B-196601, NOV 8, 1979

B-196601, NOV 8, 1979

DIGEST: PROPOSAL SENT BY COURIER SERVICE AND RECEIVED AFTER PROPOSAL DUE

DATE WAS PROPERLY REJECTED WHERE LATE RECEIPT WAS FAULT OF COURIER SERVICE, NOT GOVERNMENT.

KEALY, HAMILTON, BLAND & COMPANY:

KEALY, HAMILTON, BLAND & COMPANY (KEALY) PROTESTS THE REJECTION OF ITS PROPOSAL UNDER REQUEST FOR PROPOSALS (RFP) NO. OIG-80-R-4 ISSUED BY THE DEPARTMENT OF AGRICULTURE FOR AUDITING SERVICES. THE BASIS FOR THE REJECTION WAS THAT THE PROPOSAL WAS RECEIVED LATE. WE BELIEVE THE REJECTION WAS PROPER.

THIS CASE IS ONE IN WHICH IT IS CLEAR FROM THE PROTESTER'S INITIAL SUBMISSION THAT THE PROTEST IS WITHOUT LEGAL MERIT, AND WE THEREFORE WILL DECIDE THE MATTER ON THE BASIS OF THIS SUBMISSION WITHOUT REQUESTING A REPORT FROM THE CONTRACTING AGENCY. INDUSTRIAL MAINTENANCE SERVICES, INC., B-195216, JUNE 29, 1979, 79-1 CPD 476.

KEALY ADMITS THAT ITS PROPOSAL WAS DELIVERED BY COURIER SERVICE 26 MINUTES AFTER THE TIME SET IN THE RFP FOR PROPOSAL RECEIPT, AND THAT NONE OF THE CIRCUMSTANCES IN THE SOLICITATION'S LATE PROPOSAL CLAUSE UNDER WHICH A LATE PROPOSAL MAY BE CONSIDERED IS APPLICABLE. HOWEVER, KEALY CONTENDS THAT THE PROPOSAL SHOULD NONETHELESS BE CONSIDERED IN VIEW OF THE FIRM'S "INTENT TO ACHIEVE A TIMELY DELIVERY," THE FACT THAT THE PROPOSAL WAS TRANSFERRED TO THE COURIER SERVICE TWO DAYS BEFORE THE DUE DATE, AND BECAUSE THE SUBMISSION WAS ONLY 26 MINUTES LATE. IN THIS CONNECTION, KEALY SUGGESTS THAT BASED ON THE ADVENT OF CARRIER SERVICES OFFERING GUARANTEED OVERNIGHT DELIVERY, FEDERAL PROCUREMENT REGULATIONS SHOULD INCLUDE A PROVISION TO DEAL WITH LATE PROPOSALS DELIVERED IN THAT MANNER.

OUR OFFICE HAS CONSISTENTLY HELD THAT AN OFFEROR HAS THE RESPONSIBILITY TO ASSURE TIMELY ARRIVAL OF ITS OFFER, HUGHES INDUSTRIES, B-195048, JUNE 19, 1979, 79-1 CPD 441, AND THAT A LATE PROPOSAL THEREFORE CANNOT BE ACCEPTED UNLESS THE SPECIFIC CONDITIONS OF THE SOLICITATION ARE MET. OLIVER WELCH & COMPANY, B-193870, FEBRUARY 9, 1979, 79-1 CPD 96. THE REASON THEREFOR IS THAT WE BELIEVE IT IS ESSENTIAL TO THE INTEGRITY OF THE COMPETITIVE SYSTEM THAT THE GOVERNMENT CONDUCT ITS PROCUREMENTS IN ACCORDANCE WITH CLEARLY DEFINED STANDARDS APPLIED EQUALLY TO ALL PROSPECTIVE OFFERORS, PHELPS-STOKES FUND, B-194347, MAY 21, 1979, 79-1 CPD 366; WHILE STRICT APPLICATION OF THE LATE PROPOSAL PROVISIONS MAY APPEAR UNDULY HARSH IN CERTAIN INSTANCES, IN OUR VIEW THE RELAXATION OF THESE PROVISIONS IN A PARTICULAR CASE WOULD CREATE CONFUSION AND UNEQUAL TREATMENT IN THE SYSTEM IN GENERAL. PRESNELL-KIDD ASSOCIATES, B-191394, APRIL 26, 1978, 78-1 CPD 324.

THUS, BY CHOOSING A METHOD OF DELIVERY OTHER THAN ONE OF THOSE SPECIFIED IN THE LATE PROPOSAL CLAUSE FOR POSSIBLE CONSIDERATION IN THE EVENT THE PROPOSAL ARRIVED LATE, AN OFFEROR ASSUMES A HIGH DEGREE OF RISK THAT ITS PROPOSAL WILL BE REJECTED IF UNTIMELY DELIVERED. YOUNG ENGINEERING SYSTEMS, 55 COMP.GEN. 755 (1976), 76-1 CPD 96. NEVERTHELESS, OUR OFFICE HAS RECOGNIZED AN EXCEPTION TO THE STRICT APPLICATION OF THE CLAUSE WHERE A PROPOSAL IS HAND-DELIVERED LATE BY A COMMERCIAL CARRIER. HOWEVER, IN VIEW OF THE CONSIDERATIONS EXPRESSED ABOVE WE HAVE HELD THAT SUCH A PROPOSAL MAY ONLY BE CONSIDERED FOR AWARD IF THE SOLE CAUSE OF THE LATE DELIVERY IS IMPROPER GOVERNMENT ACTION, AND CONSIDERATION OF THE PROPOSAL WOULD NOT GIVE THE LATE OFFEROR AN UNFAIR ADVANTAGE OVER OFFERORS WHOSE PROPOSALS WERE TIMELY RECEIVED. SCOT, INCORPORATED, 57 COMP.GEN. 119 (1977), 77-2 CPD 425.

SINCE IT IS CLEAR THAT THE LATE RECEIPT HERE WAS THE FAULT OF THE COURIER SERVICE, NOT THE GOVERNMENT, THE PROPOSAL WAS PROPERLY REJECTED. FUGRO NORTHWEST, INC., B-196078, OCTOBER 11, 1979, 79-2 CPD .

FINALLY, ANY PROPOSED REVISION TO FEDERAL PROCUREMENT REGULATIONS SHOULD BE ADDRESSED TO THE AGENCIES RESPONSIBLE FOR THEIR ISSUANCE.

THE PROTEST IS SUMMARILY DENIED.