Link: GAO Opinion
Agency: Department of the Air Force
Disposition: Protest denied.
Keywords: Timely Proposal submission
General Counsel P.C. Highlight: 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 agency official responsible for receiving bids or proposals is determinative with regard to the time a bid or proposal is received, absent a showing that the agency official’s declaration was unreasonable.
U.S. Aerospace, Inc. (USAI) protests the Department of the Air Force’s rejection of the proposal USAI submitted in response to a request for proposals (RFP) for the KC-X tanker modernization program. The agency rejected USAI’s proposal on the basis that it was not received by the submission deadline.
The agency issued the RFP seeking proposals for the KC-X tanker modernization program. The RFP clearly advised offerors that proposals must be received at “1755 Eleventh Street, Building 570, Wright-Patterson AFB [Air Force Base], OH,” by 2:00 p.m. on July 9, 2010. The parties agree that USAI’s messenger delivered USAI’s proposal to a contracting officer’s representative (COR) at some time during the afternoon of July 9 and that, at that time, the COR gave the messenger a receipt indicating that the proposal was received at 2:05 p.m. The agency gave USAI formal notice that its proposal was considered late and would not be considered.
USAI’s messenger reportedly arrived at one of the base entrances, but was denied entry and told that he needed to have someone from the office to which he was delivering documents call the gate to authorize his admission.The messenger also stated that the gate guard gave him directions to 1755 Eleventh Street, building 570, that he followed those directions, and that “[u]pon turning onto Eleventh Street as instructed, [he] noticed the address provided did not exist, as the road dead ended into a building.”
The messenger then stated that he received a call on his cell phone from the contracting officer’s representative (COR). The messenger stated that he told the COR where he was, that the COR told him to wait there, and that he (the COR) would come to the messenger’s location and “take the bid to Building 570 before the deadline.” The messenger asserted that, a few minutes later, the COR pulled alongside the messenger’s car. The messenger further stated that he told the COR that he had USAI’s proposal but that, rather than taking the proposal, the COR instructed the messenger to follow him (the COR) to a parking lot near building 570, which the messenger did. The messenger stated that when he got out of the car at the parking lot, he handed USAI’s proposal to the COR,who placed it on the messenger’s car while he (the COR) made two telephone calls. The messenger stated that the COR then advised the messenger that he (the COR) wanted to sign a receipt, instructed the messenger to accompany the COR inside the lobby of building 570, where the COR obtained a blank receipt, completed it to show that the proposal had been received at 2:05 p.m., and gave a copy to the messenger.
USAI pursued and GAO considered the following allegations: (1) that the Air Force actually received USAI’s proposal by 2 p.m.; (2) if the proposal was in fact late, the delay associated with the messenger’s admission to the AFB and the gate guard’s alleged misdirection were the paramount cause of the late submission; and (3) that the proposal was “under the Air Force’s control” prior to the time set for receipt of proposals.
The GAO determined that USAI offered no evidence to support its assertion that its proposal was timely other than its messenger’s representations regarding the timing of events prior to proposal submission, and the messenger’s conclusion that “the proposal was submitted by 2 p.m.”
GAO states that the declaration of the agency official responsible for receiving bids or proposals is determinative with regard to the time a bid or proposal is received, absent a showing that the agency official’s declaration was unreasonable. Here, as discussed above, the agency COR specifically concluded that USAI’s proposal was not received until 2:05 p.m., advised USAI’s messenger of that determination, and provided the messenger written notification reflecting the 2:05 p.m. receipt. USAI’s messenger did not dispute the accuracy of the COR’s determination at that time. Consistent with the time reflected on the USAI email, the COR’s cell phone records show that the first call he placed to the messenger was made at 1:59 p.m. The COR then drove to the messenger’s location, spoke with him, directed the messenger to follow him (the COR) back to the building 570 parking lot, and drove to that lot–at which point the messenger handed the proposal to the COR. GAO finds nothing unreasonable in the agency’s determination that the proposal was received after the 2 p.m. deadline.
USAI next asserts that the “street address listed on the RFP does not exist (or, incredibly, the address still exists, even though the street no longer does), and that the Air Force maps of Area B are wrong. . . . [T]he pertinent section of Eleventh Street was removed years ago; a new building was built where the road used to be, and the street now dead ends more than a block before Building 570. It is impossible to find [building 570] without already knowing where it is.” USAI asserts that the maps provided by the agency are incorrect.
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. 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, USAI has not demonstrated that the alleged government misdirection and/or delays associated with its messenger’s entry at gate 19B was the paramount cause of the late delivery of USAI’s proposal. To the contrary, the record indicates that, even accepting USAI’s assertions that the gate guard provided inaccurate directions which delayed the submission of USAI’s proposal, USAI’s own actions significantly contributed to the late submission of its proposal. It was USAI’s decision to attempt entry to Wright-Patterson AFB, a secure military facility, at gate 19B–a gate designated for admission of personnel with military credentials–rather than at gate 1B–the entrance at which visitors without military credentials were directed to arrive. In addition to its decision to attempt entry at a gate not designated for use by non-military visitors, USAI’s messenger arrived at the entrance gate with less than an hour remaining before proposals were due, did not obtain advance approval for entry, and failed to previously ascertain the location of, and directions to, the building designated for proposal submission.On this record, GAO concludes that USAI’s own actions were significant contributing factors to the late receipt of its proposal. USAI’s protest that the agency was required to accept its proposal because of the government’s actions is denied.
Finally, USAI protests that USAI’s proposal was “under Air Force control” prior to the 2 p.m. closing time. GAO states that in determining whether a late-submitted proposal was “under the Government’s control” prior to the time set for receipt of proposals, it is clear that an offeror must, at a minimum, have relinquished physical custody of the proposal. This requirement is an obvious necessity in order to preclude any potential that an offeror could alter, revise, or otherwise modify its proposal after other offerors’ competing proposals have been submitted.
Here, as discussed above, USAI’s messenger did not relinquish physical custody of its proposal until it handed the proposal to the COR in the parking lot outside of building 570. As also discussed above, the agency reasonably determined that such transfer of physical custody did not occur until after the 2 p.m. proposal submission deadline. Accordingly, the GAO determined that the proposal was not under the Government’s control prior to the time set for receipt of offers. The protest is denied.