GROH GmbH, B-291980, March 26, 2003

B-291980 Mar 26, 2003 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights DIGEST Protest that contracting agency improperly rejected proposal sent by facsimile as late is denied where the record does not establish that the agency timely received the protester's proposal and where. The closing time and date for receipt of proposals under this solicitation was 4 p.m. on February 3. " stated that proposals were to be delivered to "the place" listed in block 8 of the form. Electronic commerce or facsimile) are permitted in the solicitation. The contracting officer informed GROH that its proposal was delivered late and could not be considered for award. GROH argues that its proposal was not late because the log from its facsimile machine shows that it was successfully faxed to the agency before the closing date. View Decision GROH GmbH, B-291980, March 26, 2003 DIGEST Attorneys DECISION GROH GmbH protests as improper the rejection of its proposal as late under request for proposals (RFP) No. F61815-03-R-0002, issued by the Department of the Air Force for the repair of a military family housing playground at Mor n Air Force Base, Spain. We deny the protest. The closing time and date for receipt of proposals under this solicitation was 4 p.m. on February 3, 2003. RFP amend. No. 0001 at 2. The solicitation's standard form (SF) 1442, "Solicitation, Offer, and Award," stated that proposals were to be delivered to "the place" listed in block 8 of the form. RFP at 1. The information in block 8 simply referred offerors to block 7, which contained the street address, telephone number, and facsimile number of the agency's issuing office. Id. The solicitation incorporated Federal Acquisition Regulation (FAR) Sec. 52.215-1, "Instructions to Offerors-Competitive Acquisition." Among other things, this clause instructs offerors that, "[u]nless other methods (e.g., electronic commerce or facsimile) are permitted in the solicitation, proposals and modifications to proposals shall be submitted in paper media . . . ." FAR Sec. 52.215-1(c)(1). Despite the presence of a facsimile number in block 7 of the solicitation's SF 1442, the solicitation did not include the clause at FAR Sec. 52.215-5, "Facsimile Proposals," which authorizes the submission of proposals by facsimile. See FAR Sec. 15.209(e). GROH asserts that it successfully transmitted its proposal by facsimile to the number identified in the solicitation on January 31, 2003, and supports its position with a copy of the log from its facsimile machine showing a successful transmission to the agency on that date. The Air Force denies that it received any transmission from GROH on January 31, and supports its position with a copy of the log from its facsimile machine showing no transmission from GROH on that date. Both parties agree that GROH successfully transmitted its proposal by facsimile to the agency on February 4, 1 day after the closing date, and that GROH's commercial courier hand-delivered a copy of its proposal to the agency on February 5, 2 days after the closing date. On February 6, the contracting officer informed GROH that its proposal was delivered late and could not be considered for award. GROH argues that its proposal was not late because the log from its facsimile machine shows that it was successfully faxed to the agency before the closing date. GROH also argues that the solicitation's inclusion of a facsimile number in box 7 of the solicitation's SF 1442 constituted the requisite authorization to submit proposals by facsimile, and that the agency's point of contact authorized GROH to submit its proposal by facsimile via e-mail advice. It is an offeror's responsibility to deliver its proposal to the proper time, and late delivery generally requires rejection of the proposal. Med-National, Inc., B-277430, Sept. 8, 1997, 97-2 CPD Para. 67 at 2. Even if we were to accept GROH's interpretation of the solicitation as permitting the submission of proposals by facsimile, the firm's facsimile log, by itself, does not establish that the Air Force timely received the firm's proposal. Where, as here, a transmission record is in the protester's control, it can be created or altered to support a protester's contentions. As a result, we do not consider such a transmission record to be definitive evidence of transmission. Southern CAD/CAM, B-244745, Nov. 13, 1991, 91-2 CPD Para. 453 at 3. Moreover, evidence of a facsimile transmission does not establish receipt where, as here, contracting officials deny receipt and there is no other conclusive, contemporaneous evidence of receipt. The Microscope Co., Inc. B-257015, Aug. 8, 1994, 94-2 CPD Para. 157 at 2; Southern CAD/CAM, supra. In any event, a proposal sent by facsimile must be rejected where, as here, a solicitation permits the submission of proposals by facsimile machine only if authorized and does not elsewhere provide authorization. G.D. Searle & Co., B-247077, Apr. 30, 1992, 92-1 CPD Para.