TITLE:  Environmental, Inc.; WRS Infrastructure & Environment, Inc., B-294057; B-294057.2, July 29, 2004
BNUMBER:  B-294057; B-294057.2
DATE:  July 29, 2004
**********************************************************************
   Decision

   A 

   A 

   Matter of:   Environmental, Inc.; WRS Infrastructure & Environment, Inc.

   A 

   File:            B-294057; B-294057.2

   A 

   Date:              July 29, 2004

   A 

   Lorenzo F. Exposito, Esq., and Jeniffer De Jesus, Esq., Powell Goldstein
Frazer & Murphy, for the protesters.

   Kenneth A. Redden, Esq., Environmental Protection Agency, for the agency.

   Jacqueline Maeder, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protests that agency improperly rejected offers as late because lateness
was due to amendment that rendered address for hand-carried offers
ambiguous, is denied where solicitation clearly provided address for
hand-carried offers and amendment cannot reasonably be read as revising
delivery instructions.

   DECISION

   A 

   On-Site Environmental, Inc. and WRS Infrastructure & Environment, Inc.
protest the rejection of their proposals under request for proposals (RFP)
No. PR-HQ-04-10343, issued by the Environmental Protection Agency (EPA)
for fast environmental cleanup services for hazardous
substances/wastes/contaminants/materials and petroleum products/oil, for
Puerto Rico and the U.S. Virgin Islands. On-Site and WRS contend that the
late delivery of their offers was due to ambiguous solicitation
instructions, and that their offers therefore should be considered.

   A 

   We deny the protests.

   A 

   The RFP, issued March 18, 2004, included addresses for submission of
proposals.  The first was under item 7 on SFA 33, labeled *ISSUED BY,*
which included a parenthetical stating *(Hand Delivered/Overnight
Commercial Carriers),* and the following address:

   A 

   A 

   A 

   Environmental Protection Agency
Bid and Proposal Room, Ronald Reagan Building, 6thA Floor
(3802R)
1300 Pennsylvania Avenue, N.W.
Washington, DC 20004

   The second was under item 8, labeled *ADDRESS OFFER TO (if other than item
7),* which included a parenthetical stating *(U.S. Mail Only),* and the
following address: 

   Environmental Protection Agency
Bid and Proposal Room, Ariel Rios Building (3802R)
1200A Pennsylvania Avenue, N.W.
Washington, DC 20460

   RFP at 1.  The agency issued three amendments, all of which included item
6, which was labeled *ISSUED BY* and included the 1200 Pennsylvania Avenue
address.  RFP, amend. 1, at 1; amend. 2, at 1; amend. 3, at 1.  The
amendments did not include any parenthetical information under item 6, or
any other information relating to the place of offer delivery.  The
closing time for receipt of proposals was 4:00 p.m. on AprilA 30. 

   A 

   On-Site*s proposal was to be delivered by a commercial overnight delivery
service prior to 10:30 a.m. on April 30.  It was addressed to the 1200
Pennsylvania Avenue address under item 8 of the RFP and under item 6 of
the amendments.  On-Site Protest at 4.  The record shows that the
commercial carrier unsuccessfully attempted delivery prior to 10:30 a.m.
on Friday, April 30.  Id. at 4-5.  The protester*s and the commercial
carrier*s representatives telephoned the contracting officer, who advised
On-Site that it was using an incorrect address for delivery via commercial
carrier.  Agency Report (AR), Contracting Officer*s Statement, at 4; AR,
Tab F, Memorandum for Record, at 1.  On-Site then rea**routed the delivery
to EPA*s 1300 Pennsylvania Avenue address and the agency received
On-Site*s proposal on Monday, May 3 at 9:29 a.m.  Protest at 5; AR, Tab G,
Memorandum for Record, Late Proposals, at 1.

   A 

   WRS likewise sent its proposal via the same commercial carrier and
addressed it to the 1200A Pennsylvania Avenue address.  The commercial
carrier unsuccessfully attempted delivery at approximately 6 a.m. on April
30.  WRS Protest at 4.  A representative of the commercial carrier
notified WRS of the delivery problem and WRS arranged for an employee of a
Washington D.C. law firm to pick up the proposal at the commercial
carrier*s office and deliver it to EPA*s 1300 Pennsylvania Avenue
address.  Id. at 4-5.  WRS*s proposal was received by the agency on April
30 at 4:25 p.m.  AR, Tab G, Memorandum for Record, Late Proposals, at 1. 
By letter dated May 3, the agency notified On-Site and WRS that their
proposals were received late and would not be considered for award. 

   A 

   On-Site and WRS contend that their proposals were received late due to a
latent ambiguity in the RFP regarding the delivery address for
hand-carried proposals.  Specifically, the protesters assert that they
interpreted the 1200 Pennsylvania Avenue *ISSUED BY* address in item 6 of
the amendments as superseding the 1300A Pennsylvania Avenue *ISSUED BY*
address in item 7 of the solicitation*s cover page.  Protesters* Comments
at 6.  Noting that none of the amendments referenced the
1300A Pennsylvania Avenue address, and that the 1300 Pennsylvania Avenue
*ISSUED BY* address in the original solicitation was the address for
delivery of proposals by overnight commercial carriers, the protesters
assert that they reasonably viewed the substitution of the 1200
Pennsylvania Avenue address into the *ISSUED BY* item in the amendments as
providing that the delivery location for commercial carriers had been
changed from 1300 to 1200 Pennsylvania Avenue.  

   A 

   As a general rule, offerors are responsible for delivering their proposals
to the proper place at the proper time.  CSLA, Inc., B-255177, Jan. 10,
1994, 94-1 CPD P 63 at 2.  A proposal delivered to an agency by a
commercial carrier is considered to be handa**carried and, if it arrives
late, can only be considered for award if it is shown that some government
impropriety during or after receipt by the government was the sole or
paramount cause of the late arrival at the designated place.  Id.  A
solicitation ambiguity exists where two or more reasonable interpretations
of the terms of the solicitation are possible.  Ashe Facility Servs.,
Inc., Ba**292218.3,  Mar. 31, 2004, 2004A CPD P 80 at 10.  To be
reasonable, an interpretation must be consistent with the solicitation
read as a whole and in a reasonable manner.  Malkin Elecs. Int*l, Ltd.,
Ba**228886, Dec. 14, 1987, 87-2 CPD P 586 at 4.   

   A 

   Here, the late receipt of the protesters* proposals was not the result of
a government impropriety, since the solicitation was not ambiguous as
claimed.  The solicitation as issued provided two addresses, one clearly
identified for mailed offers and the other for offers either hand-carried
or delivered by an overnight commercial carrier.  Nothing in the
amendments purported to revise or supersede these instructions regarding
place of delivery.  More specifically, while item 7 on the RFP cover page
included a parenthetical identifying 1300 Pennsylvania Avenue as the
address for hand delivery and delivery by overnight commercial carriers,
the amendments did not include similar parenthetical information in item
6, and nowhere else expressly identified an address other than 1300
Pennsylvania Avenue as the place for delivery of any offers; indeed,
nothing in the amendments purported to provide any information at all
regarding the place of delivery of offers.  While the protesters may have
been confused by the amendments, that confusion resulted, not from an
ambiguity introduced by the agency, but from their ignoring the clear
delivery information in the RFP in favor of a tenuous interpretation of
the address information in the amendment.  We conclude that the
solicitation was not ambiguous and that the agency therefore properly
rejected the proposals as late.[1]

   A 

   The protesters assert that the RFP should have included an internal EPA
regulatory provision, EP-S 99-2, which provides general instructions for
submission of handa**carried/courier-delivered and mailed offers. 
However, this assertion involves an alleged defect apparent on the face of
the solicitation that had to be raised prior to the time set for receipt
of offers.  4 C.F.R. S 21.2(a)(1).  Since the protesters did not raise
this argument until after the April 30 closing date, this aspect of the
protest is untimely.  In any event, the agency explains, and the protester
does not refute, that *EP* provisions are only optional, and thus need not
be included in a solicitation.  EPA Letter, JuneA 10, 2004, at 1. 
Moreover, given our conclusion that the RFP was not ambiguous regarding
place of delivery, the absence of this provision would not provide a basis
for sustaining the protests.

   A 

   The protests are denied.

   A 

   Anthony H. Gamboa

   General Counsel

        

   A 

   ------------------------

   [1] We note that, even if we agreed that the delivery information was
ambiguous, any ambiguity would be patent rather than latent; to the extent
the delivery instructions were rendered unclear by the amendment, this was
apparent from the face of the RFP and the amendments.  As such, the
protest would be untimely, since it was not filed prior to the closing
time for receipt of offers.  BidA Protest Regulations,
4 C.F.R. SA 21.2(a)(1) (2004); GeneralA Elec. Co., Ba**248565,
Ba**248565.2, Sept. 8, 1992, 92-2 CPD PA 159 at 2. 

   A 

   A