indication that the required order
forms for customer in-the-ear hearing aids would be used by the agency as
order forms for the product sample; we have no basis, however, to find that
the agency was precluded from using the order forms for that purpose. In
responding to the RFP at issue here, the protester elected to provide order
forms that referenced its existing VA contract. Thus, Telex bears some
responsibility for the problem the use of this order form caused. We do not
believe the agency had any obligation to delete the preprinted contract
number on the Telex order form before using the order form to request a
product sample for testing. The VA was simply not responsible for how its
sample request would be processed by Telex. [3]

Moreover, we believe that Telex did not avail itself of every reasonable
opportunity to obtain the materials at issue here (that is, the order form
requesting the sample). Telex's designated representative was on notice that
under the terms of the solicitation, a product sample would be ordered
anytime within 30 calendar days after proposals were submitted on November
15. However, there is no indication in the record that the Telex
representative alerted its personnel regarding an expected incoming request
from the VA's Audiology and Speech Pathology Service in Washington, DC or
had checks made of the Burnsville or Rochester (its production factory)
mailrooms for that request. Also, Telex's representative apparently first
attempted to contact the contracting officer only on December 11 and did not
actually speak to agency representatives until December 18, 3 days after the
product sample was due. Further, we see no evidence in the record that the
Rochester mailroom personnel made any efforts to contact the recipient
listed on the mailing label. As the designated representative who had actual
knowledge of the solicitation instructions, the intended recipient could
have readily identified the order as a request for a product sample. In
short, Telex failed to take reasonable steps to ensure that the sample would
be submitted by the date it was due.

Since Telex's product sample was late, Telex's proposal properly was
eliminated from further consideration.

The protest is denied.

Anthony H. Gamboa
General Counsel

Notes

1. The agency reports that each request for a product sample was sent using
the order forms provided by the offerors.

2. The protester also contends that the VA failed to use a reasonable method
to identify the order form as a request for a product sample under this
solicitation, thereby contributing to the late delivery of the product
sample. We note that the VA apparently used the same procedure with all
other offerors that received a product sample request and received timely
submitted samples from these firms.

3. The record also establishes that the product sample order was unique and
different from typical VA orders. For example, as the VA explains, routine
VA orders are not issued with an order form identifying KEMAR I as the
addressee or with audiological data described as "prototype loss," "20 band
target frequencies," and "interpolated 20 band targets," as shown in Table
II. The agency reports that this information has no meaning to regular
production staff and should have placed Telex's production staff on notice
that this was not an order under the existing VA contract. The protester has
not provided any persuasive reason why its production staff could reasonably
have considered the information on the sample order to be a VA order for a
hearing aid under the preprinted contract number listed on the order form.