TITLE: B-297968, Project Resources, Inc., March 31, 2006
BNUMBER: B-297968
DATE: March 31, 2006
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B-297968, Project Resources, Inc., March 31, 2006

   Decision

   Matter of: Project Resources, Inc.

   File: B-297968

   Date: March 31, 2006

   Jeremiah D. Jackson for the protester.

   Annette B. Kuz, Esq., and William L. Henson, Esq., Department of the Army,
   for the agency.

   Sharon L. Larkin, Esq., and James A. Spangenberg, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Where the record shows that the agency lost the protester's proposal, a
   protest of the agency's evaluation and award decision is nevertheless
   denied because the record does not demonstrate a systemic failure in the
   agency's proposal receipt process.

   DECISION

   Project Resources, Inc. (PRI) protests the failure of the U.S. Army Corps
   of Engineers to evaluate its proposal for environmental remediation
   services under request for proposals (RFP) No. W91238-05-R-0022. PRI
   contends that the agency lost its proposal and requests that the proposal
   be evaluated.

   We deny the protest.

   The RFP provided that the agency would award up to five
   indefinite-delivery/ indefinite-quantity (ID/IQ) contracts for remediation
   services to section 8(a) contractors. The RFP required that proposals be
   submitted to the Department of the Army at the office of the Sacramento
   District Corps of Engineers, in Sacramento, California, no later than 2
   p.m. on October 12, 2005. PRI shipped its proposal via FedEx, and the
   FedEx tracking slip shows that the package was received by the agency at
   9:38 a.m. on October 12. The agency acknowledges timely receipt of the
   proposal (as evidenced by the FedEx receipt), but apparently the agency
   lost the proposal before it was evaluated. On January 31, the agency made
   award to five section 8(a) firms, not including PRI. After PRI informed
   the agency post-award that it had submitted a proposal, the agency
   searched for PRI's proposal and has been unable to locate it. The
   contracting officer asserts that, prior to the instance here, she knows of
   "no comparable disappearance of a proposal within the [contracting]
   District." Contracting Officer's Affidavit at 1.

   PRI protests the failure of the agency to evaluate its proposal. It has
   provided a copy of its proposal, which it asserts is an exact duplicate of
   the original proposal that was timely submitted and lost, and requests
   that we direct the agency to evaluate it.

   Agencies have a fundamental obligation to have procedures in place to
   receive submissions for competitors under a solicitation, to reasonably
   safeguard submissions received, and to fairly consider all submissions
   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. Shubhada, Inc., B-292437, Sept. 18, 2003,
   2003 CPD para. 161 at 3-4; American Material Handling, Inc., B-281556,
   Feb. 24, 1999, 99-1 CPD para. 46 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.
   Shubhada, Inc., supra, at 4. 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 PRI during this protest process. The
   record does not contain any pre-closing evidence of the content of PRI's
   proposal that the agency properly could evaluate. We therefore will not
   disturb the agency's decision not to reopen the competition to evaluate
   PRI's proposal.

   Our Office has recognized a limited exception 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 was the result of a systemic failure resulting in multiple
   or repetitive instances of lost information. East West Research Inc..
   B-239565, B-239566, Aug. 21, 1990, 90-2 CPD para. 147 at 4. However, the
   exception does not apply here. There is no evidence that the agency, for
   example, lost the proposal information submitted by other offerors in this
   procurement or that the agency previously lost proposal information.

   The protest is denied.

   Anthony H. Gamboa

   General Counsel