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

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

   [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.