TITLE:  Seven Seas Engineering & Land Surveying, B-294424.2, November 19, 2004
BNUMBER:  B-294424.2
DATE:  November 19, 2004
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   Decision

   Matter of:   Seven Seas Engineering & Land Surveying

   File:            B-294424.2

   Date:              November 19, 2004

   Jamie P. Clare, Esq., Cole, Schotz, Meisel, Forman, & Leonard; and
Frederick ColesA III, Esq., for the protester.

   Jeffrey I. Kessler, Esq., and Kim Sawicki, Esq., Department of the Army,
for the agency.

   Katherine I. Riback, Esq., and Guy R. Pietrovito, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

   DIGEST   

   Protest challenging agency*s rejection of the protester*s late proposal
revision is denied, where the lateness of the submission was not caused by
the agency and the protester*s initial proposal was not technically
acceptable.

   DECISION

   Seven Seas Engineering & Land Surveying protests the rejection of its
proposal under request for proposals (RFP) No. W15P7T-04-R-L204, issued by
the U.S. Army Communications Electronics Command (CECOM) for construction
and related services at facilities located in states from North Carolina
to Maine.

   We deny the protest.

   On May 30, 2003, CECOM issued a written notice to eligible small
disadvantaged offerors under the Small Business Administration*s section
8(a) contracting program, inviting them to a presolicitation conference
and alerting them that the agency intended *to award a multiple award,
best value construction services task order contract.*  This notice
informed firms that all future information for this acquisition would be
posted on the agency*s Interactive Business Opportunities (IBOP) website. 
Agency Report (AR), Tab L.2, Presolicitation Conference Notice (May 30,
2003).  Potential offerors visiting this website were informed that
registration was necessary to review or respond to this, or other
procurements.  See  .

   On February 12, 2004, the RFP was issued on the IBOP website, as a section
8(a) competitive seta**aside, and provided for the award of multiple
fixed-price contracts on the basis of a cost/technical tradeoff.  Offerors
were informed that proposals would be evaluated under three factors,
technical,[1] performance risk, and price, and that the technical and
performance risk factors were equally important and each significantly
more important than price.  The RFP cautioned offerors that to receive
consideration for award, proposals must receive *a rating of no less than
*Acceptable** under the technical evaluation factor and its subfactors. 
RFP S M.A, atA 48.

   Detailed proposal preparation instruction were provided, describing the
information that offerors were required to provide for each evaluation
factor and subfactor.  RFP amend 1, at 5-9.  In addition, offerors were
instructed that they must be *registered users in the IBOP in order to
submit proposals* and that proposals were required to be submitted
electronically to the IBOP website.[2]  RFP S L.D., at 42-43; amend. 1 at
3.

   Seven Seas timely submitted its electronic proposal, including an
acknowledgment of amendment 1, to CECOM on March 16.  In its initial
evaluation, the agency found that Seven Seas* proposal was susceptible of
being made acceptable and included the proposal in the competitive range
along with five other proposals.  CECOM prepared eight *items for
negotiation* (IFN) for Seven Seas, which among other things, identified
three deficiencies and two weaknesses in the protester*s proposal under
the technical factor.  AR, Tab M.2.  On June 29, an e-mail notification
was sent to Seven Seas, informing it that *[t]here are items for
negotiation pertaining to your proposal for the Solicitation information
below* and directing the firm to *click on the link* in the e-mail to
access the IFNs on the IBOP website.[3]  Seven Seas was informed that its
response to the IFNs was due July 14.  AR, Tab M.1.  Also, on JuneA 29,
CECOM issued amendment 2 to the RFP, which extended the proposal validity
date from 120 to 210 days and deleted the requirement to submit, and for
the evaluation of, past performance information for major subcontractors. 
The amendment was posted to the IBOP website and requested acknowledgment
by JulyA 14.  AR, Tab J, RFP amend. 2.

   Seven Seas submitted its reply to CECOM*s IFNs on July 27, after the
required date for its reply; Seven Seas also acknowledged amendment 2 at
the same time.[4]  The record shows that the protester*s IFN responses
would have revised the firm*s proposal in a number of regards.  Comments,
attach. H.  CECOM did not consider the protester*s late response to the
IFNs or its late acknowledgment of amendment 2.  In the absence of a
timely response to the IFNs, CECOM concluded that Seven Seas* proposal was
technically unacceptable based upon deficiencies and weaknesses identified
in all three technical subfactors, and based upon the missing past
performance information.  AR, Tab K, Letter from CECOM to Seven Seas (Aug.
2, 2004).  CECOM rejected Seven Seas* proposal, and this protest followed.

   Seven Seas acknowledges that its reply to the agency*s IFNs was late,[5]
but protests that the contracting officer should have considered the
protester*s late response.[6]  Seven Seas argues, citing Federal
Acquisition Regulation (FAR) S 15.307, that the contracting officer is
required to establish a common cut-off date for only the receipt of final
proposal revisions, and that, because the IFNs did not request the firm*s
final proposal revisions, the contracting officer had latitude to relax
time constraints for the submission of proposal revisions before the final
revision.  Comments at 4-6.  On this basis, Seven Seas contends that the
contracting officer could waive the late submission of the firm*s proposal
revisions as a minor informality under FARA SA 14.405.[7]  Seven Seas does
not contend that its late response to the IFNs was due to any action or
inaction by the agency.[8]

   We disagree with Seven Seas* apparent belief that the contracting officer
was required to consider the protester*s late IFN responses or was
required to waive the protester*s late proposal revisions.  Although it is
true that FAR S 15.307(b) provides for a common cut-off date only for
receipt of final proposal revisions, this does not mean that an offeror is
permitted to submit other proposal revisions (not the final proposal
revision) after the time specified by an agency.  FAR S 15.208 provides in
this regard that offerors are responsible for submitting proposals,
revisions, and modifications to the proper place at the proper time and
that late submissions of proposals, revisions, and modifications may not
be considered, except, as is pertinent here, where the late submission is
received before award, and is a late modification of an otherwise
successful proposal that makes its terms more favorable to the
government.  An *otherwise successful proposal* is one that would result
in the award of the contract to the offeror regardless of the late
modification.  RMS Indus., B-245539, Dec. 9, 1991, 91-2 CPD P 528 at 3. 
Here, Seven Seas* initial proposal was not technically acceptable and
therefore could not be considered *an otherwise successful proposal.*  In
the absence of any action by the agency causing the protester*s late
response to the IFNs, we conclude that the contracting officer did not act
unreasonably in rejecting Seven Seas* late IFNs responses.   

   Seven Seas has not challenged the agency*s determination that, in the
absence of the firm*s late proposal revisions, the protester*s proposal
was technically unacceptable.  Accordingly, given our decision above that
the agency was not required to consider the protester*s late discussion
responses, we have no basis to question the agency*s rejection of Seven
Seas* proposal.

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

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

   [1] Three subfactors were identified for the technical factor:  key
management, subcontracting, and sample task.  RFP S M.A, at 48. 

   [2] In addition to the electronic proposal, offerors were also directed to
deliver a hard copy of each proposal to CECOM.

   [3] Although e-mail notices were generated to inform registered offerors
that information was available on the IBOP website concerning their
proposals or the solicitation, the website in several places cautioned
offerors that *[e]a**mail notifications are NOT guaranteed.  Best Practice
is frequent visits to the site.*  See IBOP Proposal Submission Guidelines,
.

   [4] On July 21, one of the protester*s intended subcontractors called the
agency*s contract specialist for this procurement and informed her that
the subcontractor had found the IFNs on the IBOP website and inquired as
to whether it was too late for Seven Seas to submit a response.  The
contract specialist informed the potential subcontractor that the time for
replies had passed.  AR, Tab N, Contracting Officer*s Memorandum for
Record (July 26, 2004).

   [5] The record shows that Seven Seas was having *computer difficulties*
during the time that the e-mail notice of the IFNs was generated to Seven
Seas and was unable to access the Internet.  See Contracting Officer*s
Statement at 4.

   [6] Seven Seas also protests that its failure to timely acknowledge
amendment 2 was not fatal to its proposal because this amendment was not
material.  We need not address this protest allegation because, as
explained below, we find that Seven Seas* proposal was otherwise
unacceptable.

   [7] FAR S 14.405 applies by its terms to sealed bid procurements.  For a
negotiated procurement, such as this one, Seven Seas might be arguing that
the agency should have treated the late submission as a matter (such as an
ambiguity or a mistake) that could be addressed outside the framework of
discussions.  See FAR S 15.306(b)(3).

   [8] Seven Seas initially protested that CECOM did not reasonably notify
the protester of the issuance of the IFNs and amendment 2.  The agency
addressed Seven Seas* arguments in its report, and the protester withdrew
this ground of protest.  Comments at 2.