B-216665, DEC 17, 1984, 84-2 CPD 677

B-216665, DEC 17, 1984, 84-2 CPD 677

CONTRACTS - PROTESTS - CONFLICT IN STATEMENTS OF PROTESTER AND CONTRACTING AGENCY DIGEST: PROTESTER'S PROPOSAL WAS PROPERLY REJECTED AS LATE WHERE PROTESTER'S EVIDENCE OF TIMELY SUBMISSION IS IN CONFLICT WITH TIME/DATE STAMP OF CONTRACTING AGENCY, AND PROTESTER FAILS TO MEET ANY OF THE CONDITIONS FOR ACCEPTANCE OF A LATE PROPOSAL UNDER THE RFP'S LATE PROPOSAL CLAUSE.

OAKWOOD INDUSTRIES:

OAKWOOD INDUSTRIES (OAKWOOD) PROTESTS THE REFUSAL OF THE UNITED STATES DEPARTMENT OF STATE (STATE) TO CONSIDER ITS PROPOSAL UNDER REQUEST FOR PROPOSALS (RFP) NO. 1722-420155 FOR VARIOUS PROFESSIONAL SERVICES RELATING TO EAST ASIAN STUDIES. OAKWOOD MAINTAINS THAT ITS PROPOSAL WAS INCORRECTLY CONSIDERED A LATE PROPOSAL. BECAUSE OAKWOOD HAS FAILED TO SHOW THAT ITS PROPOSAL WAS SUBMITTED ON TIME, OR IN THE ALTERNATIVE, THAT IT MET ONE OF THE RECOGNIZED EXCEPTIONS FOR THE CONSIDERATION OF LATE PROPOSALS, THE PROTEST IS DENIED.

PROPOSALS WERE REQUIRED TO BE SUBMITTED TO STATE'S CONTRACTS BRANCH IN ARLINGTON, VIRGINIA, BY 3:00 P.M. ON SEPTEMBER 14, 1984. ON SEPTEMBER 13, 1984, OAKWOOD DISPATCHED ITS PROPOSAL BY UNITED STATES POSTAL SERVICE EXPRESS MAIL. THE EXPRESS MAIL LABEL INDICATES THAT THE PACKAGE WAS DELIVERED THE NEXT DAY, SEPTEMBER 14, AT "6:11" TO THE STATE MAILROOM.

OAKWOOD MAINTAINS THAT EXPRESS MAIL OFFICIALLY USES MILITARY TIME, AND THAT UNDER THAT CONVENTION, THE 6:11 SHOULD READ AS 6:11 A.M. THE MAILROOM'S TIME/DATE STAMP READS "P6:15," 3 HOURS AFTER THE 3:00 P.M. BID OPENING. OAKWOOD FURTHER POINTS OUT THAT A HANDWRITTEN NOTATION ON THE PACKAGE APPEARING TO READ "RECEIVED 15 9/14/84" INDICATES ITS PACKAGE WAS ON TIME, PRESUMABLY BECAUSE 3 P.M. WOULD BE EXPRESSED AS 1500 MILITARY TIME. FINALLY, OAKWOOD ARGUES IN THE ALTERNATIVE THAT IF ITS PACKAGE WAS ACTUALLY LATE, STATE'S MAILROOM CLERK ERRED IN ACCEPTING IT MARKED WITH A 6:11 DELIVERY TIME BECAUSE THE EXPRESS MAIL CARRIER SHOULD HAVE WRITTEN 1811 UNDER THE MILITARY TIME CONVENTION.

THE LATE PROPOSAL CLAUSE PRESCRIBED BY SECTION 52.215-10 OF THE FEDERAL ACQUISITION REGULATION, 48 FED. REG. 41,102, 42,504-505 (1983) (TO BE CODIFIED AT 48 C.F.R. SEC. 52.215-10), WAS INCORPORATED BY REFERENCE IN THE RFP AND PROVIDES:

"(E) THE ONLY ACCEPTABLE EVIDENCE TO ESTABLISH THE TIME OF RECEIPT AT THE GOVERNMENT INSTALLATION IS THE TIME/DATE STAMP OF THAT INSTALLATION ON THE PROPOSAL WRAPPER OR OTHER DOCUMENTARY EVIDENCE OF RECEIPT MAINTAINED BY THE INSTALLATION."

STATE'S TIME/DATE STAMP SHOWS THE PACKAGE WAS RECEIVED AT 6:15 P.M. THE EXPRESS MAIL DELIVERY LABEL STATES ONLY 6:11, WITHOUT A.M. OR P.M. THE OTHER HANDWRITTEN MARKING NOTED BY OAKWOOD, "RECEIVED 15 9/14/84," AS DOCUMENTARY EVIDENCE MAINTAINED BY THE INSTALLATION, IS AMBIGUOUS. OUR INSPECTION OF THE COPY OF THE PROPOSAL PACKAGE SHOWS OTHER MARKINGS PRECEDING THE 15 WHICH EVIDENCE THAT THE 15 IS PROBABLY 6:15, CONSISTENT WITH STATE'S TIME/DATE STAMP. IN ANY EVENT, OAKWOOD'S EVIDENCE OF TIMELY SUBMISSION IS IN CONFLICT WITH THAT OF STATE'S TIME/DATE STAMP. IN CASES OF CONFLICTING EVIDENCE REGARDING TIMELY SUBMISSION WE HAVE CONSISTENTLY HELD THAT THE PROTESTER HAS NOT MET ITS BURDEN OF AFFIRMATIVELY PROVING THAT ITS PROPOSAL WAS TIMELY. UNITED BAETON INTERNATIONAL, B-200721, FEB. 2, 1981, 81-1 CPD PARA. 59.

UNDER THE RFP, THERE ARE THREE LIMITED INSTANCES IN WHICH A LATE PROPOSAL WILL BE CONSIDERED, AND NONE OF THE THREE EXCEPTIONS IS APPLICABLE HERE. IN THIS REGARD, (1) THE PROPOSAL WAS NOT SENT BY REGISTERED OR CERTIFIED MAIL BY THE FIFTH CALENDAR DAY BEFORE THE CLOSING DATE; (2) IT WAS NOT THE ONLY PROPOSAL RECEIVED; AND (3) OAKWOOD CANNOT ESTABLISH TIMELY RECEIPT AT THE INSTALLATION, AND ACCORDINGLY WE NEED NOT DISCUSS THE ISSUE OF GOVERNMENT MISHANDLING AFTER RECEIPT AT THE INSTALLATION.

WE FIND STATE ACTED PROPERLY IN NOT CONSIDERING OAKWOOD'S LATE PROPOSAL. THE PROTEST IS DENIED.