Safety and Health Consulting Services, Inc., B-290412, June 10, 2002

Safety and Health Consulting Services, Inc., B-290412, June 10, 2002

DIGEST

Attorneys

DECISION

Safety and Health Consulting Services, Inc. (S&HC) protests the award of a purchase order to Comprehensive Safety Resource, Inc. (CSR) under request for quotations (RFQ) No. DACW87-01-Q-0013, issued by the U.S. Army Engineering and Support Center (CEHNC) to obtain a safety and health-related training course. S&HC argues that the agency improperly lost and thus failed to consider its quotation, and asks that our Office find that the agency should now consider its quotation or, alternatively, grant it its quotation preparation costs and its costs associated with filing and pursuing its protest, including attorney's fees.

We deny the protest and the claim.

The solicitation was issued pursuant to the special test program of section 13.500 of the Federal Acquisition Regulation authorizing the use of simplified acquisition procedures for commercial items. It is undisputed that the agency received S&HC's quotation, consisting of five 3-ring binders, on October 5, 2001, well in advance of the January 3, 2002 deadline for receipt of quotations. The quotation was signed for by a contractor employee in the mailroom and then by the
contract specialist identified in the RFQ as the point of contact for
solicitation information. This contract specialist left the agency's
employment later that same month.

On December 18, the husband of SH&C's president sent the contracting
officer an e-mail message indicating that his e-mail messages to the
contract specialist were being returned as undelivered, and asking if
award had been made. He did not identify himself as representing
SH&C. There was apparently no response to this inquiry. On December
31, SH&C's president sent an e-mail message to the contracting officer
asking if award had been made and was informed that no award had been
made. /1/

On January 23, 2002, the contracting officer issued CSR a purchase
order for the base year of the requirements. When SH&C learned that
award had been made, it requested information on the pricing and for
an explanation as to how its quotation had been rated technically as
compared with that of the awardee. On March 12, the agency informed
SH&C that its quotation had not been evaluated because it was lost
within the agency. The agency confirmed that it had been received and
signed for, but that a thorough search of the workspace occupied by
the former contract specialist, the area where proposals are usually
stored for safekeeping, as well as other potential places, failed to
locate the quotation.

The agency acknowledges that it lost SH&C's quotation but argues that,
under our decisions, SH&C is not entitled to have its quotation now
evaluated or to recover its claimed costs. We agree.

It is true that agencies have a fundamental obligation to have
procedures not only to receive offers and quotations, but also to
reasonably safeguard those actually received and to give them fair
consideration. East West Research Inc., B-239565, B-239566, Aug. 21,
1990, 90-2 CPD Para. 147 at 4, aff'd, Defense Logistics
Agency--Recon., B-239565.2, B-239566.2, Mar. 19, 1991, 91-1 CPD
Para. 298 at 2-3. However, we recognize that, even with appropriate
procedures in place, an agency occasionally will lose or misplace an
offer or quotation. While this is unfortunate and agencies must have
procedures to minimize the possibility of loss, the occasional
negligent loss of an offer or quotation by an agency does not entitle
the firm submitting it to any relief. Interstate Diesel Serv., Inc.,
B-244842.2, Sept. 27, 1991, 91-2 CPD Para. 304 at 2; see also Advanced
Seal Tech., Inc., B-280980, Dec. 14, 1998, 98-2 CPD Para. 144 at 3.

Here, SH&C does not allege that the agency deliberately lost its
quotation or has a history or pattern of losing quotations (or
offers), apart from the quotation here. Further, it is clear from the
record that the agency had adequate procedures in place for receiving
and handling quotations. With respect to handling quotations, the
agency's procedure is to store them in the official contract files
area and to account for and track each copy in the official contract
file. The procedure further provides that each time a person removes
one from the official contract file, the person must sign the logbook.
Huntsville Division Acquisition Instruction 15.4, Para. 4
(Sept. 1989). In this case, the agency has no record that the
quotation was stored in or delivered to the contract files area.
Contracting Officer's Supplemental Statement Para. 5. The protester
is apparently correct that the procedures were not followed in this
case, and that they could be improved upon, but there is no evidence
that the loss of SH&C's quotation is anything more than an isolated
and unfortunate incident of negligence on the agency's part.

Where an agency has lost a quotation received before the submission
deadline owing to mere negligence, an offeror is not permitted to
submit a duplicate quote to show its price after the other prices have
been exposed. Isidor Stern Enters. Corp., B-243265, July 17, 1991,
91-2 CPD Para. 65 at 2-3. Displacing an otherwise successful offeror
on the basis of a quote provided after the revelation of prices is
generally inconsistent with maintaining the integrity of the
competitive system. Id.

Concerning SH&C's claim for quote preparation and protest costs, our
Bid Protest Regulations provide for the award of such costs where our
Office determines that a solicitation, proposed award, or award "does
not comply with statute or regulation." 4 C.F.R. Sec. 21.8(d) (2002).
The sole basis for S&HC's claim for costs is the fact that its quote
was negligently lost by the agency. However, mere negligence or lack
of due diligence on the part of an agency, standing alone, does not
rise to the level of arbitrary or capricious action which provides a
basis for the recovery of bid preparation or protest costs.
Interstate Diesel Serv., Inc., B-229622, Mar. 9, 1988, 88-1 CPD
Para. 244 at 3.

The protest and the claim are denied.

Anthony H. Gamboa
General Counsel

1. We do not agree with SH&C that the agency's failure to ensure that the contract specialist's e-mail messages were forwarded to another responsible person contributed to the agency's failure to realize that SH&C's quotation had been lost. We see nothing in their content that would have caused the agency to discover that the quotation had been lost.