TITLE:  Sea Box, Inc., B-291056, October 31, 2002
BNUMBER:  B-291056
DATE:  October 31, 2002
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Sea Box, Inc., B-291056, October 31, 2002

   Decision
    
    
Matter of:   Sea Box, Inc.
    
File:            B-291056
    
Date:           October 31, 2002
    
James J. McCullough, Esq., and Steven A. Alerding, Esq., Fried, Frank,
Harris, Shriver & Jacobson, for the protester.
Vera Meza, Esq., and Capt. Gary Bilski, U.S. Army Materiel Command, for
the agency.
Scott H. Riback, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
Protest that agency improperly rejected proposal as late is denied where
proposal was submitted electronically, and was not received at the initial
point of entry to the government infrastructure by 5:00 p.m. 1 working day
prior to the deadline for submitting proposals; the exception that permits
consideration of late proposals that are received at the government
installation, and under the government's control, prior to the deadline
for submitting proposals, is inapplicable to proposals submitted
electronically. 
DECISION
    
Sea Box, Inc. protests the rejection of its proposal as late under request
for proposals (RFP) No. DAAE07-02-R-S104, issued by the U.S. Army Materiel
Command (AMC) for a quantity of container roll-in/out platforms.
    
We deny the protest.
    
The RFP required offerors to submit proposals by 1:00 p.m. local time,
July 15, 2002, in an electronic format, and provided that they could be
delivered either by hand
(for example, on floppy discs or CD ROMS) or by electronic means such as
e-mail or datafax.  In the case of e-mail submissions, offerors were to
submit proposals to a specified e-mail address.  The RFP specifically
referred to Federal Acquisition Regulation (FAR) S: 52-215-1, Instructions
to Offerors, and, in particular directed offerors' attention to paragraph
(c)(3) of that provision, which in relevant part provides:
    
(3)  Submission, modification, revision, and withdrawal of proposals.
(i) Offerors are responsible for submitting proposals, and any
modifications or revisions, so as to reach the Government office
designated in the solicitation by the time specified in the solicitation. 
If no time is specified in the solicitation, the time for receipt is 4:30
p.m., local time, for the designated Government office on the date that
proposal or revision is due.
(ii)(A) Any proposal, modification, or revision received at the Government
office designated in the solicitation after the exact time specified for
receipt of offers is *late* and will not be considered unless it is
received before award is made, the Contracting Officer determines that
accepting the late offer would not unduly delay the acquisition; and-
(1) If it was transmitted through an electronic commerce method authorized
by the solicitation, it was received at the initial point of entry to the
Government infrastructure not later than 5:00 p.m. one working day prior
to the date specified for receipt of proposals; or
(2) There is acceptable evidence to establish that it was received at the
Government installation designated for receipt of offers and was under the
Government's control prior to the time set for receipt of offers; or
(3) It is the only proposal received.
The facts of this case are not in dispute.  The record shows that
approximately 11 minutes before the 1:00 p.m. deadline for submitting
proposals, the protester commenced the transmission of seven e-mail
messages comprising its proposal. 
All seven messages arrived at the agency's initial point of entry (a Unix
mail relay host server) between 8 and 10 minutes before the deadline.  The
e-mail messages were held at the initial point of entry for periods
ranging from approximately 17 to 33 minutes, at which point they were
forwarded to an Internet virus scanning server, then to a mail
distribution server, and finally to the e-mail address specified in the
solicitation.  The proposal ultimately arrived at the e-mail address
between approximately 7 and 24 minutes after the 1:00 p.m. deadline for
submitting offers, and the agency therefore rejected it as late.
    
Sea Box does not dispute that its proposal could not be accepted under the
first exception, FAR S: 52.215-1(3)(ii)(A)(1), since it was not
transmitted by 5:00 p.m. the working day before the due date.  See PMTech,
Inc., B-291082, Oct. 11, 2002, 2002 CPD P: __ at 2-3 (electronic proposal
transmitted 13 minutes prior to deadline for submitting proposals properly
rejected).  Sea Box argues, however, that its proposal
nevertheless could be accepted under the second exception, FAR
S: 52.215‑1(3)(ii)(A)(2).  In this regard, the protester notes that
its entire proposal arrived at the initial point of entry for electronic
proposals prior to the deadline for submitting offers, and was out of the
protester's control and in the government's control approximately 8 to 10
minutes prior to the deadline for submitting proposals.  Sea Box asserts
that the fact that it took several minutes for the proposal to be
transmitted from the initial point of entry to the final electronic
destination should not result in its proposal being rejected. 
    
We are unpersuaded by Sea Box's argument.  While the second exception may
be broad enough to encompass situations involving electronic commerce
delivery methods, we do not read the regulation as providing two
alternative means for determining whether a late electronically
transmitted proposal may be accepted. 
The first exception applies, by its express terms, to situations where a
proposal has been submitted by an electronic commerce method, and
unqualifiedly permits such a late proposal to be considered for award only
if it was received at the initial point of entry to the government
infrastructure no later than 5:00 p.m. the preceding working day. 
Although not expressly stated in the regulation, we think the second
exception necessarily applies only to proposals delivered by other than
electronic means.  This is so because, under the protester's alternative
interpretation, late electronically transmitted proposals could be
considered for award under the second exception whether or not they were
received at the initial point of entry by the preceding working day; this
would essentially render the first exception a nullity.  Since the first
exception expressly applies to electronically transmitted proposals, there
is no reason to assume that such a result was intended.  Moreover, such an
interpretation would be inconsistent with the fundamental principle that
statutes and regulations must be read and interpreted as a whole, thereby
giving effect to all provisions.  See Waste Mgmt. of North Am., B-225551,
B-225553, Apr. 24, 1987, 87-1 CPD P: 435 at 5.
    
We conclude that the two exceptions are complementary, each addressing the
circumstance of a late proposal, depending upon the method of proposal
submission.  Since Sea Box's electronically transmitted proposal was
received at the specified e‑mail destination after the time set for
receipt of proposals, it is a late proposal; since it was not received at
the initial point of entry by 5:00 p.m. the day before proposals were due,
the late proposal cannot be considered for award.
    
The protest is denied.
    
Anthony H. Gamboa
General Counsel