TITLE:  Shubhada, Inc., B-292437, September 18, 2003
BNUMBER:  B-292437
DATE:  September 18, 2003
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Shubhada, Inc., B-292437, September 18, 2003

   Decision
    
    
Matter of:   Shubhada, Inc.
    
File:            B-292437
    
Date:              September 18, 2003
    
Bob Metgud for the protester.
Jonathan D. Brawn, Titan Machine Products, Inc., for the intervenor.
Robert L. Mercadante, Esq., and Marlene Surrena, Esq., Defense Logistics
Agency, for the agency.
Henry J. Gorczycki, Esq., and Jerold D. Cohen, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
Where an agency rejects an offeror*s submission as technically
unacceptable for failing to include a technical proposal required by the
solicitation, but the agency actually may have received the proposal and
lost it, a protest of the agency*s evaluation and award decision generally
will not be sustained, absent a systemic failure in the agency*s
proposal-receipt process.  Since the content of a lost proposal is known
only to the protester, it would be inconsistent with maintaining a fair
competitive system to allow the protester to establish the content of its
proposal after the closing date has passed.
DECISION
    
Shubhada, Inc. protests the rejection of its proposal as technically
unacceptable, and the award of a contract to Titan Machine Products, Inc.,
under request for proposals (RFP) No. SPO560-02-R-0336, issued by the
Defense Logistics Agency (DLA), Defense Supply Center Philadelphia,
Pennsylvania, for lock release levers for .50 caliber M2 machine guns
    

   We deny the protest.
    
The RFP, issued on September 17, 2002, contemplated award of a fixed-price
contract.  The RFP stated that contract award would be on a *best value*
basis, with technical factors being significantly more important than
price.  The technical factors--past performance and technical
ability--were of equal importance. 
    
The solicitation required that proposals include detailed information
related to each technical factor.  For example, under the technical
ability factor, the RFP required, in part, that proposals provide detailed
documentation evidencing an offeror*s forging and machining capabilities
for at least five similar and complex items.  RFP at 25.
    
Proposals were due October 17.  The agency received five proposals by that
date, including submissions by Shubhada and Titan.  The agency determined
that four proposals, including Shubhada*s, which was also the
lowest-priced proposal, did not include any information for review under
the technical factor and thus were technically unacceptable.[1]  The
agency determined that Titan*s proposal was acceptable.  The agency
eliminated all but Titan*s proposal from the competitive range, conducted
discussions with Titan and, on December 13, awarded a contract to that
firm.  Subsequently, Shubhada protested to our Office,[2] essentially
alleging that its proposal was technically acceptable and should have been
selected for award.
    
The agency report on the protest states that Shubhada*s proposal was
technically unacceptable because it did not include the technical
information required by the RFP.  In response, Shubhada states that it had
hand-delivered a proposal consisting of two large envelopes banded
together, one of which contained a binder with all of the technical and
past performance information required by the RFP.  Comments at 2, Second
Supplemental Comments at 1.  Shubhada supports this statement with a copy
of a receipt showing that a *bid package* was received by the agency prior
to closing.  Comments at 2, attach. 1, Receipt For Handcarried Offer.
    
Both parties* related arguments largely are based on current recollections
of events that occurred many months ago.  For example, the agency*s
personnel recall that Shubhada submitted only one envelope.  Supplemental
Agency Submission, Affidavit of Bid Room Attendant (Aug. 18, 2003).  The
agency states that the envelope was not large enough to, and did not,
contain a binder of past performance and technical information.  Agency
Supplemental Report at 2.
    
Also, on October 21, 4 days after closing, Shubhada*s representative
called the agency; the agency*s contracts specialist returned his calls. 
Agency Report, Tab 9, Conversation Record (Oct. 22, 2002).  The contracts
specialist states that Shubhada*s representative asked to submit technical
data to attach to Shubhada*s proposal, but she told him that the agency
would get back to him with a decision as to whether the submission of
additional information would be permitted.  Supplemental Agency Report,
encl. 1, Affidavit of Contracts Specialist, at 1.  Shubhada*s
representative states that he only inquired whether the contracts
specialist had received Shubhada*s proposal and whether she needed any
additional information; according to Shubhada, the contracts specialist
stated that she had received everything and did not need additional
information.  Second Supplemental Comments (Aug. 22, 2003), at 2.
    
Finally, Shubhada*s representative states that he called the contracts
specialist almost every month following the October conversation, through
May 2003, to inquire as to the status of the procurement, and that the
contracts specialist stated each time that Shubhada*s proposal was still
under consideration.  Shubhada states that at no time prior to it
receiving the notice of award did the agency inform Shubhada either that
the firm*s proposal was incomplete, or that an award had been made in
December.  Comments at 3; Second Supplemental Comments at 2.  The
contracts specialist states that at no time after the October conversation
did she either discuss the status of Shubhada*s offer with the firm*s
representative, or advise the representative that Shubhada*s proposal was
still under evaluation.[3]  Supplemental Agency Report, encl. 1, Affidavit
of Contracts Specialist, at 1-2.
    
This protest thus presents a significant factual dispute.  We need not
resolve the dispute, however, because even if the protester*s proposal did
include additional information, the agency does not have any record (or
recollection) of receiving it--at best, the information must be considered
to have been lost.  As explained below, the circumstances here do not
provide a basis to sustain the protest.
    
Agencies have a fundamental obligation to have procedures in place to
receive submissions from competitors under a solicitation, to reasonably
safeguard submissions received, and to fairly consider all submission
received.  As a practical matter, however, even with appropriate
procedures in place, an agency may lose or misplace a submission, and such
occasional loss--even if through agency negligence--generally does not
entitle an aggrieved competitor to relief.  American Material Handling,
Inc., B-281556, Feb. 24, 1999, 99-1 CPD P: 46 at 3; Marine Hydraulics
Int*l, Inc., B-240034, Oct. 17, 1990, 90-2 CPD P: 308 at 3.
    
This arguably harsh result is justified by the unique circumstances
arising in protests concerning lost information.  The only means generally
available to establish the content of lost information is for the
protester to reconstruct that information.  However, allowing an offeror
to establish the content of its lost proposal after the closing date has
passed would be inconsistent with maintaining a fair competitive
system.[4]  Marine Hydraulics Int*l, Inc., supra.  Here, the only evidence
of the content of the information that the protester may have submitted
prior to closing is a copy of that information produced by Shubhada during
this protest process.  The record does not contain any pre-closing
evidence of the content of Shubhada*s technical proposal that the agency
properly could evaluate.  We therefore will not disturb the agency*s
rejection of Shubhada*s incomplete proposal as technically unacceptable,
the exclusion of Shubhada*s proposal from the competitive range, and the
award to Titan.  See id. at 2-3.
    
Our Office has recognized limited exceptions to the rule that negligent
loss of proposal information does not entitle the offeror to relief.  The
exception generally applies where the loss was not an isolated act of
negligence, but rather arises out of a systematic failure in the agency*s
procedures that typically results in multiple or repetitive instances of
lost information.  See S.D.M. Supply, Inc., B-271492, June 26, 1996, 96-1
CPD P: 288 at 4.  The exception does not apply here.  There is no evidence
that the agency, for example, lost the proposal information submitted by
other offerors,[5] or previously has lost proposal information.
    
The protest is denied.
    
Anthony H. Gamboa
General Counsel
    

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

   [1] All of these proposals consisted of copies of the RFP with various
certifications completed.  One proposal also included a cover letter. 
Another proposal did not offer a price. 
[2] Many months separate the protest date and the agency*s competitive
range determination and award decision.  In mid-November, DLA prepared
letters advising Shubhada and three other offerors that their proposals
were not in the competitive range and would not be considered for award. 
Agency Report, Tab 5, Letters.  Shubhada states that it did not receive
this letter.  Protester*s Response to Dismissal Request, at 1.  After
award, the agency did not prepare a letter notifying the unsuccessful
offerors of the award until April 30, 2003.  Agency Report, Tab 7, Notice
of Award.  As evidenced by the postmark on the envelope received by
Shubhada, the agency did not mail the notice of award until May 29. 
Protest at 1, enclosure, at 2.  Shubhada received the notice on June 4,
and timely filed this protest in our Office on June 13 (Shubhada did not
request a debriefing).
[3] The contracts specialist further states that, in general, she never
responds to status calls in terms of the requester*s proposal, but only
identifies the status of the acquisition itself, such as, *The acquisition
is still under evaluation.*  Supplemental Agency Report, encl. 1,
Affidavit of Contracts Specialist, at 2.  We note that the contracts
specialist*s statement does not clearly rule out any additional
conversations with Shubhada on other matters, or suggest that the agency
ever orally informed Shubhada that a contract had been awarded in
December.
[4] Compare this to our decisions requiring the agency to consider a
*late* submission if, among other things, it can be established that the
offeror has not had a post-closing opportunity to alter the content of the
submission.  E.g., Tishman Constr. Corp., B-292097, May 29, 2003, 2003 CPD
P: 94 at 3-4.
[5] Our Office independently has confirmed that the other offerors
submitted incomplete proposals, ruling out the possibility that a systemic
failure may have occurred here.