B-167651, OCT. 3, 1969

B-167651: Oct 3, 1969

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HAND CARRIED WHERE HAND-CARRIED PROPOSAL WAS DELIVERED 10 MINUTES LATE. DETERMINATION WAS MADE THAT IT WAS NOT OF EXTREME IMPORTANCE TO GOVERNMENT AS OFFERING TECHNOLOGICAL OR SCIENTIFIC BREAKTHROUGH. NAVY'S REFUSAL TO CONSIDER PROPOSAL IS AFFIRMED. CONTENTION THAT PROTESTANT COULD NOT HAVE ANY KNOWLEDGE OF COMPETING PROPOSALS IS NOT RELEVANT. COMPETITION IS STRENGTHENED BY INSURING THAT ONLY PROPOSALS RECEIVED BEFORE TIME STATED ARE FOR CONSIDERATION. TO MCDONNELL DOUGLAS CORPORATION: FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 6. THE SUBJECT RFP WAS ISSUED ON JUNE 27. IF THIS SOLICITATION IS ADVERTISED) RECEIVED AT THE OFFICE DESIGNATED IN THE SOLICITATION AFTER THE EXACT HOUR AND DATE SPECIFIED FOR RECEIPT WILL NOT BE CONSIDERED UNLESS: (1) THEY ARE RECEIVED BEFORE AWARD IS MADE.

B-167651, OCT. 3, 1969

NEGOTIATION--LATE PROPOSALS AND QUOTATIONS--HAND CARRIED WHERE HAND-CARRIED PROPOSAL WAS DELIVERED 10 MINUTES LATE, AND DETERMINATION WAS MADE THAT IT WAS NOT OF EXTREME IMPORTANCE TO GOVERNMENT AS OFFERING TECHNOLOGICAL OR SCIENTIFIC BREAKTHROUGH, NAVY'S REFUSAL TO CONSIDER PROPOSAL IS AFFIRMED, AS ASPR 3-506 (C) PROHIBITS CONSIDERATION OF LATE PROPOSALS EXCEPT UNDER CERTAIN CIRCUMSTANCES NOT HERE PRESENT; CONTENTION THAT PROTESTANT COULD NOT HAVE ANY KNOWLEDGE OF COMPETING PROPOSALS IS NOT RELEVANT; COMPETITION IS STRENGTHENED BY INSURING THAT ONLY PROPOSALS RECEIVED BEFORE TIME STATED ARE FOR CONSIDERATION; AND ANY RELAXATION OF RULE WOULD INEVITABLY CREATE CONFUSION AND DISAGREEMENTS, AND INCREASE OPPORTUNITY FOR FRAUDS.

TO MCDONNELL DOUGLAS CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 6, 1969, FILE REFERENCE USGAC-K002-1301, PROTESTING AGAINST THE REFUSAL OF THE NAVY PURCHASING OFFICE TO CONSIDER YOUR PROPOSAL SUBMITTED IN RESPONSE TO REQUEST FOR PROPOSALS (RFP) NO. N00600-69-R-5435, AS AMENDED.

THE SUBJECT RFP WAS ISSUED ON JUNE 27, 1969, SOLICITING PROPOSALS FOR FURNISHING TIME-SHARING COMPUTER SERVICES TO THE UNITED STATES NAVAL ACADEMY. PARAGRAPH 8, AS AMENDED, OF STANDARD FORM 33A, JULY 1966, MADE A PART OF THE SOLICITATION, PROVIDED IN PERTINENT PART AS FOLLOWS:

"/A) OFFERS AND MODIFICATIONS OF OFFERS (OR WITHDRAWALS THEREOF, IF THIS SOLICITATION IS ADVERTISED) RECEIVED AT THE OFFICE DESIGNATED IN THE SOLICITATION AFTER THE EXACT HOUR AND DATE SPECIFIED FOR RECEIPT WILL NOT BE CONSIDERED UNLESS: (1) THEY ARE RECEIVED BEFORE AWARD IS MADE; AND EITHER (2) THEY ARE SENT BY REGISTERED MAIL, OR BY CERTIFIED MAIL FOR WHICH AN OFFICIAL DATED POST OFFICE STAMP (POSTMARK) ON THE ORIGINAL RECEIPT FOR CERTIFIED MAIL HAS BEEN OBTAINED AND IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO DELAY IN THE MAILS, FOR WHICH THE OFFEROR WAS NOT RESPONSIBLE; OR (3) IF SUBMITTED BY MAIL (OR BY TELEGRAM IF AUTHORIZED) IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION; PROVIDED, THAT TIMELY RECEIPT AT SUCH INSTALLATION IS ESTABLISHED UPON EXAMINATION OF AN APPROPRIATE DATE OR TIME STAMP (IF ANY) OF SUCH INSTALLATION, OR OF OTHER DOCUMENTARY EVIDENCE OF RECEIPT (IF READILY AVAILABLE) WITHIN THE CONTROL OF SUCH INSTALLATION OR OF THE POST OFFICE SERVING IT. * * *" THE SOLICITATION HAD A CLOSING HOUR AND DATE FOR THE SUBMISSION OF PROPOSALS OF 4:30 P.M., E.D.T., JULY 22, 1969. BY MODIFICATION 0001 THE CLOSING DATE WAS EXTENDED TO 4:30 P.M., E.D.T., AUGUST 1, 1969. AT 4:20 P.M., AUGUST 1, 1969, THE CONTRACTING OFFICER RECEIVED A TELEPHONE CALL FROM YOUR REPRESENTATIVE ADVISING THAT HE HAD YOUR PROPOSAL AND WAS AT BUILDING 176 AT THE WASHINGTON NAVY YARD AND THAT HE WOULD ARRIVE AT BUILDING 200, THE PLACE DESIGNATED IN THE RFP FOR RECEIPT OF THE PROPOSALS, AS SOON AS POSSIBLE. THEREAFTER, YOUR REPRESENTATIVE DELIVERED YOUR PROPOSAL TO BUILDING 200 AT 4:40 P.M., AUGUST 1, 1969, OR 10 MINUTES LATE. IN ACCORDANCE WITH PARAGRAPH 3-506 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), YOUR LATE PROPOSAL WAS OPENED AND EVALUATED TO DETERMINE WHETHER THE LATE PROPOSAL WAS OF EXTREME IMPORTANCE TO THE GOVERNMENT AS OFFERING A TECHNOLOGICAL OR SCIENTIFIC BREAKTHROUGH, BUT A NEGATIVE CONCLUSION WAS REACHED. ACCORDINGLY, THE CONTRACTING OFFICER HAS CONCLUDED THAT YOUR LATE PROPOSAL MAY NOT BE CONSIDERED FOR AWARD OF A CONTRACT.

IN YOUR LETTER OF AUGUST 6, 1969, YOU STATE THAT THE PROPOSALS WERE NOT TO BE OPENED UNTIL AUGUST 4, 1969, AND THAT AWARD OF A CONTRACT WAS CONTEMPLATED ON OR ABOUT AUGUST 22, 1969. YOU THEREFORE REQUEST THAT THE LATE DELIVERY OF YOUR PROPOSAL BE WAIVED. IN SUPPORT OF YOUR REQUEST YOU STATE THAT NEITHER THE GOVERNMENT NOR ANY FIRM THAT SUBMITTED A PROPOSAL WOULD BE PREJUDICED IF YOUR REQUEST IS GRANTED. YOU ALSO STATE THAT THERE WAS NO POSSIBILITY THAT YOU COULD HAVE OBTAINED KNOWLEDGE OF THE CONTENTS OF THE COMPETING PROPOSALS.

THE RULES AND REGULATIONS REGARDING THE RECEIPT OF HAND-CARRIED PROPOSALS IMPOSE UPON THE OFFERORS THE PRIME RESPONSIBILITY TO SEE THAT THE PROPOSALS REACH THE DESIGNATED OFFICE BEFORE THE TIME SPECIFIED FOR THEIR RECEIPT. IN THAT CONNECTION ASPR 3-506 (C) DEFINES LATE PROPOSALS AS THOSE RECEIVED AFTER THE TIME SPECIFIED FOR THEIR SUBMISSION AND PROHIBITS THE CONSIDERATION OF SUCH LATE PROPOSALS EXCEPT UNDER CERTAIN CIRCUMSTANCES NOT HERE PRESENT. WHILE IT MAY BE, AS YOU CONTEND, THAT YOU COULD NOT HAVE ANY KNOWLEDGE OF THE COMPETING PROPOSALS, THAT FACT IS NOT RELEVANT. OUR OFFICE HAS TAKEN THE POSITION THAT COMPETITION IS STRENGTHENED BY INSURING THAT ONLY PROPOSALS RECEIVED BEFORE THE TIME STATED ARE FOR CONSIDERATION. IN VIEW OF THIS POLICY, PLUS THE FACT THAT THE REGULATIONS SPECIFICALLY PRECLUDE THE CONSIDERATION OF A LATE PROPOSAL, WE SEE NO REASON TO OBJECT TO THE ACTION OF THE CONTRACTING OFFICER IN REFUSING TO CONSIDER YOUR LATE PROPOSAL. WHILE THIS MAY OPERATE HARSHLY IN CERTAIN INSTANCES, ANY RELAXATION OF THE RULE WOULD INEVITABLY CREATE CONFUSION AND DISAGREEMENTS AS TO ITS APPLICABILITY UNDER VARYING CIRCUMSTANCES AND WOULD INCREASE THE OPPORTUNITY FOR FRAUDS. B-164257, JUNE 26, 1968.