TITLE:  Zebra Technologies International, LLC, B-296158, June 24, 2005
BNUMBER:  B-296158
DATE:  June 24, 2005
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   Decision

   Matter of: Zebra Technologies International, LLC

   File: B-296158

   Date: June 24, 2005

   William M. Weisberg, Esq., and Beth L. Jacobson, Esq., Sullivan &
Worcester LLP, for the protester.

   Capt. Scott N. Flesch, Department of the Army, for the agency.

   Susan K. McAuliffe, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest of agency's rejection of quotation as late is denied where record
shows agency action was reasonable and consistent with the solicitation's
late quotation terms.

   DECISION

   Zebra Technologies International, LLC protests the rejection of its
quotation as late by the Department of the Army under request for
quotations (RFQ) No. W91QUZ-05-Q-0001, for radio frequency identification
products and services.

   We deny the protest.

   The RFQ, issued on December 16, 2004, contemplated the selection of
multiple vendors for blanket purchase agreements (BPA) under five award
groups; this protest involves the rejection of Zebra's quotation for
selection under award group 3, for printers.  The RFQ provided for
issuance of one or more BPAs to vendors having technically acceptable
quotations and satisfactory past performance.  RFQ Part E-2, paragraph 2. 
Evaluation of the quotations was to include a "compliance review" (to
determine whether the quotation complied with the terms of the RFQ), and a
"technical acceptability review" (to review compliance with mandatory
product and services requirements).  RFQ Part E-2, paragraph 2(a), (b).
    Further, a performance risk assessment was to be performed by the agency
for each vendor "based on the quality, relevancy and currency" of the
vendor's past performance.  RFQ Part E-2, paragraph 2(c).   For the past
performance evaluation, vendors were required to provide comprehensive
information regarding their (and their subcontractors') past performance,
with detailed descriptions of the five largest relevant contracts
performed within the last 3 years, including information about contract
size, scope, pricing, and delivery terms, as well as an explanation of the
firm's compliance with performance requirements.  RFQ Part E-1, paragraph
12.4.3(a).  Vendors were also required to send past performance
questionnaires to the references they identified for those contracts, and
to do so in sufficient time for the responses to be provided to the agency
by the due date for receipt of the past performance volume of the
quotation.  RFQ Part E-1, paragraph 12.4.3(b).         

   In this regard, in an effort to prevent delay in the procurement from the
past performance evaluation, all vendors were advised (by provisions in
the RFQ, the cover letter to the solicitation, and several vendor
questions and answers released by the agency) of the importance of timely
submission of their past performance information.  Vendors were instructed
that in order to enable timely processing of the information by the
agency, each vendor was required to submit the past performance volume of
its quotation 1 week prior to the closing date scheduled for the balance
of the firm's quotation (i.e., the technical and price aspects of its
quotation).  RFQ Part E-1, paragraph 2(b).  For award group 3, relevant to
Zebra's protest, the closing date for receipt of the technical/price
quotations was March 7; accordingly, each vendor's past performance volume
was required to be submitted by February 28.

   The RFQ included the following prohibition against the late submission of
quotation information:

   Quotes or modifications of quotes received . . . after the exact time
specified for receipt of quotes will not be considered for the initial
round of BPA awards.  If an emergency or unanticipated event or legal
Federal holiday interrupts normal Government processes . . . the time
specified for receipt of offers will be deemed to be extended to the same
time of day specified in the solicitation on the first work day on which
normal Government processes resume.  The early quote submission of Past
Performance information is subject to this late submission rule.

   RFQ Part E-1, paragraph 5 (emphasis added).

   Zebra submitted its past performance information (along with the balance
of its quotation) on March 4, 4 days after the February 28 deadline for
submission of the past performance volume.  On March 21, the firm was
informed that, pursuant to the late quotation provision of the RFQ, its
quotation was rejected, because the firm failed to timely submit its past
performance information.  This protest followed.

   Zebra contends that the agency lacked any reasonable basis to reject its
quotation; Zebra asserts that the agency instead was required to waive its
late past performance submission as a minor informality, since, according
to the protester, its submission of past performance information 4 days
late should not delay the procurement or result in a competitive advantage
to the firm.[1]

   It is the responsibility of each firm to deliver its proposal (or here,
quotation) to the proper place at the proper time, and late delivery
generally requires rejection of the submission.  See Federal Acquisition
Regulation Section 15.208; Inland Serv. Corp., Inc.,

   B-252947.4, Nov. 4, 1993, 93-2 CPD paragraph 266 at 2-3; Instruments &
Controls Serv. Co.,

   B-222122, June 30, 1986, 86-2 CPD paragraph 16 at 3.  We have recognized
that the late submission rules alleviate confusion, ensure equal treatment
of all competitors, and prevent one firm from obtaining any unfair
competitive advantage that might accrue where only one firm is permitted
additional time to prepare its proposal or quotation for evaluation by the
agency.  Inland Serv. Corp., Inc., supra.  While the government may lose
the benefit of more advantageous terms included in a late submission,
protecting the integrity of the competitive procurement process by
ensuring fair and equal treatment among competitors is of greater
importance than the possible advantage to be gained by considering a late
submission in a single procurement.  Id.; Phoenix Research Group, Inc.,
B-240840, Dec. 21, 1990, 90-2 CPD paragraph 514 at 5.

   The record here provides no basis to question the reasonableness of the
rejection of Zebra's quotation for failure to timely submit its past
performance information.  First, since the RFQ's late quotation provision
expressly applied to the past performance submission, it is clear that the
agency's rejection of Zebra's quotation for failing to meet the closing
time specified for that submission falls squarely within the terms of the
solicitation.  Moreover, the protester has not shown that its failure to
meet the mandatory past performance submission deadline was only a minor
informality that must be waived, as Zebra argues, as a matter of form over
substance.

   Rather, our review of the record confirms the reasonableness of the
agency's position that the RFQ's deadline for the past performance
submissions was material to the agency's actual needs, and thus, was not
merely a matter of form.  This is evident, for example, from the repeated
emphasis given in the RFQ (as well as its cover letter, and several
answers to vendor questions published by the agency) to the agency's need
to prevent any delay in the procurement from the substantial past
performance evaluation efforts that were anticipated under the RFQ,
including the management and review of the multitude of past performance
reference questionnaires for each of the many vendors expected under each
of the multiple award groups.

   The agency further asserts that waiver of the deadline is not warranted in
light of the fact that the past performance evaluations had already begun
prior to the submission of Zebra's past performance information.  These
efforts, which the agency reports began upon the timely receipt of 10
other vendors' past performance submissions, include the review of past
performance narratives, coordination and review of the numerous reference
questionnaires received for each vendor, and a preliminary assessment of
each vendor's performance risk.  We agree with the agency that
consideration of the protester's past performance submission filed 4 days
late, after the agency had already begun the past performance evaluation,
could reasonably result in the very type of procurement delay the agency
intended to avoid by inclusion of the RFQ's early submission
requirement--a requirement that Zebra, without any explanation, apparently
chose to ignore.  We thus cannot find reasonable Zebra's characterization
of the past performance timeliness requirement as one merely of form, as
the record shows that waiver of the requirement for the firm could have an
adverse effect on the agency's timely completion of the evaluation.

   We also cannot agree with Zebra's contention that no other vendor would be
prejudiced if the protester were granted a waiver of the RFQ's required
early past performance submission deadline.  As the agency points out,
waiving the submission deadline for only Zebra effectively confers a
competitive advantage on the firm, since other firms were required to meet
the constraints of the early deadline.  Waiver of the requirement for
Zebra thus would grant to that firm alone substantial additional time--4
days--to prepare its past performance volume for evaluation, rendering
unequal the basis of competition among vendors under the RFQ.   See GROH
GmbH, B-291980, Mar. 26, 2003, 2003 CPD paragraph 53 at 3.

   In sum, given the clear mandatory nature of the RFQ's requirement for an
early past performance submission, and in light of the importance of
protecting the integrity of the procurement process by maintaining equal
treatment of the vendors, we have no

   basis to question the agency's rejection of the protester's quotation as
late for failing to meet the past performance submission deadline.

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

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

   [1] Zebra also argues that the RFQ's late quotation provision does not
require rejection of its quotation, since, according to Zebra, the only
aspect of the late quotation rule that applies to the early past
performance submission is the rule's exception to the filing deadline when
there is an interruption to government operations.  The protester,
however, has materially misread the RFQ late quotation provision which, as
quoted above, expressly provides that the early past performance
submission is subject to the "late submission rule" (i.e., the rule that
quotation information received after the exact time for receipt will not
be considered); contrary to Zebra's strained interpretation, the clause
does not apply only an exception to the cited rule (i.e., the extension of
time granted in the event of an interruption to government operations) to
the early past performance submission.  RFQ Part E-1, paragraph 5.