TITLE: The Haskell Company, B-292756, November 19, 2003
BNUMBER: B-292756
DATE: November 19, 2003
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The Haskell Company, B-292756, November 19, 2003
Decision
Matter of: The Haskell Company
File: B-292756
Date: November 19, 2003
Tenley A. Carp, Esq., and Edward M. Whelan, Esq., McGuire Woods, for the
protester.
Damon Martin, Esq., Naval Facilities Engineering Command, for the agency.
Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq., Office
of the General Counsel, GAO, participated in the preparation of the
decision.
DIGEST
1. Under request for proposals that designated closing time for
submission of proposals as 14:00 hours, agency reasonably declined to
reject as late a proposal received before the time 14:01 was displayed on
the time/date stamp clock used by the agency for determining timeliness of
proposal submissions.
2. In circumstances of this case, offeror relinquished control of
proposal package to government by placing package on desk of proposal
receipt official in her presence.
DECISION
The Haskell Company protests the award of a contract to James N. Gray
Company under request for proposals (RFP) No. N62474-03-R-4020, issued by
the Naval Facilities Engineering Command (NAVFAC) for infrastructure
upgrade and construction of a new aircraft parts store, flight simulator
facility, and squadron operations/aircraft maintenance unit facility at
Travis Air Force Base. Haskell contends that Gray*s proposal should have
been rejected as late.
We deny the protest.
The RFP instructed offerors to submit their proposals in two parts; part
1, consisting of offerors* responses to technical factors 1 and 2 (past
performance and technical qualifications), was due by *14:00:00 local
time* on May 1, 2003, while part 2, consisting of offerors* responses to
technical factors 3 and 4 (management approach and commitment to small
business) and proposed prices, was due *on/about* July 2. RFP at 1, 11.
Amendment No. 5, issued on May 7, revised the language pertaining to part
2 proposals, providing that *[t]he solicitation closing date for
submission of
Part 2 Proposals is 25 June 2003, 1400 hours (Pacific time).* RFP amend.
5, at 2.
The agency received 12 part 1 proposals and nine part 2 proposals. Among
the offerors to submit both part 1 and part 2 proposals were Haskell and
Gray. The agency evaluated the proposals in accordance with the
evaluation scheme set forth in the RFP and selected Gray*s proposal for
award.[1] Upon receipt of notification of the award to Gray, Haskell
requested a debriefing; after the debriefing, Haskell protested to our
Office.
Haskell alleges that Gray*s proposal was received at the designated
government office after 14:00 Pacific Time on June 25 and should therefore
have been rejected as late. Haskell bases its allegation on the
observations of its project manager, who was present at the office
designated for receipt of proposals on June 25. The project manager
relates that:
After 14:00 Pacific Time, a representative from James N. Gray Company
submitted a proposal in response to the Solicitation. I personally
observed the James N. Gray Company representative submit the proposal
after 14:00 Pacific Time.
I observed that the James N. Gray Company proposal was submitted late by
looking at my watch and the clock located in the room where the bids were
received. According to both my watch and the clock located on the wall,
the James N. Gray Company proposal was received by the Navy after 14:00
Pacific Time.
Affidavit of Haskell*s Project Manager, Aug. 25, 2003 at 1.[2]
The Navy responds that Gray*s proposal package was received by the
appropriate contracting official before the time 14:01 was displayed on
the time/date stamp clock she was using for purposes of determining
timeliness, and that, accordingly, the proposal was not late. In this
connection, the NAVFAC management assistant tasked with receiving
proposals recounts that on the day in question, the contracting officer
furnished her with a time/date stamp containing a 3- 1/2 inch wide digital
clock display, which she placed on her desk and used continuously
throughout the day to check the time and affix time/date stamps to
proposal packages. Statement of Management Assistant, Sept. 29, 2003, at
1-2. The contracting officer relates that prior to furnishing the
time/date stamp to the management assistant, she dialed the local
telephone time service, noted the local time, and set the digital clock to
that time. Statement of the Contracting Officer, Sept. 29, 2003, at 1.
The management assistant describes the circumstances surrounding her
receipt of Gray*s proposal package as follows:
One contractor GRAY, did enter the office at 1400 hrs. I had the proposal
in my control before the turning of the time/date stamp turned 14:01. The
Gentleman who delivered the proposal came through the office doors
bleeding pretty bad, his nail had ripped from his finger, in route to our
office. When he did reach my desk, I looked at the clock and it had NOT
turned to 14:01 as of yet, but due to the amount of blood that was coming
from his hand, I hesitated to touch the box as it was put down, and I took
additional seconds to adjust the angle of the box so I wouldn*t get his
blood on me and just as I stamped the box the time turned to 14:01.
I truly know, if I had not taken those additional seconds to adjust the
angle of the box, so I wouldn*t get his blood on me, it would have been
stamped in at the required time of 2:00PM.
Statement of Management Assistant, June 25, 2003.
It is the responsibility of an offeror to deliver its proposal to the
proper place at the proper time, and late delivery generally requires that
a proposal be rejected. See Federal Acquisition Regulation (FAR) S:
52.215-1(c) (incorporated into the RFP here); Pat Mathis Constr. Co.,
Inc., B-248979, Oct. 9, 1992, 92-2 CPD P: 236 at 3. As explained below,
in this case we find that the agency reasonably concluded that Gray*s
offer was not delivered late, and thus the agency properly considered it
for award.
As a preliminary matter, regarding the protester*s allegation that
according to both his watch and the clock located on the NAVFAC office
wall, the James N. Gray Company proposal was received by the Navy
representative after 14:00 Pacific Time, the time displayed on the wall
clock and the watch of the protester*s representative is not dispositive
since the proposal receipt official reasonably elected to rely on the
time/date stamp clock as the official timing device. See Pat Mathis
Constr. Co., Inc., supra.
To resolve this protest, we must address two questions: (1) did the RFP*s
designation of the closing time as 14:00 hours mean that proposals had to
be received at or before 14:00:00, or did it mean that they had to be
received at or before 14:01:00 (that is, by 2 p.m. and 59 seconds), and
(2) at precisely what time was Gray*s proposal received?
In the context of sealed bid procurements, the bid opening officer must
decide when the time set for opening bids has arrived and must inform
those present of that decision. FAR S: 14.402-1(a). While bids received
in the office designated in an invitation for bids after the exact time
set for opening are late bids, FAR S: 14.304(b)(1), the bid opening
officer*s declaration of bid opening is determinative of lateness unless
it is shown to be unreasonable under the circumstances. J.C. Kimberly
Co., B‑288018.2, Feb. 8, 1994, 94-1 CPD P: 79 at 2. In the context
of negotiated procurements, such as the one at issue here, there is, of
course, no bid opening and thus no requirement that a government official
announce when the time for receipt of submissions has arrived. However,
just as we believe that it would have been reasonable for a government
official, had this been a sealed bid acquistition, to announce bid opening
at any point between 14:00:00 and 14:00:59, we believe that the RFP*s
reference to a closing time of 14:00 hours could reasonably be interpreted
either as requiring that proposals be received by 14:00:00, or as
requiring that they be received by 14:00:59. To the extent that is viewed
as an ambiguity in the solicitation, it was one that was obvious from the
face of the RFP, and we have repeatedly held that an offeror who chooses
to compete under a patently ambiguous solicitation does so at its peril
and cannot later complain when the agency proceeds in a manner
inconsistent with one of the possible interpretations. Wackenhut Servs.,
Inc., B‑276012.2, Sept. 1, 1998, 98‑2 CPD P: 75 at 5.
The protester contends that the fact that the RFP referenced the closing
time for receipt of the part 1 proposals as *14:00:00* indicates that the
agency intended the reference to *1400 hours* in the instructions for
receipt of part 2 proposals to be interpreted as 14:00:00. This argument
is not persuasive. It could be argued equally reasonably that the
agency*s dropping of the zeroes in the seconds place in the time specified
for receipt of part 2 proposals signified that it did not intend that
reference to be interpreted as 14:00:00. Accordingly, if the record
establishes that Gray*s proposal was received prior to 14:01:00, we think
that the agency need not have rejected it as late.
Turning then to our second question, we think that the record here
establishes that Gray*s proposal was received by the agency prior to
14:01:00. A proposal is received at the time that the offeror
relinquishes control of it to the government. See Weeks Marine, Inc.,
B-292758, Oct. 16, 2003, 2003 CPD P: __; Carothers Constr., Inc.,
B-235910, Oct. 11, 1989, 89-2 CPD P: 338 at 4. Gray*s messenger
relinquished control of Gray*s proposal package to the designated
contracting official by placing it on her desk in her presence, which,
according to the contracting official*s uncontroverted statement, occurred
prior to the time/date stamp clock turning to 14:01. The fact that the
contracting official may not have picked up the package prior to 14:01 is
irrelevant since an individual may gain effective control over an item
without actually taking it into his or her hands. The case cited by the
protester for the proposition that an offeror does not relinquish control
of its proposal by placing it on a desk in the opening room, George W.
Kane, Inc., B-245382.2, Feb. 4, 1992, 92-1 CPD P: 143, is distinguishable
from the case at hand. In the Kane case, no government official was
present at the desk at the time the bidder placed its bid on it; thus,
placing the bid on the desk did not transfer it to the control of an
appropriate government official.
On the basis of the record before us, we are not persuaded that Gray*s
proposal was received late. Accordingly, Haskell*s protest is denied.
Anthony H. Gamboa
General Counsel
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[1] The RFP provided for award to the offeror whose proposal was
determined most advantageous to the government, with the four
equally-weighted technical evaluation factors, when combined, of
approximately equal importance to price.
[2] The Haskell project manager*s allegation that, according to the wall
clock located in the office designated for receipt of proposals, Gray*s
proposal was submitted after 14:00, is corroborated by a statement from a
representative of a second offeror, who notes that he *observed that the
James N. Gray Company proposal was submitted late by checking the clock
located in the room where the bids were received.* Affidavit of S.J.
Amoroso Construction Co., Inc. Area Manager, Oct. 1, 2003, at 1.