Link: GAO Opinion
Agency: Department of Homeland Security
Disposition: Protest denied.
Keywords: Late proposal; mail-box rule
General Counsel P.C. Highlight: The offeror is responsible for taking reasonable steps to ensure timely delivery and only where the agency is the paramount cause of the late receipt will a protest be sustained.
GAO denies the protest of CCSC, Inc., a small business, where the Department of Homeland Security (DHS), United States Customs and Border Protection (CBP), rejected its proposal under a request for proposals (RFP), for an indefinite-delivery/indefinite-quantity (ID/IQ) contract to supply coastal interceptor vessels and associated equipment and training.
CCSC’s argues that the firm followed the delivery directions in the RFP which permitted the use of FedEx, but that the RFP did not make offerors aware of the existence of either the “consolidated remote delivery site” (CRDS) or the attendant screening delay. CCSC argues that following the RFP directions was the paramount cause of the late delivery of the firm’s 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. A proposal delivered to an agency by FedEx or other commercial carrier is considered to be hand-carried and, if it arrives late, can be considered if it is shown that some government impropriety during or after receipt at the government installation was the sole or paramount cause of the late arrival at the designated place. Improper government action in this context is affirmative action that makes it impossible for the offeror to deliver the proposal on time. To establish that government mishandling was the sole or paramount cause of the late receipt of a proposal, an offeror must first establish that it did not significantly contribute to the late delivery by not allowing enough time to permit a timely submission. 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 to deliver a hand-carried proposal to the specified place by the specified time. Offerors are responsible for allowing a reasonable time for proposals to be delivered from the point of receipt to the location designated for receipt of offers; failure to do so, resulting in late arrival at the designated location, cannot be attributed to governmental mishandling. Furthermore, delays in gaining access to a government building are not unusual and should be expected.
The record provides several significant facts demonstrating that CCSC was, in large part, responsible for its proposal arriving late. First, the protester did not bring its proposal to FedEx until after 6 p.m. on the day before it was due, and CCSC has not shown that it was impossible for it to have sent its proposal earlier to allow for potential security screening. Second, CCSC placed no identification on the packaging identifying that a proposal was inside, and there is no evidence that the FedEx representative identified to the agency that the company was attempting to deliver a proposal when the representative called the contracting officer on the morning of delivery. Third, the protester should have expected delays due to security screening, particularly considering that the proposal was being submitted to DHS, an agency involved in national security that would be expected to have tight security. Finally, the RFP did not warrant that delivery by FedEx or any other express courier would actually reach the contracting officer on the day of delivery. On these facts, GAO cannot conclude that the agency’s conduct was the paramount cause of the late receipt of CCSC’s proposal. The protester failed to take reasonable steps to ensure timely delivery and therefore, the protest is denied.