TITLE:  Tishman Construction Corporation, B-292097, May 29, 2003
BNUMBER:  B-292097
DATE:  May 29, 2003
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Tishman Construction Corporation, B-292097, May 29, 2003

   Decision
    
    
Matter of:   Tishman Construction Corporation
    
File:            B-292097
    
Date:              May 29, 2003
    
Paul A. Varela, Esq., and Frank S. Murray, Esq., Watt, Tieder, Hoffar &
Fitzgerald, for the protester.
Jonathan A. Baker, Esq., Jeffrey Paul Robbins, Esq., and Michael Colvin,
Department of Health and Human Services, 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 negotiated procurement that required offerors to submit both paper
and electronic versions of proposals, rejection of the protester's
proposal as late because the paper version of the proposal was not
delivered by the time set for receipt of proposals was not reasonable,
where a complete copy of protester's proposal was timely received in
accordance with the solicitation instructions; the late delivery of the
paper version was a minor informality that should have been waived.
DECISION
    
Tishman Construction Corporation protests the rejection of its proposal as
late under request for proposals (RFP) No. NIH-NIAID-DMID-03-54, issued by
the National Institute of Allergy and Infectious Diseases, National
Institutes of Health, Department of Health and Human Services (HHS), for
construction quality management services.
    

   We sustain the protest.
    
The RFP, issued January 24, 2003, provided for the award of a
cost-reimbursement contract to provide construction quality management
services.  The contractor will act as a liaison between the agency and
firms that are constructing regional and national biocontainment
laboratories for the agency; will provide planning, design, construction,
commissioning, activation, occupancy, and closeout activities of each
construction project; and will assist in the oversight of grants and
contracts for the construction work.  RFP at 4.
    
Offerors were required to submit both a paper and an electronic version of
their proposals; the RFP provided detailed instructions for packaging,
delivery, and electronic submission of the proposals.  Specifically, the
RFP stated:
    
PAPER SUBMISSION:  The paper copy is the official copy for recording
timely receipt of proposals.  You are required to submit one original
paper copy of your proposal along with [ten] extra copies required below.
ELECTRONIC SUBMISSION:  In addition to the paper submission, you are
required to submit your proposal electronically through the CRON
(Contracts Review Online) in accordance with the instructions provided
below.  If you experience difficulty or are unable to transmit, you should
submit your proposal on a CD-Rom or ZipDisk by an express delivery
service.  We can then upload your proposal into the electronic system. 
You must certify that both the original paper and electronic versions of
the proposal are identical.
RFP at 20.  The closing time for submission of proposals was stated to be
February 24, 2003 at 4:00 p.m., Eastern Standard Time (EST).  The RFP
contained the standard *Instructions to Offerors-Competitive Acquisition*
clause of Federal Acquisition Regulation (FAR) S: 52.215-1, which, in
pertinent part, provided that a proposal that is received after the
specified time for receipt of offerors is *late* and will not be
considered, absent certain specified circumstances.
    
Tishman submitted the electronic version of its proposal, in accordance
with the solicitation instructions, to the agency through the CRON website
at 3:10 p.m. EST, February 24, before the time set for receipt of
proposals.  Contracting Officer's Statement at 2.  Tishman's electronic
proposal was, as required by the RFP, formatted using the *portable
document format (.pdf)* of Adobe Systems, Inc.; was identical to the
written proposal; and included the signature of Tishman's senior vice
president.  Protest at 4.  Tishman's paper proposal was not delivered to
the agency until 5:13 p.m. EST on that date, which was 73 minutes after
the time set for receipt of proposals.  Protest at 4; Contracting
Officer's Statement at 2. 
    
The agency rejected Tishman's proposal as late, and this protest
followed.  No award has been made under the RFP.
    
Tishman admits that the paper version of its proposal was late, but
complains that its proposal should not have been rejected as late because
an identical copy of its proposal was received by the agency
electronically, as authorized by the RFP, before the time set for receipt
of offers.  Citing our decision in Abt Assocs., Inc., B‑226063, May
14, 1987, 87-1 CPD P: 513, Tishman contends that the failure to timely
provide the paper copy of its proposal was a minor informality, which
should be waived, given that the agency had timely received a complete
copy of Tishman's proposal.
    
FAR S: 15.208 governs the treatment of late proposals and provides
generally that a proposal received after the time set for receipt shall
not be considered.  The late proposal rule alleviates confusion, ensures
equal treatment of offerors, and prevents one offeror from obtaining a
competitive advantage as a result of being 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. 
    
In Abt, we found that the protester's proposal should not have been
rejected as late where the solicitation required the filing of the
proposal at two locations but the protester timely filed its proposal at
only one location.  We reached this conclusion because the agency had
timely received a complete copy of the protester's proposal at one
location, so that the protester's failure to submit a copy of its proposal
to the other location was a minor informality, which should have been
waived by the agency, inasmuch as Abt had not obtained an unfair
competitive advantage by its failure to timely deliver its proposal at the
second location.  Abt Assocs., Inc., supra, at 3.
    
HHS contends that our decision in Abt was essentially *superseded* by our
decision in Inland Serv. Corp., Inc., supra.  Specifically, HHS states
that our decision in Abt relied upon our finding that *neither
consideration nor acceptance of the [protester's] offer would contravene
the major policy underlying the late proposals clause--the prevention of
one offeror's obtaining an unfair competitive advantage,* Abt Assocs.,
Inc., supra, at 3, but in Inland our Office *refined [our] explication of
the policy behind the late proposal rule since Abt* to include the
avoidance of confusion and unequal treatment of offerors as policy reasons
underlying the late proposal rule.  Agency Report at 2.  HHS argues that
rejection of Tishman's proposal is appropriate to avoid unequal treatment
and confusion.
    
We do not agree with HHS that our decision in Abt was *superseded* by our
decision in Inland.  In Inland, we specifically found that the facts
presented in that case were *clearly distinguishable* from those in Abt,
because, unlike the protester in Abt, the protester in Inland failed to
provide a complete copy of its proposal to any location by the time set
for receipt of proposals, so it was properly rejected as late.  Inland
Serv. Corp., Inc., supra, at 4.
    
Moreover, HHS is incorrect in its belief that our view of the policy
underlying the late proposal rule had changed since the date of our
decision in Abt.   We have always viewed the underlying policy for
application of the late proposal rules as ensuring fair and equal
competition and avoiding confusion.  See, e.g., Phelps-Stokes Fund,
B‑194347, May 21, 1979, 79-1 CPD P: 366 at 5 (prior to Abt); see
also PMTech, Inc., B‑291082, Oct. 11, 2002, 2002 CPD P: 172 at 3. 
Given that HHS had received, by means specifically authorized by the RFP,
a complete copy of Tishman's proposal prior to the time set for receipt of
proposals, we fail to see how the late proposal rule or policy would be
violated by consideration of Tishman's proposal. 
    
HHS argues that consideration of Tishman's proposal would reflect an
unequal treatment of those offerors that were able to timely submit both
an electronic and paper version of its proposals.  HHS neglects, however,
to consider that such *unequal treatment,* as asserted by the agency here,
is not material nor does it present any possibility that Tishman could
obtain competitive advantage over other offerors, given that it undeniably
submitted a proposal by the closing time.  Rather, as we found in Abt, the
protester's failure to timely deliver more than one complete copy of its
proposal is nothing more than a minor informality.  Moreover, contrary to
HHS's suggestion, since no one denies that Tishman's electronic proposal
was timely submitted and was identical to its paper proposal, there is
nothing that indicates any possible confusion.
    
HHS argues that even assuming this constitutes a minor informality, the
regulatory language in FAR S:S: 15.306(a)(2) and 52.215-1(f)(3) is
permissive and therefore the *contracting officer retained the discretion
not to exercise her waiver authority under FAR S: 52.215 1(f)(3).*  Agency
Report at 3.  However, as with any other exercise of discretion, the
contracting officer's decision must have a reasonable basis.  NMS Mgmt.,
Inc., B-286335, Nov. 24, 2000, 2000 CPD P: 197 at 3 (agency's exercise of
discretion under FAR S: 15.306(a)(2) is reviewable to determine whether it
has a reasonable basis); see B-148280, June 1, 1962 (use of the word *may*
in the regulation does not confer unlimited discretion on the agency to
waive or not waive deviations in bids from the solicitation
requirements).  Here, not only has the agency not identified any
reasonable basis for its refusal to waive Tishman's late delivery of its
paper version of its proposal, but we fail to ascertain any possible
reasonable basis for it to decline to waive this minor, immaterial
deviation from the solicitation requirements.  Accordingly, we find that
HHS was required to waive Tishman's late delivery of the paper version of
its proposal as a minor informality, and we sustain Tishman's protest on
this basis.  See Doty Bros. Equip. Co., B-274634, Dec. 19, 1996, 96-2 CPD
P: 234.
    
The protest is sustained.[1]
    
We recommend that the agency waive Tishman's late delivery of its paper
proposal and include that proposal in the competition.  We also recommend
that the protester be reimbursed its costs of filing and pursuing the
protest.  4 C.F.R. S: 21.8(d)(1) (2003).  The protester should submit its
certified claim for such costs, detailing the time expended and costs
incurred, directly to the contracting agency within 60 days of receiving
this decision.  4 C.F.R. S: 21.8(f)(1).
    
Anthony H. Gamboa
General Counsel
    

   ------------------------

   [1] Our Office informed HHS at an outcome prediction alternative dispute
resolution (ADR) conference that Tishman's protest was likely to be
sustained for the reasons explained above.  HHS declined to take
corrective action in response to the ADR conference.