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15.207:  Handling proposals and information

Comptroller General - Key Excerpts

Agencies have a fundamental obligation to have procedures in place to receive submissions for competitors under a solicitation, to reasonably safeguard submissions received, and to fairly consider all submissions received. As a practical matter, however, even with appropriate procedures in place, an agency may lose or misplace a submission, and such occasional loss--even if through agency negligence--generally does not entitle an aggrieved competitor to relief. Shubhada, Inc., B‑292437, Sept. 18, 2003, 2003 CPD para. 161 at 3-4; American Material Handling, Inc., B‑281556, Feb. 24, 1999, 99-1 CPD para. 46 at 3. This arguably harsh result is justified by the unique circumstances arising in protests concerning lost information. The only means generally available to establish the content of lost information is for the protester to reconstruct that information. However, allowing an offeror to establish the content of its lost proposal after the closing date has passed would be inconsistent with maintaining a fair competitive system. Shubhada, Inc., supra, at 4. Here, the only evidence of the content of the information that the protester may have submitted prior to closing is a copy of that information produced by PRI during this protest process. The record does not contain any pre-closing evidence of the content of PRI’s proposal that the agency properly could evaluate. We therefore will not disturb the agency’s decision not to reopen the competition to evaluate PRI’s proposal. Our Office has recognized a limited exception to the rule that negligent loss of proposal information does not entitle the offeror to relief. The exception generally applies where the loss was not an isolated act of negligence, but was the result of a systemic failure resulting in multiple or repetitive instances of lost information. East West Research Inc.. B‑239565, B-239566, Aug. 21, 1990, 90-2 CPD para. 147 at 4. However, the exception does not apply here. There is no evidence that the agency, for example, lost the proposal information submitted by other offerors in this procurement or that the agency previously lost proposal information. (Project Resources, Inc., B-297968, March 31, 2006) (pdf)

This protest thus presents a significant factual dispute. We need not resolve the dispute, however, because even if the protester’s proposal did include additional information, the agency does not have any record (or recollection) of receiving it--at best, the information must be considered to have been lost. As explained below, the circumstances here do not provide a basis to sustain the protest. Agencies have a fundamental obligation to have procedures in place to receive submissions from competitors under a solicitation, to reasonably safeguard submissions received, and to fairly consider all submission received. As a practical matter, however, even with appropriate procedures in place, an agency may lose or misplace a submission, and such occasional loss--even if through agency negligence--generally does not entitle an aggrieved competitor to relief. American Material Handling, Inc., B-281556, Feb. 24, 1999, 99-1 CPD ¶ 46 at 3; Marine Hydraulics Int’l, Inc., B-240034, Oct. 17, 1990, 90-2 CPD ¶ 308 at 3. This arguably harsh result is justified by the unique circumstances arising in protests concerning lost information. The only means generally available to establish the content of lost information is for the protester to reconstruct that information. However, allowing an offeror to establish the content of its lost proposal after the closing date has passed would be inconsistent with maintaining a fair competitive system.[4] Marine Hydraulics Int’l, Inc., supra. Here, the only evidence of the content of the information that the protester may have submitted prior to closing is a copy of that information produced by Shubhada during this protest process. The record does not contain any pre-closing evidence of the content of Shubhada’s technical proposal that the agency properly could evaluate. We therefore will not disturb the agency’s rejection of Shubhada’s incomplete proposal as technically unacceptable, the exclusion of Shubhada’s proposal from the competitive range, and the award to Titan. See id. at 2-3. Our Office has recognized limited exceptions to the rule that negligent loss of proposal information does not entitle the offeror to relief. The exception generally applies where the loss was not an isolated act of negligence, but rather arises out of a systematic failure in the agency’s procedures that typically results in multiple or repetitive instances of lost information. See S.D.M. Supply, Inc., B-271492, June 26, 1996, 96-1 CPD ¶ 288 at 4. The exception does not apply here. There is no evidence that the agency, for example, lost the proposal information submitted by other offerors,[5] or previously has lost proposal information. (Shubhada, Inc., B-292437, September 18, 2003.)  (pdf)


It is true that agencies have a fundamental obligation to have procedures not only to receive offers and quotations, but also to reasonably safeguard those actually received and to give them fair consideration.  East West Research Inc., B-239565, B-239566, Aug. 21, 1990, 90-2 CPD ¶ 147 at 4, aff'd, Defense Logistics Agency--Recon., B-239565.2, B-239566.2, Mar. 19, 1991, 91-1 CPD ¶ 298 at 2-3.  However, we recognize that, even with appropriate procedures in place, an agency occasionally will lose or misplace an offer or quotation.  While this is unfortunate and agencies must have procedures to minimize the possibility of loss, the occasional negligent loss of an offer or quotation by an agency does not entitle the firm submitting it to any relief.  Interstate Diesel Serv., Inc., B-244842.2, Sept. 27, 1991, 91-2 CPD ¶ 304 at 2; see also Advanced Seal Tech., Inc., B-280980, Dec. 14, 1998, 98-2 CPD ¶ 144 at 3.  

Here, SH&C does not allege that the agency deliberately lost its quotation or has a history or pattern of losing quotations (or offers), apart from the quotation here.  Further, it is clear from the record that the agency had adequate procedures in place for receiving and handling quotations.  With respect to handling quotations, the agency's procedure is to store them in the official contract files area and to account for and track each copy in the official contract file.  The procedure further provides that each time a person removes one from the official contract file, the person must sign the logbook.  Huntsville Division Acquisition Instruction 15.4, ¶ 4 (Sept. 1989).  In this case, the agency has no record that the quotation was stored in or delivered to the contract files area.  Contracting Officer's Supplemental Statement ¶ 5.  The protester is apparently correct that the procedures were not followed in this case, and that they could be improved upon, but there is no evidence that the loss of SH&C's quotation is anything more than an isolated and unfortunate incident of negligence on the agency's part.  (Safety and Health Consulting Services, Inc., B-290412, June 10, 2002)

Comptroller General - Listing of Decisions

For the Government For the Protester
Project Resources, Inc., B-297968, March 31, 2006 (pdf)  
Shubhada, Inc., B-292437, September 18, 2003  (pdf)  
Safety and Health Consulting Services, Inc., B-290412, June 10, 2002  
Advanced Seal Technology, Inc., B-280980, December 14, 1998 (pdf)  
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