Comptroller General

United States Government Accountability Office

Washington, DC 20548 

of the United States

DOCUMENT FOR PUBLIC RELEASE

The decision issued on the date below was subject to a 

GAO Protective Order. This redacted version has been 

approved for public release. 

Decision 

Matter of: Urban Title, LLC 

File: B-311437.3 

Date: January 7, 2009 

Andrew J. Mohr, Esq., John J. O’Brien, Esq., and Catherine K. Kroll, Esq., 

Cohen Mohr LLP, for the protester. 

Scott L. Luna, Esq., for Luna & Luna, LLP, an intervenor. 

Gabriel Lopez, Esq., and Dorothy C. Crow-Willard, Esq., Department of Housing and 

Urban Development, for the agency. 

Paul N. Wengert, Esq., and Ralph O. White, Esq., Office of the General Counsel, GAO, 

participated in the preparation of the decision. 

DIGEST 

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. 

DECISION 

Urban Title, LLC, of Dallas, Texas, a small business, protests the award of two 

contracts to Brendan Gowing Inc. (Gowing) of Houston, Texas, and Luna & 

Luna, LLP of Garland, Texas, by the Department of Housing and Urban Development 

(HUD) under request for proposals (RFP) Nos. R-DEN-02218 and R-DEN-02219 for 

closing agent services. Urban Title argues that its final proposal revision (FPR) was 

improperly rejected as late, and that the agency improperly used concerns about 

Urban Title’s ongoing performance of the incumbent contract to downgrade its past 

performance without raising those concerns during discussions. 

We deny the protest. 

BACKGROUND 

HUD issued the RFP on October 11, 2007, seeking proposals to provide real 

estate closing agent services for single-family properties in certain counties in 
Texas.1

 The RFP was set aside for small businesses. After completing the initial 

evaluation, HUD selected Urban Title and Gowing for award on the basis of their 

initial proposals and awarded those contracts on March 5, 2008. One of the 

unsuccessful offerors, Julius L. Thompson, P.C. (Thompson), protested those awards 

to our Office. Urban Title continued to perform its contract after HUD notified our 

Office that it would stay the contract awarded to Gowing, but had executed a 

determination to override the stay of performance of the contract with Urban Title. 

Later, HUD announced that it would take corrective action in response to 

Thompson’s protest by conducting discussions with all offerors (including 

Thompson and the awardees), requesting revised proposals, and making a new 

source selection decision. Our Office dismissed Thompson’s protest on the basis 

that the corrective action rendered the protest of the awards academic. Julius L. 

Thompson, P.C., B-311437, May 2, 2008. 

Between April 15 and June 30, at least 22 instances of what HUD regards as 

inadequate performance by Urban Title of the ongoing contract had occurred. 

However the record does not suggest that Urban Title was aware that its 

performance was regarded as deficient by HUD at that time. 

On June 30, the contracting officer (CO) sent a letter by e-mail to each offeror, 

providing specific discussions questions. The only issue raised with Urban Title was 

a request that it move its key personnel resumes to a different section of its proposal. 

No concerns about Urban Title’s performance of the incumbent contract were 

mentioned.2 

 

1

 Although issued as two separate solicitations, there is no dispute on the record here 

that there was essentially one competition; each offeror submitted a single proposal, 

with the expectation HUD would award contracts to two offerors on the same basis. 

The RFP described the resulting contracts as requirements contracts, and explained 

that orders would be distributed between the two contractors. For the sake of 

simplicity, we will refer to the RFP in the singular. 

2

 HUD subsequently issued a cure notice dated September 23, which when combined 

with Urban Title’s response permitted our Office to identify the dates of most of the 

performance problems. In short, although the record is not exhaustive, we accept 

the protester’s premise that enough performance problems (in HUD’s view) had 

occurred by the time that discussions were opened that HUD could have raised its 

concerns during discussions. However, we note that it has not been necessary for 

our Office to consider the merits of the cure notice or Urban Title’s response; rather, 

for purposes of our analysis, we will assume that Urban Title’s explanations are valid 

and would have allayed the evaluators’ concerns. 

Page 2 B-311437.3 
Each of the discussions letters concluded as follows: 

You are required to submit your FPR no later than 5:00 PM, MDT 

[Mountain Daylight Time], on Wednesday, July 9, 2008. . . . Please 

submit the FPR via email to [contracting specialist’s e-mail address]. 

Any late FPR will be subject to the rules spelled out at FAR [Federal 

Acquisition Regulation] 52.215-1, Instructions to Offerors--Competitive 

Acquisition. You may contact [the contracting specialist] or myself at 

[phone number] if you have any questions. 

Protest exh. 1, Letter from CO to Urban Title, at 1-2. 

Urban Title submitted its FPR twice by separate e-mails to the address of the 

contracting specialist on July 9. Urban Title sent the first e-mail at 4:48 p.m. MDT (or 

12 minutes before the closing time), and it sent the second e-mail at 5:01 p.m. MDT 

(or 1 minute after the closing time). 

Neither e-mail from Urban Title was received by HUD before the deadline. The 

contracting specialist received the second of the two e-mails from Urban Title at 

5:02 p.m. MDT on July 9 (or 2 minutes late). Declaration of Contracting Specialist 

at 1. As explained further below, the first e-mail did not arrive until several weeks 

later. 

HUD determined that Urban Title’s FPR had been received 2 minutes late, and 

therefore it could not be evaluated. Nevertheless, HUD decided to reevaluate Urban 

Title’s initial proposal, and to evaluate the timely FPRs from other offerors. In 

conducting the reevaluation, HUD considered as past performance information the 

ongoing performance by Urban Title under the original contract. That additional 

past performance information led HUD to downgrade Urban Title under the past 

performance factor. On August 21, after completing the evaluation, HUD notified 

Urban Title that its proposal was not selected, and instead Gowing and Luna & Luna 

had been selected for award. Letter from Contracting Officer to Urban Title, 

Aug. 21, 2008, at 1. 

At the time that the new awards were announced, the first e-mail from Urban Title 

still had not arrived. However, later the same evening, the first e-mail from Urban 

Title (originally sent on July 9 at 4:48 p.m. MDT) finally arrived. Specifically, the 

Contracting Specialist states that on the morning of August 22 his e-mail inbox 

contained an e-mail from Urban Title that had arrived at 8:52 p.m. MDT the previous 

evening (August 21). Declaration of Contracting Specialist at 2 & exh. 3 (screen shot 

of inbox). 

After HUD announced the new awards, Urban Title filed this protest. 

Page 3 B-311437.3 
DISCUSSION 

Urban Title argues that its 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, we find that HUD correctly concluded that Urban 

Title’s FPR was late. As explained above, 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 5 weeks, 

the protester does not dispute that it occurred, and the contracting specialist has 

provided the facts in a sworn declaration to our Office. 

HUD argues that the only exception for a late proposal revision received by 

electronic means is found in FAR § 52.215-1(c)(3)(ii)(A), which could only apply if 

Urban Title’s electronic submission had reached the “initial point of entry to the 

Government infrastructure” by 5 p.m. a day before the due date. HUD points out that 

Urban Title confirms that its FPR submissions were sent on the due date (not a day 

early), and thus the exception is unavailable. 

Urban Title argues HUD elected to limit offerors to submitting FPRs only by e-mail, 

and that by doing so, HUD was obliged to ensure that its e-mail system was 

reasonably reliable. In Urban Title’s view, the facts here suggest that HUD failed in 

meeting that duty. 

In our view, the protester’s argument is foreclosed by the specific treatment of the 

issue in FAR § 52.215-1(c)(3)(ii)(A). See Sea Box, Inc., B-291056, Oct. 31, 2002, 

2002 CPD ¶ 181 at 3 (other exception necessarily applies only to proposals not 

delivered by electronic means). Moreover, any objection to HUD’s decision to 

specify that FPRs be submitted by e-mail is an allegation of a patent solicitation 

defect,3

 which is therefore untimely when raised for the first time now, after award.4 

 

(continued...) 

3

 Although the FPR submission instructions were apparently not included as a formal 

amendment to the RFP, they were provided to each offeror along with its 

discussions issues, and therefore we conclude that the timeliness standards 

applicable to solicitation defects apply here. 

4

 Neither are we persuaded by the protester’s argument that its FPR should be 

considered to be a late government-favorable revision to an “otherwise-successful” 

proposal. Urban Title bases this argument on the fact that it had received an award 

in the initial round of the competition. As such, Urban Title contends that its FPR 

merely lowered its prices and made no other substantive changes to the initial 

proposal. Even if true, we agree with HUD that this exception is unavailable because 

Page 4 B-311437.3 
Page 5 B-311437.3 

4 C.F.R. § 21.2(a)(1) (2008). Accordingly, Urban Title’s protest to the treatment of its 

FPR as late is denied. 

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. In our view, 

we 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, as explained above, 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, we 

need not, and do not, reach the issue of whether such discussions were required. 

Instead, we simply note that if they had been provided, they would not have saved 

Urban Title from its later failure to submit a timely FPR. See, e.g., McDonaldBradley, B-270126, Feb. 8, 1996, 96-1 CPD ¶ 54 at 3; Statistica, Inc. v. Christopher, 

102 F.3d 1577, 1581 (Fed. Cir. 1996). 

The protest is denied. 

Gary L. Kepplinger 

General Counsel 

 

(...continued) 

Urban Title’s initial proposal was not “otherwise successful” after the evaluation of 

FPRs.