TITLE: PMTech, Inc., B-291082, October 11, 2002
BNUMBER: B-291082
DATE: October 11, 2002
**********************************************************************
PMTech, Inc., B-291082, October 11, 2002
Decision
Matter of: PMTech, Inc.
File: B-291082
Date: October 11, 2002
Eric J. Marcotte, Esq., and Scott Schipma, Esq., Winston & Strawn, for the
protester.
Gena E. Cadieux, Esq., and Paul A. Gervas, Esq., Department of Energy, 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
Protest challenging the agency's rejection of the protester's proposal as
late under a negotiated procurement that required the electronic
submission of proposals is denied, where the protester waited until 13
minutes before the time set for receipt of proposals to transmit its
proposal electronically to the agency's web-site and only the cover sheet
of the electronic proposal was received by the agency by the time
specified.
DECISION
PMTech, Inc. protests the rejection of its proposal, as late, under
request for proposals (RFP) No. DE-RP01-02SO20138, issued by the
Department of Energy (DOE) for technical support services for the agency's
Office of Classified and Controlled Information Review.
We deny the protest.
DOE's Office of Classified and Controlled Information Review is
responsible for the review of documents for identification of classified
information and for determining whether classified documents can be
sanitized or declassified for public release. Contracting Officer's
Statement/Memorandum of Law at 1. The RFP, issued electronically on June
10, 2002 on the agency's Industry Interactive Procurement System (IIPS)
web-site (see ), sought proposals for
technical services supporting this office. Offerors were informed that
the acquisition was completely set aside for small business and that DOE
intended to award, without conducting discussions, a single contract for a
24-month base period with 3 option years.
The RFP provided detailed instructions for the preparation and submission
of proposals. Among other things, the RFP provided that, with the
exception of the response to one subfactor concerning the offerors'
specialized knowledge in declassification activities, offers must be
submitted electronically through the agency's IIPS web site. RFP amend.
04 (July 22, 2002). Specific instructions for preparation of electronic
submissions were provided. For example, the RFP provided that proposals
were to be formatted in one of a number of identified applications (that
is, Adobe Acrobat PDF, Word, WordPerfect, Excel, or Lotus 1-2-3), and that
the offer should consist of electronic files to be submitted as three
volumes: volume I (Offeror & Other Documents), volume II (Technical), and
volume III (Cost/Price). RFP S: L.20.
As amended, the RFP required proposals to be filed by noon, Eastern
Standard Time, on July 25, 2002. RFP amend. 02 (June 28, 2002). The RFP
also included the standard *Instructions to Offerors--Competitive
Acquisition* clause of Federal Acquisition Regulation (FAR) S: 52.215-1,
which states in relevant part that an offeror is responsible for ensuring
that its proposal is submitted so as to be received in the designated
government office by the time specified in the solicitation, and that a
proposal that was received after the exact time specified was *late* and
would not be considered.
DOE received a number of offers in response to the RFP, including PMT's.
The IIPS log shows that PMT began a series of interactions with IIPS
beginning at 11:46:38 a.m. on July 25. See Agency Report, Tab 2,
Declaration of DOE's IIPS Project Manager (Sept. 5, 2002), attach. A. The
log shows that beginning at 11:47:27 am PMT attempted to submit something
to IIPS but an error occurred with the following message *SSL Handshake
failed.*[1] According to the log, at 11:49:29, PMT was able to post
something to IIPS. However, DOE found that as of noon on July 25 PMT had
submitted only the cover sheet for its proposal. Contracting Officer's
Statement/Memorandum of Law at 4. After noon on July 25 and on July 26,
PMT submitted additional electronic files that comprised its proposal. At
least one proposal was timely received by DOE. Supplemental Contracting
Officer's Statement (Sept. 24, 2002) at 1. Because the agency had not
received PMT's complete proposal by the receipt deadline of noon on July
25, DOE rejected PMT's proposal as being late. This protest followed.
PMT complains that the RFP required submission of most of an offeror's
proposal through IIPS and that PMT *took all reasonable steps to submit
its proposal in a timely manner,* in accordance with the solicitation
instructions. PMT states that it entered the IIPS at 11:49 a.m. and
*uploaded material* and that the failure of IIPS to record PMT's proposal
must be as a result of DOE's *computer malfunction.* Protest at 5. In
this regard, PMT submitted a statement of an *information technology
scientist,* who states that, based upon his review of the IIPS log
provided in the agency report,
it appears that [PMT's] attempts to enter its proposal into IIPS [were]
disrupted by errors occurring with the server side IIPS application as
well as errors that appear to be attributable to the IIPS client
application during operations where data is being transferred to the IIPS
server. In all cases, however, errors are internal to the IIPS
application and cannot reasonably be attributed to [PMT].
Declaration of Information Technology Scientist, attached to Protester's
Comments (Sept. 16, 2002), at 2. PMT argues, based upon this declaration,
that this *likely explain[s] why [PMT's] proposal was not saved on the
server.* Protester's Comments at 5.
It is an offeror's responsibility to deliver its proposal to the proper
place at the proper time. FAR S: 15.208(a); Integrated Support Sys. Inc.,
B-283137.2, Sept. 10, 1999, 99-2 CPD P: 51 at 2. Proposals that are
received in the designated government office after the exact time
specified are *late,* and generally may be considered only if received
before award and the circumstances satisfy the specific requirements set
forth in FAR S: 15.208(b)(1).[2] While the rule may seem harsh, it
alleviates confusion, ensures equal treatment of all offerors, and
prevents one offeror from obtaining a competitive advantage that may
accrue where an offeror is permitted to submit a proposal later than the
deadline set for all competitors. Inland Serv. Corp., Inc.,
B‑252947.4, Nov. 4, 1993, 93-2 CPD P: 266 at 3.
We view it as an offeror's responsibility, when transmitting its proposal
electronically, to ensure the proposal's timely delivery by transmitting
the proposal sufficiently in advance of the time set for receipt of
proposals to allow for timely receipt by the agency. In this regard, FAR
S: 15.208(b)(1)(i) provides that a late proposal, received before award,
may be accepted:
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.
The crux of PMT's arguments is that the late receipt of its proposal was
the result of some *unidentified error* in the IIPS, so that the agency
should not be allowed to reject the proposal as late.[3] If there was a
problem with the IIPS, however, it was apparently not systemic: the
record does not demonstrate, nor does PMT allege, that DOE did not have an
appropriate system in place to receive and safeguard proposals submitted
in response to the RFP. Indeed, DOE's IIPS project manager states that,
as shown in the IIPS log, the system was operational throughout July 25,
the closing date for receipt of proposals under the RFP, and that the
agency received a number of proposals both for this RFP and other
solicitations before and after the time set for receipt of proposals.
Agency Report, Tab 2, Declaration of IIPS Project Manager (Sept. 5, 2002),
at 1-2.
In our view, the record shows that the primary cause of PMT's late
delivery of its electronic proposal was that PMT delayed attempting to
transmit its proposal until only 13 minutes before the time set for the
receipt of proposals. An offeror's responsibility to deliver its proposal
to the proper place at the proper time includes allowing a reasonable
amount of time for the delivery of the proposal. Thus, we have found that
where an offeror delayed transmitting a lengthy facsimile best and final
offer until 10 minutes prior to the closing deadline, and the agency
otherwise had reasonable facsimile submission procedures in place, the
late receipt of the offeror's facsimile transmission was the fault of the
offeror and not the government. See Brookfield Dev., Inc. et al.,
B-255944, Apr. 21, 1994, 94-1 CPD P: 273 at 3; see also Cyber Digital,
Inc., supra, at 4 (late receipt of facsimile transmission of best and
final offer was offeror's fault where offeror waited until 30 minutes
before the closing time to request an extension, which was denied, and
thereafter transmitted the proposal).
Here, we find that PMT did not act reasonably in waiting to transmit its
electronic proposal until 13 minutes before the time set for receipt of
proposals. It is true that neither party has been able to demonstrate
exactly why PMT's submission was not saved in IIPS prior to the closing
time, and it is possible that some error occurred in the system.
Nevertheless, as the protester itself recognizes, *Occasional errors in
computer systems are a fact of life.* Protester's Comments at 1. We
think an offeror accepts the risk of late receipt and rejection of a
proposal where it delays transmitting its proposal until the last few
minutes before the time set for receipt of proposals.[4]
The protest is denied.
Anthony H. Gamboa
General Counsel
------------------------
[1] According to DOE's IIPS User Guide for Contractors (Mar. 2002), SSL is
an
acronym [that] stands for Secure Socket Layer. SSL is a security protocol
that protects data by encrypting it as it passes between servers and Web
client. The system administrator distributes the certificate to Web
users.
Agency Report, Tab 3, DOE IIPS User Guide for Contractors (Mar. 2002) at
6.
[2] This rule regarding late proposals also applies to proposals which are
received in part prior to the deadline, but where material portions of the
proposal are not received until after the deadline. See Cyber Digital,
Inc., B-270107, Jan. 24, 1996, 96-1 CPD P: 20 at 4.
[3] PMT cites decisions from our Office to support its argument that
*government mishandling* was the paramount cause of the late receipt of a
proposal, so that the bid should not be rejected as late. Protester's
Comments at 7. To succeed in a challenge that government mishandling
caused a proposal to be late, however, a protester must first establish
through acceptable evidence that the proposal was received at the
government installation designated for receipt of proposals and *was under
the Government's control* prior to time set for receipt of proposals. See
FAR S: 15.208(b)(1)(ii); see also The Staubach Co., B-276486, May 19,
1997, 97-1 CPD P: 190 at 4. Here, PMT does not show, or even allege, that
its proposal had been received and was under the agency's control prior to
the time set for receipt of proposals. Accordingly, we view the
*government mishandling* issue as irrelevant.
[4] PMT also complains that DOE amended the solicitation only 3 days
before the closing date to provide that one part of the proposal could not
be electronically transmitted. PMT argues that this allowed it
insufficient time to prepare its electronic proposal for an earlier
transmission to the agency. However, PMT did not request an extension of
the closing date or timely protest that it had insufficient time to
prepare its proposal.