Link: GAO Opinion
Agency: Defense Logistics Agency
Disposition: Protest denied.
Keywords: Late Proposal
General Counsel P.C. Highlight: An Agency may consider for award a late, hand-carried offer if the government’s misdirection or improper action was the paramount cause of the late delivery and consideration of the offer would not compromise the integrity of the competitive process.
B&S Transport, Inc. challenges the rejection of its proposals as late under a request for proposal (RFP), issued by the Defense Logistics Agency (DLA), for various types of tires.
The amended solicitations required proposals to be submitted to the DLA in the lobby of Building 20 at the Defense Supply Center Columbus (DSCC) installation. The due date for proposals, as amended, was 1 p.m., Eastern Time, on January 10, 2011. As relevant here, the solicitations included an enclosure detailing the requirements for access to the DSCC. Offerors were informed that visitors to the DSCC facility, such as couriers, were required to be sponsored by an agency official and entered into the DSCC Visitor Notification System (VNS). Further, visitors would be required to register at the Visitor Processing Center (VPC) for identification verification, a background check, and issuance of a temporary vehicle registration. Additionally, a solicitation question and answer (Q&A) advised offerors that they were required to advise the agency via email a day in advance of the due date of the offeror’s intent to use a courier for hand delivery, so that the courier could be entered into the VNS. The Q&A also advised that “[a]ny delays encountered at the [VPC] shall not constitute a basis for solicitation re-opening and therefore, an offeror who chooses to hand deliver proposals shall plan accordingly.”
On the due date of January 10, B&S attempted to have its proposal delivered by a courier. A videotape provided by the agency in its report on the protest shows that B&S’s courier arrived at the VPC at 12:50:12 p.m. Upon arrival, a DLA security officer checked the VNS and determined that the courier was not entered into that system. The security officer advised the courier that he needed a sponsor in order to be entered into the VNS and to have access to the DSCC facilities, and asked the courier if he had a point of contact in order to obtain a sponsor. The courier advised that he did not have a point of contact. At 12:54 p.m., the security officer suggested that the courier call the DLA Small Business Office, who advised the courier, and then the security officer, that they were not involved with the procurement and could not assist the courier. During this time, the courier called the B&S’s in-house counsel for assistance. At 12:58 p.m., a DLA acquisition specialist received a call from B&S’s in-house counsel, asking that the courier be entered into the VNS and allowed to deliver the proposal. The acquisition specialist entered the courier into the VNS, and erroneously directed him to deliver the proposal to Building 21. The courier departed the VPC at 1:03:57 p.m. Subsequent to the courier’s departure from the VPC, the acquisition specialist discovered that he had incorrectly directed the courier to Building 21, rather than Building 20, as specified in the RFPs. The acquisition specialist called B&S’s counsel and advised him of the error, and then corrected the VNS entry to allow the courier to access Building 20. The courier finally delivered the proposals to DLA personnel in Building 20 at 1:20 p.m., and the proposals were stamped as received at 1:21 p.m. DLA advised B&S on February 1, 2011, that its proposals had been rejected as late.
B&S contends that DLA should accept its proposals because the agency was the primary cause of the late filing, and because the courier was under the control of the agency at the time he arrived at the VPC. GAO states that it is an offeror’s responsibility to deliver its proposal to the proper place at the proper time; proposals that are received after the exact time specified are “late” and must generally be rejected. The late proposal rules include limited exceptions under which late proposals may be considered. GAO has held that a late hand-carried offer may be considered for award if the government’s misdirection or improper action was the paramount cause of the late delivery and consideration of the offer would not compromise the integrity of the competitive process. A late proposal may also be accepted if it is found to have been received at the designated government installation and was under the agency’s control at the time set for receipt of proposals. 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 doing all it could or should have done to fulfill its responsibility.
Here, GAO finds that the protester’s actions were the paramount cause for the late delivery. The RFPs specifically stated that if an offeror intended to hand deliver its proposal, the offeror must provide notice to DLA a day in advance of delivery in order to be sponsored and be entered into the VNS. The RFPs further advised offerors that visitors would be required to check in at the VPC, and that any delays encountered at the VPC would not be a basis for accepting a late proposal. Despite the instructions and warnings in the RFPs, the record shows that B&S’s courier was not entered into the VNS system prior to his arrival, nor did the courier have the appropriate contact information to obtain a sponsor for entry into the VNS. Moreover, the courier arrived at the VPC less than 10 minutes before the proposal receipt deadline. On this record, GAO concludes that the protester’s actions, rather than the agency’s actions, were the paramount cause of the late receipt. The protest is denied.