Associated Fabricators & Constructors, Inc.

B-405872: Dec 14, 2011

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Ralph O. White
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Associated Fabricators & Constructors, Inc. (AFC), of Rogersville, Alabama, protests the rejection of its proposal as late under request for proposals (RFP) No. IS-0025-11, issued by the Department of Justice, Federal Bureau of Prisons, Federal Prison Industries (FPI), for the installation of a heating, ventilation, and air conditioning system at the Federal Correctional Institution in Talladega, Alabama. AFC argues that the rejection of its proposal as untimely was improper.

We deny the protest.

B-405872, Associated Fabricators & Constructors, Inc., December 14, 2011

Decision

Matter of:Associated Fabricators & Constructors, Inc.

File:B-405872

Date:December 14, 2011

GregSchrimsher for the protester.
William D. Robinson, Esq., Department of Justice, Federal Bureau of Prisons, forthe agency.
Louis A. Chiarella, Esq., and David A. Ashen, Esq., Office of theGeneral Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protestthat agency improperly rejected the protester's proposal as late is deniedwhere the record confirms that the proposal was received by e-mail after theclosing time for receipt of proposals, and the agency properly determined thatno exception would permit evaluation of the lateproposal.

DECISION

Associated Fabricators & Constructors, Inc. (AFC), of Rogersville, Alabama, protests the rejection of its proposal as late under request for proposals (RFP) No. IS-0025-11, issued by the Department of Justice, Federal Bureau of Prisons, Federal Prison Industries (FPI), for the installation of a heating, ventilation, and air conditioning system at the Federal Correctional Institution in Talladega, Alabama. AFC argues that the rejection of its proposal as untimely was improper.

We deny the protest.

TheRFP, issued on September 1, 2011, established a closing date and time of September23, at 2:00 pm local time.[1]RFP at 1.The solicitation further informed offerorsthat they were to submit their proposals either by electronic mail, handdelivery, or mailed delivery to the FPI contracting officer, located inMinersville, Pennsylvania.Id. at 21.TheRFP also included Federal Acquisition Regulation (FAR) clause sect. 52.212.1,Instructions to Offerors--Commercial Items, which in relevant part provides:

(b)Submission ofoffers.Submit signed and dated offersto the office specified in this solicitation at or before the exact timespecified in this solicitation.Offersmay be submitted on the [Standard Form] 1449, letterhead stationery, or asotherwise specified in the solicitation.
* * * * *
(f)Late submissions,modifications, revisions, and withdrawals of offers.(1) Offerors are responsible forsubmitting offers, and any modifications, revisions, or withdrawals, so as toreach the Government office designated in the solicitation by the time specifiedin the solicitation.[2]

AFCfirst attempted to submit its proposal electronically to the designated FPI contractingofficial on September 23 at 1:58 pm central time (or 2:58 pm easterntime).Protest at 1.AFC subsequently learned that this email hadnot been successfully delivered.SeeAgency Report (AR), Tab 3, Email from AFC to FPI, Sept. 23, 2011 (4:00 pm).The contracting officer then received anemail with AFC's proposal at 4:21 pm eastern time.Id., Tab 4, AFC Email to FPI, Sept.23, 2011 (4:21 pm).FPI notified AFCon September 28 that its proposal had been received late and would not beconsidered further for award.Protest,attach. C, FPI Late Proposal Notification Letter, Sept. 28, 2011.AFC then filed this protest with our Office.

AFC does not dispute that the FPI official designated forreceipt of proposals was located in the eastern timezone.Nor does AFC dispute that itsproposal was first received by FPI after 2:00 pm eastern time on September 23.The protester nevertheless contends that itsproposal was not late and should not have been rejected as untimely because itmet the RFP requirements, as AFC understood them.In support of its position AFC argues that: (1) it first sent its proposal by 2:00 pmcentral time; and (2) it believed the closing time was 2:00 pm central timebecause contract performance was to occur in the central time zone.The protester also essentially maintains thatthe timeliness of its proposal should be measured by when AFC submitted itsproposal, rather than when the designated contracting official received it.We disagree.

It is an offeror's responsibility to deliver its proposalto the proper place at the proper time.FAR sect. 15.208(a) (offerors are responsible for submitting proposals so asto reach the designated government office by the specified time); PMTech,Inc., B-291082, Oct. 11, 2002, 2002 CPD para. 172 at 2; Integrated Support Sys. inc, B-283137.2, Sept. 10, 1999, 99-2 CPD para. 51 at2.Similarly, it is an offeror'sresponsibility, when transmitting its proposal electronically, to ensure theproposal's timely delivery by transmitting the proposal sufficiently in advanceof the time set for receipt of proposals to allow for timely receipt by theagency.PMTech,Inc., supra.Proposalsthat are received in the designated government office after the exact timespecified are "late," and generally may not be considered for award.[3]While the rule may seem harsh, it alleviatesconfusion, ensures equal treatment of all offerors, and prevents one offerorfrom obtaining a competitive advantage that may accrue where an offeror ispermitted to submit a proposal later than the common deadline set for allcompetitors.InlandServ. Corp., Inc., B-252947.4, Nov. 4, 1993, 93-2 CPD para. 266 at 3.

Here, the RFPestablished a closing date and time of 2:00 pm eastern time on September 23.The solicitation also informed prospectiveofferors in unambiguous terms that the controlling event was the agency'sreceipt--as opposed to an offeror's submission--of proposals by the due dateand time.However, the record reflectsthat the FPI contracting officer did not receive AFC's proposal until 4:21 pmeastern time, well after both 2:00 pm eastern time and 2:00 pm central time.In sum, the fact that AFC believed that ithad sent its proposal in advance of the designated closing time is not determinativeof the proposal's timeliness.

Lastly, although AFCdoes not dispute that the RFP twice expressly stated that the time for receipt ofproposals was 2:00 pm eastern time, AFC argues that the language on theStandard Form 1449 ("OFFER DUE DT/LOCAL TIME, 9/23/2011 2:00 PM") wasambiguous.Comments, Oct. 18, 2011, at1-2.To the extent there was anyambiguity in the RFP regarding the closing time, we find that AFC was requiredto protest this apparent solicitation defect prior to the time for receipt ofinitial proposals.4 C.F.R.sect. 21.2(a)(1) (2011); see Sea Box, Inc., B-401523,B-401523.2, Sept. 25, 2009, 2009 CPD para. 190 at 4 (conflict regardingsolicitation closing date constituted a patent ambiguity that was readilyapparent prior to the time set for receipt of submissions).

In sum, since AFC's electronicallytransmitted proposal was not received until 4:21 pm eastern time, afterthe time set for receipt of proposals, it is a late proposal.Further, since it was not received at theinitial point of entry by 5:00 pm the day before proposals were due, the lateproposal cannot be accepted.FARsect. 52.212-1(f)(2)(i)(A); Sea Box,Inc., B-291056, supra, at 4.

The protest is denied.

Lynn H. Gibson
General Counsel



[1]In two other locations, however, the solicitation specified that the date andtime for receipt of proposals was September 23, at 2:00 pm eastern time.RFP at 2, 21.

[2]The RFP also contained FAR clause 52.215-1, Instructions to Offerors--CompetitiveAcquisition, which has similar language regarding the submission ofproposals.Id.at 18 (FAR clause 52.215-1).

[3]In this regard, FAR sect. 52.212-1(f)(2)(i)(A) providesthat a late proposal submitted via electronic means is late and will not beconsidered unless accepting the late offer would not unduly delay theacquisition, it was received before award is made, and it was received at theinitial point of entry to the Government infrastructure not later than 5:00 pm oneworking day prior to the date specified for receipt of proposals.FAR sect. 52.212-1(f)(2)(i)(A);see Urban Title, LLC, Jan. 7, 2009, 2009 CPD para. 31 at 3; SeaBox, Inc., B-291056, Oct. 31, 2002, 2002 CPD para. 181 at 3.This exception does not apply here, as AFC'sproposal was not submitted by 5:00 pm on September 22, the day prior to theestablished closing date.

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