Matter of: RMS Industries File: B-247738 Date: July 6, 1992
B-247738: Jul 6, 1992
PROCUREMENT Small Purchase Method Quotations Submission methods Facsimile Burden of proof Protest that agency lost and thus failed to consider quotation allegedly transmitted by telefacsimile machine is denied where agency has procedures reasonably calculated to record incoming telefacsimile quotations. That it should have been awarded the purchase order. Which is responsible for the receipt of telefacsimile transmissions. The director states that telefacsimile transmissions are: (1) received through the agency's telefacsimile machine located in the mailroom. The logs are maintained by three clerks and are stored in a file cabinet in the mailroom. The day RMS claims to have transmitted its quote.
Matter of: RMS Industries File: B-247738 Date: July 6, 1992
PROCUREMENT Small Purchase Method Quotations Submission methods Facsimile Burden of proof Protest that agency lost and thus failed to consider quotation allegedly transmitted by telefacsimile machine is denied where agency has procedures reasonably calculated to record incoming telefacsimile quotations, agency denies receipt of the transmission, and the record contains no independent evidence outside of the protester's control of transmission or receipt of quotation by the agency.
RMS Industries protests the award of a purchase order to L&M Welding Supply, Inc. under request for quotations (RFQ) No. DLA 770-91-Q-CT23, issued by the Defense Logistics Agency, Defense Construction Supply Center (DCSC) in Columbus, Ohio under small purchase procedures for 80 regulating valves. RMS alleges that DCSC lost the firm's lower priced quotation.
We deny the protest.
DCSC reports that, as of the RFP's August 31, 1991 closing date, it received 10 quotations, including one from L&M; it did not receive a quotation from RMS. L&M quoted the low unit price of $78.90 ($6,312 for the total order). Upon learning of the award to L&M and the award price, RMS filed this protest with our Office.
RMS claims that it submitted a quotation of $74.95 per unit ($5,996 total) prior to the closing date, and that it should have been awarded the purchase order. According to the protester, on August 7, 1991, at 8:10 a.m., it transmitted to the contracting officer a 3-page alternate item price quotation via telefacsimile machine. As support for its contention that the agency received the quotation at that time, RMS has produced two documents: (1) a copy of RMS' telefacsimile machine's transmission report, which indicates a transmission of 3 pages to DCSC in Columbus on August 7 at 8:10 a.m., and (2) a copy of RMS' telefacsimile machine's quick dial list, which shows the telefacsimile number for DCSC in Columbus. RMS speculates that DCSC received the firm's quotation, but lost it due to a lack of proper document management.
DCSC denies receipt of RMS' quotation and maintains that it has proper procedures in place for receipt of telefacsimile transmissions. The agency has submitted a sworn declaration from the director of the procurement mailroom, which is responsible for the receipt of telefacsimile transmissions. The director states that telefacsimile transmissions are: (1) received through the agency's telefacsimile machine located in the mailroom; (2) recorded by time and date on two handwritten logs--one for messages addressed to the bid opening room and the other for messages addressed to employees--each of which identifies messages by consecutive number; and (3) placed in one of two manila folders corresponding to the two logs, with the bid opening room folder being hand-carried to the bid opening room twice a day.  According to the director, the logs are maintained by three clerks and are stored in a file cabinet in the mailroom. DCSC has provided copies of the log sheets from both logs for August 7, 1991, the day RMS claims to have transmitted its quote; neither log shows receipt of a transmission from RMS or its representative, Mr. Richard Snyder, or any gap in the sequential numbering of messages on August 7.
Offerors and quoters have a duty to see that their offers and quotes, and any modifications to them, reach the designated government office on time. Federal Acquisition Regulation Sec. 15.412(b); see Southern CAD/CAM, 71 Comp.Gen. 78 (1991), 91-2 CPD Para. 453. In particular, offerors and quoters using telefacsimile transmission to file documents assume the risk of nonreceipt. Id.; see, e.g., Comspace Corp., B-243166.2, June 27, 1991, 91-1 CPD Para. 610. Contracting agencies, on the other hand, are required to have procedures in place to receive quotations, to reasonably safeguard the quotations received, and to give them fair consideration. East West Research, Inc., B-239565 et al., Aug. 21, 1990, 90-2 CPD Para. 147; aff'd, Defense Logistics Agency--Recon., B-239565.2 et al., Mar. 19, 1991, 91-1 CPD Para. 298. Even with appropriate procedures in place, however, an agency occasionally will lose or misplace an offer or quotation, especially when the procuring activity is responsible for a high volume of small purchase buys. Id. Such occasional negligent loss of an offer or quotation does not entitle the supplier to relief. See Interstate Diesel Serv., Inc., B-244842.2, Sept. 27, 1991, 91-2 CPD Para. 304; Rodeo Road Equip., Inc., B-242093, Mar. 7, 1991, 91-1 CPD Para. 256.
We find that the record does not establish receipt of RMS' quotation by DCSC. We do not consider a transmission record which is in the protester's control, as here, to be definitive evidence of a transmission, since it can be created or altered to support the protester's contentions. See Southern CAD/CAM, supra. RMS has not submitted or cited any other evidence outside of its control, such as a telephone bill, which indicates that a quotation may have been transmitted to DCSC. Moreover, even evidence of a telefacsimile transmission does not establish receipt where contracting officials deny receipt and there is no other conclusive contemporaneous evidence of receipt. Id. Here, the sequentially numbered agency logs of messages contain no indication of the receipt of any transmission from RMS or its representative, Mr. Richard Snyder. Nor does the record include any other independent evidence documenting receipt of the firm's quotation. Consequently, we have no basis to find that RMS' quotation was in fact received.
RMS complains that DCSC has had a pattern of losing quotations submitted by Mr. Snyder, RMS' representative, during his previous affiliation with another firm, East West Research, Inc. (East West). Our Office previously sustained a protest by East West, where in a period of less than 1 week DCSC received but lost two quotations submitted by Mr. Snyder on behalf of the firm. See East West Research, Inc., supra. In that case, we determined that because DCSC's telefacsimile logs showed receipt of the quotations, and the agency failed to establish that it maintained reasonable procedures for document handling after receipt, the unexplained subsequent loss of the quotations indicated that the agency had failed to reasonably safeguard the quotations and thus had breached its duty under CICA to promote competition to the maximum extent practicable. See Defense Logistics Agency--Recon., supra.
Here, in contrast, the agency maintains adequate procedures reasonably calculated to record incoming telefacsimile quotations and offers; there is no independent evidence outside of the protester's control to establish transmission; and there is no evidence to establish receipt by the agency of RMS' quotation. Further, the circumstances in this case give no indication of any specific agency intent to exclude the firm from the competition. Consequently, we have no basis to question the award to L&M. See Interstate Diesel Serv., Inc., supra.
The protest is denied.
1. The log for messages addressed to the bid opening room designates messages by consecutive number starting when the telefacsimile machine was placed in operation, while the log for messages addressed to employees designates messages by consecutive number starting with "1" each day.