B-219357, JUN 17, 1985, 85-1 CPD 695

B-219357, JUN 17, 1985, 85-1 CPD 695

CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - TIMELINESS OF PROTEST - SOLICITATION IMPROPRIETIES - APPARENT PRIOR TO BID OPENING/CLOSING DATE FOR PROPOSALS DIGEST: 1. TO BE CONSIDERED TIMELY, A PROTEST BASED ON ALLEGED IMPROPRIETIES IN AN RFP WHICH ARE APPARENT PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS MUST BE FILED PRIOR TO THAT DATE. CONTRACTS - NEGOTIATION - LATE PROPOSALS AND QUOTATIONS - REJECTION PROPRIETY 2. INFORMATION CONCERNING AN OFFEROR'S RESPONSIBILITY HAS NO BEARING ON THE APPLICATION OF A SOLICITATION'S LATE PROPOSAL RULES.

MURATA BUSINESS SYSTEMS, INC.:

MURATA BUSINESS SYSTEMS, INC. (MURATA), PROTESTS THE OFFICE OF INFORMATION RESOURCES, GENERAL SERVICES ADMINISTRATION (GSA), REFUSAL TO ACCEPT MURATA'S LATE PROPOSAL SUBMITTED IN RESPONSE TO REQUEST FOR PROPOSALS (RFP) NO. GSC-KESCV-00034-N-5-15-85.

THE RFP SOLICITED PROPOSALS FOR A MULTIPLE-AWARD SCHEDULE CONTRACT TO SUPPLY CERTAIN COMMUNICATIONS EQUIPMENT. THE RFP CONTAINED THE STANDARD LATE PROPOSAL CLAUSE WHICH PROVIDES THAT ANY PROPOSAL OR MODIFICATION RECEIVED AFTER THE EXACT TIME SPECIFIED IN THE REQUEST FOR PROPOSALS WILL NOT BE CONSIDERED EXCEPT UNDER CERTAIN CIRCUMSTANCES NOT PRESENT HERE.

WE DISMISS THE PROTEST.

MURATA ADMITS THAT ITS HAND-CARRIED PROPOSAL WAS DELIVERED LATE AND THAT THE CONTRACTING OFFICER IN REFUSING TO CONSIDER MURATA'S OFFER WAS ACTING IN COMPLIANCE WITH THE RFP'S LATE PROPOSAL PROVISIONS. HOWEVER, MURATA ARGUES THAT DUE TO THE UNIQUE NATURE OF MULTIPLE-AWARD SCHEDULE CONTRACTS (WHERE OFFEROR'S MERELY SUBMIT PROPOSAL TO BE INCLUDED ON SCHEDULES RATHER THAN FOR THE AWARD OF A SPECIFIED PRODUCT), ACCEPTANCE OF A LATE PROPOSAL WOULD NOT BE PREJUDICIAL TO OTHER OFFERORS. MURATA ALSO ARGUES THAT THE FACT THAT OFFERORS ARE PERMITTED TO "MODIFY THEIR PROPOSALS" AFTER THE CLOSING DATE BY SUBMITTING INFORMATION CONCERNING THEIR FINANCIAL STATUS ESTABLISHES THAT THE LATE PROPOSAL SOLICITATION PROVISIONS ARE NOT STRICTLY ENFORCED AND, THUS, SHOULD NOT BE USED AS A BASIS BY WHICH TO EXCLUDE LATE PROPOSALS FROM CONSIDERATION.

ANY PROBLEM A PARTY HAS WITH THE APPLICATION OF THE STANDARD LATE PROPOSAL RULES CONTAINED IN SOLICITATIONS FOR MULTIPLE-AWARD CONTRACTS SHOULD BE BROUGHT TO THE AGENCY'S ATTENTION PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS. SEE THE 3M COMPANY, B-206317, FEB. 22, 1982, 82-1 CPD PARA. 158. THIS IS SO BECAUSE OUR BID PROTEST REGULATIONS REQUIRE THAT ANY PROTEST BASED UPON IMPROPRIETIES APPARENT IN A SOLICITATION PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS MUST BE FILED BEFORE THE CLOSING DATE. SEE 3M COMPANY, B-206317, SUPRA.

HERE, MURATA DID NOT TIMELY PROTEST THE RFP'S LATE PROPOSAL RULES, AND THOSE RULES APPLY TO THE PROCUREMENT.

FURTHER, CONCERNING MURATA'S ALLEGATION THAT THE LATE PROPOSAL RULES SHOULD NOT BE FOLLOWED BECAUSE AN OFFEROR CAN FURNISH INFORMATION AS TO ITS FINANCIAL STATUS AFTER THE CLOSING DATE, WE POINT OUT THAT EVIDENCE OF AN OFFEROR'S ABILITY TO PERFORM, INCLUDING INFORMATION CONCERNING THAT OFFEROR'S FINANCIAL CAPABILITY TO PERFORM, IS A MATTER OF RESPONSIBILITY. CFE SERVICES, INC.; DEPARTMENT OF THE NAVY-- REQUEST FOR RECONSIDERATION, 64 COMP.GEN. 19 (1984), 84-2 CPD PARA. 459; GUARDIAN SECURITY AGENCY, INC., B-207309, MAY 17, 1982, 82-1 CPD PARA. 471. SUCH INFORMATION MAY BE SUBMITTED AT ANY TIME PRIOR TO AWARD PROVIDED THAT THE INITIAL OFFER HAS BEEN TIMELY RECEIVED. SEE GUARDIAN SECURITY AGENCY, INC., B-207309, SUPRA. THUS, INFORMATION CONCERNING AN OFFEROR'S RESPONSIBILITY HAS NO BEARING ON THE APPLICATION OF A SOLICITATION'S LATE PROPOSAL RULES.