People, Technology and Processes, LLC

Decision

Matter of:  People, Technology and Processes, LLC

File:  B-419385; B-419385.2

Date:  February 2, 2021

DIGEST

Protest challenging the agency’s rejection of the protester’s proposal is denied where the record shows that:  the proposal was never received by the method for submission of proposals designated by the solicitation; the protester’s subsequent proposal submission via email was not an authorized method for submission and does not fall within an exception to the late proposal rule; and there is no evidence of systemic failure of the online portal authorized for submission of proposals.

People, Technology and Processes, LLC (PTP), a service-disabled veteran-owned small business of Tampa, Florida, protests the determination by the General Services Administration (GSA) that its proposal was late and therefore ineligible for consideration under request for proposals (RFP) No. 03200029 for global fielding services.  The protester contends that the agency should have accepted its proposal due to the system failure of the agency’s online portal designated for submission of proposals, the proposal being actually retained by the portal, and the protester’s subsequent submission of its proposal via email.

We deny the protest.

BACKGROUND

On September 9, 2020, GSA issued the RFP on behalf of the Department of the Army, Army Project Management Mission Control, seeking proposals for global fielding support for project manager mission command product distribution.  Agency Report (AR), Exh. 1, RFP at 9.[1]  The solicitation contemplated award of a task order to small business pool 1 holders of GSA’s One Acquisition Solution for Integrated Services (OASIS) indefinite-delivery, indefinite-quantity (IDIQ) contract, using the procedures of Federal Acquisition Regulation (FAR) subpart 16.5.  Id. at 1.  As relevant to this protest, the OASIS small business contract incorporates by reference FAR provision 52.215-1, Instructions to Offerors--Competitive Acquisition (Jan. 2017).  Protest, Exh. 1, OASIS Contract at 62.

This protest centers on the proposal submission requirements, as established by the solicitation.  The RFP, as amended, established the deadline for receipt of proposals as “on or before” October 13, 2020 “at 4:00 PM EST.”  Id. at 381.  The solicitation advised that proposals received “after the closing date and time are late and will not be considered.”  Id. at 1, 2.  The solicitation also instructed that proposals must be submitted via GSA ASSIST, i.e.,the agency’s online proposal submission portal.  Id. at 1.

In order to submit a proposal using the ASSIST portal, offerors were required to manually input labor rates for each contract line item number (CLIN) from their price proposals into the ASSIST database, and separately upload their price and technical proposal submissions.  Contracting Officer’s Statement (COS) at 1; RFP at 2.  Under the solicitation, offerors were instructed to upload a technical proposal, a completed staffing matrix, as well as a price proposal with a completed pricing template.  Id.

The record contains the ASSIST system server logs for PTP’s portal activity on October 13.  These logs show that on that day, PTP accessed the system and clicked on the “create quote” button at 1:42:08 p.m.[2]  AR, Exh. 5, Protester’s Oct. 14, 2020 Email with ASSIST System Logs at 562.  The logs further show that the protester clicked on “attach file” button at 1:46:16 p.m., and that PTP’s user session ended at 3:45:12 p.m.  Id. 

At 3:46:13 p.m., PTP logged back into the ASSIST system, and at 3:48:50 p.m., again clicked on the “create quote” button.  Id. at563.  Then, PTP twice used the “attach files” button, at 3:53:56 p.m., and again at 3:57:24 p.m.  Id. at 564; Memorandum of Law (MOL) at 3.  The log entries do not indicate that PTP ever clicked on the proposal “submit” button.  AR, Exh. 5, Protester’s Oct. 14, 2020 Email with ASSIST System Logsat564; AR, Exh. 3, Incident Details Report at 549 (stating that PTP’s attempt of clicking on the “submit” button “would have been recorded” in the system logs).

The protester represents that it experienced “significant technical difficulties when entering its labor rates into the ASSIST system.”  Protest at 5.  Specifically, the protester states that while entering PTP's proposal data through ASSIST, including uploading PTP's proposal attachments, the ASSIST system unexpectedly closed, logging PTP out in the process.  Id.  After restarting the data entry process, PTP states that it realized that it could not complete the process before the deadline, and at 4:00 p.m., emailed its proposal to the contracting officer and the contract specialist.  Id.; AR, Exh. 2, Protester’s Oct. 13, 2020 Email at 492.

The agency states that at 4:01 p.m., the contracting officer received an email from the protester, including its proposal as an attachment, advising that “we’re having issues with GSA electronic submission.”  AR, Exh. 2, Protester’s Oct. 13, 2020 Email at 492.  According to the agency, the contract specialist received this email from PTP a short while later, at 4:09 p.m.  Agency Resp. to Supp. Document Production at 1; Decl. of Branch Chief, GSA Chief Information Officer at 1.

The contracting officer identified six proposals submitted to the ASSIST portal in response to the solicitation, none of which was submitted by PTP.  COS at 1.  The contracting officer then sent an inquiry to the ASSIST helpdesk to determine whether the portal had experienced any outages or technical connectivity issues.  Id.  The helpdesk responded that there have “not been any reported outages today.”  Id.; AR, Exh. 3, Incident Details Report at 551.

Thereafter, at 4:38 p.m., the contracting officer received a phone call from the protester, asserting that PTP had difficulties submitting its proposal through the ASSIST portal.  COS at 2.  The contracting officer subsequently reviewed the ASSIST electronic contract file (ECF), which is a repository for offerors’ proposals once they are uploaded, and identified three of PTP’s proposal attachments that were uploaded and retained by the system at 1:46 p.m. that afternoon:  volume 1, technical proposal; volume 2, price proposal; and the staffing matrix.  Id. at 2.  The fourth attachment of PTP’s proposal, the pricing template, was retained by the system at 4:00:52 p.m.  AR, Exh. 4, ECF Log for ITSS Order No. ID03200029 at 554.

On October 14, the contracting officer received a follow-up email from PTP, containing further explanation of the technical difficulties the protester encountered with the ASSIST portal.  AR, Exh. 5, Protester’s Oct. 14, 2020 Email with ASSIST System Logs.  In light of these allegations, the agency commenced an investigation to determine whether there was a systemic failure or other malfunction oftheASSISTportal on October 13.  COS at 2.  During this investigation, both the ASSIST helpdesk and the GSA program analyst overseeing the functionality of the ASSIST portal confirmed the earlier report that there were no systemic technical issues with the portal on that day.  Id.; AR, Exh. 6, Decl. of GSA Program Analyst at 1.[3]

On October 20, the protester sent another email to the agency describing the technical issues it experienced while attempting to submit its proposal, and alleging that “[o]ne of the exacerbating issues was the archaic requirement to hand enter voluminous CLIN entries for pricing line by line, rather than just enabling data migration from an Excel spreadsheet or uploading of an Excel spreadsheet for pricing information.”  AR, Exh. 7, Protester’s Oct. 20, 2020 Email at 569. 

On October 21, the agency notified PTP by email that its proposal would not be considered for award.  AR, Exh. 8, Agency’s Oct. 21, 2020 Email at 573.This protest followed.[4]

DISCUSSION

PTP challenges the rejection of its proposal from consideration.  PTP argues that the agency improperly determined that its proposal was late because the proposal was timely retained by the ASSIST system at 4:00:52 p.m., i.e., exactly on the proposal submission deadline of 4:00 p.m.  The protester also alleges that after PTP experienced technical issues with the proposal submission portal, it timely emailed the complete proposal package to the contracting officer and contract specialist.  Protest at 1.  In its supplemental protest, PTP asserts that ASSIST suffers from systemic issues hindering proposal submission, of which, the protester alleges, the agency was aware.  On this basis, PTP argues that even if the proposal was untimely, GSA should have accepted its proposal.  Comments and Supp. Protest at 7-10. 

In response, the agency maintains that it reasonably rejected PTP’s proposal.  The agency asserts that it never received the protester’s complete proposal by the submission deadline through the only method authorized in the solicitation, the ASSIST online portal.  MOL at 5.  With respect to the attempted email submission, GSA argues that “the use of email was never identified in the solicitation as an alternate means of proposal submission.”  MOL at 5, 6.  Additionally, GSA points out that the email with the PTP proposal “did not appear in the [contracting officer’s] inbox until 4:01 [p.m.],” and hence, was received late.  Id. at 6.  The agencyalso disputes the protester’s allegations of systemic failure of the ASSIST system, stating that PTP’s claims are based on speculation as there is no evidence in the record to support PTP’s contention in this regard.  Id.  Based on the record before us, we agree with the agency.[5]

It is an offeror’s responsibility to deliver its proposal to the proper place at the proper time.  Onsite OHS, B-406449, May 30, 2012, 2012 CPD ¶ 178 at 4 (proposal properly excluded from consideration because it was not submitted through the method authorized by the solicitation).  Moreover, the protester has the burden of showing that it timely delivered its proposal to the agency at the specified address.  SigNet Techs., Inc., B-417435, July 3, 2019, 2019 CPD ¶ 247 at 4-5.  An agency is not required to consider a proposal where there is no evidence that the proposal was “actually received.”  Tele-Consultants, Inc., B-414135, Feb. 27, 2017, 2017 CPD ¶ 132 at 5.

As noted above, the OASIS contract vehicle incorporated by reference FAR provision 52.215-1, Instructions to Offerors-Competitive Acquisitions, which states, in pertinent part, that “[o]fferors are responsible for submitting proposals . . . so as to reach the Government office designated in the solicitation by the time specified in the solicitation.”  Protest, Exh. 1, OASIS Contract at 62, FAR provision 52.215-1(c)(3).  Relevant to this protest, the RFP provided that the exclusive method of submission of proposals was the GSA ASSIST portal.  RFP at 1, 2.  Of particular importance here, the solicitation did not identify email as an acceptable method of submitting a proposal.  See id.

For the reasons discussed below, we find no basis to question the agency’s decision to reject the protester’s proposal as late.

ASSIST Online Portal

First, the protester contends that it timely submitted its proposal through the ASSIST portal.  In this regard, PTP asserts that its proposal--including its final attachment, the pricing template--was retained within the ASSIST database at 4:00:52 p.m., i.e., “on” the 4:00 p.m. proposal submission deadline.  Comments and Supp. Protest at 1, 3, 10-16.  In other words, PTP argues that its proposal was not late because it was under the government’s control prior to 4:01 p.m.  On this basis, PTP asserts that it was improper for the agency to determine that its proposal was untimely.

In determining whether or not a proposal was “under the government’s control” prior to the time set for receipt of proposals, our Office has consistently stated that an offeror must, at a minimum, have relinquished custody of the proposal to the government.  B&S Transp., Inc., B-404648.3, April 8, 2011, 2011 CPD ¶ 84 at 4; see also Immediate Sys. Res., Inc., B-292856, Dec. 9, 2003, 2003 CPD ¶ 227 at 3-4.  This requirement precludes any possibility that an offeror could alter, revise, or otherwise modify its proposal after other offerors’ competing proposals have been submitted.  Id.

Here, the protester states that it “relinquished control” over the four attachments of its proposal once the ASSIST system retained them because there is no indication in the record that PTP “could retract or revise the proposal volumes once ASSIST retained them.”  Comments on Agency Resp. to Req. for Add’l Briefing at 12 (citing Carothers Constr. Inc., B-235910, Oct. 11, 1989, 89-2 CPD ¶ 338). 

Based upon our review of the record, we find that the protester has failed to establish that it submitted its proposal via the ASSIST system, as required by the solicitation. 

With respect to the retention of offerors’ files in the system, the record shows that “the file attachments are saved” in the system “even if that quote is in progress and hasn’t been submitted.”  AR, Exh. 3, Incident Details Report at 549 (emphasis added).  The record also indicates that until the proposal is successfully submitted in the ASSIST portal, the offeror has the ability to upload new attachments, and potentially modify or revise its proposal.  That is, even though the ASSIST system retains proposals that are uploaded to the system, an offeror does not relinquish control of its proposal unless and until the proposal is successfully submitted. 

Thus, the record reveals that PTP never actually submitted its proposal though the ASSIST online portal.[6]  Although the proposal was retained by the system in the ECF at 4:00:52 p.m., it was not transmitted to a designated proposal receipt location.  See Agency Resp. to Req. for Add’l Briefing at 3; see also AR, Exh. 3, Incident Details Report at 549 (stating that PTP’s attempts of clicking on the “submit” button “would have been recorded” in the system logs).  Additionally, as the agency explains, when proposals are uploaded into the system and retained there, ASSIST provides no notifications to the agency of that fact; here, for example, the contracting officer was unaware of any of PTP’s attachments in the ECF prior to being contacted by the protester on October 13.  Agency Resp. to Req. for Add’l Briefing at 3. 

The record demonstrates that the protester maintained the ability to revise its proposal by uploading new, modified attachments, until the moment of proposal submission.  In our view, because the ASSIST system allows offerors to revise their proposals until final submission of proposals, the retention of PTP’s attachments in the ASSIST system does not constitute PTP’s proposal as being under the government control.  See, e.g., Johnson Controls Gov’t Sys., LLC, B-411862.2, Nov. 24, 2015, 2015 CPD ¶ 357 at 4.  Hence, we conclude that PTP failed to submit its proposal through the ASSIST portal, which was the only method of submission designated by the solicitation.[7]

Email Submission

The protester also argues that PTP timely submitted its complete proposal via email to the agency’s contracting officials, which PTP contends was a reasonable alternate submission method after experiencing technical difficulties with the ASSIST portal.  Protest at 1.  Although PTP acknowledges that the solicitation required offerors to submit their proposals through ASSIST, PTP asserts that it timely submitted its proposal via email at 4:00 p.m.  According to the protester, the agency does not have “unfettered discretion to reject PTP's timely submitted proposal because PTP delivered its proposal to the Contracting Officers by email” rather than “the preferred ASSIST system.”  Comments and Supp. Protest at 16.

The agency responds that “the use of email was never identified in the solicitation as an alternate means of proposal submission,” and the RFP authorized ASSIST as the exclusive method for proposal submission.  MOL at 5, 6.  Additionally, GSA points out that the email with the PTP proposal was received by the contracting officer at 4:01 p.m. and the contract specialist at 4:09 p.m., and hence, was late.[8]  MOL at 6; AR, Exh. 2, Protester’s Oct. 13, 2020, Email at 492; Agency Resp. to Supp. Document Production at 1; Decl. of Branch Chief, GSA Chief Information Officer at 1. 

We agree with the agency.  As noted above, proposal submissions via email were not authorized by the solicitation.  In addition, as discussed in the previous section, PTP’s proposal was not submitted to the government office designated in the solicitation by the time specified.  Thus, we find reasonable the agency’s decision not to consider PTP’s emailed proposal here.

Further, we find the protester’s arguments to be unavailing.  First, PTP mistakenly contends that its proposal should be considered under FAR provision 52.215-1(c)(3)(ii)(A)(2), which provides an exception to the late-is-late rule where the agency received the proposal before award is made, accepting the offer would not unduly delay the acquisition, and “[t]here ‘is [acceptable] evidence to establish that it was received at the Government[’s] installation designated for receipt of [proposals] and was under the Government’s control prior tothe time set for receipt of offers.’”[9]  Protest at 6.  By its terms, however, the exception does not apply here because there is no evidence that PTP’s proposal was ever received at the government office designated in the solicitation or that it was under the government’s control prior to the time set for receipt of proposals.  That is, as discussed above, the proposal was never received through the GSA ASSIST online portal.  RFP at 1.

Additionally, as our Office hasstated, this exception does not apply to electronic submissions; rather, electronic submissions are governed by FAR provision 52.215-1(c)(3)(ii)(A)(1),which provides that an electronically submitted proposal must be received at the initial point of entry to the government infrastructure not later than 5:00 p.m. one working day prior to the date specified for receipt of proposals.[10]  See Sea Box, Inc., B-291056, Oct. 31, 2002, 2002 CPD ¶ 181 at 3; see also Airrus Mgmt. Sys., LLC,

B-416358, Aug. 9, 2018, 2018 CPD ¶ 275 at 3.  PTP does not allege that its proposal was received at the initial point of entry to the government infrastructure before 5:00 p.m. one working day prior to the receipt of proposals.  See, generally, Protest.  Accordingly, the exception to late submitted electronic proposals at FAR provision 52.215-1(c)(3)(ii)(A)(1) does not provide a basis to sustain the protest.[11]

Systemic Failure of the ASSIST System

Finally, PTP asserts that even if its proposal here was late, the agency was aware of a known ASSIST portal time-out issue that impeded PTP’s proposal submission, which requires that the agency consider PTP’s proposal.  Comments and Supp. Protest at 7.  The protester points to the guidance provided by the ASSIST helpdesk as evidence that those issues have occurred frequently.  Id. at 2.  Based upon our review of the record, we have no basis to conclude that the ASSIST portal experienced a “system failure” on the day in question.

At the outset, a finding by our Office of a systemic failure of an online government portal requires more than occasional malfunctioning of the system.  See, e.g., S.D.M. Supply, Inc., B-271492, June 26, 1996, 96-1 CPD ¶ 288 (protest sustained due to the agency’s failure to maintain adequate procedures for receiving quotations through proposal submission system, leading to a loss of all of quotations submitted in response to the solicitation at issue through proposal submission system, despite a previously identified systemic problem with the system); East West Research Inc., B-239565, B-239566, Aug. 21, 1990, 90-2 CPD ¶ 147 (protest sustained because an agency could not adequately explain why protester's proposals were repeatedly lost); cf. Blue Glacier Mgmt. Group, Inc., B-412897, June 30, 2016, 2016 CPD ¶ 177 at 7-8 (finding no evidence of systemic failure that frustrated protester’s ability to submit quotation where a normally functioning system blocked emails that were “suspect” and where five other vendors successfully transmitted timely quotations).

Moreover, our Office requested additional information concerning the operating status of the ASSIST portal on the day proposals were due.  Specifically, we asked that GSA address whether any other offeror experienced issues with submission of its proposal, and to provide the date and time of receipt of the other six proposals submitted.  EPDS, Dkt. No. 26, Req. for Add’l Briefing at 1. 

In response, GSA states that no offeror other than PTP reported similar time-out problems for this procurement, or other technical issues.  Agency Resp. to Req. for Add’l Briefing at 1-2.  The agency also provided service desk records for the ASSIST portal documenting that the only issues reported on October 13 were reported by PTP, and by the contracting officer, investigating PTP’s claims.  Id., Exh. 1 at 1.  Additionally, the agency states that five of the six proposals were timely received on October 13, between 11:31 a.m. and 2:33 p.m., while one other proposal was received the day before, October 12.  Agency Resp. to Req. for Add’l Briefing, Exh. 2 at 4-9. 

On this record, we see no basis to conclude that the ASSIST portal suffered a systemic failure on October 13, or that any issue with the portal prevented PTP’s timely submission of a proposal.  See SigNet Techs., Inc., supra at 4-5 (finding no systemic failure where 12 other firms were able to successfully submit timely proposals through the designated agency website).  As noted by the agency, it was the protester’s responsibility to submit its proposal sufficiently in advance of the time set for receipt of proposals to ensure proper delivery of the proposal and timely receipt by the agency.  Agency Resp. to Req. for Add’l Briefing, Exh. 2 at 4. 

The record here shows that the other offerors started the proposal submission process sufficiently well in advance of the proposal deadline to complete submission of their proposals.  See Agency Resp. to Req. for Add’l Briefing, Exh. 2 at 4-9 (showing the receipt of other proposals as October 12, at 5:26 p.m., and October 13, at 11:31 a.m., 1:21 p.m., 1:38 p.m., 2:30 p.m. and 2:33 p.m.).  In contrast, by its own admission, the protester began entering proposal data around 1:45 p.m. that afternoon and its “final total cost” calculation was not started until 3:45 p.m., i.e., only 15 minutes before the proposal submission deadline.  AR, Exh. 5, Protester’s Oct. 14, 2020, Email with ASSIST System Logsat 561; see, e.g., Vizocom, B-418246.2, Feb. 14, 2020, 2020 CPD ¶ 72 at 5 (concluding that the protester assumed a risk of late delivery of its proposal when it allowed only a short time for delivery to a government installation).  Based upon our review of the record, we find no basis to sustain this protest ground.

In sum, PTP has not shown that its proposal was timely submitted in accordance with the solicitation’s requirements.  First, the record demonstrates that PTP did not submit its proposal by the method for submission designated by the solicitation.  Second, the protester fails to establish that its email submission of its proposal falls within a recognized exception to the late proposal rule.  Finally, based upon our review of the record, we find no evidence of systemic failure with respect to the online portal designated by the solicitation for submission of proposals.  For these reasons, we therefore find no basis to sustain the protest.

The protest is denied.

Thomas H. Armstrong
General Counsel

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