PROCUREMENT - Sealed Bidding - Hand-carried bids - Late submission - Acceptance criteria DIGEST: A proposal hand-delivered after the time specified for receipt must be rejected as late where evidence of record does not support a finding that improper government action was the paramount cause of late receipt. EPS argues that its proposal should be accepted because the paramount causes of the late delivery were inadequate procedures for the receipt of hand-carried proposals and government mishandling after receipt. This is considered the official copy and is subject to "Late Offers and Modifications or Withdrawals" clause. The closing time and date for receipt of proposals was 2 p.m. on April 25.
B-231490, Jul 26, 1988
PROCUREMENT - Sealed Bidding - Hand-carried bids - Late submission - Acceptance criteria DIGEST: A proposal hand-delivered after the time specified for receipt must be rejected as late where evidence of record does not support a finding that improper government action was the paramount cause of late receipt.
Engineering & Professional Services, Inc.:
Engineering and Professional Services, Inc. (EPS), protests the rejection of its hand-carried proposal as late under solicitation No. N00612-88-R- 0008, issued by the Naval Supply Center (NSC), Charleston, South Carolina, for certain supplies and services. EPS argues that its proposal should be accepted because the paramount causes of the late delivery were inadequate procedures for the receipt of hand-carried proposals and government mishandling after receipt.
We deny the protest.
The request for proposals (RFP), issued by NSC on February 25, 1988, required offerors to submit their proposals in the following manner:
"Proposals shall be submitted in two parts (four copies each); one part containing the "Other Factors" /1/ proposal and the other part containing the Cost or Price Proposal. One copy of the Other Factors Proposal and all copies of the cost or price proposal shall be submitted to Contracting Officer, Code 201.2E, Bldg. 198, Naval Supply Center, Charleston, SC 29408. This is considered the official copy and is subject to "Late Offers and Modifications or Withdrawals" clause.
Three copies of the Other Factors Proposal shall be furnished to Commanding Officer, Naval Electronic Systems Engineering Center, (NAVELEX) Code 101, 4600 Marriott Drive, Charleston, SC 29418-6504.
CAUTION: The cost or price proposal shall NOT be furnished to Naval Electronic Systems Engineering Center, Charleston, SC."
The closing time and date for receipt of proposals was 2 p.m. on April 25. EPS' Other Factors proposals were received at NAVELEX on April 25 and its Other Factors and price proposals were retrieved from the bid box at NSC on April 27, 2 days late. /2/ On May 3, EPS was notified that its offer was late and would not be considered. This protest followed.
According to the protester, its proposals were hand-delivered to NSC by an employee who was a former Naval Officer familiar with the Navy centers in Charleston. On April 25, the day proposals were due, the employee delivered a proposal package consisting of its Other Factors proposals to a clerk at NAVELEX and obtained a receipt. According to the protester, "he did so before 3:00 p.m. which he believed to be the closing time of the solicitation." Thereafter, EPS states, this same individual deposited another proposal package consisting of its Other Factors and cost proposals in the bid box located on the second floor of Building 198 (NSC's offices) on the same day. The protester argues that since NSC's procedures do not provide for issuing receipts for hand-carried proposals, the only acceptable evidence that its proposal was timely received is the receipt it obtained from the clerk at NAVELEX. This receipt lists the date, but not the time, the proposal was received.
Initially, we note the parties dispute the actual time of receipt of the proposal package at NAVELEX. The agency has furnished an affidavit from the clerk at NAVELEX indicating that on April 25 she accepted and signed for a package delivered by an individual and, according to the affiant, as she "signed for the package (she) glanced up at the clock on the lobby wall and saw it was after three." Thus, in its report on the protest, NSC acknowledges that receipt of the Other Factors proposal occurred on April 25 at NAVELEX but disputes the allegation that it was received prior to the time set for closing, which was 2 p.m.
In this regard, the agency points out that while the solicitation required delivery of proposal materials to two locations-- NAVELEX and NSC -- offerors were on notice that only the complete proposal as submitted to NSC would be considered the "official copy" subject to the standard late offer provision contained in the solicitation. /3/ Even if we were to accept EPS' allegation that its Other Factors proposal was timely delivered, the agency argues, such delivery represented only a partial submission of the firm's offer which could not be considered for award inasmuch as it did not include a cost or price proposal.
In addition, the agency has submitted extensive evidence to refute the protester's allegation that it also timely deposited the official copy of its proposal in the bix box located in NSC's offices. NSC reports that visitors to Building 198 of NSC Charleston are required to sign a visitors log on the first floor and obtain a visitors pass in order to gain acces to any offices in that building. NSC has provided our Office with a copy of the visitors log for April 25 along with an affidavit from the Director of Security which indicate that on that day, a representative of EPS signed in at 2:48 p.m., and entered the reason for the visit as "bid."
According to the affidavit of the Director of Security, this individual
was then issued a visitors pass which allowed him to enter the building.
Based on this written evidence of record NSC argues, and we agree, that
EPS' proposals were obviously delivered after 2 p.m., on April 25 and were
therefore properly rejected since they were not received at the designated
office before closing.
Generally, a late hand-carried proposal may only be considered for award
where improper government action-- defined as action making it impossible
for an offeror to deliver its proposal on time-- was the paramount cause
for the late receipt and consideration of the proposal would not
compromise the integrity of the competitive procurement process.
Electronics, B-227940, Sept. 21, 1987, 87-2 CPD Para. 287.
record does not show that government impropriety was the paramount cause
of the late delivery of EPS' offer.
Although EPS contends that the paramount cause of the late receipt of its
proposal was the inadequate procedures for receipt of hand carried
proposals, the protester has not provided a scintilla of evidence to
support this allegation.
For example, in comments on the agency report,
the protester described the reasons why it believes the bid box procedures
at NSC are inadequate but did not submit a statement or affidavit from its
employee who delivered the proposals to rebut or contradict the evidence
in the agency report which supports a finding that delivery of EPS'
proposals must have occurred after 2 p.m. On the contrary, as noted
elsewhere in this decision, EPS stated that its employee believed that the
closing time for this solicitation was 3 p.m.; and it appears from the
record that the actions of this employee in delivering the proposals to
both locations were consistent with that belief.
Thus, in our view, the
protester essentially concedes in its comments on the agency report that
its proposals were delivered late since 2 p.m., not 3 p.m., was the time
set for closing.
We have previously considered the allegation that the failure of a
government agency to provide for the issuance of a receipt for hand
carried offers contributed to, or was the sole cause for, the late receipt
of a proposal.
For example, in Santa Cruz Construction, Inc., B-226773,
July 2, 1987, 87-2 CPD Para 7, where this issue was raised, we held that
the procurement regulations governing locked bid boxes do not require
documenting the receipt of such offers.
We think the situation presented
here fits within the rationale of the cited case.
As in Santa Cruz,
B-226773, supra, offerors were required to deposit their offers in a
bid box and there were procedures in place to retrieve the offers
deposited therein in a timely manner.
Moreover, the record shows that at
the time EPS" employee arrived at NSC, it was past 2 p.m., and its
proposal was already late before being deposited in the bid box.
these circumstances, we find that the actions of the EPS employee in
arriving after the time set for submitting proposals was the sole cause of
the late receipt.
Since the proposal was already late, we need not
consider the subsequent events in removing the proposal from the bid box
or resolve the factual dispute between the parties in connection with the
time EPS' proposal package was delivered to the NAVELEX clerk.
With respect to EPS' request for proposal preparation costs and the costs
of pursuing its protest, since we find the rejection of EPS' proposal was
proper and deny the protest, we also deny its claim for costs.
C.F.R. Sec. 21.6(d) (1988).
/1/ "Other Factors" included the offeror's technical approach, corporate experience, personnel qualifications, and management plan.
/2/ The Navy has provided us with an employee's affidavit to the effect that she opened, emptied and relocked the bid box at 1 p.m. and 2 p.m., on April 25, the day proposals were due; that a proposal from EPS was not among the items taken from the box at those times; that the box was not checked on April 26 because no bids were scheduled to open that day; and that when the box was next opened on April 27, EPS' proposal was in it.
/3/ As previously noted, an "official copy" of any firm's offer would consist of an Other Factors proposal and a cost of price proposal.