TITLE: B-299241.2, Shirlington Limousine & Transportation, Inc., March 30, 2007
BNUMBER: B-299241.2
DATE: March 30, 2007
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B-299241.2, Shirlington Limousine & Transportation, Inc., March 30, 2007

   Decision

   Matter of: Shirlington Limousine & Transportation, Inc.

   File: B-299241.2

   Date: March 30, 2007

   David J. Taylor, Esq., Spriggs & Hollingsworth, for the protester.

   Rose J. Anderson, Esq., Department of Homeland Security, for the agency.

   Kenneth Kilgour, Esq., and Christine S. Melody, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest challenging agency's rejection of the protester's proposal as late
   is denied where the late receipt of the proposal was not caused by the
   agency and the government did not have receipt and control of the proposal
   at the government installation designated for receipt of proposals prior
   to the submission deadline.

   DECISION

   Shirlington Limousine & Transportation, Inc. protests the rejection as
   late the proposal it submitted in response to request for proposals (RFP)
   No. HSHQDC-07-R-00009, issued by the Department of Homeland Security (DHS)
   for agency-wide transportation services. The protester argues that the
   agency engaged in wrongful action that resulted in the late submission of
   the protester's proposal or, alternatively, that the government had
   receipt and control of the proposal prior to the submission deadline.

   We deny the protest.

   Shirlington is an incumbent contractor performing a portion of the
   transportation services to be procured under this RFP. The protester was
   awarded its first contract with DHS for these services in April 2004 and
   the current contract in October 2005. The agency issued the subject RFP
   for Washington area shuttle bus and sedan services on November 20, 2006,
   instructing offerors that proposals were to be received by 2 p.m. Eastern
   Standard Time (EST), December 12, and should be submitted to the following
   address:

     Frank Rumph, Contract Specialist
     OPO Headquarters Procurement Division
     7th & D Street, SW
     Washington, DC 20024

   RFP at 38.

   A different address for delivery of proposals was listed on the Standard
   Form 1449, Box 15 of the RFP, as follows:

     Department of Homeland Security
     Office of Procurement Ops. (DO)
     245 Murray Lane
     Building 410
     Washington DC 20528

   RFP at 1.

   On December 8, the agency issued amendment 3 which, in part, included the
   agency's answers to questions raised by offerors. One question noted the
   two different delivery addresses listed in the RFP and sought
   clarification. The agency responded as follows:

     Change the delivery address @ page 38 to read: Department of Homeland
     Security Office of Procurement Operations, 245 Murray Lane, Building
     410, Washington DC 20528. ATTN Frank Rumph.

   RFP amend. 3, at 2. Amendment 3 also extended the deadline for submitting
   proposals to December 19 at 10 a.m. EST.

   The contract specialist states that on the morning that offers were due he
   received two telephone calls from prospective offerors requesting
   directions to the proposal delivery address of 245 Murray Lane, and that
   he told both callers that the delivery address was a building located on
   the Anacostia Naval Station. Also on that morning, the protester's chief
   operating officer (COO) took the protester's proposal to a "bid room" in
   the building at 7th and D Streets listed on page 38 of the original RFP.
   The protester states that this building houses the DHS Office of
   Procurement Operations headquarters as well as some offices of the General
   Services Administration. The protester also states that previously it had
   delivered its proposal to that address in connection with the procurement
   for one of its two prior contracts with DHS for the services here.
   According to the protester, its COO asked the person in the bid room if
   this was the correct place to submit the proposal, and her response was
   yes. The COO was given a signed receipt, with the correct solicitation
   number listed, stamped: "RECEIVED, 2006 DEC 19 A 9:46:20 GSA-NCR BID
   ROOM." Protest, exh. C. The agency maintains that it was unaware that the
   protester had submitted a proposal under the RFP here until it was
   informed of the submission by the protester on January 9, 2007. The
   contracting officer states that, having been told that the protester had
   submitted a proposal, she stopped by the bid room at 7th and D Streets on
   January 10, saw the proposal, but did not accept it or remove it from the
   bid room.

   Shirlington acknowledges that its proposal was delivered to an incorrect
   address. The protester argues, however, that its proposal nevertheless
   should be accepted because it was the government's wrongful action that
   caused its proposal to be late or, alternatively, its proposal was
   received and under the government's control prior to the time set for
   receipt of proposals. See Protest at 5-6.

   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 (FAR) sect. 15.208; The
   Staubach Co., B-276486, May 19, 1997, 97-1 CPD para. 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. 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 makes it impossible for the offeror to
   deliver the proposal on time. Id. Here, as explained below, we find no
   basis to conclude that improper government action caused the late
   submission of Shirlington's proposal.

   The record shows that once the inconsistency in the delivery addresses
   listed in the original RFP was brought to the agency's attention, the
   agency issued an amendment clarifying where proposals were to be
   delivered. Thus, there simply is no support for the protester's assertion
   that the agency's failure "to provide sufficiently clear delivery
   instructions," Comments at 3, caused Shirlington to submit its bid
   late.[1] The protester argues that its past pattern of dealing with the
   agency, which made it unique among the offerors, led it to conclude that
   the proper delivery address was the bid room at 7th and D Streets.
   Whatever the protester may have done to satisfy proposal delivery
   requirements in prior procurements does not excuse the protester from its
   burden to ensure timely delivery of its proposal at the location specified
   in the solicitation. See Schmid & Kalhert GmBH & Co. KG, B-233467, Feb.
   13, 1989, 89-1 CPD para. 148 at 3. In short, there is nothing in the
   record showing that any affirmative government action deprived the
   protester of the ability to make proper delivery of its proposal.

   The protester also asserts that the agency treated offerors unfairly
   because DHS employees "may have provided more explicit instructions to
   other offerors without sharing this information with Shirlington."
   Comments at 3. As explained above, two offerors received minimal
   assistance with directions to the proposal delivery locations after
   calling the contract specialist on the proposal due date. That a
   contracting official or other agency employee, in response to an inquiry
   from a prospective offeror, provides that offeror with directions to the
   proposal delivery location does not form a valid basis of protest. See
   Aztec Dev. Co., B-256905, July 28, 1994, 94-2 CPD para. 48 at 4 (noting
   that courier could have called the contracting officer for additional
   directions to the delivery location). The protester, of course, could have
   availed itself of the same opportunity to obtain directions.

   The protester asserts, alternatively, that its proposal was received and
   under the government's control prior to the submission deadline so that an
   exception to the rule that late proposals must be rejected applies. In
   this regard, FAR sect. 15.208(b)(1) states that any proposal that

     is received at the designated Government office after the exact time
     specified for receipt of proposals is "late" and will not be considered
     unless it is received before award is made, the contracting officer
     determines that accepting the late proposal would not unduly delay the
     acquisition; and--

             *  * * * *

     (ii) There is acceptable evidence to establish that it was received at
     the Government installation designated for receipt of proposals and was
     under the Government's control prior to the time set for receipt of
     proposals . . . .

   This exception may apply, if all other conditions are also met, when a
   proposal is late but at the office designated for receipt of proposals,
   and under the government's control, before the time set for receipt of
   proposals. See States Roofing Corp., B-286052, Nov. 8, 2000, 2000 CPD
   para. 182 at 4-5. This exception clearly does not apply here given that
   the proposal was not, in fact, at any time delivered to "the designated
   Government office," i.e., the address listed in amendment 3 of the RFP; in
   fact, it was delivered to an entirely different location.

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] To the extent the protester challenges the delivery instructions
   themselves, this ground of protest is untimely. Here, any alleged flaws in
   the delivery instructions constituted a defect in the solicitation that
   was apparent prior to the time for submitting proposals and had to be
   protested prior to that time, which Shirlington did not do here. See Bid
   Protest Regulations, 4 C.F.R. sect. 21.2(a)(1) (2006).