Link: GAO Opinion
Agency: Department of the Army
Disposition: Protest denied.
Protest that agency improperly rejected the protester’s final proposal revision (FPR) as late is denied where the record confirms that the FPR was received by e-mail after the closing time for receipt of FPRs, and agency properly determined that no exception would permit evaluation of the late FPR.
General Counsel P.C. Highlight:
Urban Title argues that its final proposal revision (FPR) was not late, and even if the FPR was late, the agency misevaluated the firm’s past performance by improperly considering adverse performance information without giving Urban Title an opportunity to address the agency’s concerns.
With respect to the first issue, GAO finds that HUD correctly concluded that Urban Title’s FPR was late. Both of Urban Title’s attempts to submit its FPR were received after the time specified by the agency for receipt of FPRs. Although Urban Title objects that the agency has provided no explanation of the anomaly that resulted in the apparent delay of the protester’s first e-mail for five weeks, the protester does not dispute that it occurred, and the contracting specialist has provided the facts in a sworn declaration to GAO.
Finally, Urban Title argues that since HUD reevaluated the protester’s initial proposal, and in particular, lowered its past performance evaluation based on concerns about the company’s ongoing performance, it was improper for HUD to fail to raise its concerns during discussions prior to the request for FPRs. GAO cannot see how Urban Title was prejudiced by any errors it claims the agency made. Specifically, even if HUD had advised Urban Title during discussions of the agency’s concerns about Urban Title’s ongoing performance, the protester’s response would have been submitted in its FPR. Since the protester’s FPR was received late and was properly not considered, Urban Title, under the unique circumstances present here, cannot reasonably claim to have been prejudiced by the agency’s failure to raise these issues during discussions–although, for the record, GAO need not, and does not, reach the issue of whether such discussions were required. Instead, GAO notes that if they had been provided, they would not have saved Urban Title from its later failure to submit a timely FPR. The protest is denied.