___________________________________________________________ MOTION TO DISMISS FOR UNTIMELINESS GRANTED: October 23, 1992 ___________________________________________________________ GSBCA 12027-P VALIX FEDERAL PARTNERSHIP I, Protester, v. DEPARTMENT OF THE AIR FORCE, Respondent. Shelton H. Skolnik, Derwood, MD, counsel for Protester. Clarence D. Long, III, and Joseph Goldstein, Office of General Counsel, Department of the Air Force, Washington, DC, counsel for Respondent. BORWICK, Board Judge. Background On September 21, 1992, protester filed this protest with the Board. On August 7, 1992, respondent issued an invitation for bids (IFB) for personal computers, auxiliary power supply, VGA monitors, hard drives, Novell Ethernet cards and other associated equipment. Protest File, Exhibit 1. The IFB contained a notice of evaluation preference for small disadvantaged business concerns, but did not contain a clause setting aside the procurement for the exclusive participation of small businesses. Id., Exhibit 1 at K.14. The due date for bids was 2:00 p.m. Pacific Standard Time, September 8, 1992. Id. at 1, block 9. Protester states that it transmitted an agency protest by telefacsimile machine alleging improprieties in the IFB, including, but not limited to: (1) the failure of respondent to set aside the procurement for the exclusive participation of small business concerns, and (2) the requirement for Novell certification. In that agency protest, protester alleged that Novell testing with self-certification was sufficient. The agency protest was dated September 8. Protest File, Exhibit 9. The agency protest was addressed to the contracting officer of the sixty-third contracting squadron, Norton Air Force Base, California. Id. In response to respondent's motion to dismiss, protester has attached a transmission report showing a two-page transmission from protester to the squadron's telefacsimile machine on Sunday, September 6. However, the contracting officer did not receive an agency protest from protester until September 14. On that date, the contracting officer searched the premises where the contracting squadron's telefacsimile machine is located. Declaration dated September 25, 1992, of Domitila Lopez, Contracting Officer in Charge of Commodities Procurement Section of the Sixty-Third Contracting Squadron (Lopez Declaration) 2. It is the standard practice of the squadron to place any telefacsimile transmission in the mailbox of the person to whom the telefacsimile document is addressed. Id. The contracting officer personally conducted and supervised a search of all mailboxes, work stations, papers on desks and work files. The search group could not find a telefacsimile transmission received by September 8. Id. at 2. On September 22, the commander of the squadron caused another search of the premises, duplicating that conducted on September 14, and did not find a telefacsimile transmission of the agency protest on that date (or any other date). Declaration dated September 30, 1992 of Major Kenneth Truesdale, Commander of Sixty-Third Contracting Squadron (Truesdale Declaration) 3. The telefacsimile machine's usage log shows that squadron employees were using the machine at 2:06 p.m. and 2:11 p.m. on September 8. Id., Attachment A. As no protest had been received by the bid opening date of September 8, the respondent proceeded to open the bids. The contracting officer received the agency protest on September 14, six days after bid opening. The contracting officer, relying on FAR 33.103(b)(2), on September 18 denied the agency protest for untimeliness. Protest File, Exhibit 9. Discussion Rule 5(b)(3)(iii) establishes a ten day time period to file a protest at this Board after denial of an agency protest "provided that the initial protest to the agency was filed in accordance with the applicable time limits in subparagraphs (b)(3)(i). . . of this rule." If protester filed its agency protest before the scheduled bid opening, its protest at this Board is timely; conversely, if protester filed its agency protest after the scheduled bid opening, its protest is untimely. Protester points to its transmission record to establish that the agency protest was filed on September 6, before the scheduled bid opening date. There are several problems of proof with the transmission report. The transmission report does not identify the document supposedly transmitted to respondent on September 6. The alleged date of transmission is September 6; the anomaly of the protest being dated September 8--two days after the supposed transmission by telefacsimile--is not explained. The inconsistent dates cast doubt on protester's claim that the document transmitted was in fact the agency protest. Finally, we have held that transmission reports do not prove receipt. The transmission report only proves that data was sent to the recipient's machine, not that a recipient actually received a particular document at a particular time. We have noted many reasons for lack of receipt notwithstanding transmittal, including the breakdown of the machine and transmittal of the wrong document. Laptops Falls Church Inc., GSBCA 11322-P, 91-3 BCA 24,252, at 121,256; 1991 BPD 170, at 3. The affidavits submitted by respondent establish that an agency protest was not received by the contracting squadron before the scheduled bid opening. The transmission report does not successfully rebut the affidavits. We therefore conclude that the agency protest was first received by the agency on September 14, well after the scheduled bid opening at 2:00 p.m. Pacific Standard Time on September 8. The protest to this Board is untimely, as the protest to the agency was not filed in accordance with the requirements of Rule 5(b)(3)(i). Rule 5(b)(3)(iii). Decision This protest is DISMISSED WITH PREJUDICE for untimely filing. ____________________________ ANTHONY S. BORWICK Board Judge We concur: _________________________________ ______________________________ VINCENT A. LaBELLA MARY ELLEN COSTER WILLIAMS Acting Chief Judge and Chairman Board Judge