Link: GAO Opinion
Agency: National Aeronautics and Space Administration
Disposition: Protest denied.
Agency properly rejected protester’s hand-delivered proposal as late where the protester significantly contributed to the late receipt of the proposal by failing to allow sufficient time for timely delivery of the proposal.
General Counsel P.C. Highlight:
The protester, which allowed only eight minutes from arrival at a Space Center security checkpoint to drive to the building designated for the receipt of proposals, contends that a delay allegedly caused by improper action by the security guard at the checkpoint made it impossible for the protester to timely deliver its proposal. GAO states that it is an offeror’s responsibility to deliver its proposal to the proper place at the proper time, and late delivery generally requires rejection of the proposal. 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 process; improper government action in this context is affirmative action that makes it impossible for the offeror to deliver the proposal on time. Nonetheless, even in cases where the late receipt may have been caused, in part, by erroneous government action, a late proposal should not be considered if the offeror significantly contributed to the late receipt by not acting reasonably in fulfilling its responsibility to deliver a hand-carried proposal to the proper place by the proper time.
A review of the record here shows no evidence that the ALJUCAR proposal was in fact received by the agency prior to the 2 p.m. closing time. The contracting specialist reports arriving after 2 p.m. to retrieve the proposal. While the protester states it was on the telephone with the contracting officer minutes before closing, it has not shown that the proposal was under government control prior to 2 p.m. Rather, the protester argues that the sole cause of the proposal’s untimely receipt was the delay caused by the guard at the security checkpoint. ALJUCAR contends that the guard’s failure to allow the firm’s representative who lacked adequate identification to either wait at the checkpoint or leave the checkpoint, unescorted, to exit the base was improper government action. ALJUCAR disagrees with the agency’s position that the guard’s action was appropriate under the agency’s general security policies regarding access and movement controls at a secure facility such as the Space Center. As the agency points out, however, even if the guard acted in error, GAO cannot conclude that his action was the sole or paramount cause of the proposal being received late, since the representatives of the protester–which had the primary responsibility for delivering its proposal on time–significantly contributed to the lateness of the proposal.
Despite numerous RFP instructions emphasizing the offeror’s responsibility for timely submission, including that the offeror should anticipate it taking up to an hour to complete the required security screening for proposal submissions, the protester’s representatives arrived on the base only eight minutes before closing. ALJUCAR simply did not allow sufficient time to fulfill its responsibility to deliver its proposal by the proper time. Given the RFP warnings and the secure nature of the NASA installation, the protester should have reasonably anticipated delay in gaining access to the facility. In short, ALJUCAR assumed a risk in allowing so little time for delivery of its proposal here. In these circumstances, where the protester did not act reasonably to fulfill its obligation to deliver its proposal on time, GAO finds no basis to question the agency’s decision to reject the proposal as late. The protest is denied.