TITLE: B-297853, The Castle Group, March 21, 2006
BNUMBER: B-297853
DATE: March 21, 2006
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B-297853, The Castle Group, March 21, 2006

   Decision

   Matter of: The Castle Group

   File: B-297853

   Date: March 21, 2006

   Jason S. Schloss for the protester.

   Diane A. Perone, Esq., Agency for International Development, for the
   agency.

   Paul E. Jordan, Esq., and John M. Melody, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Agency properly declined to accept protester's late proposal where there
   is no evidence that improper government action was cause of U.S. Postal
   Service's failure to make timely delivery.

   DECISION

   The Castle Group, agent for Medex Tianjin Latex Group, protests the Agency
   for International Development's (USAID) rejection of its proposal as late
   under request for proposals (RFP) No. M-0AA-GH-06-063, for latex condoms.

   We deny the protest.

   The RFP informed offerors to submit their proposals by the closing date
   and time--January 3, 2006, at 11:00 a.m.--to the following mailing
   address: "[Ms. Z], Contracting Officer, Office Of Acquisition And
   Assistance, M/OAA/GH, Rm. 7.09-086, 1300 Pennsylvania Avenue, N.W.,
   Washington, DC 20523-7900." RFP sect. L.9. The first page of the RFP
   (Standard Form 33), as well as the RFP's cover letter indicated that the
   first line of the address was to be "U.S. Agency for International
   Development." The RFP also incorporated Federal Acquisition Regulation
   (FAR) sect. 52.215-1, which provides that late proposals generally will
   not be considered for award if they do not reach the designated government
   office by the time specified in the solicitation.

   Castle used the U.S. Postal Service's (USPS) on-line Click-N-Ship(R)
   program to prepare an Express Mail shipping label, and addressed its
   proposal as follows: "[Ms. Z], OFC OF ACQUISITION & ASSISTANCE, M/OAA/GH,
   RM 7 09-086, 1300 PENNSYLVANIA AVE NW, WASHINGTON DC 20004-3002." Castle
   knew that it had not provided the precise address information from the
   RFP, but states that it was unable to do so because the Click-N-Ship(R)
   program's field limitations and address verification system would not
   accommodate all the required information, and also automatically changed
   the zip code from "20523" (as entered by Castle) to "20004." Typed below
   the shipping label was the RFP number, Castle's address, and the words
   "BID ON BEHALF OF MEDEX TIANJIN LATEX GROUP" as well as "Solicitation Due
   Date: January 3, 2006," and "Time: 11:00 AM."

   On December 28, 2005, Castle attempted to contact the contracting officer
   to discuss its address issues; it left her a voice mail message to call
   back, but she "was not told of the problem." Initial Comments at 2. The
   contracting officer did not call back, and Castle opted to send the
   proposal package that same day using the Click-N-Ship(R) label it had
   prepared. The package arrived at a USPS facility in Washington, D.C. on
   December 29, and delivery was attempted on December 30. The package was
   refused by an unidentified person or persons who wrote an "X" across the
   addressee information, the words "official 20460," "Refused 12/30/05," and
   the initials "CE," and stamped the package at least four times using a
   "return to sender" stamp with "refused" marked as the reason. The USPS
   returned the unopened package to Castle on January 6, 2006, well after the
   closing date and time had passed. According to Castle, it was advised by
   the USPS in Washington, D.C. that "delivery was attempted at USAID . . .
   by a substitute USPS carrier"; "the package was refused by Mr. [B], the
   mailroom supervisor at USAID . . . located at 1300 Pennsylvania Avenue";
   and the handwritten remarks and "CE" were made by USPS after the package
   was refused. Initial Comments at 2. Castle requested that the contracting
   officer allow it to resubmit the proposal and, when the contracting
   officer refused, Castle filed this protest.

   Castle asserts that, notwithstanding the discrepancies on its address
   label, its proposal package arrived at the proper address prior to the
   closing time and was improperly refused by the agency. In Castle's view,
   this constituted government mishandling and entitles it to have USAID
   consider its proposal. The agency maintains that it never received or
   refused Castle's proposal; the firm's failure to follow the address
   instructions prevented it from arriving in USAID's mailroom.

   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 para. 36 at 3. Where
   late receipt results from the failure of an 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 para. 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 para. 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 because there is no evidence of mishandling
   or any other improper agency action. USAID's Director of Mail Management
   denies receiving or rejecting the Castle proposal package, and reports
   that the contractor's mailroom supervisor and mailroom staff also deny
   handling the package.[1]  Director's Affidavit, paras. 7-8. In this
   regard, there is no marking on the returned package to indicate it was
   handled by USAID's mailroom. Further, as noted by the Director, USAID
   mailroom procedures do not include handwritten notations for returns but,
   rather, involve the use of a special "return to sender" label (Id. at
   para. 6) which, we note, does not appear on the photocopy of the returned
   package's label. Further, the package's tracking information and the
   returned label both indicate that the package was refused at zip code
   20460, which is assigned to the Environmental Protection Agency (EPA),
   another tenant in the Ronald Reagan Building with its own mailroom. Since,
   aside from the protester's speculation, there is no evidence that USAID
   mishandled the proposal package or contributed in any way to the failed
   delivery attempt, the agency's subsequent refusal to accept the late
   proposal was proper.

   We find that the record supports the alternative explanation--suggested by
   the agency--that Castle's mislabeling of the proposal package may have
   caused the failed delivery. In this regard, the Reagan Building, where
   USAID is located, is the second largest federal building in the country,
   and is shared by three other federal agencies and more than 50 private
   businesses. There are five separate mailrooms and zip codes for the
   building--one for each federal agency and one for the private businesses.
   USAID's zip code--as stated in the RFP--is 20523 and its mailroom is
   located on the 13 1/2 Street side of the building, while the private
   business tenants share the 20004 zip code--the zip code on Castle's
   mailing label--and have their mailroom on the Pennsylvania Avenue side.
   According to USAID's Director, the mail for each federal agency is
   delivered by USPS directly to the particular agency's mailroom. Given the
   zip code on Castle's proposal package and the absence of the agency's
   name, it appears that USPS may have attempted delivery to the mailroom for
   the private business tenants, rather than to USAID's mailroom. The
   Director explains that, when USAID mail is misdirected to other agencies
   in the building, those agencies' staff "will sometimes bring pieces of
   misdirected mail to our attention--provided, of course, that the address
   on the letter or package makes clear that it is intended for receipt by
   USAID." Id., paras. 3-5. The Director further states that, in his
   experience, it is uncommon for USAID mail to be misdirected to the private
   business tenants, and even less common for those firms to alert USAID
   staff when it does happen. Id. at para. 5. Thus, while it appears that
   Castle's proposal package arrived at the proper street address--1300
   Pennsylvania Avenue--it also appears that Castle's failure to use the
   correct zip code and agency name may have prevented delivery of its
   proposal.

   Castle asserts that we should find "government mishandling" based on the
   "malfunctioning" Click-N-Ship(R) program, and USPS's failure to deliver
   its Express Mail package by the guaranteed time and taking 7 days to
   return the package to Castle.[2] Supplemental Comments at 5. None of these
   matters constitute government mishandling. First, we view the alleged
   Click-N-Ship(R) problems as a failure on the protester's part, not the
   government's, since the protester chose to use the Click-N-Ship(R) program
   to print its mailing label. Castle was responsible for choosing a means of
   addressing its proposal package--such as simply handwriting all necessary
   information on an Express Mail envelope and having the postage affixed at
   the nearest post office--that would result in the package being correctly
   addressed. Further, any delay connected with USPS's handling of the
   Express Mail delivery is not considered to be mishandling by the
   government; the word "government" in the context of proposal mishandling
   refers to the procuring agency, not USPS, and the mishandling must occur
   after the proposal is received at the government installation.[3]
   California State Univ., Fullerton, B-243040.2, May 9, 1991, 91-1 CPD
   para. 452 at 2.

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

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

   [1] USPS allegedly told Castle that the Director is the individual who
   refused the proposal package. The Director denies this, explaining that,
   as the contracting officer's technical representative, he does not accept,
   refuse, or otherwise handle the mail at USAID, and he does not instruct
   anyone else to do so; rather, his responsibility is limited to overseeing
   the private contractor that runs the day-to-day activities of USAID's
   mailroom. Director's Affidavit at paras. 1, 7. Again, since there is no
   evidence that the Director was involved in any way in the attempted
   delivery of the proposal package, there is no basis for questioning his
   statement.

   [2] Castle asserts that the contracting officer's failure to return its
   phone call of December 28 constituted government mishandling. However, an
   agency's failure to return a phone call does not constitute mishandling of
   a proposal.

   [3] Castle asserts that because it sent its proposal by Express Mail at
   least 2 working days prior to the closing time, its late proposal should
   be considered. However, while the FAR at one time provided for
   consideration of late-received proposals sent by Express Mail, neither the
   current FAR sect. 52.215-1, nor the RFP, provides an exception permitting
   consideration of late mailed proposals.