Performance Construction, Inc., B-286192, October 30, 2000

B-286192 Oct 30, 2000 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Where the solicitation materials were available only on the Internet. Protest that the late delivery of the protester's proposal was caused by the unavailability of the agency's website on the date set for receipt of proposals and by the agency's refusal to delay the proposal closing date is denied. Where the protester's failure to make reasonable efforts to promptly obtain the solicitation materials was the paramount cause of the late delivery and the reason that the protester allegedly had insufficient time to prepare its proposal. Performance contends that the late delivery of its proposal was caused by the inaccessibility of the Navy's Internet site. On the proposal closing date and the Navy's refusal to delay proposal closing when the agency was apprised of the inaccessibility of the Internet site. View Decision Matter of: Performance Construction, Inc. File: B-286192 Date: October 30, 2000 DIGEST Attorneys DECISION Performance Construction, Inc. protests the rejection of its proposal as late under request for proposals (RFP) No. N44255-00-R-2485, issued by the Naval Facilities Engineering Command on the Internet, for the renovation of family housing at the Keyport Naval Undersea Warfare Center, Washington. Performance contends that the late delivery of its proposal was caused by the inaccessibility of the Navy's Internet site--the only official source for the RFP and its amendments--on the proposal closing date and the Navy's refusal to delay proposal closing when the agency was apprised of the inaccessibility of the Internet site. We deny the protest. The RFP was issued on the Internet on May 31, 2000, in accordance with Federal Acquisition Regulation (FAR) Sec. 5.102(a)(7), which provides that "[i]f electronic commerce is employed in the solicitation process, availability of the solicititation may be limited to the electronic medium." Offerors were informed that the solicitation, amendments, plans and specifications would be available only through the Internet and that "hard copies (paper) or CD-ROM" would not be provided. . Offerors were also invited, but were not required, to register for the solicitation at the website; registered offerors were advised that courtesy e-mails would notify registered firms of solicitation amendments posted to the Internet. /1/ Offerors were also cautioned that it was the offeror's responsibility to check the website daily for amendments or other notices. The RFP included the standard "Instructions to Offerors--Competitive Acquisition" clause, FAR Sec. 52.215-1, which provides, in pertinent part, that late proposals would not be considered for award. The RFP was amended six times before the revised time set for receipt of proposals (2 p.m., local time, July 28). Of particular relevance here, amendment No. 6, issued July 18, 10 days before the revised proposal closing date, made several material changes to the solicitation, including the scope of work to be performed. Performance states that, on July 28, its president and job site office manager spoke with the Navy's contract specialist for this solicitation and informed her that the Internet site was inaccessible and therefore Performance could not timely obtain amendment No. 6, which left Performance with insufficient time to prepare its proposal. Protest at 2; Comments at 1; Affidavit of Protester's President. The time for delivery of proposals was not extended, and Performance hand-delivered its proposal on July 28, at 2:53 pm, after the time set for receipt of prosposals. The Navy rejected Performance's proposal as late. The Navy received seven other proposals by the closing time for receipt of proposals. The protester complains that the Navy should have excused Performance's late delivery of its proposal because of the alleged inaccessability of the Navy's website on the proposal closing date. /2/ Performance asserts that the inaccessibility of the website on July 28 left the protester with insufficient time to obtain amendment No. 6 to change the content of its proposal and to acknowledge. Performance also contends that the Navy should have extended the closing time for receipt of proposals when the agency learned that Performance was having problems accessing the website. The Navy responds that its actions were not the paramount cause of Performance's late delivery of its proposal, but that Performance's failure to attempt to obtain the solicitation amendment until the date set for receipt of proposals was the primary cause of the late delivery. The Navy provided statements from its contract specialist and Internet system administrator, which show that Performance did not register for this solicitation and thus was not e-mailed notices of solicitation amendments, and that the website was operating throughout the period of July 18-28 and was "not down" on July 28.