TITLE:  Immediate Systems Resources, Inc., B-292856, December 9, 2003
BNUMBER:  B-292856
DATE:  December 9, 2003
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Immediate Systems Resources, Inc., B-292856, December 9, 2003

   Decision
    
    
Matter of:   Immediate Systems Resources, Inc.
    
File:            B-292856
    
Date:              December 9, 2003
    
Michael A. Stover, Esq., Whiteford Taylor & Preston, for the protester.
Jeffri Pierre, Esq., Department of Health and Human Services, for the
agency.
Katherine I. Riback, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
Agency properly rejected protester*s best and final offer as late where
the record shows that the proposal was not under government control prior
to the time set for the receipt of proposals.
DECISION
    

   Immediate Systems Resources, Inc. protests the rejection of its proposal
under request for proposals (RFP) No. CMS-HPMS-03, issued by the
Department of Health and Human Services (HHS), Centers for Medicare and
Medicaid Services (CMS), to develop, maintain and support the
implementation of the Health Plan Management System (HPMS) and its
software modules.
    

   We deny the protest.
    
The RFP contemplated the award of a time-and-materials type contract for a
base year with 4 option years.  The RFP included a street address and mail
stop number for delivery of offers in Block 7, and, in Block 9, included
the following language:
    
Sealed offers in original and 5 copies for furnishing the supplies or
services in the Schedule will be received at the place spelled out in Item
8, or if hand-carried, contact the contract specialist until May 1, 2003
prevailing local time 10:00 a.m. 
The technical evaluation factors listed in the RFP were (1) soundness of
approach, (2) understanding of the HPMS and its role in the Medicare +
Choice program, (3) management plan, and (4) corporate experience and past
performance.  The first and second technical factors were equally
weighted, and each was more important than either of the other two
technical factors, which were also equally weighted.  The totality of the
technical factors was significantly more important than price.  The RFP
contemplated that the offerors whose proposals were included in the
competitive range would conduct an oral presentation, the purpose of which
was *to enable the technical evaluation panel [TEP] to assess each
offeror*s relative level of familiarity with and understanding of the work
that it would have to perform under the prospective task order* and would
*be used to supplement and provide the Government a more thorough
understanding of the offeror*s written proposal utilizing the same
technical evaluation factors.*  RFP S: M.2.
    
CMS received 15 proposals, including Immediate*s, in response to the RFP. 
The TEP established a competitive range of five proposals, including
Immediate*s.  Immediate*s proposal was the lowest rated of those included
in the competitive range; Immediate*s proposal was rated at the upper end
of satisfactory, as compared to one proposal rated outstanding, and three
proposals rated very good.  Immediate*s proposal also failed to include
prices for the option years as required. 
    
The competitive range offerors each made an oral presentation to the TEP
on June 17 or 18.  There was some problem in scheduling Immediate*s oral
presentation because messages could not be left at Immediate*s published
phone number; it was not until June 17 that Immediate was notified that
its oral presentation was scheduled for June 18.  Immediate*s oral
presentation was found by the TEP to be a *rambling, disjointed, and
chaotic presentation that did not address any of the concerns about the
proposal, but instead raised questions about [Immediate*s] capabilities
and the scope of its subcontracting.*  TEP Chairperson*s Declaration
at 2.  After the oral presentations, on July 2, the agency removed
Immediate*s proposal from the competitive range.  After a debriefing,
Immediate persuaded the agency to place its proposal back into the
competitive range by addressing some of the concerns raised by its oral
presentation. 
    
On July 16, the agency submitted written discussion questions to the
competitive range offerors, advising each offeror of the areas of concern
in its proposal that needed to be addressed, and requesting a best and
final offer (BAFO) addressing these concerns be submitted no later than 2
p.m., July 21.  On July 17, the agency, at Immediate*s request, extended
the due date for submission of BAFOs to 2 p.m. on July 24.  On July 21,
the agency conducted oral discussions with Immediate at that firm*s
request.  During this meeting, according to the contracting officer, he
explained that Immediate was expected to provide five BAFO technical and
past performance volumes, and five separate red‑lined copies of the
same volumes indicating any changes to its earlier proposal.[1] 
Declaration of the Contracting Officer at 6.  
    
On July 24, sometime between 12:30 p.m. (according to the protester) and
1:10 p.m. (according to the agency), Immediate*s president contacted the
contract specialist regarding proposal submission and asked if the
redlined and edited copies could be submitted in the same volume, and was
advised that they should be submitted in separate volumes; Immediate
states that this was the first time it was made aware of this
requirement.  While Immediate complained that this would make it almost
impossible to meet the 2 p.m. deadline, it apparently did not expressly
request an extension but said it would endeavor to meet the deadline. 
    
What happened over the ensuing hour or so is disputed by the parties. 
Immediate*s president arrived at the guard station, either at or slightly
before 2 p.m. (according to the protester) or a few minutes after 2 p.m.
(according to the agency).  Immediate*s Comments at 2; Agency Report,
Tab 30, Memorandum to the File (July 24, 2003).  More important than the
disagreement on the arrival time, however, is that the parties agree that
Immediate*s president, after having the guard log in and date‑stamp
the package, took the proposal back from the guard, drove to the CMS
central building, and then handed the proposal to the contract specialist
in the lobby of the CMS building at 2:13 p.m.
    
The agency determined that Immediate*s BAFO was late and could not be
considered.  The contracting officer instructed the TEP to treat
Immediate*s initial proposal, as clarified during discussions, as its
BAFO.  The TEP again rated Immediate*s proposal at the upper end of
satisfactory, which was lower rated than the other three proposals.  The
TEP determined that the proposal of Fu Associates, which was rated
outstanding, represented the best value to the government and made award
to that firm.  Immediate was notified of this decision on August 28 and
was debriefed on September 4.  It was at this debriefing where Immediate
first learned that its BAFO had been considered late and was not
considered.  This protest was filed on September 15.
    
The protester first contends that its BAFO was not late and should have
been considered.  In this regard, the protester contends that there were
no specific directions in the RFP that instructed offerors to hand deliver
proposals to a specific location within the CMS facility and that the BAFO
was timely delivered because she arrived at the guard station at the
facility entrance at exactly 2 p.m. on July 24.  
    
It is an offeror*s responsibility to deliver its proposal to the proper
place at the proper time, and late delivery generally requires rejection
of a proposal.  Federal Acquisition Regulation (FAR) S: 15.208(b); Slates
Roofing Corp., B-286052, Nov. 8, 2000, 2000 CPD P: 182 at 4.  The time
when the proposal is submitted is determined by the time that the offeror
relinquishes control of the proposal to the government.  The Haskell Co.,
B-292756, Nov. 19, 2003, 2003 CPD P: __ at 4. 
    
The dispositive question here is when Immediate*s president relinquished
control of its proposal.  Even if we agree with the protester that
Immediate*s BAFO was properly logged in by the guard at 2 p.m.,
Immediate*s president retained control of the proposal after the guard
signed for the package, because the president (not the guard) delivered
the proposal to the contracting specialist.  We do not agree with the
protester that the brief exchange between the guard and Immediate*s
president qualifies as relinquishment of control.  See J.C.N. Constr. Co.,
Inc., B-250815, Feb. 23, 1993, 93-1 CPD P: 166 at 3.  Since Immediate*s
president did not relinquish control of the BAFO until 2:14 p.m., after
the time set for the receipt of BAFOs, to the contract specialist, its
BAFO was properly rejected as late.  
    
Immediate argues in the alternative that even if its BAFO was considered
to be late, this was caused by the improper actions of the agency of
imposing new proposal formatting requirements shortly before the time set
for receipt of BAFOs.  It is true that where affirmative government action
makes impossible timely delivery to the location identified in the
solicitation for receipt of proposals, it may be appropriate under certain
limited circumstances to consider the late submitted proposal.  See Weeks
Marine, Inc., B‑292758, Oct. 16, 2003, 2003 CPD P: __ at 4-5. 
However, we do not think that allegedly onerous requirements concerning
the format of proposals, even if we assume, arguendo, that they were
imposed shortly before the closing date, are the type of improper or
affirmative agency action that provide any exception to the late proposal
requirements.
    
What Immediate is really protesting here is either the imposition of the
formatting requirements, given the late date that the requirements were
imposed, or the shortage of time allowed for the submission of BAFOs. 
Such protest grounds constitute complaints about alleged improprieties
that did not exist in the initial solicitation which were subsequently
incorporated into the solicitation.  See East Penn Mfg. Co., Inc.,
B‑261046, Aug. 1, 1995, 95-2 CPD P: 50 at 50.  Generally, in order
to timely protest such improprieties, the protest must be filed prior to
the next closing time for receipt of proposals.  Bid Protest Regulations,
4 C.F.R. S: 21.2(a)(1) (2003).  However, where, as here, the protester
does not have a reasonable opportunity to file such a protest prior to the
next closing time, 4 C.F.R. S: 21.2(a)(1) is not applicable and the
protester is required to protest the impropriety no later than 10 days
from the time it knew or should have known of its basis for protest, in
this case, when it learned of the formatting requirement and closing date
for receipt of BAFOs.  Morrison Knudsen Corp., B-247160, Jan. 7, 1992,
92-1 CPD P: 35 at 2; see 4 C.F.R. S: 21.2(a)(2).  Since Immediate did not
protest until after award on September 15, this protest ground is untimely
and will not be considered.  See Cherokee Info. Servs., B‑287720,
Apr. 12, 2001, 2001 CPD P: 77 at 4 n.4.
    
Finally, Immediate contests the evaluation of its proposal.  Immediate
notes that weaknesses found in its proposal were essentially the same that
were given when its proposal had been eliminated from the competitive
range and therefore its evaluation must be unreasonable, because the
agency had reinstated the proposal into the competitive range, and because
this evidences that the agency did not consider the firm*s explanations
concerning these evaluated weaknesses. 
    
We disagree.  The record shows that Immediate received detailed discussion
questions after its proposal*s reinstatement into the competitive range
and these responses were to be part of the BAFO that was not considered;
Immediate does not challenge the legitimacy of the concerns expressed in
these questions.  The evaluation did not consider Immediate*s oral
presentation, but the record shows that if it had done so there would only
have been a negative impact on Immediate*s proposal*s rating.  The
evaluation also, reasonably we think, did not consider Immediate*s
exchanges with the agency concerning its proposal after it had been
eliminated from the competitive range because Immediate*s responses to the
agency*s concerns were to be documented in its BAFO.  As noted above,
Immediate*s was the lowest rated of the competitive range proposals and
its relative position did not change as a result of the evaluation of the
BAFOs submitted by the other offerors.  In addition, Immediate*s proposal
offered no price advantage (because of its high labor rates); as noted,
Immediate did not offer prices for the option years but the record shows
that if its basic contract price were projected for the 5-year contract
term it would be the highest priced of the competitive range proposals. 
Based on our review of the evaluation, we find no basis to find
unreasonable the evaluation of Immediate*s proposal or the award to Fu
Associates.[2]
    
The protest is denied.
    
Anthony H. Gamboa
General Counsel
    

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

   [1] The contracting officer states that he had already told the protester
about the format requirements on July 17; the protester denies this.
[2] In response to Immediate*s complaints about the lack of documentation
concerning the evaluation, the agency provided further documentation, the
adequacy of which has not been questioned by Immediate.  Similarly, in
response to Immediate*s questioning of certain alleged discrepancies in
the evaluation documentation, the agency provided detailed responses
supporting the reasonableness of its evaluation, which similarly have not
been questioned by the protester.  While Immediate also complains that its
proposal was unfairly evaluated because it had not been provided the HPMS
source codes and then was penalized for its proposal*s lack of details, it
did not protest the agency*s failure to provide the source codes prior to
the closing date for receipt of proposals, 4 C.F.R. S: 21.2(a)(1), and it
has not shown that its higher priced proposal would have been rated at Fu
Associates* proposal*s outstanding level, even if the concern about the
lack of details in Immediate*s proposal were ignored, given the other
weaknesses found in its proposal.