Firebird Analytical Solutions and Technologies

DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective Order. This version has been approved for public release.

Decision

Matter of: Firebird Analytical Solutions and Technologies

File: B-420238

Date: January 10, 2022

DIGEST

Protest challenging agency’s decision not to consider protester’s proposal is denied where the record shows that the proposal, sent by the method for submission of proposals designated by the solicitation, was never received by the agency.

Firebird Analytical Solutions and Technologies (Firebird), a small business located in Arlington, Virginia, protests the issuance of two task orders to Prescient Edge Corporation Solutions, LLC (Prescient Edge), a small business located in McLean, Virginia, by the Department of the Air Force, Special Operations Command, under request for proposal (RFP) No. H92257-21-R-0001, for pre-deployment training program (PTP) support services. Firebird protests the agency’s refusal to consider its proposal submitted in response to the solicitation.

We deny the protest.

BACKGROUND

On April 5, 2021, the agency issued the RFP for a contractor to provide PTP support services, including manpower augmentation and exercise and training event support services. The RFP was issued to 46 small business concerns holding United States Special Operations Command multiple award indefinite-delivery, indefinite-quantity (IDIQ) contracts in accordance with the procedures of Federal Acquisition Regulation subpart 16.5. Contracting Officer’s Statement at 2. The RFP established a proposal due date of no later than 12:00 p.m., Eastern Standard Time[1] on May 5. RFP at 2.[2] As amended, the solicitation provided that offerors could submit questions to the agency at the same agency email addresses specified for receipt of proposals; questions were due no later than 12:00 p.m. on April 13. RFP amend. 2 at 2. Offerors were instructed to email their proposals, not to exceed 10 megabytes (MB), to the contracting officer, [DELETED], at [DELETED] and to the contract specialist, [DELETED], at [DELETED]. Id. Of note, the solicitation anticipated issuance of the task orders by August 1, with a performance start date of September 1. Id.

Relevant to this protest, Firebird’s Director of Contracts sent an email with its attached proposal at 9:10 p.m. on May 4 to [DELETED] and [DELETED]. Protest at 3; Protest attach. C, Decl. of Firebird’s Director of Contracts at 1. The protester states that the total size of its email and attached proposal was 4 MB, below the 10 MB limitation specified in the RFP. Id. In the email, Firebird’s Director of Contracts asked that the agency “acknowledge receipt of this email at your earliest convenience.” Protest attach. A, Email to Agency. Firebird also states that, after sending the email and attached proposal, it received delivery confirmation through its Microsoft Outlook delivery receipt feature. Protest at 3; Amended Protest at 3-4. The Outlook-generated delivery confirmation states:

Delivery to these recipients or groups is complete, but no delivery notification was sent by the destination server: [DELETED] ([DELETED]) [DELETED] ([DELETED]).

Amended Protest at 3-4 (Nov. 3, 2021).

On July 26, the protester emailed the contracting officer with an inquiry regarding the status of the RFP. Protest attach. B, Email to Contracting Officer. The contracting officer did not respond to this email because the agency had not received a proposal from Firebird. Memorandum of Law at 3. On October 1, Firebird again emailed the contracting officer and requested the “status of the subject RFP.” AR exh. 18, Email to Contracting Officer at 2-3.

In response, on October 4, the contracting officer informed Firebird that “11 complete proposals were received and evaluated” and the task orders were issued to Prescient Edge on July 30. AR exh. 18, Email to Firebird at 2; see also, AR exh. 19, Email to Firebird at 3. Additionally, the contracting officer stated the agency “did not receive your proposal email (Sent: Tuesday, May 4, 2021 9:10 PM)” but the agency “did receive subcontractor TCP [total compensation plan] input from 4 companies.” AR exh. 18, Email to Firebird at 1-2. Finally, the contracting officer stated that he would request information technology (IT) “data mining” to find out what happened to Firebird’s May 4 proposal email. Id. at 1.

In a later email that same day, October 4, the contracting officer informed the protester that agency “personnel are completing research (forensics) to determine if/when/where your email (From: [DELETED] Sent: Tuesday, May 4, 2021 9:10 PM) hit government server(s)/IT system.” AR exh. 16, Email to Firebird at 1. The next day, October 5, the contracting officer advised the protester “[n]othing was found/shown on the Government server. Please see the attached server report for May [2021].” AR exh. 19, Email to Firebird at 2-3. The server report indicated that no email, from Firebird’s Director of Contracts, to the cognizant contracting personnel was received on May 4, 2021. Protest attach. D, Server Report.

On October 6, Firebird filed this protest with our Office.[3]

DISCUSSION

In its protest, Firebird alleges that the agency had an obligation to evaluate all proposals received in response to the RFP, including the proposal Firebird submitted. Protest at 4; Comments at 1. The protester claims that while the agency stated that it did not receive a proposal from Firebird, “the facts suggest otherwise.” Protest at 4. First, the protester contends that the agency must have received the May 4 email with the Firebird proposal because the protester has email confirmation of completed delivery prior to the RFP’s May 5 proposal due date. Additionally, the protester points to several emails back and forth with the contracting officer, using the same email address as that used by the protester to send its proposal on May 4, without any issues with delivery. Id.; Protest attach. C, Decl. of Firebird’s Director of Contracts at 1. Finally, the protester claims that after receiving submissions from Firebird’s proposed subcontractors, the agency should have investigated why it did not receive a proposal from Firebird itself. Id.

In response, the agency asserts that it never received the May 4 email with the protester’s proposal. Contracting Officer’s Statement at 4-5; Memorandum of Law at 2-3. The agency also asserts that it did not acknowledge receipt of the proposal email, as requested by the protester in July, because the agency never received the emailed proposal. Id. Although Firebird did not receive the requested acknowledgment when it sent the proposal in May, the agency notes that Firebird did not follow-up with additional emails or telephone calls to the agency to determine receipt of its May 4 proposal email by the May 5 proposal due date. Memorandum of Law at 5.

Additionally, regarding the protester’s assertion that receipt of submissions from subcontractors associated with Firebird required the agency to investigate its failure to receive a proposal from Firebird, the agency notes that the protester provides no legal precedent for such a proposition. Instead, the agency reports that it did not consider the protester’s subcontractors’ submissions because no proposal was ever received from Firebird itself. Id.

Next, the agency disputes the protester’s claim that the Microsoft Outlook delivery confirmation was proof of delivery of Firebird’s proposal to the agency on May 4. The Air Force argues that the Microsoft Outlook message “no delivery notification was sent by the destination server” was an indication that Firebird’s mail server had either attempted unsuccessfully to send the May 4 proposal email, or successfully sent the email but the email did not reach its intended destination, and hence did not get a response from the recipient’s email system. Contracting Officer’s Statement at 5; AR exh. 20, Decl. of Agency’s Network Engineer/Manager at 2. In this regard, the agency’s network engineer/manager and the contracting officer explain that when a commercial email is sent to the Department of Defense (DOD) mail system, the external email is scanned, processed, and forwarded by intermediary servers to the final destination mail server. The agency’s final destination mail server is responsible for directing the email to the recipient’s mailbox and for providing the sender with a confirmation email, commonly known as a delivery receipt. Id. Since the protester did not receive a confirmation email from the agency’s destination server, the agency maintains that Firebird’s May 4 email with the attached proposal was never received.

Additionally, the agency reports that it performed a forensic search of the Marine Forces Special Operations Command server, the Special Operations Command server, and the DOD enterprise email security gateway server, and found no email sent by Firebird’s Director of Contracts was received by the agency on May 4, 2021. Memorandum of Law at 6. In other words, through this extensive search of both the agency’s and DOD servers, no email with Firebird’s proposal, addressed to the contracting officer and to the contract specialist, was received.[4]

As our Office has stated, it is an offeror’s responsibility to deliver its proposal to the proper place at the proper time and the protester has the burden to show that it timely delivered its proposal to the agency at the specified address. ManTech Advanced Sys. Int’l, Inc., B-414985, Oct. 20, 2017, 2017 CPD ¶ 324 at 3; see also, Blue Glacier Mgmt. Group, Inc., B-412897, June 30, 2016, 2016 CPD ¶ 177 at 5; Latvian Connection Trading & Constr., LLC, B-402410, Feb. 25, 2010, 2010 CPD ¶ 58 at 2. An agency is not required to consider a proposal where there is no evidence that the proposal was actually received by the agency. Tele-Consultants, Inc., B-414135, Feb. 27, 2017, 2017 CPD ¶ 132 at 5 (denying protest challenging rejection of protester’s proposal where the record confirmed the agency never received the proposal prior to the closing time for receipt); see also, Federal Acquisition Servs. Team, LLC, B-410466, Dec. 31, 2014, 2015 CPD ¶ 20 at 3 (explaining that “[w]e have consistently declined to require an agency to consider a proposal where, as here, there is no evidence that the proposal was ‘actually received.’”).

Based on the record presented, we conclude that Firebird has not established that its email with the attached proposal was actually received by the agency at the email addresses specified in the solicitation. Rather, as discussed above, Firebird relied, to its detriment, on its Microsoft Outlook May 4 confirmation receipt as proof of delivery even though the confirmation receipt unequivocally stated “no delivery notification was sent by the destination server” for the cognizant contracting personnel. See Amended Protest at 3-4. Additionally, the contemporaneous record here contains no evidence showing that Firebird attempted to confirm receipt of its emailed proposal prior to the RFP’s proposal due date. Where, as here, an emailed proposal never makes it to the agency server, nor the email addresses designated for receipt of proposals, the agency is not required to consider the proposal. See Airrus Mgmt. Sys., LLC, B-416358, August 9, 2018, 2018 CPD ¶ 4 at 7-8 (“Because the record indicates that the e-mails containing Airrus’s first, second, and third attempted submissions were rejected by the agency’s servers and never received at the e-mail addresses designated for receipt of proposals, we agree that the proposal was never actually ‘received’ and thus properly could not be considered.”).

Finally, as the agency correctly notes, Firebird has offered no support for its assertion that the agency was required to further investigate the matter of Firebird’s proposal after the agency received submissions from Firebird’s subcontractors. As the agency explained, absent a proposal submission by Firebird, it did not give the subcontractor submissions further consideration. Because it was Firebird’s responsibility to deliver its proposal to the proper place at the proper time, we have no basis to find the agency’s actions in this regard unreasonable or otherwise contrary to procurement law or regulation. Accordingly, on this record, we find no basis to sustain the protest.

The protest is denied.

Edda Emmanuelli Perez
General Counsel