TITLE:  InfoGroup Inc., B-294610, September 30, 2004
BNUMBER:  B-294610
DATE:  September 30, 2004
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   Decision

   Matter of:   InfoGroup Inc.

   File:            B-294610

   Date:              September 30, 2004

   A. Dewey Jordan for the protester.

   R.T. Baumann III, Esq., Stanley Feldman, Esq., and John Donaldson, Esq.,
National Highway Traffic Safety Administration, for the agency.

   Peter D. Verchinski, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Agency properly rejected protester's proposal as late where record shows
that protester's failure to include room number on package--not improper
government action--was cause of commercial carrier's inability to make
timely delivery.

   DECISION

   InfoGroup, Inc. protests the rejection of its proposal as late under
request for proposals (RFP) No. DTNH22-04-05091, issued by the National
Highway Traffic Safety Administration (NHTSA), U.S. Department of
Transportation (DOT), for traffic injury control evaluation and behavioral
technology support.

   We deny the protest.

   The solicitation informed offerors that proposals were to be received at
DOT at the designated place--400 Seventh Street, SW, Room 5301, Washington
D.C. 20590--by the designated time, Monday, August 16, 2004, at 2A p.m. 
The solicitation did not include any other directions pertaining to the
manner of proposal delivery, and incorporated Federal Acquisition
Regulation SA 52.215-1, which states that late proposals generally will
not be considered for award.

   InfoGroup sent its proposal by a commercial carrier, FedEx, for overnight
delivery on Thursday, August 12.  InfoGroup included the street address on
the package mailing label and also provided additional information, such
as the contracting officer's name and telephone number, but did not
include the room number.

   The FedEx courier arrived at the DOT building with InfoGroup's package
(and, apparently, numerous other packages) at around 9:30 a.m. on Friday,
August 13.  Security personnel x-rayed and date-stamped the package, and
the courier then signed in at 9:37 and proceeded into the building to
deliver the packages, unescorted, to individual rooms.  While at the
building, according to the courier, he attempted to telephone the
contracting officer at the number on InfoGroup's proposal package to find
out the room number to which the package should be delivered, but there
was no answer.  Letter from FedEx to Protester, Sept. 9, 2004.  Before
leaving the building at 2:30 p.m., the courier placed a second call to the
contracting officer; again, however, there was no answer.  The courier
therefore left the building and returned to the FedEx office with the
package.  FedEx telephoned the agency again on the afternoon of Tuesday,
August 17, and learned the room number at that time.  The proposal package
finally was delivered on August 18 at 12:11 p.m.  Since this was well
after the August 16 closing time, the agency rejected the proposal as
late.

   InfoGroup asserts that its proposal should be deemed timely received
because it arrived at the proper building with ample time to be delivered
to the designated room, and was not timely delivered only because DOT
failed to escort the courier to the proper room (as InfoGroup believed was
DOT building policy), and because there was no one available to answer the
courier's telephone calls seeking the room number. 

   An offer is late if it does not arrive at the office designated in the
solicitation by the time specified in the solicitation.  Sencland CDC
Enters., B-252796, B-252797, July 19, 1993, 93-2 CPD P 36 at 3.  Where
late receipt results from the failure of an offeror, or the commercial
carrier hired by the offeror, to reasonably fulfill its responsibility for
ensuring timely delivery to the specified location, the late offer may not
be considered.  Aztec Dev. Co., B-256905, July 28, 1994, 94-2 CPD P 48 at
3.  An offer that arrives late may only be considered if it is shown that
the paramount reason for late receipt was improper government action, and
where consideration of the proposal would not compromise the integrity of
the competitive procurement process.  Caddell 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 made it impossible for the offeror to
deliver the proposal on time.  Id. 

   The protest is without merit.  There is no evidence of improper agency
action.  The RFP clearly set forth the precise location for delivery of
proposals, and InfoGroup's courier arrived at the proper address and was
permitted access to the building for purposes of delivering packages. 
While the protester points to the agency's failure to escort the courier
or to be available to provide information to the courier, the agency was
not required to perform these functions.  Rather, the agency fulfilled its
responsibility by providing the protester with complete delivery
information, including the room number, and then providing the protester's
courier with access to the building for purposes of delivering the
proposal.  The fact that the agency did not proceed in accordance with
InfoGroup's understanding regarding DOT building policy is not improper
agency action; the RFP did not state that couriers would be escorted to
the designated room, and there simply was no basis for the protester to
plan the delivery of its proposal using that assumption. 

   InfoGroup, on the other hand, did not reasonably fulfill its
responsibility for ensuring timely delivery.  The solicitation informed
offerors that proposals were to be received in room 5301.  InfoGroup
failed to list the room number on the proposal package and this, as the
record shows, led to the courier's inability to deliver the package.  In
this regard, as noted above, FedEx states in a September 9 letter sent to
the protester in connection with this protest that the courier was unable
to deliver the proposal package on August 13 due to the absence of a room
number on the package.  We note that this explanation is consistent with
the courier's attempts to contact the contracting officer while he was in
the DOT building on August 13. 

   The protester suggests that an incorrect zip code appearing on the FedEx
printed label may have been responsible for the late delivery.  This
argument is without merit.  No matter how the incorrect zip code came to
be written on the package--this is not clear from the record, although
there is no evidence, or reason to believe, that the agency wrote the
incorrect zip code--the package arrived at the correct building.  The zip
code had nothing to do with the courier's inability to deliver the package
once inside the building.

   The protest is denied.

   Anthony H. Gamboa

   General Counsel