TITLE: B-310939.6, Labatt Food Service, Inc., August 18, 2008
BNUMBER: B-310939.6
DATE: August 18, 2008
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B-310939.6, Labatt Food Service, Inc., August 18, 2008

   Decision

   Matter of: Labatt Food Service, Inc.

   File: B-310939.6

   Date: August 18, 2008

   Johnathan M. Bailey, Esq., Bailey & Bailey, PC, for the protester.
   Dmitry Pilipis, Esq., Defense Logistics Agency, for the agency.
   Kenneth Kilgour, Esq., and Christine S. Melody, Esq., Office of General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1. Protest that the agency improperly rejected the protester's proposal
   due to the late acknowledgement of an amendment is denied where the
   solicitation stated that the deadline in the solicitation would be used to
   assess whether submissions were late, and the record establishes that the
   proposal did not meet the deadline in the solicitation.

   2. Notwithstanding that each of the offerors submitted its proposal by a
   method not permitted by the solicitation, protest that agency was required
   to reject all offerors' proposals as late is denied; the protester has
   failed to show how it was prejudiced by the agency's failure to enforce
   the method of submission requirement.

   DECISION

   Labatt Food Service, Inc. protests the rejection of its proposal as late
   by the Defense Logistics Agency (DLA), Defense Supply Center Philadelphia
   (DSCP) under request for proposals (RFP) No. SPM300-06-R-0063 for food
   distribution services. The protester argues that its proposal was not
   received late by the agency, and that even if it was late, the agency
   should have rejected all of the proposals and cancelled the solicitation.

   We deny the protest.

   The protester is one of three offerors whose proposals were included in
   the most recent competitive range created by the agency.[1] At issue is
   the mode of transmission permitted by the RFP. As a general matter,
   offerors may use any transmission method authorized by the solicitation.
   Federal Acquisition Regulation (FAR) sect. 15.208(a). The solicitation
   nowhere authorized the use of electronic methods of submission for the
   original proposal and contemplated the use of facsimile submissions only
   for revisions of offers. RFP at 2. The RFP did clearly contemplate
   submission in paper form. See id. (listing the mailing address for offers
   and instructions for hand delivery, including delivery by courier).

   The record shows that throughout this competition the agency has made no
   objection to the submission by e-mail of proposal revisions by the
   protester and at least one other offeror. On May 13, 2008, DSCP
   transmitted amendment 7 to Labatt as an attachment to an e-mail that
   instructed Labatt to "review, sign, and return this amendment along with
   your proposal no later than 20 May 2008." Protest, Exh. 9. The attached
   amendment specified a deadline of 2:00 p.m. Eastern Standard Time (EST),
   May 20. Amendment 7 increased the guaranteed minimum and maximum order
   quantities by over 20 percent and made several changes to the solicitation
   which directly addressed Labatt's previous protest. The other two offerors
   submitted proposals by the 2:00 p.m. deadline; Labatt transmitted its
   proposal at 4:27 p.m. On May 22, the agency informed the protester that
   its proposal was transmitted by e-mail, which was not an authorized
   transmission method, and that it was submitted late. This protest
   followed.

   Labatt does not contest that it failed to meet the 2:00 p.m. solicitation
   deadline. Rather, Labatt argues that, because the e-mail transmitting the
   amendment was created after the amendment and did not bear the 2:00 p.m.
   deadline, Labatt reasonably understood the deadline to be 4:30 p.m. In
   support of its position, Labatt relies on FAR sect. 52.212-1(f)(1)
   (incorporated into the RFP here), which provides that "[i]f no time is
   specified in the solicitation, the time for receipt is 4:30 p.m., local
   time, . . . on the date that offers or revisions are due." The protester
   met that deadline, and thus its proposal was not late, Labatt argues. We
   disagree. The FAR clause quoted above also stated that "[o]fferors are
   responsible for submitting offers, and any modifications, revisions, or
   withdrawals, so as to reach the Government office designated in the
   solicitation by the time specified in the solicitation." Solicitation
   at 75. The "time specified in the solicitation," specifically, amendment
   7, was 2:00 p.m., irrespective of what the transmittal e-mail said, and
   the protester failed to meet that deadline.

   The protester argues that, assuming all of the offerors made submissions
   via e-mail, which, as noted above, was not a transmission method permitted
   by the solicitation, the agency was required to reject all of the
   proposals. We disagree. Even where an agency clearly should have amended a
   solicitation or otherwise apprised offerors that it had effectively waived
   a requirement, our Office will not sustain a protest unless the protester
   demonstrates a reasonable possibility that it was prejudiced by the
   agency's actions. 4-D Neuroimaging, B-286155.2; B-286155.3, Oct. 10, 2001,
   2001 CPD para. 183 at 9-10. Here, the agency allowed each of the offerors
   to submit proposals by e-mail, which was not a method permitted by the
   solicitation; the protester, in fact, benefited from the agency's decision
   to relax the transmission method. The protester has not shown how it was
   harmed by the agency's acceptance of the offerors' submissions by e-mail.

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

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   [1] This solicitation has been the subject of previous protests, the
   resolutions of which are not germane to this protest.