B-236082, Jul 20, 1989, 89-2 CPD 72

B-236082, Jul 20, 1989, 89-2 CPD 72

PROCUREMENT - Competitive Negotiation - Hand-carried offers - Late submission - Acceptance criteria - Acceptance DIGEST: Procuring agency's rejection of protester's late proposal delivered by Federal Express was proper where improper governmental action was not the paramount cause of the late delivery.

Robert Slye Electronics, Inc.:

Robert Slye Electronics, Inc., protests the determination by the Department of the Navy that the proposal Slye submitted in response to request for proposals (RFP) No. N00421-89-R-0184, was late and could not be considered for award.

We dismiss the protest.

The proposal was to be submitted to the Naval Air Station at Patuxent River, Maryland by 2:30 p.m. on Monday, June 19, 1989. Slye sent its proposal on Friday, June 16 via Federal Express, expecting that it would be delivered to the Navy by 10:30 a.m. on June 19. Slye called the Navy at 11:00 a.m. on June 19 and learned that the proposal had not yet been received. Subsequently, Slye called Federal Express and learned that Federal Express did not guarantee delivery to the Patuxent River area until 4:30 p.m. The proposal ultimately was delivered to the Navy at 2:40 p.m. on June 19, and was rejected as late.

Slye asserts that its proposal was sent in a timely manner, by a reliable and standard means of delivery, and that the shipping bill was clearly marked with the proposal's due date and time. Slye further complains that when it called the Navy at 11:00 a.m. on June 19, the Navy did not inform Slye that it could request an extension of the closing time. Slye thus argues that its proposal should be accepted and considered for award.

A proposal delivered to an agency by Federal Express or other commercial carrier is regarded as hand-carried and, if it arrives late, can only be considered if it is shown that the paramount reason for the late receipt was some improper governmental action, that is, action making it impossible for an offeror to deliver its proposal on time. Sundstrand Data Control, Inc., B-227818, June 16, 1987, 87-1 CPD Para. 599. Here, the Navy's failure to inform Slye that it could request that the time for receipt of proposals be extended was not improper since the Navy is under no obligation to give such advice to a potential offeror or to extend the closing time. In any event, the Navy's action did not make it impossible for Slye to deliver its proposal on time. Rather, the paramount cause for the late delivery of Slye's proposal clearly was that Federal Express did not deliver the proposal by 2:30 p.m., consistent with its general procedures which do not guarantee delivery to the Patuxent River area before 4:30 p.m. Consequently, the offer was properly rejected.

The protest is dismissed.