TITLE: B-298759, Symetrics Industries, LLC, October 16, 2006
BNUMBER: B-298759
DATE: October 16, 2006
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B-298759, Symetrics Industries, LLC, October 16, 2006
Decision
Matter of: Symetrics Industries, LLC
File: B-298759
Date: October 16, 2006
Edward J. Kinberg, Esq., Kinberg & Associates, LLC, for the protester.
Maj. Kevin Wilkinson, Department of the Air Force, for the agency.
Nora K. Doolin, Esq., and James Spangenberg, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
A proposal revision submitted to the contracting officer's e-mail address
as provided for by the agency but after the deadline established for
receipt of proposal revisions cannot be accepted under Federal Acquisition
Regulation sect. 52.215-1(c)(3)--which states the circumstances where late
proposals or proposal revisions can be considered--even though the
proposal revision was received prior to the deadline by the government
server at the initial point of entry that serviced the e-mail address.
DECISION
Symetrics Industries, LLC protests the rejection of its final proposal
revision (FPR) as late under request for proposals (RFP) No.
FA8523-06-R-80414, issued by the Department of the Air Force to acquire
AN/ALE-47 Countermeasures Dispensing System.
We deny the protest.
After initial proposals were received and evaluated and discussions
conducted, on August 18, 2006, the Air Force issued a request for FPR to
the competitive range offerors that pointed to various items that should
be reviewed before the FPRs were submitted and provided that the FPRs
could be transmitted electronically by sending them to the e-mail address
of the contracting officer. This request also stated:
The final proposal revision must be received in this office no later
than 3:00 PM EST, 23 August 2006. A revision received after this time
will be considered a late revision or modification in accordance with
RFP Provision, [Federal Acquisition Regulation (FAR) sect.] 52.215-1,
Instructions to Offerors-Competitive Acquisition and will not be
considered. If a final proposal revision is not received by the cut-off
date, the offeror's current offer, reflecting any clarifications or
revisions to date, will be evaluated as the final proposal revision.
Protest, attach. A. FAR sect. 52.215-1(c)(3) in relevant part provides:
(3) Submission, modification, revision, and withdrawal of proposals.
(i) Offerors are responsible for submitting proposals, and any
modifications or revisions, so as to reach the Government office
designated in the solicitation by the time specified in the
solicitation. If no time is specified in the solicitation, the time for
receipt is 4:30 p.m., local time, for the designated Government office
on the date that proposal or revision is due.
(ii)(A) Any proposal, modification, or revision received at the
Government office designated in the solicitation after the exact time
specified for receipt of offers is "late" and will not be considered
unless it is received before award is made, the Contracting Officer
determines that accepting the late offer would not unduly delay the
acquisition; and--
(1) If it was transmitted through an electronic commerce method
authorized by the solicitation, it was received at the initial point
of entry to the Government infrastructure not later than 5:00 p.m. one
working day prior to the date specified for receipt of proposals; or
(2) There is acceptable evidence to establish that it was received at
the Government installation designated for receipt of offers and was
under the Government's control prior to the time set for receipt of
offers; or
(3) It is the only proposal received.
(B) However, a late modification of an otherwise successful proposal
that makes its terms more favorable to the Government, will be
considered at any time it is received and may be accepted.
On August 23, 2006, Symetrics transmitted its FPR electronically to the
contracting officer's e-mail address.[1] At 2:58 p.m., the president of
Symetrics phoned the contracting officer to notify her that Symetrics had
submitted its FPR. Protest, Symetrics' President's Affidavit. The
contracting officer received the e-mail while on the phone with Symetrics'
president and told him that it was received at 3:01 p.m, according to her
computer. The e-mail, according to the contracting officer's computer,
showed the e-mail message forwarding the FPR was sent at 2:54 p.m. Agency
Report, attach. 2, Declaration of Contracting Officer.
Symetrics' computer mail server records evidence that at 14:55:42 p.m.
Symetrics commenced transmission, at 14:55:44 p.m. the intended recipient
was identified and located, at 14:58:30 p.m. Symetrics' transmission to
the destination was identified as complete, and finally at 14:58:31 p.m.
Symetrics' mail server returned the following message: "SMTP session
successful." Protest, exh. B, Affidavit of Information Technology
Specialist Contracted by Symetrics; attach.
The Government's e-mail relay report showed Symetrics' FPR was accepted at
the server at Wright-Patterson Air Force Base, Ohio at 2:57:41 p.m. and
delivered to the contracting officer's e-mail box at 3:01:00 p.m., and
that the process was completed at 3:01:00 p.m.[2] Agency Supplemental
Report, Declaration of Computer System Analyst; Agency Report, attach. 2A,
E-mail Relay Report.
Symetrics argues that the rejection of its FPR was unreasonable because it
was within the control of the government by the deadline for receipt of
FPRs. However, a late proposal revision submitted electronically may only
be accepted if one of the exceptions contained in FAR sect. 52.215-1(c)(3)
is applicable. See Sea Box, Inc, B-291056, Oct. 31, 2002, 2002 CPD para.
181.
Under the first exception to FAR sect. 52.215-1(c)(3), a late proposal
submitted via electronic means is late, unless accepting the late offer
would not unduly delay the acquisition, and it was received at the initial
point of entry to the Government infrastructure not later than 5 p.m. 1
working day prior to the date specified for receipt of proposals. FAR
sect. 52.215-1(c)(3)(ii)(A)(1). This exception does not apply, as
Symetrics FPR was not submitted by 5 p.m. on August 22, 2006.
Our Office has previously determined that the second exception, FAR
sect. 52.215-1(c)(3)(ii)(A)(2), which allows for consideration of
proposals received at the Government installation designated for receipt
of offers and under the Government's control prior to the time set for
receipt of offers, is not applicable to electronic proposals. Sea Box,
Inc, supra, at 3. Although not expressly stated in the regulation, we
found that the second exception necessarily applies only to proposals
delivered by other than electronic means. This is so because if the
Government considered a late electronic proposal under the second
exception, regardless of whether it was received by 5 p.m. the previous
working day, the first exception would effectively be rendered
meaningless.[3] Id.
Since Symetric's FPR was not received in the e-mail mailbox of the
contracting officer until 3:01:00 p.m., which was validated by the
Government's e-mail relay report, the late proposal cannot be accepted.
Id.
The protest is denied.
Gary L. Kepplinger
General Counsel
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[1] The protester contends that it was prejudiced by ambiguities in the
instructions for submission of the FPR in that the request for FPRs stated
both "The final proposal revision must be received in this office no later
than 3:00 PM EST, 23 August 2006" and "[T]he submission may be
accomplished electronically by sending it to [the Contracting Officer's
email address]." Protest, attach. A. These instructions could not be said
to be prejudicially confusing to the protester inasmuch as Symetrics in
fact e-mailed its FPR to the designated e-mail address (albeit that it was
received late) and did not otherwise attempt to deliver its FPR to the
contracting office.
[2] The protester argues that as a "matter of science" there must be some
time gap between the Government server's queuing of the e-mail for
delivery to the contracting officer's account and the report of delivery
at 3:01:00 p.m. As such, the protester argues, if the Government's server
reported delivery at 3:01:00 p.m., delivery must have been completed prior
to that time. However, we regard the government's e-mail relay report as
the best evidence of when the e-mail was received at the contracting
officer's e-mail address and the protester has not shown that the
government's computer records, which were consistent with the contracting
officer's contemporaneous account indicating receipt at 3:01 p.m., are not
accurate.
[3] The third exception is likewise inapplicable as there was more than
one proposal submitted. While Symetrics speculates that its proposal was
the otherwise successful proposal so that its late FPR can be accepted, it
has provided no evidence that this was the case. The fact that the agency
evaluated Symetrics' proposal, without considering the FPR, after receipt
of the FPRs does not evidence that it was the otherwise successful
proposal, but was consistent with how the agency stated it would evaluate
a proposal if the FPR was submitted late.