Tishman Construction Corporation, B-292097, May 29, 2003

B-292097 May 29, 2003 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Rejection of the protester's proposal as late because the paper version of the proposal was not delivered by the time set for receipt of proposals was not reasonable. Where a complete copy of protester's proposal was timely received in accordance with the solicitation instructions. The late delivery of the paper version was a minor informality that should have been waived. The contractor will act as a liaison between the agency and firms that are constructing regional and national biocontainment laboratories for the agency. Will provide planning. Will assist in the oversight of grants and contracts for the construction work. Offerors were required to submit both a paper and an electronic version of their proposals. View Decision Tishman Construction Corporation, B-292097, May 29, 2003 DIGEST Attorneys DECISION Tishman Construction Corporation protests the rejection of its proposal as late under request for proposals (RFP) No. NIH-NIAID-DMID-03-54, issued by the National Institute of Allergy and Infectious Diseases, National Institutes of Health, Department of Health and Human Services (HHS), for construction quality management services. We sustain the protest. The RFP, issued January 24, 2003, provided for the award of a cost-reimbursement contract to provide construction quality management services. The contractor will act as a liaison between the agency and firms that are constructing regional and national biocontainment laboratories for the agency; will provide planning, design, construction, commissioning, activation, occupancy, and closeout activities of each construction project; and will assist in the oversight of grants and contracts for the construction work. RFP at 4. Offerors were required to submit both a paper and an electronic version of their proposals; the RFP provided detailed instructions for packaging, delivery, and electronic submission of the proposals. Specifically, the RFP stated: PAPER SUBMISSION: The paper copy is the official copy for recording timely receipt of proposals. You are required to submit one original paper copy of your proposal along with [ten] extra copies required below. ELECTRONIC SUBMISSION: In addition to the paper submission, you are required to submit your proposal electronically through the CRON (Contracts Review Online) in accordance with the instructions provided below. If you experience difficulty or are unable to transmit, you should submit your proposal on a CD-Rom or ZipDisk by an express delivery service. We can then upload your proposal into the electronic system. You must certify that both the original paper and electronic versions of the proposal are identical. RFP at 20. The closing time for submission of proposals was stated to be February 24, 2003 at 4:00 p.m., Eastern Standard Time (EST). The RFP contained the standard "Instructions to Offerors-Competitive Acquisition" clause of Federal Acquisition Regulation (FAR) Sec. 52.215-1, which, in pertinent part, provided that a proposal that is received after the specified time for receipt of offerors is "late" and will not be considered, absent certain specified circumstances. Tishman submitted the electronic version of its proposal, in accordance with the solicitation instructions, to the agency through the CRON website at 3:10 p.m. EST, February 24, before the time set for receipt of proposals. Contracting Officer's Statement at 2. Tishman's electronic proposal was, as required by the RFP, formatted using the "portable document format (.pdf)" of Adobe Systems, Inc.; was identical to the written proposal; and included the signature of Tishman's senior vice president. Protest at 4. Tishman's paper proposal was not delivered to the agency until 5:13 p.m. EST on that date, which was 73 minutes after the time set for receipt of proposals. Protest at 4; Contracting Officer's Statement at 2. The agency rejected Tishman's proposal as late, and this protest followed. No award has been made under the RFP. Tishman admits that the paper version of its proposal was late, but complains that its proposal should not have been rejected as late because an identical copy of its proposal was received by the agency electronically, as authorized by the RFP, before the time set for receipt of offers. Citing our decision in Abt Assocs., Inc., B-226063, May 14, 1987, 87-1 CPD Para. 513, Tishman contends that the failure to timely provide the paper copy of its proposal was a minor informality, which should be waived, given that the agency had timely received a complete copy of Tishman's proposal. FAR Sec. 15.208 governs the treatment of late proposals and provides generally that a proposal received after the time set for receipt shall not be considered.