Link: GAO Opinion
Agency: Department of State
Disposition: Protest denied.
Protester’s contention that the agency improperly refused to consider its proposal is denied where there is no evidence that the agency received the proposal by the solicitation due date or that improper government action caused the failure of the postal service to make timely delivery, and where the record shows that the protester failed to follow the delivery instructions in the solicitation.
General Counsel P.C. Highlight:
Sector One argues that the agency should have accepted its proposal because the protester sent it by United States Postal Service (USPS) Express Mail and because the protester believes the USPS carrier attempted to deliver the proposal prior to the closing time for receipt. GAO states that it is the responsibility of each firm to deliver its proposal to the proper place at the proper time, and late delivery generally requires rejection of the submission. Where late receipt results from the failure of a vendor to reasonably fulfill its responsibility for ensuring timely delivery to the specified location, the late offer may not be considered. An offer that arrives late may only be considered if it is shown that the paramount reason for late receipt was improper government action, and where 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.
The agency denies receiving or rejecting the Sector One proposal submission that was the subject of the alleged delivery attempt by the USPS carrier. As explained above, since USPS does not deliver mail to the building where the Office of Acquisition is located, the RFP contained a P.O. Box for mailed proposals, and allowed for hand-carried proposals provided delivery was coordinated with the contracting officer. By its own admission, the protester did not follow the instructions in the RFP for submission of its proposal in that it made no arrangements with the contracting officer for hand-carried delivery. The evidence submitted by the protester does not establish that the agency actually received the protester’s submission or that there was an attempt to deliver the proposals to the agency before the closing time established in the solicitation. As explained above, the record here, at best, only demonstrates that the USPS carrier attempted to deliver the protester’s submission to some DOS location and does not specifically demonstrate whether anyone at DOS refused to accept delivery. The record shows that the paramount reason for the nonreceipt of the protester’s submission is the protester’s failure to follow the solicitation instructions to either mail its proposal to the designated P.O. Box number or make the proper arrangements for hand-carried delivery. In short, there is nothing in the record showing that any affirmative government action deprived the protester of the ability to make a proper delivery of its proposal. GAO denies the protest.