BNUMBER:  B-280948             
DATE:  December 11, 1998
TITLE: Russo & Sons, Inc., B-280948, December 11, 1998
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Matter of:Russo & Sons, Inc.

File:B-280948            
        
Date:December 11, 1998

J. Robert Russo for the protester.
Lawrence R. Lawson for National Computer Systems, an intervenor.
Phillipa L. Anderson, Esq., Department of Veterans Affairs, for the 
agency. 
Aldo A. Benejam, Esq., and Christine S. Melody, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  Government mishandling exception to considering a late proposal 
applies to acquisitions of commercial items despite absence of 
reference to the exception in standard Federal Acquisition Regulation 
(FAR) clause used in commercial item acquisitions, since applying the 
exception is not inconsistent with the intent of the FAR provision, 
and not applying the exception would not benefit the government or the 
competitive procurement system.

2.  Proposal delivered by U.S. Postal Service Express Mail to agency 
mail room approximately 1 hour and 20 minutes before time established 
for receipt of proposals but not routed to the contracting office 
specified in solicitation until after the time set for receipt of 
proposals was properly rejected as late where:            (1) offeror 
failed to identify the package as containing a proposal and otherwise 
failed to mark it with an identifying solicitation number or closing 
date deadline and time; and (2) offeror allowed only 1 day for 
delivery.

DECISION

Russo & Sons, Inc. protests the rejection of its proposal as late 
under request for proposals (RFP) No. 640-112-98, issued by the 
Department of Veterans Affairs (VA) for data collection services.  
Russo contends that its proposal should not have been rejected since 
government mishandling prevented it from being timely delivered to the 
contracting officer.

We deny the protest.

Initial proposals were required to be submitted by 1 p.m. on Friday, 
August 14, 1998, to the following address:

          VA Palo Alto Health Care System
          ATTN:  Lupe Arroyo (90C)
          3801 Miranda Avenue
          Palo Alto, CA   94304

RFP block 9, at 1.  According to the agency, Ms. Lupe Arroyo is the 
contracting officer conducting the procurement and the symbol "90C" 
next to her name indicated to the mail room staff that she was located 
in the Acquisitions and Material Management Service (A&MMS) office.  
The procurement was conducted under Federal Acquisition Regulation 
(FAR) Part 12, which prescribes policies and procedures unique to the 
acquisition of commercial items.  Section E of the RFP contained the 
clause found at FAR  sec.  52.212-1, which instructs offerors to "[s]ubmit 
signed and dated offers to the office specified in this solicitation 
at or before the exact time specified in this solicitation."  FAR  sec.  
52.212-1(b).

On Thursday, August 13, at 11:50 a.m., Russo mailed its proposal from 
a United States Postal Service (USPS) Illinois post office via the 
Express Mail Next Day service delivery method.  On Friday, August 14, 
at 11:40 a.m.--less than 2 hours prior to closing--the USPS delivered 
Russo's proposal to the VA's Palo Alto facility central mail room.

The agency explains that the mail room routinely makes two mail 
deliveries per day:  a morning mail distribution from 8:30 a.m. to 9 
a.m., and an afternoon mail distribution from 1 p.m. to 3:30 p.m.  The 
mail room also provides priority handling of packages which are 
identified as bids or proposals with a due date, time, and 
solicitation number.  These packages receive special attention and are 
immediately delivered to the addressee.  Contracting officer's Sept. 
14, 1998, finding of fact at 1.

Because the central mail room received Russo's package after it had 
conducted its routine morning mail delivery run, and it was not marked 
as a proposal with a due date or time, Russo's package was not 
delivered to the A&MMS office until some time after 2 p.m. on August 
14--as part of the standard afternoon mail delivery run.  
Consequently, since Russo's proposal was not received at the A&MMS 
office until after the scheduled 1 p.m. closing time, the contracting 
officer rejected the proposal as late.

Russo contends that the cause of the VA's late receipt of its proposal 
was mishandling by the government.  The protester argues that its 
proposal arrived at the address designated in the solicitation and was 
in the government's control prior to the time set for receipt of 
offers.

Russo's argument is based on the "government mishandling" exception 
found in FAR  sec.  52.215-1(c)(3)(i)(B), which permits agencies to 
consider a late proposal if "[i]t was sent by mail . . . if it is 
determined by the Government that the late receipt was due primarily 
to Government mishandling after receipt at the Government 
installation."  See also FAR  sec.  15.208(b)(2).  This provision, however, 
was not included in the solicitation.  Instead, section E of the RFP 
contained the clause found at FAR  sec.  52.212-1, which is applicable when 
acquiring commercial items and governs this procurement.  See FAR  sec.  
12.301(b)(1).  With respect to late offers,  FAR  sec.  52.212-1(f) simply 
states that "[o]ffers or modifications of offers received at the 
address specified for the receipt of offers after the exact time 
specified for receipt of offers will not be considered,"[1] and does 
not explicitly contain any of the exceptions to the rules governing 
late offers included in FAR  sec.  52.215-1.

Despite the language of FAR  sec.  52.212-1(f), we do not think that 
agencies should reject a late proposal for commercial items where the 
evidence shows that mishandling by the government is the paramount 
cause for the lateness.  In our view, to reject a proposal where the 
reason for the rejection is that it was late due solely to government 
impropriety is not in the government's best interest--since it may be 
deprived of the most advantageous offer due solely to its own 
mishandling--nor does it benefit the competitive procurement system, 
given the perception of unfairness created by rejecting a proposal 
which is late through no fault of the offeror.  In this regard, we see 
no reason to distinguish commercial item procurements from other types 
of procurements.  Accordingly, we conclude that the government 
mishandling exception to considering late proposals applies to 
acquisitions of commercial items.

It is the responsibility of the offeror to deliver its proposal to the 
proper place at the proper time, and late delivery generally requires 
that a proposal be rejected.  Alpha Technical Servs., Inc., B-243322, 
B-243715, July 15, 1991, 91-2 CPD  para.  56 at 3.  In cases where the 
"government mishandling" exception is to be applied, a proposal which 
arrives late can be considered if it is shown that the sole or 
paramount reason for the late receipt was government impropriety.  Id. 
at 3-4; Southeastern Enters. Inc., B-237867, Mar. 21, 1990, 90-1 CPD  para.  
314 at 3.  In determining whether that standard is met, we take into 
account whether the offeror significantly contributed to the late 
delivery by not acting reasonably in fulfilling its own responsibility 
to submit its proposal in a timely manner.  Einhorn Yaffee Prescott, 
B-259552, Mar. 20, 1995, 95-1 CPD  para.  153 at 3.

In this case, we conclude that the protester's own actions were the 
paramount cause for the late delivery of its proposal to the 
contracting officer.  First, Russo did not mail its proposal until 1 
day prior to the due date.  Second, Russo failed to indicate on the 
outside of its package that the envelope contained a proposal, the 
time specified for receipt, or the solicitation number.  Consequently, 
although the name of the contracting officer and her location in the 
A&MMS office appeared on the envelope, there was no marking on the 
package which would have alerted a mail clerk to expedite delivery of 
the package to that office.[2]  See Secure Applications, Inc., 
B-261885, Oct. 26, 1995, 95-2 CPD  para.  190 at 3.

The fact that the package arrived at the VA's Palo Alto central mail 
room prior to closing is of no significance here.  The RFP required 
receipt of proposals at the "address specified," a term which refers 
to the office responsible for the ultimate receipt and safeguarding of 
the bids or proposals.  That location, as in this case, will usually 
be identified by name, see, e.g., Adrian Supply Co., B-243904, 
B-243904.2, Aug. 7, 1991, 91-2 CPD  para.  140 at 1, recon. denied, 
B-243904.3, Jan. 16, 1992, 92-1 CPD  para.  76 ("Operational Contracting 
Division"); by code or symbol, such as here, see, e.g., Nuaire, Inc., 
B-221551, Apr. 2, 1986, 86-1 CPD  para.  314 at 2 ("VA Medical Center 
648/90f"); or by room number.  See Larry J. Robinson & Co., Inc., 
B-234991, June 13, 1989, 89-1 CPD  para.  559 at 1 ("Rm C-121").  In such 
cases, receipt by the agency's mail room or other receiving facility 
does not constitute receipt by the "office specified" in the 
solicitation for receipt of proposals.  See C.R. Hipp Constr. Co., 
Inc., B-274328, Nov. 20, 1996, 96-2 CPD  para.  195 at 2.  An offeror must 
allow sufficient time for the proposal to pass through any 
intermediate stops and reach the designated office on time.  Systems 
for Bus., B-224409, Aug. 6, 1986, 86-2 CPD  para.  164 at 3.

Here, the office designated in the solicitation for receipt of 
proposals was the A&MMS office, and it is undisputed that Russo's 
proposal did not arrive at that location until after closing.  Since 
the protester did not adequately identify its mailed package as 
containing a proposal designated for a particular solicitation, 
closing date, or time, and also failed to allow adequate time to 
ensure timely receipt by the contracting officer, we conclude that the 
VA properly rejected the proposal as late.

The protest is denied.

Comptroller General
of the United States

1. The agency states that the contracting officer mistakenly added to 
the standard language of this provision the phrase "in accordance with 
FAR  sec.  52.214-7 Late Submissions, Modifications, and Withdrawals of 
Bids."  Agency Report at 2 n.1.  As the agency recognizes, FAR  sec.  
52.214-7 applies to sealed bids, not negotiated procurements.  In any 
event, the erroneous amendment of the standard language does not 
affect our analysis here.  The only exception (other than government 
mishandling) that could apply here is at FAR  sec.  52.214-7(a)(3), which 
allows an agency to consider a bid received at the office designated 
in the solicitation after the exact time specified for receipt if it 
is received before award, and it "[w]as sent by [USPS] Express Mail 
Next Day Service-Post Office To Addressee, not later than 5:00 p.m. at 
the place of mailing two working days prior to the date specified for 
receipt of bids. . . ."  See also FAR  sec.  52.215-1(c)(3)(i)(C), which 
contains an identical provision applicable to late proposals.  Since, 
as explained below, Russo's proposal was not mailed "two working days" 
prior to the date specified in the solicitation for receipt of 
proposals, this exception to the late proposal rule would be 
inapplicable here in any event.

2. Russo asserts that it included the contracting officer's telephone 
number on the outside of the package, arguing that "[i]t is therefore 
reasonable to assume that a telephone call could have been made to or 
from the mailroom prior to the deadline for receipt of proposals."  
Protester's comments at 2.  Russo also contends that "[i]t is the 
practice of contracting officers to notify mailroom and entrance 
security personnel of an upcoming deadline for receipt of bids or 
proposals."  Id. at 3.  As already stated, it is the responsibility of 
the offeror to deliver its proposal to the proper place at the proper 
time.  Alpha Technical Servs., Inc., supra, at 3.  Contrary to the 
protester's assertions, there is no legal requirement for contracting 
officers to alert mail room staff or security personnel of an 
impending closing time.  Nor is there any requirement for the mail 
room staff to inform a contracting office of the arrival of 
correspondence, especially if it is not clearly marked as containing a 
proposal.