TITLE:  Kesser International, B-296294, June 30, 2005
BNUMBER:  B-296294
DATE:  June 30, 2005
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   Decision

   Matter of: Kesser International

   File: B-296294

   Date: June 30, 2005

   Christopher Solop, Esq., Armstrong Allen PLLC, for the protester.

   Capt. Peter G. Hartman, Department of the Army, for the agency.

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

   DIGEST

   Agency properly rejected proposal as late where it was received minutes
after closing time; 20 minute delay at a security checkpoint did not
constitute improper government action and, in any case, was not paramount
cause of late receipt, since delay took place 2 hours before closing time,
leaving courier sufficient time to deliver proposal.

   DECISION

   Kesser International protests the rejection of its proposal as late under
request for proposals (RFP) No. W911SF-05-R-0001, issued by the Department
of the Army, for grounds maintenance services at Fort Benning, Georgia.

   We deny the protest.

   The solicitation informed potential offerors that initial proposals were
to be received in Building 6, Room 313, Fort Benning, Georgia, by 2:00
p.m., March 31, 2005.  The solicitation included the standard late
proposal clause for commercial items, Federal Acquisition Regulation (FAR)
Section 52.212-1(f), which generally states that any offer received at the
office designated in the solicitation after the exact time specified for
receipt will not be considered. 

   On March 30, the day before proposals were due, Kesser sent its proposal
by FedEx priority overnight mail.  While delivering packages on the base
the next morning, according to FedEx, the courier was stopped and delayed
for approximately 20 minutes at a military police random vehicle stop.
    (The Army states it has no record of this stop.)  After the courier was
allowed to proceed, he returned to delivering packages, and--according to
the FedEx records--ultimately delivered Kesser's package at 2:02 p.m.  The
agency recorded delivery at 2:04 p.m.  Since the package arrived after the
time set for receipt of proposals in the RFP, the contracting officer (CO)
rejected the proposal as late. 

   Kesser primarily argues that the security delay made it impossible for the
courier to deliver its proposal on time, and that its proposal therefore
should be accepted on the basis that improper government action was the
paramount cause of the late delivery.[1] 

   An offer is late if its does not arrive in 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 paragraph 36 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 paragraph 50 at 6. 

   Here, FedEx records provide the only evidence that the FedEx truck was
stopped at a random security checkpoint on the base; the agency maintains
it has no record of such a stop.  Agency Report (AR), Tab 16.  However,
even assuming there was a security stop, this would not necessarily
constitute improper government action, since a 20 minute security delay on
a military base is not on its face unreasonable.  Rather, we think this is
a situation where an offeror should reasonably anticipate such a delay. 
We have recognized that delays in gaining access to government facilities
are not unusual and should not be unexpected.  See, e.g., Einhorn Yaffee
Prescott, B-259552, Mar. 20, 1995, 95-1 CPD paragraph 153 at 3.

   In any case, we do not view the government's actions here as the paramount
cause of the late receipt of Kesser's proposal.  In this regard, the
alleged security delay took place at approximately 11:40 a.m.  Thus, the
courier still had 2 hours to timely deliver the package once he was
allowed to proceed.  The courier explained to the CO that, after he was
stopped by the military police, he continued to follow his usual route
until he received a call from his dispatcher, instructing him to deliver
to Building 6 before making his scheduled stop at Building 4.  AR, Tab
11.  He then proceeded to deliver Kesser's package at that time.  Given
these circumstances, the paramount cause for the package's late delivery
was the courier's decision to continue on his normal route after the
alleged security delay--rather than deliver Kesser's proposal at that
time--and not the government's actions.  

   Kesser states that its courier may have relinquished control of Kesser's
proposal prior to the time for submission of proposals.  However, Kesser
offers no support for this statement, and the individual at the agency who
received the package states that she "immediately clocked [the proposal]
in" at 2:04, and the courier also recorded delivery after 2:00 p.m.  AR,
Tab 13.  We conclude that Kesser's proposal was late, and that the
government properly rejected it.

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

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   [1] Kesser also argues that its proposal should have been considered for
award because the proposals here were not publicly opened, so that there
would be no competitive prejudice to other offerors if the agency accepted
Kesser's late proposal.  This argument is, in effect, a challenge to the
late proposal provisions laid out in the solicitation, which do not allow
for consideration of late proposals under these circumstances.  See FAR
Section 52.212-1(f).  Consequently, Kesser was required to protest on this
basis before the initial closing time for receipt of proposals; its
protest of this issue now is untimely.  4 C.F.R. Section 21.2(a)(1)
(2005).