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
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[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).