Cyber Digital, Inc.

B-270107 Jan 24, 1996 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights A firm protested a Defense Logistics Agency (DLA) contract award for telephone systems, contending that: (1) DLA improperly rejected its bid as late, since the bid's late receipt via facsimile was due to government mishandling; (2) DLA improperly evaluated its technical proposal's life-cycle costs; (3) the awardee's bid was materially unbalanced; and (4) DLA improperly evaluated the awardee's past performance. GAO held that: (1) DLA properly rejected the protester's bid as late, since the protester failed to allow reasonable time for the facsimile transmission; (2) DLA would not consider the protester's partial bid, since the timely portion of its bid did not bind it to contract; (3) DLA properly evaluated and eliminated the protester's bid based on its poor past performance; and (4) the protester was not sufficiently interested to pursue the remainder of its protest, since it would not be in line for award even if its protest were sustained. Accordingly, the protest was denied in part and dismissed in part. View Decision Matter of: Cyber Digital, Inc. File: B-270107 Date: January 24, 1996 Agency properly rejected facsimile best and final offer as late where offeror failed to allow a reasonable time for timely receipt by the agency. Where entire best and final offer (BAFO) was not received until after announced deadline, agency was not required to consider that portion of the BAFO received before the deadline (8 of 19 total pages) since it did not constitute the entire offer and did not convey protester's full commitment to the solicitation's requirements. Where agency properly eliminated protester from further consideration due to negative past performance record, protester is not an interested party to challenge agency's evaluation of its initial price proposal. Protest that awardee's prices are materially unbalanced is dismissed where even if this protest ground were sustained, another offeror would be in line for award instead of the protester. Attorneys DECISION Cyber Digital, Inc. protests the award of a contract to GTE Government Systems Corporation under request for proposals (RFP) No. SP4700-95-R-0006, issued by the Defense Logistics Agency (DLA) for the installation and maintenance of a telephone system to serve four Defense Contract Management Offices located in the states of Florida, Georgia, and Alabama. Cyber Digital contends that DLA improperly rejected its best and final offer (BAFO) as late, and that the agency misevaluated its initial price proposal. Cyber Digital also contends that GTE's proposed pricing is materially unbalanced. We deny the protest in part and dismiss it in part. The RFP was issued on March 27, 1995, and contemplated the award of a 9-year, fixed-price, indefinite quantity/indefinite delivery contract to the offeror whose technically acceptable offer represented the "best value" to the government, using the evaluation factors of past performance and price. In addition to technical proposals, offerors were required to submit the RFP's fixed pricing schedule as well as the RFP's "Pricing Questionnaire," which required "simple" or "compounded" escalation rates for each of the required services associated with this contract. Offerors were also required to submit a "Performance Proposal" providing references for all contracts awarded within the last 5 years, and detailing similar past experience, which the agency would use in evaluating each offeror's past performance. The RFP also provided that a life-cycle evaluation of each offeror's proposed prices would be performed. By the May 11 closing date, three offers were received, from The American Telephone Company, Cyber Digital, and GTE. For the next several months, numerous technical and pricing clarification requests were issued by the agency to each offeror. On September 11, based on the offerors' responses to the clarification requests, the contracting officer established a competitive range which included all three offers. On September 14, oral discussions were conducted with each offeror. Of significance to this protest, during discussions with the protester, DLA advised Cyber Digital that the three references listed in its performance proposal had advised the contracting officer that because of problems with Cyber Digital's performance, none would award another contract to the firm. The agency gave a written summary of the references' remarks to Cyber Digital and advised the firm that it should address these negative remarks in its BAFO. By amendment dated September 18, the agency requested that each offeror submit its BAFO by 4 p.m. on September 21. The RFP authorized the submission of facsimile BAFOs. On September 21, at 3:30 p.m., Cyber Digital contacted the contracting officer and requested a BAFO extension, which was denied.