B-215990, AUGUST 29, 1984, 63 COMP.GEN. 556

B-215990: Aug 29, 1984

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CONTRACTS - NEGOTIATION - LATE PROPOSALS AND QUOTATIONS - COMMERCIAL CARRIER DELAY LATE PROPOSAL DELIVERED BY COMMERCIAL CARRIER WAS PROPERLY REJECTED SINCE THERE IS NO BASIS TO CONSIDER SUCH A PROPOSAL WHERE THE DELAY WAS CAUSED BY GERMAN CUSTOMS. THE CORPS' REQUEST FOR PROPOSALS STATED THAT ALL PROPOSALS WERE TO BE DELIVERED ON OR BEFORE JULY 16 AT 4 P.M. DURANGO CONTENDS ITS PROPOSAL SHOULD BE CONSIDERED ON THE MERITS BECAUSE IT ACTED PRUDENTLY IN ARRANGING FOR DELIVERY AND THE PROPOSAL WAS DELIVERED LATE THROUGH NO FAULT OF ITS OWN. DURANGO POINTS OUT THAT THE PROCUREMENT IS NEGOTIATED. DURANGO SAYS THERE WOULD BE NO PREJUDICE TO OTHER OFFERORS IF ITS PROPOSAL WERE CONSIDERED BECAUSE THIS WOULD MERELY PERMIT DURANGO THE OPPORTUNITY TO NEGOTIATE.

B-215990, AUGUST 29, 1984, 63 COMP.GEN. 556

CONTRACTS - NEGOTIATION - LATE PROPOSALS AND QUOTATIONS - COMMERCIAL CARRIER DELAY LATE PROPOSAL DELIVERED BY COMMERCIAL CARRIER WAS PROPERLY REJECTED SINCE THERE IS NO BASIS TO CONSIDER SUCH A PROPOSAL WHERE THE DELAY WAS CAUSED BY GERMAN CUSTOMS.

MATTER OF: DURANGO DEVELOPMENT CORP., AUGUST 29, 1984:

DURANGO DEVELOPMENT CORPORATION PROTESTS THE REJECTION OF ITS PROPOSAL AS LATE UNDER REQUEST FOR PROPOSALS NO. DACA90-84-R-0015 BY THE UNITED STATES ARMY CORPS OF ENGINEERS FOR A FAMILY HOUSING PROJECT IN WILDFLECKEN, FEDERAL REPUBLIC OF GERMANY. THE CORPS' REQUEST FOR PROPOSALS STATED THAT ALL PROPOSALS WERE TO BE DELIVERED ON OR BEFORE JULY 16 AT 4 P.M. DURANGO ARRANGED FOR DELIVERY THROUGH BURLINGTON AIR EXPRESS AFTER THAT FIRM ASSURED THE PROTESTER IT COULD DELIVER THE PACKAGE WITHIN 48 HOURS OF RECEIPT. BURLINGTON PICKED UP THE PROPOSAL, WHICH INCLUDED SAMPLES, AT 12 P.M. ON JULY 13. DUE TO A CUSTOMS PROBLEM WITH THE SAMPLES IN GERMANY, HOWEVER, THE PROPOSAL DID NOT ARRIVE AT THE PROCUREMENT OFFICE IN FRANKFURT UNTIL JULY 18. WE DENY THE PROTEST.

DURANGO CONTENDS ITS PROPOSAL SHOULD BE CONSIDERED ON THE MERITS BECAUSE IT ACTED PRUDENTLY IN ARRANGING FOR DELIVERY AND THE PROPOSAL WAS DELIVERED LATE THROUGH NO FAULT OF ITS OWN. DURANGO POINTS OUT THAT THE PROCUREMENT IS NEGOTIATED, NOT ADVERTISED. DURANGO SAYS THERE WOULD BE NO PREJUDICE TO OTHER OFFERORS IF ITS PROPOSAL WERE CONSIDERED BECAUSE THIS WOULD MERELY PERMIT DURANGO THE OPPORTUNITY TO NEGOTIATE. ACCORDING TO THE PROTESTER, THE RULES GOVERNING LATE PROPOSALS WERE NOT WRITTEN TO REFLECT PROBLEMS THAT MAY ARISE IN DELIVERING PROPOSALS BETWEEN COUNTRIES.

WE DO NOT AGREE. OUR OFFICE HAS CONSISTENTLY HELD THAT IT IS THE RESPONSIBILITY OF AN OFFEROR IN A NEGOTIATED PROCUREMENT TO ASSURE TIMELY RECEIPT OF ITS PROPOSAL AND THAT THE OFFEROR MUST BEAR THE RESPONSIBILITY FOR ITS LATE ARRIVAL UNLESS SPECIFIC CONDITIONS REQUIRED FOR DELIVERY ARE MET. SEE DPER CORPORATION, B-213429, FEB. 27, 1984, 84-1 CPD 241. THE STANDARD SOLICITATION CLAUSE CONCERNING LATE PROPOSALS PERMITS CONSIDERATION OF LATE PROPOSALS SENT BY CERTIFIED OR REGISTERED MAIL AT LEAST 5 DAYS PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS. A LATE PROPOSAL ALSO MAY BE CONSIDERED WHERE DELAY IS CAUSED SOLELY BY GOVERNMENT MISHANDLING AFTER RECEIPT AT THE GOVERNMENT INSTALLATIONS OR WHERE THE PROPOSAL IS THE ONLY ONE RECEIVED. SEE FEDERAL ACQUISITION REGULATION, SEC. 14.103-1, 48 FED.REG. 41,102, 42,504 (1983) (TO BE CODIFIED AT 48 C.F.R. 52-215-10).

REGARDING DURANGO'S CONTENTION THAT THESE RULES SHOULD NOT BE APPLIED IN THE CIRCUMSTANCES OF THIS CASE, WE POINT OUT THAT THE RULES PROVIDE NO BASIS TO CONSIDER A LATE HAND-CARRIED PROPOSAL WHERE THE CARRIER AGENT WAS DELAYED BY A CUSTOMS PROBLEM. THE RULES ARE STRICTLY APPLIED TO PROMOTE THE EQUAL AND IMPARTIAL TREATMENT OF ALL INVOLVED IN GOVERNMENT PROCUREMENTS AND, THUS, TO ASSURE THAT CONFIDENCE IN THE COMPETITIVE PROCUREMENT SYSTEM IS MAINTAINED. SEE DATA PATHING INC., B-188234, MAY 5, 1977, 77-1 CPD 311. WE RECOGNIZE THAT THE PORTION OF THE LATE PROPOSAL CLAUSE THAT DEALS WITH CERTIFIED OR REGISTERED MAIL MAY NOT BE AVAILABLE WHERE A PROPOSAL MUST BE DELIVERED OVERSEAS. NEVERTHELESS, THE APPLICABLE PROVISIONS OF THE LATE PROPOSAL CLAUSE HAVE BEEN APPLIED IN SUCH CASES. SEE JETS SERVICES INC., B-212403.2, SEPT. 12, 1983, 83-2 CPD 314.

IT IS NOT ALLEGED THAT AN EXCEPTION THAT WOULD PERMIT CONSIDERATION OF DURANGO'S PROPOSAL EXISTS, AND WE KNOW OF NONE; THE PROTEST IS DENIED.