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.