Link: GAO Opinion
Agency: Department of Homeland Security
Disposition: Protest denied.
Keywords: Late Proposal
General Counsel P.C. Highlight: A late hand-carried proposal may be considered for award, however, if improper government action was the paramount cause of the late delivery. 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.
Lani Eko & Company, CPAs, PLLC (Lani Eko) protests the rejection of its proposal as late under a request for proposals (RFP), issued by the Department of Homeland Security, for technical, acquisition, and business support services.
The amended solicitation informed potential offerors that hand delivery of initial proposals was permitted and indicated that they were to be submitted to the Jemal Building, 1900 Half Street SW, Washington, DC, 3 p.m. eastern standard time (EST), March 2, 2011. The solicitation further instructed that offerors should use a loading dock on the Southwest side of the building, go through a gate, and climb the stairs to the guard desk. Offerors were advised to plan ahead because the agency was expecting many proposals and there was limited parking. Offerors were also advised that if they did not receive a confirmation receipt or if they did not arrive by 3 p.m. the proposal would be considered late.
The solicitation included the standard late proposal clause for commercial items, Federal Acquisition Regulation (FAR) sect. 52.212-1(f), which generally states that any offer received at the place designated in the solicitation after the exact time specified for receipt will not be considered.
Lani Eko asserts that its representative left the firm’s offices in Virginia to deliver the firm’s proposal package to the Jemal Building in Washington, DC at “about 2:30 p.m.” The representative indicates that she arrived at the gate closest to the loading dock’s guard desk shortly before 3 p.m. The agency official, who was waiting at the desk, refused to accept the proposal package because Lani Eko’s representative “had missed the 3:00 p.m. deadline.” The agency official then referred Lani Eko’s representative to the security guard desk telephone, which reflected a time of “3:02 p.m.” Despite her requests, the agency official refused to time stamp, or otherwise accept, the protester’s proposal package.
Lani Eko contends that its representative arrived at the Jemal Building with its proposal package prior to the closing time on March 2, and that the agency improperly refused to accept its proposal. GAO states that it is an offeror’s responsibility to deliver its proposal to the place designated in the solicitation by the time specified, and late receipt generally requires rejection of the proposal. Unless a preponderance of the evidence demonstrates that the proposal was at the designated location for receipt prior to the time set for closing, the proposal may not be considered for award. A late hand-carried proposal may be considered for award, however, if improper government action was the paramount cause of the late delivery and consideration of the proposal would not compromise the integrity of the competitive procurement process. Improper government action in this context is affirmative action that makes it impossible for the offeror to deliver the proposal on time. 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.
GAO finds no basis to conclude that Lani Eko timely delivered its proposal or that improper government action was the paramount cause for the late submission of its proposal. The agency reports that on March 2, three contract specialists were present at various times throughout the day at the loading dock in the Jemal Building to receive proposal packages. At approximately 2:58 p.m., one of the contract specialists declares that she began processing a hand-carried proposal package from another vendor which she completed just after 3 p.m. According to this individual, at 3:01 p.m., after acknowledging that the closing time had passed, a third contract specialist stepped out of the door to the loading dock. The second contract specialist declares that no offerors were waiting at the security desk at 3 p.m. When the security desk phone registered 3:01 p.m., the contract specialists concluded that the submission deadline had passed, and the third contract specialist went to the top of the loading dock stairs to inform all offerors that the submission deadline had expired. The third contract specialist, who in fact engaged Lani Eko’s representative outside the loading dock, declares that no offerors were waiting inside or outside of the loading dock at 3:01 p.m.
GAO concludes that the protester has failed to demonstrate by a preponderance of evidence that it arrived at the place designated for delivery of proposals by the 3 p.m. deadline established by the RFP. The protest is denied.