Telex Communications, Inc., B-287146, April 25, 2001

B-287146 Apr 25, 2001 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights DIGEST Rejection of protester's proposal is unobjectionable where required product sample was received by contracting agency after the time stated in the solicitation. Although the protester argues that the agency failed to properly address the sample request so that the request was allegedly misdirected. Although the text of the protester's proposal was received by the proposal due date. The required product sample was not submitted by the time established in the RFP. Telex contends that actions by the agency were the paramount cause for the late delivery of its product sample. The successful contractors under the RFP will provide various types of hearing aids for all VA medical facilities and other government agencies worldwide. View Decision Matter of: Telex Communications, Inc. File: B-287146 Date: April 25, 2001 DIGEST Attorneys DECISION Telex Communications, Inc. protests the elimination of its proposal under request for proposals (RFP) No. 791-03-00, issued by the Department of Veterans Affairs (VA) to obtain hearing aids. The VA rejected Telex's proposal because, although the text of the protester's proposal was received by the proposal due date, the required product sample was not submitted by the time established in the RFP. Telex contends that actions by the agency were the paramount cause for the late delivery of its product sample. We deny the protest. The RFP, issued on September 18, 2000, provided for the award of multiple indefinite-delivery/indefinite-quantity contracts for a 2-year period. The successful contractors under the RFP will provide various types of hearing aids for all VA medical facilities and other government agencies worldwide. Technical requirements for the hearing aids were stated in the RFP's commercial item description. As amended, the RFP proposal preparation instructions directed offerors to submit their technical, pricing, and customer support data by November 15, the extended closing date for receipt of proposals. As part of the technical proposal submissions, offerors were to submit ordering forms for customer in-the-ear hearing aids to the VA's Audiology and Speech Pathology Service. RFP Sec. E.15.10. The RFP also instructed offerors that they would have to submit a sample hearing aid (i.e., a product sample) for testing to the VA's Audiology and Speech Pathology Service in Washington, DC. RFP Sec. E.15.10. Specifically, the solicitation provided, in relevant part, as follows: The Audiology and Speech Pathology Service shall provide to the offerors the order forms using the audiological data, shown in Table II, and Knowles Electronics Manikin for Acoustic Research (KEMAR) ear impressions for fabrication of hearing aids. Offerors shall provide a hearing aid sample as follows: A low profile [in-the-ear] hearing aid built for the hearing loss provided in Table II. Offerors shall submit the sample described above with an Attachment A, within 10 days after receipt of the audiological data and KEMAR ear impression. RFP Sec. E.15.11. The RFP further stated that the product sample would be "ordered by Government sources within 30 calendar days after proposals are due to the Government." Id. Sec. B.13. The solicitation included the full text of the standard "Late Submissions, Modifications, Revisions, and Withdrawal of Offers" clause, Federal Acquisition Regulation (FAR) Sec. 52.212-1, which provides, in pertinent part, that late offers or submissions generally will not be considered for award. RFP Sec. E.1(f). The agency received timely proposals from several firms, including Telex, by November 15. As is relevant here, Telex's proposal included an ordering form that contained a preprinted designation as "VA ORDER FORM," a preprinted contract number representing the protester's existing contract with the VA, and a preprinted address for Telex in Rochester, Minnesota. On November 30, the VA's Audiology and Speech Pathology Service sent the request for a product sample to Telex using the order form provided by the firm via Federal Express (FedEx) for next day delivery; the package was addressed to Telex's designated representative at the Rochester address. /1/ The agency reports that the package included a KEMAR ear impression, the Telex order form marked "KEMAR I" as the addressee and "See Prototype Loss," and a copy of a table containing information such as "20 Band Target Frequencies," "Prototype Loss," and "Interpolated 20 Band Targets"; in other words, Table II of the solicitation. In addition, the name and phone number for the VA audiologist in Washington, DC was listed on the order form. Agency Report (AR) exhs. 8, 13.