TITLE: O.S. Systems, Inc., B-292827, November 17, 2003
BNUMBER: B-292827
DATE: November 17, 2003
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O.S. Systems, Inc., B-292827, November 17, 2003
Decision
Matter of: O.S. Systems, Inc.
File: B-292827
Date: November 17, 2003
Paul H. Gunderson, for the protester.
Capt. Richard M. Sudder, Department of the Army, for the agency.
Charles W. Morrow, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Agency properly rejected protester*s hand-carried proposal as late where
the delivery driver significantly contributed to the late receipt of the
proposal by failing to allow sufficient time for timely delivery.
DECISION
O.S. Systems, Inc. protests the rejection of its proposal as late under
request for proposals No. USZA22-03-R-0035, issued by the United States
Special Operations Command (USSOCOM), to acquire 100 Maritime Assault Suit
Systems.
We deny the protest.
Under the RFP, as amended, the time set for receipt of proposals was 2
p.m., Eastern Daylight Time, August 21, 2003. As originally issued, the
RFP stated, *Submit signed and dated offers to [Headquarters] USSOCOM;
ATTN: SOAL-KB ([name of contracting officer]), Building 102, 2nd Floor,
2418 Florida Keys Ave; MacDill AFB [Air Force Base], FL 33621.* RFP at
13. Amendment No. 0002, dated August 5, changed the delivery location to
*HQ USSOCOM; ATTN: SOAL-KB ([name of contracting officer]) 7701 Tampa
Point Blvd., MacDill AFB, FL 33621-5323.* No other directions pertaining
to proposal delivery were included in the RFP. The RFP stated that
*offers are responsible for submitting offers, and any modifications,
revisions, or withdrawals, so as to reach the Government Office designated
in the solicitation by the time specified in the solicitation.* RFP at
15.
On August 20, O.S. sent its proposal by commercial carrier for overnight
delivery.
A local delivery company was to hand-carry the proposal to the designated
address. According to the local delivery driver, he entered MacDill AFB
at approximately 1:10 p.m. on August 21. The delivery driver stated that
he makes regular deliveries to MacDill AFB, but mostly to the hospital;
that he generally uses a map provided to him by the visitors* center; and
that the building *HQ USSOCOM* is not listed on that map. Because of
this, the delivery driver stated that he first went to the hospital
mailroom to drop off another delivery and then reviewed a detailed map of
MacDill AFB located there in order to find the designated address to
deliver the proposal. From there, he proceeded to Tampa Point Boulevard,
turned into the designated roadway, and discovered that the address was
located in a restricted area on the base, secured by a gate and security
ramp, and with keypad access only.[1] The time was approximately
1:47 p.m. He indicates that he exited his vehicle and tried to locate a
guard or way to access the building but saw no guard or entrance way.
Returning to the vehicle, the delivery driver indicates he proceeded
further down the road, notified the dispatcher, and attempted to contact
the contracting officer by phone at approximately 1:50 p.m. but received
no answer.[2] The driver then indicates that, after receiving
instructions from a person that happened to be exiting a part of the 7701
Tampa Point Boulevard complex, he located the mailroom for 7701, which was
in a trailer behind one of the buildings. He states that *[he] arrived at
this mailroom right around 2:00 p.m. or just shortly thereafter,* and then
waited in line until a person there directed him to the contracting
officer*s office, which was at the same address initially designated for
the submission of proposals located in an unsecured area at MacDill AFB.
The driver indicates that he finally hand-delivered the package to the
contracting officer at this address, and she marked it as received at 2:30
p.m. See Statement of Delivery Driver (Aug. 28, 2003); Affidavit of
Delivery Driver (Oct. 15, 2003). USSOCOM rejected the proposal as late on
August 26.
This protest followed.
O.S. essentially contends that the sole causes of the late delivery of the
proposal were the lack of clear instructions in the RFP concerning the
hand-delivery of proposals, the restricted access at the designated
address, and the difficulty of locating the mailroom. O.S. argues that
the government had the responsibility of providing a delivery address
reasonably accessible and easy to locate to accommodate hand-carried
proposals from commercial carriers. For a variety of reasons, including
that no building in the complex was identified, and that the contracting
officer did not maintain an office at the delivery address, O.S. argues
that USSOCOM frustrated the delivery of the proposal.
It is an offeror*s responsibility to deliver its proposal to the proper
place by the proper time, and late delivery generally requires rejection
of the proposal. Federal Acquisition Regulation S: 15.208; The Staubach
Co., B-276486, May 19, 1997, 97‑1 CPD P: 190 at 3. However, a
hand-carried proposal that arrives late may be considered if 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. Cadell Constr. Co., Inc.,
B‑280405, Aug. 24, 1998, 98-2 CPD P: 50 at 6. Improper government
action in this context is affirmative action that makes it impossible for
the offeror to deliver the proposal on time. Id. Nevertheless, 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. Integrated Support Sys., Inc.,
B-283137.2, Sept. 10. 1999, 99-2 CPD P: 51 at 2. Here, as explained
below, we find no basis to conclude that improper government action was
the paramount cause for the late submission of O.S.*s proposal.
Even conceding that USSOCOM may have complicated delivery of hand-carried
proposals by not including more explicit instructions in the RFP and by
designating a location with restricted access for receipt of proposals,
the record evidences that the delivery driver contributed significantly to
the late delivery of the proposal. Indeed, the record indicates that the
main reason that the proposal was received late was because the delivery
driver was unfamiliar with the exact address on MacDill AFB, and decided
to make another delivery first and then to attempt to find the filing
location unaided, rather than seeking advice concerning the address and
location of the contracting officer immediately upon entering the
facility. It was only after this effort proved unsuccessful that the
delivery driver attempt to contact the contracting officer (just prior to
2 p.m.), and to seek the assistance of other personnel, including those in
the mailroom at the designated address.[3] The delivery driver ultimately
was able to deliver the proposal to the contracting officer, albeit 30
minutes after the designated time for receipt of proposals, which
evidences that the delivery driver could have delivered the proposal to
the proper place at the proper time if he had more prudently utilized his
time upon entering the facility. Thus, we find that the delivery driver
significantly contributed to the late receipt of O.S.*s proposal, and that
improper government action was not the paramount cause of its late
receipt.
In these circumstances, we find no basis to question the agency*s decision
to reject O.S.*s proposal as late.[4]
The protest is denied.
Anthony H. Gamboa
General Counsel
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[1] The delivery driver states that 7701 Tampa Point Boulevard encompasses
several multi-story buildings that are highly secured with every door
having keypad access only. Affadavit of Delivery Driver (Oct. 15, 2003),
at 2.
[2] The agency phone records reflect that this call occurred at
approximately 1:58 p.m.
[3] Even though it appears that the mailroom for the 7701 complex may have
been a suitable place for the delivery driver to deposit the proposal, the
delivery driver states that he arrived at this facility at or after 2
p.m., and was not assisted by these personnel until after this time.
Therefore, from this record the proposal would not have been stamped as
received by this facility in time enough to meet the RFP*s deadline, even
if the protester had handed it to the government personnel at that point.
In any event, there is no evidence that the delivery driver made any
attempt to deliver the proposal to the government personnel there or that
the personnel took possession of the protester*s proposal.
[4] O.S. also asserts that the specifications for this RFP were overly
restrictive. This protest of an apparent solicitation impropriety, filed
after the closing date for receipt of proposals, is untimely filed under
our Bid Protest Regulations. 4 C.F.R. S: 21.2(a)(1) (2003).