TITLE:  Integrated Business Solutions, Inc., B-292239, July 9, 2003
BNUMBER:  B-292239
DATE:  July 9, 2003
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Integrated Business Solutions, Inc., B-292239, July 9, 2003

   Decision
    
    
Matter of:    Integrated Business Solutions, Inc.
    
File:             B-292239
    
Date:              July 9, 2003
    
Keith Calhoun-Senghor, Esq., for the protester.
David T. Truong, Esq., National Science Foundation, for the agency.
Matthew T. Crosby and Christine S. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
1.  Agency properly rejected protester's electronically submitted final
proposal revision for facilities management services where solicitation
did not authorize the electronic submission of proposals.
    
2.  Agency properly rejected protester's initial proposal as unacceptable
where protester failed to acknowledge solicitation amendment changing
period of performance.
DECISION
    
Integrated Business Solutions, Inc. (IBS) protests the rejection of its
proposal under solicitation No. CPO-0200006, issued by the National
Science Foundation (NSF) for facilities management services.  IBS contends
that the agency improperly rejected its final proposal revision (FPR) as
late.  Additionally, IBS contends that, after rejecting the FPR, the
agency improperly failed to consider IBS's initial proposal.
    

   We deny the protest.
    
IBS's initial proposal was one of four that NSF included in the
competitive range.  NSF conducted discussions with the four competitive
range offerors; discussions with IBS took place on March 4, 2003.  On
March 10, the agency issued a letter informing the four offerors that
their final technical and cost/price submissions were due at 10:30 a.m. on
March 13.  Attached to the letter was a list of questions that each
offeror might consider during preparation of its FPR.  Also attached was
an amendment that delayed the period of performance by 4-1/2 months.  The
letter instructed offerors that they could submit an FPR or confirm their
initial proposal.
    
At 10:26 a.m. on March 13, NSF received an e-mail from an employee of
Federal Management Systems, Inc. (FMS), a proposed subcontractor to IBS. 
The e-mail informed NSF that IBS's FPR was en route, and requested a
1-hour extension to the time set for receipt of FPRs.  At 10:30 a.m., NSF
received an e-mail from IBS containing the technical proposal portion of
the FPR.  At 10:32 a.m., NSF received another e-mail with the cost portion
of the FPR.  At 11:11 a.m., NSF received a hand-delivered FPR from IBS. 
According to the agency, the contracting officer received the FPR, but
advised the deliverer that the submission was late.  IBS asserts that the
deliverer then informed the contracting officer that IBS had applied for
an extension to the FPR deadline.  Further, according to IBS, the
deliverer orally confirmed IBS's initial proposal and instructed NSF to
consider IBS's initial proposal in the event that NSF denied the
extension.  NSF disputes IBS's account of these events.
    
By letter dated March 20, NSF informed IBS that it had rejected IBS's FPR
as late, and that NSF would not consider IBS's initial proposal.  On March
28 IBS filed an agency-level protest with NSF.  IBS argued that NSF
improperly refused to consider IBS's initial proposal, and that IBS's FPR
was timely because the RFP did not prohibit electronic submissions.  On
April 17, NSF denied IBS's protest.  On April 28, IBS filed this protest
with our Office.
    
Rejection of IBS's FPR
    
IBS first protests NSF's rejection of its electronically submitted FPR,
arguing that the RFP did not prohibit submission of offers by e-mail or
other electronic methods.
    
As a general matter, offerors may use any transmission method authorized
by the solicitation.  Federal Acquisition Regulation (FAR) S: 15.208(a). 
Here, the RFP incorporated by reference FAR S: 52.215-1, which provides in
pertinent part as follows:  *Unless other methods (e.g., electronic
commerce or facsimile) are permitted in the solicitation, proposals and
modifications to proposals shall be submitted in paper media . . . .*  FAR
S: 52.215-1(c)(1).  The solicitation nowhere authorized the use of
electronic methods of submission, and in fact clearly contemplated
submission in paper form.  See RFP S: A2 (listing the mailing address for
offers and instructions for hand delivery).  Accordingly, since the RFP
did not authorize submission of offers by e-mail or other electronic
methods, NSF properly rejected IBS's electronically submitted FPR.  See
Environmental Control Div., Inc., B-255181, Feb. 16, 1994, 94-1 CPD P: 115
at 4 (facsimile best and final offer (BAFO) was properly rejected where
RFP did not provide authorization for facsimile submissions); G.D. Searle
& Co., B-247077, Apr. 30, 1992, 92-1 CPD P: 406 at 3. 
    
In any event, even if the RFP had authorized electronic submission of
offers, the record shows that at the submission deadline--10:30 a.m.,
March 13--NSF's server had received only the technical portion of IBS's
proposal.  Two minutes after the deadline, NSF's server received the
remaining cost portion.[1]  Proposals received after the exact time
specified for receipt of proposals are late and will not be considered by
the government unless the exceptions outlined in FAR S: 15.208(b)(1)
apply.  PMTech, Inc., B-291082, Oct. 11, 2002, 2002 CPD P: 172 at 2. 
Nothing in the record suggests that those exceptions apply here.[2]  Thus,
NSF was under no obligation to consider the submission it received at
10:30 a.m. because that submission was missing a material portion.  Cyber
Digital, Inc., B-270107, Jan. 24, 1996, 96-1 CPD P: 20 at 4.   
    
IBS also maintains that its FPR may be considered under FAR S:
15.208(b)(2), which provides that the government may accept late
modifications to otherwise successful proposals when the terms are made
more favorable to the government.  IBS views its untimely FPR as a
modification to its *otherwise successful* initial proposal.  We
disagree.  The term *otherwise successful* means the government may accept
a late modification from an offeror who is already in line for award. 
Environmental Control Div., Inc., supra, at 5.  Here, IBS was not in line
for award since, as discussed below, IBS's initial proposal was not
acceptable. 
    
IBS's Initial Proposal
    
As an alternate ground of protest, IBS disputes NSF's rejection of its
initial proposal.  IBS contends that, despite its submission of an FPR,
its initial proposal remains viable and must be considered by NSF.  We
disagree. 
    
As noted above, along with its March 10 letter requesting FPRs, NSF issued
amendment No. 6 to the RFP that postponed the period of performance by
4-1/2 months.  Period of performance is a material solicitation
requirement.  Development Assocs., Inc., B‑188416, Aug. 1, 1977,
77-2 CPD P: 64 at 3; see Logitek, Inc., B-238773, July 6, 1990, 90-2 CPD
P: 16 at 4, recon. denied,  B-238773.2,  Nov. 19, 1990, 90-2 CPD P: 401
(delivery terms are a material requirement in a solicitation).  Because
IBS did not confirm its initial proposal or otherwise acknowledge
amendment No. 6, IBS was not bound to a material requirement of the
solicitation and its initial proposal thus was unacceptable.  S.C. Myers &
Assocs., Inc., B-286297, Dec. 20, 2000, 2001 CPD P: 16
at 4.  
    
IBS points out that while NSF's amendment postpones the period of
performance by 4-1/2 months, it does not change the overall length of the
performance period.  IBS argues that its initial proposal commits to the
same overall period of performance, and, therefore, should be considered
acceptable.  IBS's argument ignores two points:  first, that shifting the
period of performance could affect how offerors structure their proposals,
depending on their particular circumstances, and, second, that IBS has not
committed to perform past the original completion date, as the agency
requires.
    
IBS asserts that it did confirm its initial proposal--once, orally, on
March 13, and again, in writing, by its letter of March 21.  NSF disputes
the oral confirmation, and maintains that, in either case, the
confirmations were untimely.  IBS argues that its confirmations were not
untimely because NSF's request for FPR provided no deadline for
confirmation. 
    
As explained above, by letter dated March 10 NSF gave offerors an
opportunity to submit FPRs.  The letter set March 13 at 10:30 a.m. as the
deadline for submissions.  In pertinent part, that letter provided as
follows:  *You are advised that any changes to your proposal that you wish
to be considered by NSF must be identified within the text of your FPR. 
If no revisions are made to your original offer, confirm that the offer
remains unchanged.*  Read in context and as a whole, the only reasonable
interpretation of NSF's request for FPRs is that if an offeror chose to
confirm rather than revise its proposal, the confirmation was due by the
deadline for FPRs.  See Robotic Sys. Tech., B-271760, May 14, 1996, 96-1
CPD P: 229 at 3 (only reasonable interpretation of amendment closing
discussions and requesting BAFOs is that agency must receive offeror's
confirmation by deadline for BAFOs); Department of the Army--Recon.,
B-251527.3, Sept. 17, 1993, 93-2 CPD P: 178 at 3-4 (agency must receive
BAFO or confirmation of initial proposal by deadline for BAFOs).  IBS's
open-ended interpretation of NSF's request for FPRs would lead to the
illogical conclusion that different offerors had different deadlines.  In
other words, those offerors choosing to revise their proposals were
required to do so by the deadline for FPR; but those offerors choosing to
confirm their initial proposals were not subject to a deadline. 
    
Such an interpretation would clearly be inconsistent with the message
conveyed by NSF's letter.  Namely, NSF had closed discussions; NSF set a
deadline for receipt of revisions or confirmations; and, when the deadline
expired, NSF would evaluate the pool of timely FPRs and confirmed initial
proposals.  This course of action was consistent with FAR S: 15.307(b),
requiring establishment of a common cut-off date for receipt of FRPs, and
previous decisions by this Office. 
    
In any event, we think that IBS's submission of an FPR effectively revoked
its initial proposal.  Submission of an FPR generally demonstrates an
offeror's intent to modify or replace its initial proposal, thus
extinguishing an agency's ability to accept the earlier offer.  See
Touchstone Textiles, Inc., B-272230.4, Sept. 5, 1996, 96-2 CPD P: 107 at 2
(once offeror submits BAFO, award must be based on BAFO, not prior version
of proposal).  Here, IBS asserts that it conditioned its submission of the
FPR on the outcome of its request for a deadline extension.  Therefore, in
IBS's view, its submission of an FPR does not show an intent to revoke or
modify its initial proposal because IBS did not intend for the FPR to be
submitted if NSF denied the extension.
    
We find this argument unpersuasive.  First, IBS fails to recognize that
NSF's request for FPRs did not give offerors the option of both submitting
a FPR and confirming initial proposals.  Second, IBS never attempted to
withdraw the submission of its FPR.  To the contrary, the record indicates
that throughout this dispute IBS has urged NSF to consider its FPR as a
timely, valid offer.  Thus, the intent implicit in IBS's express requests
to NSF operates to revoke IBS's initial proposal.  Id.
    
IBS failed to follow NSF's ground rules for continued participation in
this procurement.  IBS neither confirmed its initial proposal by the
deadline, nor did IBS submit its FPR by the deadline.  Because IBS's FRP
was late, and because IBS's initial proposal failed to meet a material
requirement, NSF did not have before it an acceptable IBS proposal to
consider.
    
The protest is denied.
    
Anthony H. Gamboa
General Counsel
    
    
    

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

   [1] The record is unclear regarding whether the agency received the second
e-mail at 10:32 a.m. or 10:33:08 a.m.  In either case, NSF received a
material portion of IBS's FPR after the deadline.
[2] IBS asserts that NSF should accept its FPR under FAR S:
15.208(b)(1)(ii), which provides an exception for late proposals when
there is evidence establishing that the government had control of the
submission at the time set for receipt of proposals.  IBS offers no
evidence to support this assertion.  Instead, as noted above, the record
indicates that NSF received a material portion of IBS's FPR after the
deadline.