BNUMBER: B-281067
DATE: November 30, 1998
TITLE: Comspace Corporation, B-281067, November 30, 1998
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Matter of:Comspace Corporation
File: B-281067
Date:November 30, 1998
Irving Becker for the protester.
Walter R. Pierce, Esq., Defense Logistics Agency, for the agency.
Christina Sklarew, Esq., and Paul Lieberman, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Agency properly rejected as late a proposal sent by Express Mail 1
working day prior to the specified due date in an envelope designating
an incorrect addressee, where the proposal was delivered to the
government installation prior to closing time, but reached the
proposal opening room late because it was routed by routine mail
processing through the designated addressee.
DECISION
Comspace Corporation protests the rejection of its proposal as late by
the Defense Logistics Agency (DLA) under request for proposals (RFP)
No. SPO970-97-R-X113, issued by the Defense Supply Center Columbus
(DSCC), a DLA field activity, for certain dynamic microphones.
We deny the protest.
The RFP required that sealed offers be submitted by 1 p.m. on Monday,
September 15, 1997, and that offers be addressed to:
DEFENSE SUPPLY CENTER COLUMBUS
ATTN: DSCC-PBAA (Bid Opening RM B130, Bldg 20)
3990 E. BROAD STREET, P.O. BOX 16653
COLUMBUS, OHIO 43216-5009
On Friday, September 12, Comspace mailed its proposal by United States
Postal Service Express Mail-Post Office to Addressee, in a package
addressed as follows:
DSCC-ATTN: DSCC-PCCCGHX-V. Savory
3990 E. Broad St.-POB 16704
Columbus, Ohio 43216-5010
---------------------------
Sol. SPO970-97-R-X113
due 9/15/97 - Microphone, Dynamic
The RFP at section L incorporated by reference Federal Acquisition
Regulation (FAR) clauses 52.215-9 (July 1995) and 52.215-10 (Aug.
1996). FAR clause 52.215-9 advises, among other things, that
proposals must be submitted in sealed envelopes or packages addressed
to the office specified in the solicitation, showing the time and date
specified for receipt. Clause 52.215-10 provides, among other things,
that any proposal received at the office designated in the
solicitation after the exact time specified for receipt of proposals
will not be considered unless it is received before award is made and,
if it was sent by U.S. Postal Service Express Mail Next Day
Service-Post Office to Addressee, not later than 5 p.m. at the place
of mailing 2 working days prior to the date specified for receipt of
proposals.
Comspace's proposal arrived in the DSCC mailroom at 8:30 a.m. on
September 15, and was forwarded to the Commodities Application Group
for delivery to the person designated as the addressee on the mailing
label. Consequently, the proposal did not arrive in the bid opening
room before the 1 p.m. deadline. After the contract was awarded to
Sonetronics Inc. on September 9, 1998, the contracting officer
notified Comspace that its proposal was received late and was not
considered for award, and this protest followed.[1]
An offeror has the responsibility to assure timely arrival of its
proposal and must bear the responsibility for its late arrival unless
a specific exception permitting the consideration of a late proposal
is met. Hubbs-Sea World Research Inst., B-210579, Mar. 1, 1983, 83-1
CPD para. 193 at 2. As provided in the instant RFP, a late proposal may
be considered under appropriate circumstances if it was sent by
express mail not later than 2 working days before the closing date for
receipt of proposals. A late proposal may also be considered if it
is determined that late receipt was due solely to government
mishandling after timely receipt at the government installation. In
determining whether that standard is met, we consider 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. Secure Applications, Inc., B-261885, Oct. 26,
1995, 95-2 CPD para. 190 at 2-3.
Here, because Comspace's proposal was mailed only 1 working day before
the closing date, on the Friday preceding the Monday on which it was
due, it does not fall under the 2 working day express mail exception.
Comspace's proposal also does not fall within the government
mishandling exception because Comspace's own actions substantially
contributed to the late arrival of its proposal at the designated
location. Comspace failed to indicate the time specified in the RFP
for receipt or to address its proposal package to the bid opening
room, as required by the RFP; instead, Comspace misaddressed the
proposal to an inappropriate individual. A proposal that is
misaddressed, and as a result arrives at the proper location late
because it was routed through the routine mail processing system to
the wrong location, is not considered to be late as the result of
government mishandling. Materials Sciences Corp., B-212590, Dec. 27,
1983, 84-1 CPD para. 27 at 3.[2]
Comspace takes the position that its proposal was not late, since it
was "timely received at the government agency." Protester's Comments
at 1. Contrary to Comspace's understanding, the arrival of a proposal
at the government installation is not equivalent to the arrival in the
room designated in the RFP for opening. The RFP requires that
proposals be received at the designated room by the established time.
Proposals are properly rejected as late where they are delivered to an
intermediary stop prior to the designated time, but received late at
the specified location. See Motorola, Inc., B-219592, July 24, 1985,
85-2 CPD para. 84 at 2; Chemical Waste Management, Inc., B-215382, Sept.
10, 1984, 84-2 CPD para. 274 at 2. Since receipt at the mail depot does
not constitute receipt at the designated location, the agency properly
treated Comspace's proposal as late.
The protest is denied.
Comptroller General
of the United States
1. The record does not indicate why contract award occurred almost a
full year after the proposal submission date.
2. Comspace also argues that the fact that agency personnel opened the
package containing its proposal "indicates acceptance of the bid."
Protester's Comments at 1. This argument is without legal merit; even
where a proposal has been opened and initially accepted, it may later
be rejected if further analysis of the circumstances reveals that the
proposal was in fact received late. See MC II Gov't Sys. and Servs.,
Inc, B-258089, Dec. 15, 1994, 94-2 CPD para. 242 at 4.