TITLE:  Guam ShipyardB-294287September 162004
BNUMBER:  B-294287
DATE:  September 162004
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   Decision

   Matter of:   Guam Shipyard

   File:            B-294287

   Date:              September 162004

   David J. TaylorEsq.Tighe Patton Armstrong Teasdalefor the protester.

   George N. BreznaEsq.and David W. BealeEsq.Military Sealift
Commandfor the agency.

   Jennifer D. Westfall-McGrailEsq.and Christine S. MelodyEsq.Office
of the General CounselGAOparticipated in the preparation of the
decision.

   DIGEST

   Protest alleging solicitation impropriety is dismissed as untimely where
protest was submitted to GAO on a federal holiday and thus is not
considered filed until opening of business on the following business day,
by which point the time set for receipt of quotations had passed.

   DECISION

   Guam Shipyard protests the terms of request for quotations (RFQ) No.
N62404-04-R-0022issued by the Department of the NavyMilitary Sealift
Commandfor the replacement of a non-skid surface on a portion of the
decks of the USS Frank Cable.  The protester contends that the RFQ
improperly fails to require that vendors have in place either a Master
Ship Repair Agreement or an Agreement for Boat Repair.

   We dismiss the protest as untimely.

   The RFQas amendedset a quotation due date of July 620044:30 p.m.,
Far East time.[1]   Guam Shipyard transmitted a facsimile copy of its
protest to our Office at 2:42 p.m.eastern timeon July 5a federal
holidayand furnished an additional copy by e-mail at 3:22 the same
afternoon.  Because the protest was transmitted to our Office at a time
the Office was not open for businessit was not time/date stamped until
the opening of business on the following business dayi.e.8:30 a.m. on
July 6.

   The agency argues that we should dismiss Guam Shipyard's protest as
untimely because it was not filed prior to the time set for receipt of
quotationsas required by our Bid Protest Regulations4 C.F.R. S
21.2(a)(1) (2004).  The agency contends in this connection that our Office
will consider a protest filed when time/date stamped. Heredue to the
difference in time zone between the Far East and WashingtonD.C. (the Far
East zone being 15 hours aheadaccording to the agency)it was already
7 hours after the specified closing time of 4:30 p.m.Far East timewhen
the protest was time/date stamped by our Office at 8:30 a.m.eastern
time.

   The protester argues in response that our Regulations provide at 4 C.F.R.
S 21.0(g) that "[a] document is filed on a particular day when it is
received by GAO by 5:30 p.m.eastern timeon that day," and that its
protest was received (and acknowledged as received by our Office) no later
than 3:22 p.m. on July 5.

   This case presents two related questions pertaining to timeliness.  The
first is whether a time/date stamp is determinative as to the timeliness
of a protest filing where other evidence clearly establishes the time that
the protest arrived at our Office.  The answer to this question is no. 
While we rely upon our time/date stamp to determine the timeliness of
protest filings with our Office where other evidence clearly establishing
the time that the protest arrived is absentPeacockMyers & Adams,
B-279327Mar. 24199898-1 CPD P 94 at 2we will not rely upon the
stamp where other acceptable evidence of earlier receipt is availableas
was the case here.  Our fax machine printed the time and date of receipt
on each page of the protest as it was receivedand these captions
establish that all 11 pages of the protest were received at 2:42 p.m. on
July 5.  In additionthere is evidence (in the form of an
e-mail message confirming receipt of the protest that was automatically
generated by our computer system at 3:22 p.m. on July 5) that Guam
Shipyard sent an e-mail copy of its protest to our Office prior to the
time set for receipt of quotations. 

   We turn then to our second questionwhich is whether we should consider a
protest transmitted to our Office by e-mail or fax outside of business
hours as filed at the time it enters our computer system (in the case of
e-mail) or is received by our fax machine (in the case of a fax) or
whether we should consider it as filed as of the opening of business on
the following business day.  We think that the answer is the latter. 
While we recognize that our Regulations define the term "days" as
"calendar days," 4 CFR S 21.0(e)the clear intent behind the Regulations,
read as a wholeis that documents may beand are consideredfiled only
on days when our Office is open for business.  In this regard4 CFR S
21.0(g) states that "[a] document is filed on a particular day when it is
received by GAO by 5:30 p.m.eastern timeon that day," and documents
filed after 5:30 p.m. are considered filed on the next business day.  See,
e.g.Computer OneInc.*Recon.B-249352.7Sept. 27199393-2 CPD
P 185 at 2 n.1.  The reference to the 5:30 p.m. deadline has meaning only
if used in the context of business days.  See Bid Protests at GAO: A
Descriptive Guide15
(7th ed. 2003) (GAO's office hours are from 8:30 to 5:30 p.m.eastern
timeMonday through Friday).  In an analogous situationwe have held
that where e-mail notification of an offeror's exclusion from the
competitive range enters an offeror's computer system after close of
business on a weekday or on a weekend or holiday and is not opened before
the following business dayreceipt of the notice should not be considered
to have occurred until that business day.  Int'l Resources Group,
B-286663Jan. 3120012001 CPD P 35 at 5.  Similarly herewe do not
consider protest-related submissions received via e-mail or fax outside of
business hours as effectively received*and thus filed--until the following
business day.[2] 

   We recognize that S 21.0(e) of our Regulations provides thatfor purposes
of computing any "period of time" described in the Regulations"when
[GAO]or another Federal agency where a submission is dueis closed for
all or part of the last daythe period extends to the next day on which
the agency is open."   Unlike the provision in S 21.2(a)(2) establishing a
10-day filing period for other types of protestshoweverthe filing time
established for protests like this one*before bid opening or the time set
for receipt of proposals or quotations*does not constitute a "period of
time" within the meaning of S 21.0(e).  This view is consistent with the
purpose behind the filing time rule for protests raising alleged
solicitation improprieties*to give the agency notice of the protestto
the greatest extent possiblebefore bid opening or receipt of proposals,
thus giving the agency the opportunity to take action before bids or
proposals are prepared and submittedandin case of public openings,
avoid the release of other bidders' prices.  Applied Controls Co.,
Inc.*Recon.B-228568.2Nov. 30198787-2 CPD P 528 at 1; ERA
HelicoptersInc.B-218607Aug. 1198585-2 CPD P 114 at 2. 
Interpreting the language in S 21.0(e) to extend the filing date where the
due date for bidsproposalsor quotations falls on a non-business day
simply would not be consistent with the purpose of S 21.2(a)(1).

   Because Guam Shipyard's protest was not filed with our Office until the
opening of business on July 6after the time set for receipt of
quotations had passed in the Far Eastthe protest is dismissed as
untimely.

   Anthony H. Gamboa

   General Counsel

   ------------------------

   [1] While Amendment No. 0002 to the RFQ specified the due date for receipt
of quotations as simply July 6Federal Acquisition Regulation (FAR) S
52.212-1(f)(1)incorporated into the RFQ at pages 10-11stated that:

   Offerors are responsible for submitting offers. . .so as to reach the
Government office designated in the solicitation by the time specified in
the solicitation.  If no time is specified in the solicitationthe time
for receipt is 4:30 p.m.local timefor the designated Government office
on the date that offers or revisions are due.

   Herequotations were to be submitted to the issuing officeMSC Far East,
which is located in YokohamaJapan.

   The agency notes that the MSC website announced a slightly different
revised quotation due date of July 620044:00 p.m. FET [Far East
time].  The discrepancy is irrelevant for purposes of this protest.

   [2] We note that the timeliness questions raised by this protest will
arise only in the rare circumstances where the bid opening or due date is
to take place in an office located in another time zone and is scheduled
right before or after a weekend or holiday.