B-209154, OCT 13, 1982

B-209154, OCT 13, 1982

DIGEST: 1. AN AGENCY MAY CONSIDER A PROPOSAL SUBMITTED AFTER THE DATE SPECIFIED IN THE RFP ONLY IF ONE OF THE EXCEPTIONS TO THE RULE AGAINST CONSIDERING LATE PROPOSALS APPLIES. 2. PROCURING ACTIVITY IS NOT THE INSURER OF DELIVERY OF SOLICITATION DOCUMENTS TO PROSPECTIVE OFFERORS, WHO THEREFORE BEAR THE RISK OF NONRECEIPT. 3. THE PROPRIETY OF AN AWARD IS DETERMINED ON THE BASIS OF WHETHER ADEQUATE COMPETITION AND REASONABLE PRICES WERE OBTAINED AND WHETHER THERE WAS A DELIBERATE EFFORT TO PRECLUDE A POTENTIAL OFFEROR FROM COMPETING, NOT WHETHER EVERY PROSPECTIVE OFFEROR WAS AFFORDED AN OPPORTUNITY TO SUBMIT A PROPOSAL.

HARRIS CORPORATION, PRD ELECTRONICS DIVISION:

HARRIS CORPORATION, PRD ELECTRONICS DIVISION, PROTESTS THAT IT DID NOT RECEIVE A COPY OF NAVY REQUEST FOR PROPOSALS (RFP) N00140-82-A-C990 FOR CONTRACT FIELD SERVICES BEFORE PROPOSALS WERE DUE, AND REQUESTS THE OPPORTUNITY TO COMPETE FOR THE CONTRACT BY SUBMITTING AN OFFER AT THIS TIME. WE SUMMARILY DENY THE PROTEST.

PROPOSALS WERE DUE ON AUGUST 25, 1982. ON SEPTEMBER 2, HARRIS COMPLAINED TO THE CONTRACTING OFFICER THAT IT HAD NOT BEEN INFORMED OF THE PROCUREMENT, AND REQUESTED BOTH A COPY OF THE RFP AND THE OPPORTUNITY TO SUBMIT AN OFFER. THE CONTRACTING OFFICER RESPONDED THAT, ACCORDING TO THE NAVY'S RECORDS, A COPY OF THE RFP HAD BEEN SENT TO HARRIS. THE CONTRACTING OFFICER ALSO ADVISED THE FIRM THAT THE LATE PROPOSAL RULES PRECLUDED ACCEPTANCE OF AN OFFER AFTER THE DATE INITIAL PROPOSALS WERE DUE. HARRIS PROTESTS THAT IT NONETHELESS WOULD BE IN THE GOVERNMENT'S INTEREST TO CONSIDER A PROPOSAL FROM THE FIRM.

AN AGENCY MAY CONSIDER A PROPOSAL THAT IS RECEIVED AFTER THE DATE REQUIRED IN THE SOLICITATION ONLY IF ONE OF THE EXCEPTIONS TO THE RULE AGAINST CONSIDERING LATE PROPOSALS APPLIES. PAULMAR, INC., B-207321, MAY 27, 1982, 82-1 CPD 503. THESE EXCEPTIONS DO NOT CONTEMPLATE THE SUBMISSION OF A PROPOSAL AFTER THE FIELD OF COMPETITION HAS BEEN DEFINED AS OF THE SPECIFIED DUE DATE. SEE DEFENSE ACQUISITION REGULATION SEC. 7- 2002.4 (1976 ED.). SINCE HARRIS'S SITUATION DOES NOT FIT WITHIN AN EXCEPTION TO THE LATE PROPOSAL RULE, THE FIRM CANNOT BE PERMITTED TO SUBMIT AN OFFER UNDER THIS RFP. THE FACT THAT HARRIS NEVER RECEIVED THE COPY OF THE RFP THAT THE NAVY ASSERTS IT SENT TO THE FIRM IS IRRELEVANT IN THIS RESPECT, SINCE THE PROCURING ACTIVITY IS NOT AN INSURER OF THE DELIVERY OF SOLICITATION DOCUMENTS TO PROSPECTIVE OFFERORS, AND THOSE FIRMS THEREFORE BEAR THE RISK OF NONRECEIPT. SEE VERSAILLES MAINTENANCE CONTRACTORS, INC., B-203324, OCTOBER 19, 1981, 81-2 CPD 314.

AS TO THE EFFECT ON THE PROSPECTIVE CONTRACT AWARD OF HARRIS'S FAILURE TO BE INCLUDED IN THE COMPETITION, THE PROPRIETY OF AN AWARD IS DETERMINED ON THE BASIS OF WHETHER ADEQUATE COMPETITION AND REASONABLE PRICES ARE OBTAINED AND WHETHER THERE WAS A CONSCIOUS EFFORT TO EXCLUDE A FIRM FROM PARTICIPATING, NOT WHETHER EVERY PROSPECTIVE OFFEROR IS AFFORDED AN OPPORTUNITY TO SUBMIT A PROPOSAL. SEE SECURITY ASSISTANCE FORCES & EQUIPMENT OHG, B-201839, DECEMBER 31, 1981, 81-2 CPD 516. THE NAVY INFORMALLY ADVISES THAT THE PROCUREMENT WAS SYNOPSIZED IN THE COMMERCE BUSINESS DAILY ALMOST ONE MONTH BEFORE OFFERS WERE DUE, AND THAT OFFERS WERE SOLICITED FROM 33 FIRMS. THE NAVY ALSO ADVISES THAT AN ADEQUATE NUMBER OF PROPOSALS HAVE BEEN RECEIVED IN RESPONSE TO THE RFP, AND THAT FAIR AND REASONABLE PRICES HAVE BEEN OFFERED. MOREOVER, THERE IS NO EVIDENCE OF A CONSCIOUS EFFORT BY THE NAVY TO PRECLUDE THE PROTESTER FROM COMPETING FOR THE CONTRACT.

UNDER THE CIRCUMSTANCES, OUR OFFICE HAS NO BASIS TO OBJECT TO AN AWARD UNDER THE RFP SIMPLY BECAUSE HARRIS DID NOT SUBMIT A PROPOSAL. ONTARIO KNIFE COMPANY, B-205142, FEBRUARY 10, 1982, 82-1 CPD 125.

THE PROTEST IS SUMMARILY DENIED.