B-181204, AUG 23, 1974

B-181204, AUG 23, 1974

OFFEROR'S HAND-DELIVERED PROPOSAL RECEIVED 68 MINUTES AFTER DEADLINE FOR SUBMISSION OF ALL PROPOSALS WAS PROPERLY REJECTED BY CONTRACTING OFFICER IN ACCORDANCE WITH RFP INSTRUCTIONS BASED ON FPR 1-3.802-1 SINCE LATENESS COULD BE ATTRIBUTED ONLY TO FAULT OF OFFEROR'S DELIVERY AGENT, AND SINCE FPR MAKES NO PROVISION FOR ACCEPTANCE OF LATE HAND DELIVERED PROPOSAL WHERE OTHER PROPOSALS HAVE BEEN RECEIVED.

EMERGENCY CARE RESEARCH INSTITUTE:

REQUEST FOR PROPOSALS (RFP) NO. 641-4-362 WAS ISSUED BY THE FOOD AND DRUG ADMINISTRATION (FDA) ON MARCH 29, 1974, FOR THE PROCUREMENT OF PERFORMANCE AND SAFETY STANDARDS FOR ELECTROSURGICAL DEVICES.

THE EMERGENCY CARE RESEARCH INSTITUTE (ECRI) PROPOSAL WAS HAND DELIVERED TO THE AGENCY 68 MINUTES AFTER THE 4:00 P.M., MAY 1, 1974, DEADLINE FOR RECEIPT OF ALL OFFERS. THE CONTRACTING OFFICER DETERMINED THAT ECRI'S PROPOSAL WAS LATE AND, THEREFORE, UNACCEPTABLE IN ACCORDANCE WITH THE PROVISIONS OF THE RFP CONCERNING LATE PROPOSALS.

ECRI PROTESTS THE REJECTION OF ITS LATE PROPOSAL ON THE BASIS THAT IT IS NOT IN THE NATIONAL INTEREST TO REJECT THE PROPOSAL OF A QUALIFIED OFFEROR MERELY BECAUSE IT WAS SUBMITTED 1 HOUR AND 8 MINUTES LATE, AND THAT SUCH ACTION IS CONTRARY TO COMMON SENSE.

THE LATE PROPOSAL PROVISIONS CONTAINED IN THE RFP WERE BASED UPON THE PROCEDURES SET FORTH IN PARAGRAPH 1-3.802-1 OF THE FEDERAL PROCUREMENT REGULATIONS (FPR). THE PERTINENT PARTS OF THE RFP ARE AS FOLLOWS:

"SECTION A- GENERAL INSTRUCTIONS

"1. HAND DELIVERED PROPOSALS SHALL BE DELIVERED PRIOR TO THE DATE AND TIME AND TO THE ADDRESS SET FORTH IN THE COVER LETTER TO THIS REQUEST FOR PROPOSAL.

"2. LATE PROPOSALS, MODIFICATIONS OF PROPOSALS, AND WITHDRAWALS OF PROPOSALS:

(A) ANY PROPOSAL RECEIVED AT THE OFFICE DESIGNATED IN THE SOLICITATION AFTER THE EXACT TIME SPECIFIED FOR RECEIPT WILL NOT BE CONSIDERED UNLESS IT IS RECEIVED BEFORE AWARD IS MADE, AND:

(1) IT WAS SENT BY REGISTERED OR CERTIFIED MAIL NOT LATER THAN THE FIFTH CALENDAR DAY PRIOR TO THE DATE SPECIFIED FOR RECEIPT OF OFFERS (E.G., AN OFFER SUBMITTED IN RESPONSE TO A SOLICITATION REQUIRING RECEIPT OF OFFERS BY THE 20TH OF THE MONTH MUST HAVE BEEN MAILED BY THE 15TH OR EARLIER);

(2) IT WAS SENT BY MAIL (OR TELEGRAM IF AUTHORIZED) AND IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION; OR

(3) IT IS THE ONLY PROPOSAL RECEIVED."

SINCE THE ECRI PROPOSAL WAS HAND-DELIVERED AND DOES NOT FALL WITHIN ANY OF THE CIRCUMSTANCES UNDER WHICH IT COULD BE CONSIDERED, NOTWITHSTANDING ITS LATENESS, THE CONTRACTING OFFICER WAS REQUIRED TO REJECT IT IN ACCORDANCE WITH THE ABOVE-MENTIONED PROCEDURES. BY CHOOSING A MTHOD OTHER THAN THOSE SPECIFIED FOR POSSIBLE CONSIDERATION IN THE EVENT THE PROPOSAL ARRIVED LATE, ECRI ASSUMED THE RISK ITS PROPOSAL WOULD BE REJECTED IF RECEIVED UNTIMELY. B-171568, APRIL 15, 1971; 48 COMP. GEN. 59 (1968).

WHILE ECRI CITES COMMON SENSE AND NATIONAL INTEREST AS REQUIRINGING CONSIDERATION OF ITS LATE PROPOSAL, WE DO NOT BELIEVE THAT THE ACCEPTANCE OR REJECTION OF AN INDIVIDUAL PROPOSAL CONCERNING SAFETY AND PERFORMANCE STANDARDS FOR ELECTROSURGICAL DEVICES SERIOUSLY AFFECTS THE NATIONAL INTEREST. NOR DO WE BELIEVE THAT THE REJECTION OF THE PROPOSAL LATE BY 68 MINUTES OFFENDS COMMON SENSE. THE MANNER IN WHICH THE GOVERNMENT CONDUCTS ITS PROCUREMENTS MUST BE SUBJECT TO STANDARDS SO THAT ALL WHO DEAL WITH IT WILL BE TREATED EQUALLY AND IMPARTIALLY. BY THE APPLICATION OF ITS LATE PROPOSAL RULES, THE GOVERNMENT MAY LOSE A PROPOSAL THAT OFFERS TERMS MORE ADVANTAGEOUS THAN THOSE RECEIVED TIMELY. HOWEVER, WE THINK THE MAIN CONSIDERATION, IN THE OVERALL VIEW, IS THE MAINTENANCE OF CONFIDENCE IN THE GOVERNMENT'S PROCUREMENT SYSTEM, RATHER THAN THE POSSIBLE ADVANTAGE TO BE GAINED IN A SINGLE PROCUREMENT.

ACCORDINGLY, THE PROTEST IS DENIED.