BNUMBER:  B-277430 
DATE:  September 8, 1997
TITLE: Med-National, Inc., B-277430, September 8, 1997
**********************************************************************

Matter of:Med-National, Inc.

File:     B-277430

Date:September 8, 1997

Joan K. Fiorino, Esq., and Donald E. Barnhill, Esq., East & Barnhill, 
for the protester.
Cecelia R. Jones, Esq., and Alden F. Abbott, Esq., Department of 
Commerce, for the agency.
Tania L. Calhoun, Esq., and Christine S. Melody, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Late hand-carried proposal was properly rejected as late where a 
preponderance of the evidence does not establish that the protester's 
courier delivered the offer to the designated location prior to the 
time set for closing.

DECISION

Med-National, Inc. protests the rejection of its proposal as late 
under request for proposals (RFP) No. 52WCNA706028SH, issued by the 
Department of Commerce to obtain employee assistance program services.  
Med-National argues that the agency should have accepted its proposal 
notwithstanding its late receipt because the government's action was 
the paramount cause for the delay.

We deny the protest.

BACKGROUND

Commerce issued this solicitation as part of its role in providing 
acquisition support services to a consortium of Cooperative 
Administrative Support Units (CASU) and Department of the Treasury 
Franchise Business Activities (FBA).[1]  The consortium requires 
contracting support to provide employee assistance program services to 
its customer agencies throughout the United States.  These services 
enable employees with alcohol, drug, mental, emotional, family or 
other personal problems to obtain services from appropriate 
prevention, treatment, and rehabilitation programs.

Commerce contracted with a private contractor, Ms. Lynda McBroom, to 
provide the acquisition support services for these contracts.  She, in 
turn, contracted with Mr. John Thorslev to assist her.  These two 
contract facilitators, both former federal contracting officers, share 
a cubicle in Department of Labor (DOL) office space at 71 Stevenson 
Street, Room 515, in San Francisco, California.

The solicitation, as amended, set forth the closing time for receipt 
of proposals as June 4, 1997, 1 p.m. Pacific Daylight Savings Time, 
and included the full text of the clause at Federal Acquisition 
Regulation  sec.  52.215-10, "Late Submissions, Modifications, and 
Withdrawals of Proposals."  Proposals were to be mailed or 
hand-carried to:

     Department of Labor
     ATTN:  Contract Facilitator, Lynda McBroom
     71 Stevenson Street, Room 515
     San Francisco, CA  94105

The agency received 12 proposals prior to the 1 p.m. closing time, but 
did not receive Med-National's proposal until 1:11 p.m.  Ms. McBroom 
contacted the contracting officer to relay her account of the events 
surrounding the late receipt of Med-National's proposal, and the 
contracting officer determined that the proposal could not be 
considered.  This protest followed.

Med-National contends that its courier, from the commercial carrier 
EagleUSA, was in Room 515 prior to 1 p.m. but no one was present to 
accept delivery of the proposal.  Med-National therefore argues that 
the government should accept its late-delivered proposal because the 
government was the paramount cause for the delay.  Commerce counters 
that the evidence does not support Med-National's contention that its 
courier was in Room 515 prior to 1 p.m.

DISCUSSION

Legal Standard

It is an offeror's responsibility to deliver its proposal to the 
proper place at the proper time, and late delivery generally requires 
rejection of the proposal.  The Staubach Co., B-276486, May 19, 1997, 
97-1 CPD  para.  190 at 3.  By choosing a method of delivery other than 
those methods specified in the late proposal clause, an offeror such 
as Med-National assumes a high degree of risk that its proposal will 
be rejected if untimely delivered.  Seer Publishing, Inc., B-237359, 
Feb. 12, 1990, 90-1 CPD  para.  181 at 5.  The reason for the rules 
governing late proposals is that the manner in which the government 
conducts its procurements must be subject to clearly defined standards 
that apply equally to all offerors so that fair and impartial 
treatment is ensured.  Id.

A proposal delivered to an agency by commercial carrier, as here, is 
considered to be hand-carried.  A hand-carried proposal that arrives 
late may be considered where improper government action was the 
paramount cause for the late submission, and where consideration of 
the proposal would not compromise the integrity of the competitive 
procurement process.  Occu-Health, Inc., B-250043, Oct. 30, 1992, 92-2 
CPD  para.  314 at 3.  Improper government action in this context is 
affirmative action that makes it impossible for the offeror to deliver 
the proposal on time.  Id.  Even in cases where the late receipt may 
have been caused, in part, by erroneous government action, a late 
proposal should not be considered if the offeror significantly 
contributed to the late receipt by not acting reasonably in fulfilling 
its responsibility to deliver a hand-carried proposal to the proper 
place by the proper time.  International Steel Erectors, B-233238, 
Feb. 13, 1989, 89-1 CPD  para.  146 at 4.

We will not reach the question of the relative allocation of fault for 
the late delivery of a proposal unless we can determine that the 
proposal was at the designated location for receipt prior to the time 
set for closing.  See Qualimetrics, Inc., B-213162, Mar. 20, 1984, 
84-1 CPD  para.  332 at 3.  In making this determination, we consider all 
relevant evidence in the record, including statements by parties on 
behalf of the protester and the agency.  Int'l Steel Erectors, supra, 
at 3.  Unless a preponderance of the evidence shows that the proposal 
was at the designated location for receipt prior to the time set for 
closing, the proposal may not be considered for award.  See IPS Group, 
B-235988, Oct. 6, 1989, 89-2 CPD  para.  327 at 2; Int'l Steel Erectors, 
supra, at 3.

Our review of the written record here revealed critical 
inconsistencies in the courier's accounts of the events surrounding 
the delivery of Med-National's proposal.  These accounts were also in 
stark conflict with the agency's written accounts of the same events.  
As a result, this Office conducted a hearing in San Francisco to 
ascertain the facts and to assess the credibility of the courier, the 
contract facilitators, and a DOL employee who works in Room 515.[2] 

Agency Account

Room 515 is a large space broken up by numerous cubicles, a few 
offices, and a conference room.  A receptionist's desk is clearly 
visible from the main door.  V. 16:25:00-27:12.  This desk is not 
staffed full-time, but receptionist responsibilities are shared by 
four DOL employees from their adjacent cubicles.  T. 120 at 2-15.  
Only one of these employees, Ms. Linda Chavarin-Morales, was in the 
office on June 4.  T. 121 at 16-18; 127 at 12-14.  Her cubicle is 
right next to the receptionist's desk.  V. 16:38:30-39:15.

The contract facilitators share a cubicle on the side of the room 
furthest away from the reception area.  V. 16:39:48-40:28.  They share 
one telephone, which rings on only one number, that listed on 
Med-National's airbill.  That number does not ring at the 
receptionist's desk, and the receptionists do not answer the contract 
facilitators' telephone.  The two contract facilitators are the only 
people who answer their telephone.  Unanswered calls to that number 
roll over to a voice mail box.  T. 50 at 1-15; 104 at 17-24; 129 at 
14-18.

In the hour before the 1 p.m. closing, both contract facilitators were 
sitting in their cubicle coordinating receipt of the proposals.  The 
telephone rang.  Mr. Thorslev, whose chair is nearest the telephone, 
took the call.  The caller identified himself as a man from Eagle who 
had been driving around for an hour trying to deliver a box to Lynda 
McBroom, but could not find Stevenson Street.  Mr. Thorslev verified 
that the man was delivering a proposal and asked for his location.  
The man said he was around the Civic Center--which Mr. Thorslev took 
to be 9th and Market Streets--and Mr. Thorslev gave him directions 
from that location.  Mr. Thorslev told the man that he needed to rush 
to make the deadline.

When Mr. Thorslev hung up the telephone, he noted the time as 12:49 
p.m. and began memorializing the call while filling Ms. McBroom in on 
the caller's side of the conversation.  His note is in the record, as 
are his and Ms. McBroom's June 4 and July 8 memoranda to the file, 
their written legal statements, and their hearing testimony, all of 
which substantiate not only the contents of this conversation, but the 
recipient of the call--Mr. Thorslev--and the time of its 
conclusion--12:49 p.m.  T. 8-11; 72-76.  Mr. Thorslev denies having 
taken any other calls from any other courier between 11:55 a.m. and 1 
p.m. that day, and Ms. McBroom denies having taken any calls 
whatsoever from a courier that day.  T. 29 at 8-16; 51 at 8-13; 71 at 
23-25; 72 at 1.  During their discussion of the call, the contract 
facilitators considered whether the courier would be able to timely 
deliver the proposal.  T. 13 at 5-11; 76 at 1-21.  

Stevenson Street runs parallel to and one block south of San 
Francisco's busy Market Street, in the heart of the city's Financial 
District.  Like many other streets in the city, Stevenson is a narrow, 
one-way street, with limited commercial parking on both sides and one 
center lane for west-bound through traffic only.  To further 
complicate matters, Stevenson does not run continuously, but is broken 
into several segments of street interrupted by buildings.  The 
western-most segment of Stevenson begins at 10th Street and ends just 
past 9th Street, and the eastern-most segment of Stevenson begins 
between 3rd and 2nd Streets and ends at 1st Street.  71 Stevenson 
Street is located in this last segment, approximately midway between 
2nd and 1st Streets.  The courier was near the Civic Center, at 9th 
and Market, about 1 1/4 miles and 7 long blocks away from 2nd Street.  
Considering the distance and the traffic involved--Market Street 
contains traffic lights at every intersection and is traversed by 
automobile, truck, bus, and trolley traffic--both contract 
facilitators thought it virtually impossible for the courier to timely 
deliver the proposal.  T. 12 at 3-6; 13 at 5-11; 76 at 1-21.  

The contract facilitators decided to go downstairs and monitor the 
building entrances and street to meet the courier in case he could 
arrive by 1 p.m.  T. 12 at 7-19; 76 at 22-25; 77 at 1-5.  They felt 
comfortable leaving the office because they had already received all 
but one of the proposals they were expecting and because their 
agreement with DOL was that DOL staff would receive packages on their 
behalf if brought in their absence.  They believed that others were in 
the office at the time of their exit due to "office noise," but were 
not certain that anyone was in the reception area at the time because 
they exited out the back door.  T. 77 at 9-17; 48 at 9-15; 69 at 3-25; 
70 at 1-11; 24 at 2-8.   

Both contract facilitators testify, however, that they ran into Ms. 
Chavarin-Morales after their exit and on their way to the elevator; 
that Ms. McBroom briefly explained the situation; and that they then 
took the elevator down to the lobby, arriving at 12:55 p.m.  T. 33 at 
17-25; 34 at 1-5; 78 at 19-25; 79; 80 at 1-12.  While Ms. 
Chavarin-Morales recalls the location of this meeting differently--she 
recalls that they met in the lobby as she was entering and they were 
exiting--the substance of their conversation was the same and she also 
places the time of this meeting at 12:55 p.m.  T. 121 at 19-25; 122 at 
1-17; 130 at 19-25; 131 at 1-3; 123 at 4-6.  In any case, Ms. 
Chavarin-Morales went straight to her cubicle, right next to the 
receptionist's desk, arriving no more than 2 or 3 minutes after this 
exchange.  She was at her desk a few minutes, looked at the clock, and 
saw that it was "around" 1 p.m.  She remained at her desk until the 
contract facilitators returned.  T. 122 at 15-25; 123 at 1-14; 132 at 
2-14. 

The lobby at 71 Stevenson has glass walls that open to Stevenson on 
the north and to a courtyard on the west.  Each wall contains two sets 
of glass doors.  A security guard's desk is located on the Stevenson 
side, between its two sets of doors, and looks directly onto the bank 
of elevators.  When the contract facilitators arrived in the lobby at 
12:55 p.m., they asked the security guard if anyone had come in with a 
package.  When he said no, they left the building to look for the 
courier.  T. 15 at 1-15; 81 at 7-25; 82 at 1-13.  

Mr. Thorslev posted himself on the wide sidewalk running along 
Stevenson Street, in front of the building's columns and nearest the 
eastern-most door, and Ms. McBroom posted herself on this same 
sidewalk, but nearer the building and the courtyard.  V. 
16:32:30-35:00.  They watched the street, courtyard, lobby, and 
sidewalk for anyone who might be a courier in a vehicle or carrying a 
package.  While they moved slightly back and forth, they maintained 
their monitoring of these areas.[3]  They saw no delivery vehicle that 
appeared to be looking for the building, and no one carrying a 
package.  T. 15 at 14-25; 16-17; 36 at 20-25; 37-41; 82 at 4-25; 
83-86; 109-111.  They gave up at 1:05 p.m. and went back inside.  They 
asked the guard if he had seen anyone with a package, and he said no.  
T. 17 at 15-18; 86 at 9-25; 87 at 1-9. 

They returned upstairs, stopped by the mailroom, and entered Room 
515.[4]  T. 18 at 12-16; 87 at 10-15.  They stopped at Ms. 
Chavarin-Morales' cubicle.  In response to their inquiry, she stated 
that she had not seen anyone and that, although she had made a 
conscious effort to listen out for noises, she had heard no one yell 
out and had not heard the door open.  T. 123 at 15-25; 124; 130 at 
19-25; 131 at 1-9.  They returned to their cubicle and shortly 
afterwards the guard called to say that a package had arrived for Ms. 
McBroom.  They went downstairs to the guard's desk.  He said that the 
courier had just walked in with the package, taken the signed receipt, 
and left.  T. 22 at 1-6; 90.  The receipt indicated delivery at 1:10 
p.m., and Ms. McBroom signed for the proposal at 1:11 p.m.

Courier's Account

Med-National sent its proposal by EagleUSA from San Antonio, Texas, to 
San Francisco on the morning of June 4, the due date for receipt of 
proposals.  EagleUSA delivered the proposal to a local delivery 
service at 9 a.m. that morning.  The airbill, properly addressed, 
contains the clear instruction, "MUST DELIVER IN SFO [San Francisco] 
BEFORE NOON WITHOUT FAIL ! ! !"  Mr. Wally Basorun, an independent 
contractor who works as a courier for EagleUSA, was assigned to 
deliver the package, which measured 14" x 19" x 11" and weighed 32 
pounds.  Despite the notice on the airbill to deliver the package by 
noon, Mr. Basorun was told that the delivery deadline was 1 p.m.  T. 
185 at 11-17.  The portion of the airbill in Mr. Basorun's possession 
listed only one name, Lynda McBroom.

The first account of events provided by Med-National to the agency is 
contained in two June 27 letters from EagleUSA employees in San 
Antonio.  These letters claim that Mr. Basorun was on site at 11:50 
a.m. and located Ms. McBroom at that time, but that she refused to 
accept delivery.  Instead, she sent Mr. Basorun around the building 
until he finally found someone--the security guard's name is cited--to 
sign for the proposal.  

The second account of events springs from a July 7 visit to the 
contract facilitators from EagleUSA representatives.  Upon their 
arrival in Room 515, the EagleUSA representatives were escorted back 
to the contract facilitators' cubicle.  In the course of the 
discussion, the contract facilitators stated that they had been 
standing in front of the building looking for the courier.  EagleUSA's 
representatives mentioned no story like the one in the June 27 
letters, but stated that the courier had parked four blocks away and 
walked to the building with the package on his shoulder.  They said he 
made his call from the parking lot, and was not asking for driving 
directions, but for directions to the building.  They suggested that 
the parties may have passed each other in the elevator.  

The third account of events is found in Med-National's July 7 protest.  
The protest contains no reference to the June 27 version of the story 
and differs from the EagleUSA account of that same day.  In this 
account, as repeated in Mr. Basorun's subsequently-filed affidavit, 
Mr. Basorun's second delivery of the day was made at 11:55 a.m., and 
Med-National's proposal was to be his third delivery.  He had trouble 
locating the building using a map, and parked his vehicle three blocks 
away from the delivery site.  He took the package from his vehicle and 
called Ms. McBroom from a telephone.  He was told that someone from 
her office would "come down and meet" him.  He immediately walked to 
the building, with the package on his shoulder, several minutes before 
1 p.m.  He walked into the lobby and "did not find anyone in the lobby 
of the building."  He then took the elevator to the fifth floor and 
walked into Room 515 prior to 1 p.m.  He saw no one.  He yelled out 
"hello" more than once.  A woman appeared who "apparently did not work 
in the area."  This woman said that everyone must be on break and 
advised him to take the package to the security desk.  He did so, and 
then left the building. 

The fourth account of events is found in Med-National's August 6 
comments on the agency report.  The comments contain one reference to 
the June 27 letters and to the July 7 EagleUSA visit.  Med-National 
states, without elaboration, that, "[t]here certainly was some 
misinterpretation by EagleUSA representatives if these statements were 
made by the EagleUSA representatives."[5]  That aside, Med-National's 
comments introduced an August 5 statement from Mr. Basorun which 
differs significantly from any other previously known and fail, once 
again, to offer any explanation for these differences.  This 
statement, which is similar to that made at the hearing, introduces 
additional elements of uncertainty to Mr. Basorun's story.  These 
combined accounts follow.

Mr. Basorun's second delivery was made at 11:55 a.m.  He drove to a 
location near 9th and Stevenson Streets--the western-most segment of 
Stevenson--and parked his vehicle.  He left the vehicle, taking the 
package with him, because he thought he might be able to deliver it 
there.  He intended to walk through Stevenson and identify the 
buildings by number to know exactly where he was going.  When he 
realized that the building was not there, and that Stevenson 
dead-ended, he entered another building and called the number on his 
airbill to get directions to 71 Stevenson Street.  T. 160; 180-181; 
206; 209.  Mr. Basorun now states that the recipient of the call 
identified herself as Ms. McBroom.  T. 232 at 1-8.  His testimony is 
that the directions he received were identical to those given by Mr. 
Thorslev, and are those reflected in his handwriting on the package he 
took with him.  T. 142 at 2-17.  

Contrary to his initial affidavit, his August 5 statement mentions 
nothing about someone coming down to meet him; looking fruitlessly for 
someone waiting for him in the lobby; and then taking the elevator 
upstairs.  Instead, he states that upon entering the building he went 
immediately upstairs.  At the hearing he rejected his affidavit's 
account and testified that no one told him they would come down to 
meet him, but that Ms. McBroom had said she might not be there when he 
arrived and someone else could receive the proposal.[6]  T. 142 at 
21-25; 188 at 8-25; 189.

He returned to his vehicle and drove to the correct segment of 
Stevenson, following the directions consistent with those given by Mr. 
Thorslev.  Since there was no parking available on the street, he 
pulled into a loading dock across the street from and just past the 
building.  He asked for and received permission from the guard to make 
another telephone call to the number on the airbill.  T. 144 at 2-16.  
He states that he spoke to someone other than Ms. McBroom--but cannot 
say if it was a man or woman.  T. 145 at 21-25.  In his August 5 
statement, he said that he asked if there was any place to park to 
make a delivery, but the person gave him not that information, but 
directions to the building.  His hearing testimony is that he did get 
information regarding parking--that there was none.  T. 174 at 6-16.

Mr. Basorun drove to the end of Stevenson Street, turned right on 
First Street, and drove five blocks up to Howard Street, where he 
parked.  He put the package on his shoulder and walked the five blocks 
back down First Street, turned left on Stevenson, and headed halfway 
down the block to the building.  He said on August 5 that this took 2 
to 2 1/2 minutes or less; his hearing testimony is that it took 5 
minutes at the most.  T. 164 at 2-4.  Mr. Basorun states that he went 
into the building and immediately up the elevator to the fifth floor.  
Once in Room 515 he waited to see if anyone would be coming out from 
the offices.  He did not see anyone.  He said, "hello, hello, hello."  
After a few moments, a woman appeared.  In his August 5 statement he 
identified her, for the first time, as a Caucasian woman.  At the 
hearing, he was unable to provide further details.  T. 190 at 2-7.  As 
before, he states that she said everyone was on break and directed him 
to the security desk.[7]  

Other than the 11:55 a.m. delivery time of his second delivery, Mr. 
Basorun can provide no precise time or duration of any succeeding 
event.  He maintains, however, that he always checked his watch and 
knew it was prior to 1 p.m.      

Analysis

The threshold matter for our determination is whether it can be 
established, by a preponderance of the evidence, that Med-National's 
proposal was in Room 515 prior to 1 p.m.  See IPS Group, supra; 
QualiMetrics, Inc., supra.  Our review of the entire record shows that 
the protester has fallen far short of meeting this burden.

On the one hand, the record contains agency accounts which are, in 
every material way, entirely consistent with each other from the June 
4 contemporaneous documentation to this day.  The record gives us no 
basis to question the credibility of the agency's witnesses.  On the 
other hand, the record contains the courier's accounts which are, in 
numerous material ways evident above, inconsistent with each other.   
The record thus gives us ample basis to question the credibility of 
the courier.

The issue of credibility might vanish if the accounts of the courier 
and the agency could be completely reconciled in some reasonable way.  
The protester has certainly not tried to effect such a reconciliation, 
choosing to ignore the evidence which contradicts the courier's latest 
version of events, and our attempts at a complete reconciliation have 
failed.  The record provides us with but one important point of 
agreement between the courier and the contract facilitators--Mr. 
Basorun called the number on his airbill from the Civic Center area to 
ask for directions to 71 Stevenson Street. 

Both contract facilitators state that Mr. Basorun had this 
conversation with Mr. Thorslev, and that the conversation concluded at 
12:49 p.m.  Their testimony is consistent with Mr. Basorun's location 
when he says he made this call; with the directions which Mr. Thorslev 
gave and which Mr. Basorun noted on the airbill and took; and with 
every piece of contemporaneous documentation in the record.  To share 
the protester's blind assumption that this telephone call was made at 
some earlier time and, further, was with Ms. McBroom, we would have to 
ignore all of the contemporaneous evidence, ignore the contract 
facilitators' evident propensity for documentation and their obvious 
desire to facilitate this delivery, and disbelieve their hearing 
testimony.  We cannot do so.  The weight of the evidence shows that 
Mr. Basorun spoke with Mr. Thorslev to obtain directions from 9th and 
Stevenson and that this conversation concluded at 12:49 p.m.  Mr. 
Basorun had therefore given himself 11 minutes to perform all of the 
tasks he says he performed on his way to Room 515.

Mr. Basorun drove down Market Street to 2nd, turned right on 2nd, and 
turned left on Stevenson.  He took this heavily traveled route, 
approximately 1 1/4 miles long, in weekday, lunchtime traffic.  Mr. 
Basorun cannot tell us how long it took to make this drive on June 4.  
He states that the Market Street drive could take 3 minutes or 15 
minutes.  T. 219 at 21-25; 220 at 1-2.  A Med-National consultant 
states that the drive from the second delivery site, very near the 
site of the phone call, took him 9 minutes.  Construing events in the 
most favorable light to the protester, we will assume--given that Mr. 
Basorun's call to Mr. Thorslev concluded at 12:49 p.m. and given Mr. 
Basorun's contention that he arrived in Room 515 before 1 p.m.--that 
the drive on June 4 took less than 11 minutes.  

Whenever it was that Mr. Basorun turned onto the proper segment of 
Stevenson, he pulled his vehicle into the loading dock across the 
street.  Instead of asking the guard for permission to leave his car 
to run across the street and deliver the proposal, he says he asked 
the guard for permission to leave his car to make a telephone call.  
He called the number on his airbill.  Contrary to all other evidence 
in the record, he says he spoke to someone--a man or a woman, he does 
not recall--about parking.[8]  For the same reasons as above, we do 
not find this account credible.  The only people who would have 
answered that number categorically deny Mr. Basorun's account which, 
in itself, makes little sense.  He had just driven past 71 Stevenson 
where there is plainly no parking and, further, his August 5 claim 
that he was given directions to the building implies that he gave the 
person taking the call his location, and that someone actually gave 
him directions from right across the street.

At any rate, whether or not there was a telephone call, 1 p.m. was 
approaching and Med-National's proposal was still not in Room 515.  
Mr. Basorun states that at the conclusion of this call he returned to 
his vehicle, pulled back onto Stevenson, drove half a block to First 
Street, turned right, drove five blocks to Howard Street, and parked.  
He cannot tell us how long this took, only that it would have been 
"minutes."  T. 163 at 17-25; 164 at 1.  He put the package on his 
shoulder and retraced his route.  Again, on August 5 he said this took 
2 to 2 1/2 minutes or less; at the hearing he said it took 5 minutes 
at the most; T. 164 at 2-4; and at the hearing "reenactment" the walk 
took nearly 5 minutes.  V. 16:18:07-23:20.

If by some chance it was still prior to 1 p.m. when Mr. Basorun 
arrived in the lobby, we know that the contract facilitators arrived 
there at 12:55 p.m., had two brief conversations, and exited the 
building to stand on the Stevenson Street side looking for, among 
other things, someone carrying a package.  Even if we assume that 
these conversations lasted as long as 2 minutes, they were on the 
sidewalk at around 12:57 p.m. and up until 1:05 p.m.  They did not see 
him.  Our review of the entire record shows that they would have seen 
him if he had been there at that time.

Med-National's theory is that Mr. Basorun simply passed the contract 
facilitators in the elevator as he was going up to Room 515 and they 
were coming down to look for him.[9]  For this theory to be consistent 
with the undisputed record, Mr. Basorun must have been in an elevator, 
going up, at about 12:55 p.m.  Even setting aside what we consider to 
be the impossibility of his having performed all of the above tasks 
above in under 6 minutes, Med-National's theory is untenable.  

By Ms. Chavarin-Morales' account, she had a brief conversation in the 
lobby with the contract facilitators at around 12:55 p.m., then went 
straight up the elevator and to her cubicle within 2 or 3 minutes of 
that conversation.  She was at her desk a few minutes, looked at the 
clock, and it was "around" 1 p.m.  She remained at her desk until the 
contract facilitators' return, sometime after 1:05 p.m.  If Mr. 
Basorun had been in Room 515's reception area between, say, 12:58 p.m. 
and 1 p.m., she would have seen or heard him.  She did not.[10]  For 
Mr. Basorun to have missed both the contract facilitators and Ms. 
Chavarin-Morales, he would have to have been in Room 515 between 12:55 
p.m. and 12:58 p.m., and departed immediately, prior to 1 p.m.  On 
August 5, Mr. Basorun said that at the time he left Room 515 it was 
after 1 p.m.  Moreover, since he says that when he left Room 515 he 
went straight down to the guard's desk, we have no explanation for the 
12 minute delay between
12:58 p.m. and 1:10 p.m., the time the guard signed for the package, 
and no explanation for how Mr. Basorun might have yet again missed the 
contract facilitators in the lobby around 1:05 p.m.  Med-National's 
theory simply does not hold up under scrutiny.

We cannot say definitively that Mr. Basorun was not in Room 515 prior 
to 1 p.m. on June 4.   Given the countervailing evidence to the 
contrary, however, the preponderance of the evidence does not show 
that he was in the proper place by the proper time, and Med-National's 
proposal was therefore properly rejected as late.  See IPS Group, 
supra.

The protest is denied.

Comptroller General
of the United States
 
1. Executive action established CASUs as special units, associated 
with various federal agencies, whose mission is to provide a broad 
range of services to these agencies on a consolidated basis, thereby 
reducing overall government spending costs in the aftermath of federal 
downsizing.  Federal legislation established FBAs as an extension of 
the CASU concept.

2. In the first stage of the hearing, testimony was taken from the 
witnesses and transcribed by a court reporter.  Citations to this 
transcription are hereafter indicated by the notation "T.," followed 
by the page and line numbers where necessary.  In the second stage of 
the hearing, a videographer recorded the witnesses "reenacting" their 
key movements during the time period in question, both within the 
building and in the immediate vicinity of the building.  Citations to 
this videotape are hereafter indicated by the notation "V.," followed 
by the time.

3. At some point Ms. McBroom briefly explained her presence to a DOL 
employee but states that she maintained her monitoring of the area.  
Mr. Thorslev states that he did not join this conversation and Ms. 
McBroom states that the nearest he came was within "minor hollering" 
distance.  T. 41 at 1-15; 61 at 10-18; 115 at 1-7.  

4. It is unclear whether they went to the mailroom first or to Room 
515 first but, given the mailroom's proximity to Room 515 and to the 
elevator, and the brevity of their visit, the sequencing is 
immaterial.  V. 16:45:00-45:50. 

5. It was not Med-National, but the agency that provided this Office 
with both the June 27 letters and the information concerning the 
EagleUSA visit.  Despite the clear conflict between these and 
subsequent accounts, Med-National made no effort whatsoever to explain 
or reconcile them until pressed to do so by this Office just prior to 
the hearing.  Med-National ultimately provided a statement from the 
dispatcher, the apparent source of the June 27 account.  In his 
statement, made after he had already been "informed of" Mr. Basorun's 
statement, the dispatcher chalks the June 27 story up to Mr. Basorun's 
use of incorrect terminology.  Under the circumstances, we have little 
confidence in the dispatcher's independent memory of events.

6. When this discrepancy was pointed out at the hearing, counsel 
attempted to show that Mr. Basorun was confused by the differences 
between American English and "The Queen's" English, which Mr. Basorun 
learned in his native Nigeria, and really meant the reception area of 
Room 515 and not the ground floor lobby.  We are unpersuaded.  By the 
time Mr. Basorun signed his affidavit, he had been in the building and 
knew that his reference to someone "coming down" to meet him in the 
lobby meant that the lobby was on the ground floor.  T. 199-200; 
224-226.

7. On July 16, Ms. McBroom sent an electronic mail message to each 
person working on the fifth floor in which she described the June 4 
events and asked if anyone had any information regarding the courier.  
Confirmations of receipt were received, but no one stepped forward 
with any information.  At the hearing, Ms. McBroom advised that the 
only woman who works to the right of the reception area--the direction 
from which Mr. Basorun says this woman came--is Hispanic, and the only 
Caucasian woman working in the reception area was out that day.  V. 
16:46:15-46:40.  

8. Mr. Thorslev specifically denies having had any discussion of 
parking with Mr. Basorun.  T. 11 at 2-7.  Ms. McBroom, again, 
specifically denies having had any discussion at all with him.  T. 71 
at 23-25; 72 at 1.  

9. Med-National's other theory--that Mr. Basorun walked into the 
building as the contract facilitators were conversing with Ms. 
Chavarin-Morales in the lobby and somehow evaded their view--suffers 
from the same weaknesses as its principal theory and need not be 
separately discussed.  

10. Using the contract facilitators' recollection of the location of 
their meeting with Ms. Chavarin-Morales, she would have been at her 
desk even earlier.