AFC does not dispute that the FPI official designated for receipt of proposals was located in the eastern time zone. Nor does AFC dispute that its proposal was first received by FPI after 2:00 pm eastern time on September 23. The protester nevertheless contends that its proposal was not late and should not have been rejected as untimely because it met the RFP requirements, as AFC understood them. In support of its position AFC argues that: (1) it first sent its proposal by 2:00 pm central time; and (2) it believed the closing time was 2:00 pm central time because contract performance was to occur in the central time zone. The protester also essentially maintains that the timeliness of its proposal should be measured by when AFC submitted its proposal, rather than when the designated contracting official received it. We disagree.

It is an offeror’s responsibility to deliver its proposal to the proper place at the proper time. FAR § 15.208(a) (offerors are responsible for submitting proposals so as to reach the designated government office by the specified time); PMTech, Inc., B-291082, Oct. 11, 2002, 2002 CPD ¶ 172 at 2; Integrated Support Sys. inc, B-283137.2, Sept. 10, 1999, 99-2 CPD ¶ 51 at 2. Similarly, it is an offeror’s responsibility, when transmitting its proposal electronically, to ensure the proposal’s timely delivery by transmitting the proposal sufficiently in advance of the time set for receipt of proposals to allow for timely receipt by the agency. PMTech, Inc., supra. Proposals that are received in the designated government office after the exact time specified are “late,” and generally may not be considered for award.3 While the rule may seem harsh, it alleviates confusion, ensures equal treatment of all offerors, and prevents one offeror from obtaining a competitive advantage that may accrue where an offeror is permitted to submit a proposal later than the common deadline set for all competitors. Inland Serv. Corp., Inc.
, B-252947.4, Nov. 4, 1993, 93-2 CPD ¶ 266 at 3.

Here, the RFP established a closing date and time of 2:00 pm eastern time on September 23. The solicitation also informed prospective offerors in unambiguous terms that the controlling event was the agency’s receipt--as opposed to an offeror’s submission--of proposals by the due date and time. However, the record reflects that the FPI contracting officer did not receive AFC’s proposal until 4:21 pm eastern time, well after both 2:00 pm eastern time and 2:00 pm central time. In sum, the fact that AFC believed that it had sent its proposal in advance of the designated closing time is not determinative of the proposal’s timeliness.

Lastly, although AFC does not dispute that the RFP twice expressly stated that the time for receipt of proposals was 2:00 pm eastern time, AFC argues that the language on the Standard Form 1449 (“OFFER DUE DT/LOCAL TIME, 9/23/2011 2:00 PM”) was ambiguous. Comments, Oct. 18, 2011, at 1-2. To the extent there was any ambiguity in the RFP regarding the closing time, we find that AFC was required to protest this apparent solicitation defect prior to the time for receipt of initial proposals. 4 C.F.R. § 21.2(a)(1) (2011); see Sea Box, Inc. , B-401523, B-401523.2, Sept. 25, 2009, 2009 CPD ¶ 190 at 4 (conflict regarding solicitation closing date constituted a patent ambiguity that was readily apparent prior to the time set for receipt of submissions).

In sum, since AFC’s electronically transmitted proposal was not received until 4:21 pm eastern time, after the time set for receipt of proposals, it is a late proposal. Further, since it was not received at the initial point of entry by 5:00 pm the day before proposals were due, the late proposal cannot be accepted. FAR § 52.212-1(f)(2)(i)(A); Sea Box, Inc., B-291056, supra
, at 4.  (Associated Fabricators & Constructors, Inc., B-405872, December 14, 2011)  (pdf)

ERC asserts that the agency should not have rejected its proposal as late because the late delivery of its proposal was caused by not allowing ERC to self deliver its proposal with its own employee. ERC contends that other offerors were permitted to have their own employees or agents (as distinguished from third-party commercial carriers) hand deliver their proposals, yet ERC was not given the same opportunity to ensure that its proposal was timely delivered.

It is an offeror's responsibility to deliver its proposal to the proper place by the proper time, and late delivery generally requires rejection of the proposal. Federal Acquisition Regulation sect. 15.208; The Staubach Co., B-276486, May 19, 1997, 97-1 CPD para. 190 at 3. A proposal delivered to an agency by a commercial carrier is considered to be hand-carried and, if it arrives late, can only be considered for award if it is shown that some government impropriety during or after receipt by the government was the sole or paramount cause of the late arrival at the designated place. On-Site Envt'l, Inc.; WRS Infrastructure & Env't., Inc., B-294057, B-294057.2, July 29, 2004, 2004 CPD para. 138 at 3. Improper government action in this context is affirmative action that makes it impossible for the offeror to deliver the proposal on time. Caddell Constr., Co., Inc., B-280405, Aug. 24, 1998, 98-2 CPD para. 50 at 6. Nevertheless, even in cases where the late receipt may have been caused, in part, by erroneous government action, a late proposal should not be considered if the offeror significantly contributed to the late receipt by not acting reasonably in fulfilling its responsibility to deliver a hand-carried proposal to the proper place by the proper time. O.S. Sys., Inc., B-292827, Nov. 17, 2003, 2003 CPD para. 211 at 3.

ERC argues that it was treated unequally and prejudiced by the Air Force's instructions to mail, rather than self deliver, its proposal to the contracting officer at the address designated in the RFP. However, the record evidences that ERC did not follow this advice, but chose to have its proposal delivered by a commercial carrier. As indicated above, this is considered to be hand delivery of a proposal by an agent of the offeror. On-Site Envt'l, Inc.; WRS Infrastructure & Env't., Inc., supra.

Even conceding that the agency may have caused ERC to use a commercial carrier rather than self delivering the proposal by its own employees or agents, the record evidences that the delivery driver contributed significantly to the late delivery of the proposal. In this regard, ERC admits that the delivery driver arrived at the gate to Hanscom in sufficient time to deliver the proposal to the proper place at the proper time, but chose not to enter the base at that time to avoid waiting in a long line. It is apparent that this was the paramount cause that ERC's proposal was delivered late, not improper government action. Accordingly, we conclude that the Air Force properly rejected ERC's proposal as late.  (ERC Inc., B-405563, November 18, 2011)  (pdf)

CCSC's current protest argues that the firm followed the delivery directions in the RFP which permitted the use of FedEx but did not make offerors aware of the existence of either the [consolidated remote delivery site] CRDS or the attendant screening delay. CCSC argues that following the RFP directions was the paramount cause of the late delivery of the firm's proposal. Protester's Comments at 3, 13. CCSC emphasizes that its proposal was addressed as specified in the RFP, submitted to FedEx for delivery by 8:30 a.m. on December 14, and that FedEx sought permission from the contracting officer to complete the delivery before the closing time. Protest at 2; Protester's Comments at 4. Thus, CCSC argues, its actions would have resulted in timely delivery of the proposal at issue except that the [United States Customs and Border Protection] CBP procedures allegedly made that impossible. Protester's Comments at 19.

The CBP responds that RFP proposal submission instructions were "appropriate" and were not the primary cause of CCSC's late proposal. AR at 1. The CBP argues that it did not mishandle the proposal or make delivery impossible. AR at 7. Instead, the agency maintains that CCSC should have expected security delays due to package screening, and thus it should not have delayed shipping the proposal until after 6 p.m. on December 13, the night before it was due. AR at 8.

It is an offeror's responsibility to deliver its proposal to the proper place at the proper time, and late delivery generally requires rejection of the proposal. Federal Acquisition Regulation (FAR) sect. 15.208; O.S. Sys., Inc., B-292827, Nov. 17, 2003, 2003 CPD para. 211 at 3. A proposal delivered to an agency by FedEx or other commercial carrier is considered to be hand-carried and, if it arrives late, can be considered if it is shown that some government impropriety during or after receipt at the government installation was the sole or paramount cause of the late arrival at the designated place. Chappy Corp., B-252757, July 20, 1993, 93-2 CPD para. 44 at 3. Improper government action in this context is affirmative action that makes it impossible for the offeror to deliver the proposal on time. Lani Eko & Co., CPAs, PLLC, B-404863, June 6, 2011, 2011 CPD para. 118 at 3.

To establish that government mishandling was the sole or paramount cause of the late receipt of a proposal, an offeror must first establish that it did not significantly contribute to the late delivery by not allowing enough time to permit a timely submission. Wyatt & Assocs., B‑243349, July 1, 1991, 91‑2 CPD para. 5 at 2-3. Even in cases where the late receipt may have been caused, in part, by erroneous government action, a late proposal should not be considered if the offeror significantly contributed to the late receipt by not doing all it could or should have done to fulfill its responsibility to deliver a hand-carried proposal to the specified place by the specified time. ALJUCAR, LLC, B-401148, June 8, 2009, 2009 CPD para. 124 at 3; O.S. Sys., Inc., supra., at 3.

Offerors are responsible for allowing a reasonable time for proposals to be delivered from the point of receipt to the location designated for receipt of offers; failure to do so, resulting in late arrival at the designated location, cannot be attributed to governmental mishandling. CSLA, Inc., B-255177, Jan. 10, 1994, 94‑1 CPD para. 63 at 2-3. Furthermore, delays in gaining access to a government building are not unusual and should be expected. Bergen Expo Sys., Inc.; Techniarts Eng'g, B‑236970; B-236970.2, Dec. 11, 1989, 89-2 CPD para. 540 at 3; see also ALJUCAR, LLC, supra., at 4 (proposal properly rejected as late when delivered after closing time although courier arrived at security gate 8 minutes before closing time); Kesser Int'l, B-296294, June 30, 2005, 2005 CPD para. 127 at 2 (proposal properly rejected as late when delivered after closing time although courier was delayed 20 minutes at security checkpoint); Wyatt & Assocs., B-243349, July 1, 1991, 91-2 CPD para. 5 at 3 (proposal properly rejected as late when delivered after closing although courier arrived at security desk 10 minutes before closing time). Therefore, an offeror that does not submit a proposal sufficiently in advance of the closing time runs the risk that the agency's reasonable internal delivery procedures will not get the proposal to the proper location by the required time. Bay Shipbuilding Corp., B‑240301, Oct. 30, 1990, 91‑1 CPD para. 161 at 3 (bid sent overnight was properly rejected as late when it arrived late at bid opening room, even though delivered to agency mailroom 6 hours before bid opening time); see also CSLA, Inc., supra., at 3; cf. Power Connector, Inc., B‑256362, June 15, 1994, 94-1 CPD para. 369 at 4 (agency reasonably considered late bid where mishandling by agency mailroom caused late arrival at bid opening room).

The record here provides several significant facts demonstrating that CCSC was, in large part, responsible for its proposal arriving late. First, the protester did not bring its proposal to FedEx until after 6 p.m. on the day before it was due, and CCSC has not shown that it was impossible for it to have sent its proposal earlier to allow for potential security screening. Second, CCSC placed no identification on the packaging identifying that a proposal was inside, and there is no evidence that the FedEx representative identified to the agency that the company was attempting to deliver a proposal when the representative called the contracting officer on the morning of delivery. Third, the protester should have expected delays due to security screening, particularly considering that the proposal was being submitted to DHS, an agency involved in national security that would be expected to have tight security. Finally, the RFP did not warrant that delivery by FedEx or any other express courier would actually reach the contracting officer on the day of delivery. On these facts, we cannot conclude that the agency's conduct was the paramount cause of the late receipt of CCSC's proposal.

CCSC argues that the rerouting of its proposal to Maryland is akin to the situation addressed by our decision in Dale Woods, B-209459, Apr. 13, 1983, 83-1 CPD para. 396. In that decision, we determined that an agency improperly changed the location for the submission of bids without adequately informing prospective bidders. Although all other bidders noticed a sign specifying the new location, the protester arrived only 20 minutes before the closing time, and it did not notice the signs. Our Office concluded that the agency had not satisfied its duty to establish reasonable procedures for the timely receipt of bids when it changed the delivery location without adequate notice, and we therefore sustained the protest. Id. at 3, 5. CCSC argues that the CBP's actions were similar. Protest at 11. We disagree.

Unlike in Dale Woods, the CBP here did not change the location for submission of proposals, but rather only required deliveries to be screened off-site prior to delivery to the specified location in the RFP. Mail screening is common in government facilities, and should have been expected in an agency such as DHS. Accordingly, our decision in Dale Woods is distinguishable and is not persuasive here.

CCSC also argues that our decision in Hospital Klean of Texas, Inc., B‑295836, B‑295836.2, Apr. 18, 2005, 2005 CPD para. 185, provides support for its protest. In that case, we held that an agency properly considered proposals that were due on a Saturday, but were not delivered by FedEx until Monday, because the agency had not provided adequate means for the FedEx courier to obtain entry into the building on Saturday. Protest at 12. CCSC argues that the CBP similarly failed to provide a means for FedEx to deliver to the specified address for receipt of proposals here.

However, unlike the situation in Hospital Klean where the delivery courier encountered a locked door preventing his entry, CCSC has not shown that it was physically impossible for its proposal to reach the contracting officer at the designated location by the closing time set forth in the RFP. Rather, the delivery of CCSC's proposal was delayed for security screening, which CCSC should have expected. By not allowing sufficient time for screening at the CRDS, CCSC bears the responsibility for its late proposal.

In sum, the CCSC has not shown that the RFP's failure to describe the agency's mail screening policy was the primary cause of the late proposal submission.

Instead, as described above, the protester failed to take reasonable steps to ensure timely delivery.  (CCSC, Inc., B-404802.3, July 18, 2011)  (pdf)

SGS asserts that the agency's rejection of its FPR due to the late submission of its subcontractor was improper because, according to SGS, "even without [DELETED] revised business proposal spreadsheets, SGS's proposal was complete." Protester's Comments at 3. We agree.

Offerors are responsible for submitting proposals, and any modifications to them, so as to reach the government office designated in the solicitation by the time specified in the solicitation. Federal Acquisition Regulation (FAR) sect. 15.208(a). Proposals, and modifications to them, that are received in the designated government office after the exact time specified are "late," and will be considered only if received before award, and if the circumstances meet the specific requirements of the provision at FAR sect. 52.215-1. FAR sect. 15.208(b). Portions of proposals that are submitted late may not be considered by the agency, and if the proposal is unacceptable as timely submitted, it should be rejected as late. See Inland Serv. Corp., Inc., B-252947.4, Nov. 4, 1993, 93-2 CPD para. 266 at 4 (proposal was late and not acceptable where the technical proposal was received on time but the price proposal was late); Panasonic Comms. & Sys. Co., B-239917, Oct. 10, 1990, 90-2 CPD para. 279 (initial proposal was properly rejected because it did not contain a significant required bid sample). On the other hand, a proposal which does not provide all items required by the solicitation may not be automatically rejected if the proposal information received by the deadline is sufficient to constitute an acceptable proposal. See Wetlands Research Assocs., Inc., B-246342, Mar. 2, 1992, 92-1 CPD para. 251 at 5, n.7.

SGS contends that its proposal was acceptable, even without [DELETED] revised business proposal spreadsheets. According to SGS, [DELETED] was a minor subcontractor included for the purpose of adding [DELETED] under one of the least important non-cost evaluation factors. [DELETED] proposal included a total of [DELETED] FTEs and was [DELETED] percent of SGS's total cost. Protester's Comments at 21.

According to SGS, the changes to [DELETED] proposal were reflected in SGS's Business FPR. For example, in response to discussion questions indicating that [DELETED] may have [DELETED] proposed FTEs/hours for its [DELETED] position, SGS's FPR showed that the [DELETED] position had been [DELETED]. Protest, exh. 7, Discussion Response, at 9-11; Protester's Comments, exh. 1, SGS Bus. FPR, vol. 1, Task Order 1, at I-6; exh. 2, SGS Bus. FPR, vol. I, Task Order 2, at I-8. Moreover, SGS's FPR business spreadsheet for each task order reflects the number of FTEs, number of hours, and the total costs for each labor category (there was only [DELETED]) proposed by [DELETED]. Protester's Comments, exh. 3, SGS FPR Task Order 1 Business Spreadsheet; exh. 4, SGS FPR Task Order 2 Business Spreadsheet.

Here, the record reflects that the agency did not consider whether SGS's FPR was acceptable without [DELETED] revised business proposal spreadsheets. AR, Tab J-1, CMS Letter to SGS (Mar. 9, 2011); Tab J-2, CMS Letter to SGS (Mar. 17, 2011) ("given the plain language in the solicitation, I believe it remains appropriate to treat the entire proposal as late when any part, no matter how small, was late."). However, as discussed above, SGS asserts that its FPR was complete and acceptable because it contained all of [DELETED] costs.

Our review confirms SGS's assertion that the information included in [DELETED] revised business spreadsheet was reflected in SGS's business proposal. Thus, [DELETED] submission could appropriately be viewed as backup supporting material for SGS's proposed costs. In addition, we note again that the [DELETED] submission at issue here represents approximately [DELETED] percent of SGS's total costs--and [DELETED] FTEs. In circumstances like these, where an agency finds that an offeror's proposed costs on a cost reimbursement contract are not reasonably supported, an agency, as part of the cost realism analysis, can adjust the proposed costs to account for this lack of supporting information. See Magellan Health Servs., B-298912, Jan. 5, 2007, 2007 CPD para. 81 at 13-14; Earl Indus., LLC, B-309996, B-309996.4, Nov. 5, 2007, 2007 CPD para. 203 at 8‑9; Metro Mach. Corp., B-295744, B-295744.2, Apr. 21, 2005, 2005 CPD para. 112 at 10; General Offshore Corp.--Riedel Co., A Joint Venture, B-271144.2, B‑271144.3, July 2, 1996, 96-2 CPD para. 42 at 11.

In sum, we conclude that the agency improperly rejected SGS's entire FPR as late without considering whether the proposal was acceptable without the subcontractor's revised business proposal, and we sustain the protest on this basis.  (SafeGuard Services, LLC, B-404910, June 28, 2011)  (pdf)

Lani Eko contends that its representative arrived at the Jemal Building with its proposal package prior to the closing time on March 2, and that the agency improperly refused to accept its proposal. In support of its position, the protester relies on its representative's timing of events, and maintains that consistent with the language of the solicitation, the firm's representative was "in line" at the loading dock prior to 3 p.m. As such, the agency improperly determined that its proposal was late. Protester's Comments at 1-2. We disagree.

It is an offeror's responsibility to deliver its proposal to the place designated in the solicitation by the time specified, and late receipt generally requires rejection of the proposal. Federal Acquisition Regulation (FAR) sect. 15.208(a); O.S. Sys., Inc., B‑292827, Nov. 17, 2003, 2003 CPD para. 211 at 3; Integrated Support Sys. Inc., B‑283137.2, Sept. 10, 1999, 99-2 CPD para. 51 at 2. Unless a preponderance of the evidence demonstrates that the proposal was at the designated location for receipt prior to the time set for closing, the proposal may not be considered for award. See Med‑National, Inc., B-277430, Sep. 8, 1997, 97-2 CPD para. 67 at 3. A late hand-carried proposal may be considered for award, however, if improper government action was the paramount cause of the late delivery and consideration of the proposal would not compromise the integrity of the competitive procurement process. Caddell Constr. Co., Inc., B-280405, Aug. 24, 1998, 98-2 CPD para. 50 at 6. Improper government action in this context is affirmative action that makes it impossible for the offeror to deliver the proposal on time. Id. Even in cases where the late receipt may have been caused, in part, by erroneous government action, a late proposal should not be considered if the offeror significantly contributed to the late receipt by not doing all it could or should have done to fulfill its responsibility to deliver a hand-carried proposal to the specified place by the specified time. ALJUCAR, LLC, B-401148, June 8, 2009, 2009 CPD para. 124 at 3; O.S. Sys., Inc., supra. We find no basis to conclude that Lani Eko timely delivered its proposal or that improper government action was the paramount cause for the late submission of its proposal.

The agency reports that on March 2, three contract specialists were present at various times throughout the day at the loading dock in the Jemal Building to receive proposal packages. At approximately 2:58 p.m., one of the contract specialists declares that she began processing a hand-carried proposal package from another vendor which she completed just after 3 p.m. Agency Report (AR) exh. 28, Decl. of Contract Specialist A, Apr. 19, 2011; see also, exh. 29, Decl. of Contract Specialist B, Apr. 19, 2011 at 2. According to this individual, at 3:01 p.m., after acknowledging that the closing time had passed, a third contract specialist stepped out of the door to the loading dock. The second contract specialist declares that no offerors were waiting at the security desk at 3 p.m. AR, exh. 29, Decl. of Contract Specialist B, Apr. 19, 2011, at 1. When the security desk phone registered 3:01 p.m., the contract specialists concluded that the submission deadline had passed, and the third contract specialist went to the top of the loading dock stairs to inform all offerors that the submission deadline had expired. Id. The third contract specialist, who in fact engaged Lani Eko's representative outside the loading dock, declares that no offerors were waiting inside or outside of the loading dock at 3:01 p.m. (he verified the time via his wristwatch, cell phone and security guard desk phone), and that approximately six offerors, including Lani Eko's representative, approached the loading dock door with their proposals as he was standing there. AR, exh. 27, Decl. of Contract Specialist C, Apr. 19, 2011, at 2. After approximately a minute of conversation, the offerors asked which clock he was using and the third contract specialist indicated "the guard desk clock," which verified the time as 3:02 p.m. Id. Because the offerors arrived after the closing time and were considered late, the contracting specialist refused to accept their proposals. Id.

We conclude that the protester has failed to demonstrate by a preponderance of evidence that it arrived at the place designated for delivery of proposals by the 3 p.m. deadline established by the RFP. In this regard, the protester offers no evidence, other than the declaration of its own representative, to support its assertion that it had arrived at the Jemal loading dock area by 3 p.m. Moreover, the protester's assertion of timely delivery is based solely on the time that its representative observed on her personal cell phone. This is not the relevant time, however, since the official time maintained by the agency is controlling absent a showing that it was unreasonable. See U.S. Aerospace, Inc., B‑403464, B-403464.2, Oct. 6, 2010, 2010 CPD para. 225 at 9. With regard to the official time, the protester's representative reports having observed a time of 3:02 p.m. after being informed that its proposal was late. This is consistent with the declarations submitted by the agency, which represent that an agency representative was waiting at the loading dock door at 3:01, the protester arrived just after 3:01 p.m., and that, after a conversation of approximately 1 minute, he showed her the official time, which then was 3:02. On this record, we find nothing unreasonable in the agency's determination that Lani Eko's proposal was delivered late.

The protester also contends that its delivery was frustrated by the agency's use of a security guard phone clock to determine the closing time. Protest at 2. Lani Eko argues that use of this device was unreasonable since there was a "1-2 minute discrepancy maintained on that device versus on various cell phones." Id. at 2. This argument is without merit. As noted above, we have held that the time maintained by the agency official responsible for receiving bids or proposals is determinative, unless it is shown to be unreasonable under the circumstances. U.S. Aerospace, Inc., B‑403464, B-403464.2, supra. Here, there was nothing inherently unreasonable with the agency's use of a security guard desk phone clock to determine the solicitation's closing time. Notwithstanding the protester's suggestion to the contrary, there simply is no requirement for the time maintained by the agency to be synchronized with the protester's personal cell phone, or any other cell phone. Moreover, it is apparent that the paramount cause of Lani Eko's late delivery of its proposal stemmed from the fact that Lani Eko's representative arrived at the Jemal Building, according to her own version of events, with approximately 1 minute to spare. By allowing herself so narrow a margin of time, Lani Eko's representative assumed the risk that any number of events might intervene to prevent the timely submission of the proposal. See Pat Mathis Constr. Co, Inc., B-248979, Oct. 9, 1992, 92-2 CPD para. 236 at 4. Accordingly, we have no basis on which to object to the agency's actions.  (Lani Eko & Company, CPAs, B-404863, PLLC, June 6, 2011)  (pdf)

B&S contends that DLA should accept its proposals because the agency was the primary cause of the late filing, and because the courier was under the control of the agency at the time he arrived at the VPC. We find no merit to these arguments.

It is an offeror's responsibility to deliver its proposal to the proper place at the proper time; proposals that are received after the exact time specified are "late" and must generally be rejected. Federal Acquisition Regulation (FAR) sect. 52.212-1(f); O.S. Sys., Inc., B-292827, Nov. 17, 2003, 2003 CPD para. 211 at 3; Integrated Support Sys. Inc., B-283137.2, Sept. 10, 1999, 99-2 CPD para. 51 at 2. The late proposal rules include limited exceptions under which late proposals may be considered. Our Office has held that a late hand-carried offer may be considered for award if the government's misdirection or improper action was the paramount cause of the late delivery and consideration of the offer would not compromise the integrity of the competitive process. See U.S. Aerospace, Inc., B-403464, B-403464.2, Oct. 6, 2010, 2010 CPD para. 225 at 11; ALJUCAR, LLC, B-401148, June 8, 2009, 2009 CPD para. 124 at 3. A late proposal may also be accepted if it is found to have been received at the designated government installation and was under the agency's control at the time set for receipt of proposals. FAR sect. 52.212-1(f)(1)(B); U.S. Aerospace, Inc., supra, at 12. Nonetheless, even in cases where the late receipt may have been caused, in part, by erroneous government action, a late proposal should not be considered if the offeror significantly contributed to the late receipt by not doing all it could or should have done to fulfill its responsibility. See U.S. Aerospace, Inc., supra; ALJUCAR, LLC, supra.

Here, we conclude that the protester's actions were the paramount cause for the late delivery. As discussed above, the RFPs stated that if an offeror intended to hand deliver its proposal, the offeror must provide notice to DLA a day in advance of delivery in order to be sponsored and be entered into the VNS. RFP, encl. 6, at 3; RFP, Q&A No. 8. The RFPs further advised offerors that visitors would be required to check in at the VPC, and that any delays encountered at the VPC would not be a basis for accepting a late proposal. RFP, Q&A No. 8.

Despite the instructions and warnings in the RFPs, the record shows that B&S's courier was not entered into the VNS system prior to his arrival, nor did the courier have the appropriate contact information to obtain a sponsor for entry into the VNS. Moreover, the courier arrived at the VPC less than 10 minutes before the proposal receipt deadline. On this record, we conclude that the protester's actions, rather than the agency's actions, were the paramount cause of the late receipt. See ALJUCAR, LLC, supra, at 4 (a protester contributes significantly to a delay where it fails to provide sufficient time for delivery at a secure government facility).

To the extent that B&S contends that DLA's actions were the paramount cause of the late delivery, we disagree. First, the protester argues that the agency was responsible for the late filing because the acquisition specialist directed the protester's courier to the wrong building. As discussed above, the agency does not dispute that the courier was initially directed to Building 21, instead of Building 20. See AR at 3. However, the videotape shows that the courier did not leave the VPC until 1:03 p.m. On this record, we think it is clear that the courier would not have made a timely delivery of the proposals, even if he had been directed to the correct building.

Next, B&S contends that personnel at the VPC directed the courier to call "a person who had nothing to do with the matter," thus resulting in delay in the courier's departure from the VPC. Protester's Comments at 3. As discussed above, however, the call to the DLA Small Business Office was suggested by the security officer because the courier was unable to provide the appropriate contact information. Moreover, as discussed above, the RFPs instructed offerors to contact DLA the day before an attempted delivery in order to enter couriers into the VNS, and warned that any delays encountered at the VPC were the responsibility of the offeror. We do not think that the security officer's suggestion to call the Small Business Office was the paramount cause of the delay.

Finally, the protester argues that the courier was under the control of the government as of the time the courier arrived at the VPC, and thus the proposals should have been deemed as timely received. In determining whether a late-submitted proposal was "under the Government's control" prior to the time set for receipt of proposals, our Office has held that an offeror must, at a minimum, have relinquished physical custody of the proposal. See U.S. Aerospace, Inc., supra; ALJUCAR, LLC, supra. This requirement is an obvious necessity in order to preclude any potential that an offeror could alter, revise, or otherwise modify its proposal after other offerors' competing proposals have been submitted. B&S's argument misapprehends the legal standard: the issue is not whether the courier was under the control of the government personnel, but instead whether the proposal had been accepted by government personal, thereby putting it under government control. The record here shows that the courier did not relinquish control of the proposals until his arrival at Building 20 at 1:20 p.m. CO's Memorandum Re: Late Bids, Jan. 24, 2011, at 3. For this reason, as well as those stated above, we find no merit the protester's arguments.

The protest is denied.  (B&S Transport, Inc., B-404648.3, April 8, 2011)  (pdf)

The RFP set the closing date for receipt of proposals as 4:30 p.m. on December 22, 2010. The protester explains that on December 21, it delivered its proposal package to UPS to be shipped using "Next Day" service, but that when it checked on the status of the delivery the following morning, UPS advised it that severe weather would delay delivery of the package to the 23rd. According to Noble, it then located a UPS store in Minot, North Dakota and spoke with an employee of the store, who advised it that he would be able to print, package, and deliver a copy of the proposal to the base prior to the 4:30 p.m. closing time.

Before implementing this alternative plan for delivering its proposal, however, the protester contacted the contracting officer and explained its situation. According to Noble, the contracting officer advised that she understood the protester's problem and stated "that if the proposal was delivered on December 23, it would still be evaluated." Protest at 5. Based on this advice, the protester elected not to implement its alternative plan for proposal delivery. UPS delivered the proposal to Minot AFB at 11:05 a.m. on December 23.

By letter of January 3, the contracting officer notified Noble that its proposal had been received after the specified closing time and would not be considered. On January 13, Noble protested to our Office.

The protester argues that its proposal was not late because the contracting officer orally amended the RFP on December 22 to extend the closing date to December 23. In the alternative, Noble argues that even if its proposal was late, the agency should have considered it, because the late delivery was the result of incorrect information furnished by the contracting officer.

The protester's first argument is without merit. While it is true that a contracting officer may provide oral notice of a solicitation amendment "when time is of the essence," see Federal Acquisition Regulation (FAR) sect. 15.206(f), Noble has not alleged that the contracting officer ever in fact advised Noble that she would "amend" the solicitation to extend the closing date until December 23. Rather, Noble essentially argues that it understood the contracting officer's oral assurance that its proposal would be evaluated even if submitted on the 23rd as implying that the RFP would be amended since there would not otherwise have been any basis for the contracting officer to consider its proposal. However, absent an unambiguous statement from the contracting officer conveying her intent to amend the closing date for all offerors, Noble could not reasonably disregard the solicitation's express closing date and instead rely on an implied understanding of the contracting officer's oral assurances, which were otherwise inconsistent with the terms of the RFP. We have repeatedly held that oral advice that would have the effect of altering the written terms of a solicitation, even from the contracting officer, does not operate to amend a solicitation or otherwise legally bind the agency, ESCO Marine, Inc., B‑401438, Sept. 4, 2009, 2009 CPD para. 234 at 8, and that an offeror relies on such oral advice at its own risk. TRS Research, B-274845, Jan. 7, 1997, 97-1 CPD para. 6 at 3.

Turning then to Noble's second argument, while it is an offeror's responsibility to deliver its proposal to the proper place at the proper time, and late delivery generally requires rejection of the proposal, see FAR sect. 15.208, O.S. Sys., Inc., B-292827, Nov. 17, 2003, 2003 CPD para. 211 at 3, a hand-carried proposal that arrives late may be considered if improper government action was the paramount cause of the late submission and consideration of the proposal would not compromise the integrity of the competitive procurement process. Hospital Klean of Texas, Inc., B-295836, B‑295836.2, Apr. 18, 2005, 2005 CPD para. 185 at 4-5.

The protester argues that it was the incorrect information furnished by the contracting officer regarding the acceptability of submitting its proposal a day after the specified closing date that led it to forego its alternative approach to delivering the proposal by the December 22 deadline, and that improper government action was thus the paramount cause for the late submission. We disagree. Even assuming that the contracting officer did incorrectly advise the protester regarding the acceptability of delivery on the 23rd, this misinformation did not prevent the protester from delivering its proposal on time, and thus was not the paramount cause of the late submission; rather, it was the protester's decision to rely on the contracting officer's erroneous oral advice, which was at Noble's own peril as explained above, and thereby forego its alternative approach to delivering its proposal that resulted in the proposal being received late. Because the agency's actions were not the paramount cause for the late receipt of Noble's proposal, the agency properly rejected it as late.  (Noble Supply and Logistics, B-404731, March 4, 2011)  (pdf)
 

Metters protests that its proposal should not have been rejected as late, arguing that a complete copy of its proposal (with the paper versions of the subcontractors' proposals) was submitted to the agency before 3 p.m. Metters contends that, to the extent that its proposal was considered late because it did not submit its subcontractors' proposals on CDs until after 3 p.m., the RFP was ambiguous as to what format must be used for the submission of the subcontractors' proposals. Protest at 9.

It is an offeror's responsibility to deliver its proposal to the proper place at the proper time, and late delivery generally requires rejection of a proposal. Slates Roofing Corp., B-286052, Nov. 8, 2000, 2000 CPD para.182 at 4. The late proposal rule alleviates confusion, ensures equal treatment of offerors, and prevents one offeror from obtaining a competitive advantage as a result of being permitted to submit a proposal later than the deadline set for all competitors. Inland Serv. Corp., Inc., B‑252947.4, Nov. 4, 1993, 93-2 CPD para. 266 at 3; Phelps-Stokes Fund, B-194347, May 21, 1979, 79-1 CPD para. 366 at 5-6.

Here, the record shows that the agency did not receive a complete proposal in the correct format from Metters until after the closing time specified in the solicitation, and therefore its proposal was late.[3] Although Metters notes the agency had received all but the subcontractors' proposals by the 3 p.m. closing time, offerors were required to submit their complete proposal to the agency by the closing time, and timely delivery of part of a proposal does not constitute the timely submission of the proposal. See Inland Serv. Corp., Inc., supra, at 3-4.

We do not agree that the protester's late submission of a complete proposal was caused by some ambiguity in the RFP.[4] A solicitation ambiguity exists where two or more reasonable interpretations of the terms of the solicitation are possible. Ashe Facility Servs., Inc., B-292218.3; B-292218.4, Mar. 31, 2004, 2004 CPD para. 80 at 10. Here, the RFP stated that:

If any of the work under the cost reimbursable CLIN will be subcontracted for $650,000 or more, the subcontractor(s) shall prepare and submit a cost breakdown and cost proposal. If the subcontractor(s) considers the data to be company proprietary, the cost proposal shall be submitted directly to the Contracting Officer with a concurrent redacted copy and notification to the offeror.

RFP, Proposal Submission Instructions, at 12. This provision simply informed offerors that they would be required to submit separate proposals for their major subcontractors under the cost reimbursement CLIN, and did not address what form those proposals must take. Rather, the proposals' format was addressed elsewhere in the RFP's proposal preparation instructions, where offerors were instructed that they must submit their proposals on CDs, that paper copies were not permitted, and that submission of proposals by email or facsimile was not authorized.[5] See id. at 1.

In short, we find that the RFP required that subcontractors' proposals, like the offerors' own proposals, be submitted on CDs. Because Metters did not deliver its subcontractors' proposals on CDs to the agency until after the specified closing time, its proposal was late.

Metters also argues that its late proposal should have been considered by the agency under Federal Acquisition Regulation (FAR) sect. 15.208(b)(1)(ii), which provides an exception for late proposals where there is evidence establishing that the late proposal was received at the government installation designated for receipt and was under the control of the agency prior to the time set for receipt of proposals.Even assuming the application of this provision to the task order competition here, Metters failed to deliver a complete proposal in the correct format into the agency's control prior to the closing time for receipt of proposals. Thus, this exception to the late proposal rule does not provide a basis for considering the protester's proposal.

Metters also argues that, because the contract specialist informed its subcontractor that it could submit its proposal after the specified closing time, this effectively waived the RFP's proposal submission time. The Army disputes that its contract specialist informed Metters that the agency would consider the subcontractor's proposal submitted after the closing time for receipt of proposal. We need not resolve this conflict because the contract specialist does not have the authority to amend the solicitation or waive the deadline for proposal submission. See Heath Constr., Inc., B-403417, Sept. 1, 2010, 2010 CPD para. 202. Moreover, such a waiver or amendment of the closing time for receipt of proposal for only one offeror would be wholly inconsistent with the purpose of the late proposal rule, which is intended to assure fair and equal treatment of offerors.  (Metters, Incorporated, B-403629, November 10, 2010)  (pdf)

Agency Determination that Proposal was Not Timely Submitted

USAI first protests that its proposal was, in fact, delivered by 2 p.m. on July 9. In this regard, USAI offers no evidence to support its assertion other than its messenger's representations regarding the timing of events prior to proposal submission, and the messenger's conclusion that "the proposal was submitted by 2 p.m." Statement of USAI Messenger at 2. Rather, USAI notes that the [contracting officer's representative] COR relied on his wrist watch in determining that the proposal was late and argues that the evidence the agency considered, including the COR's wrist watch, is inadequate to establish the time of receipt, arguing, among other things, that the agency has failed to present a "standard metered timestamp showing the exact Coordinated Universal Time ('UTC') of actual receipt of the bid." Comments at 1 (italics in original). USAI asserts that the agency's determination was unreasonable because the agency has not demonstrated that the COR's wrist watch reflected the "exact [time], accurate or synchronized to UTC." Id. at 2. Thus, USAI maintains that "the purported time shown on the watch is not legally trustworthy, cannot establish the exact time of receipt, and is not admissible to support the determination that the bid was late." Id. We disagree.

This Office has repeatedly held that the declaration of the agency official responsible for receiving bids or proposals is determinative with regard to the time a bid or proposal is received, absent a showing that the agency official's declaration was unreasonable. See, e.g., Pat Mathis Constr. Co., Inc., B-248979, Oct. 9, 1992, 92-2 CPD para. 236 at 3; Robert R. Nathan Assocs., Inc., B-230707, June 28, 1988, 88-1 CPD para. 615 at 2-3; Chattanooga Office Supply Co., B-228062, Sept. 3, 1987, 87-2 CPD para. 221 at 2.

Here, as discussed above, the agency COR specifically concluded that USAI's proposal was not received until 2:05 p.m., advised USAI's messenger of that determination, and provided the messenger written notification reflecting the 2:05 p.m. receipt. USAI's messenger did not dispute the accuracy of the COR's determination at that time. Further, as noted above, the record contains an email from another USAI representative to agency personnel stating that "Messenger with Bid is lost" and providing the messenger's name and cell phone number; the face of that email states that it was sent at 1:58 p.m. AR, Tab 8, Email from USAI representative to Agency, July 9, 2010, at 1. Consistent with the time reflected on the USAI email, the COR's cell phone records show that the first call he placed to the messenger was made at 1:59 p.m. AR, Tab 12, Verizon Wireless Record. Thereafter, the COR drove to the messenger's location, spoke with him, directed the messenger to follow him (the COR) back to the building 570 parking lot, and drove to that lot--at which point the messenger handed the proposal to the COR. Statement of USAI Messenger at 2-3. On this record, we find nothing unreasonable in the agency's determination that the proposal was received after the 2 p.m. deadline. USAI's protest to the contrary is denied.

Alleged Government Delay and Misdirection

As noted above, USAI's messenger complains that he was delayed in entering the AFB and asserts that he was provided directions by the Wright-Patterson guard to 1755 Eleventh Street, building 570, which he followed, but that, upon turning onto Eleventh Street, "the road dead ended into a building." Statement of USAI Messenger at 2. Additionally, USAI complains that maps provided by the agency in response to USAI's protest are "incorrect and/or outdated." USAI Opposition to Dismissal at 2. USAI states that currently available photographic maps of Wright-Patterson AFB reflect a "missing section of Eleventh Street, which has been . . . removed since the Air Force maps [provided in response to the protest] were drawn," further noting that USAI's photographic maps indicate that another building has been "built over the missing section of Eleventh Street." Id. Accordingly, USAI asserts that:

[T]he paramount cause of delay here is the fact that the street address listed on the RFP does not exist (or, incredibly, the address still exists, even though the street no longer does), and that the Air Force maps of Area B are wrong. . . . [T]he pertinent section of Eleventh Street was removed years ago; a new building was built where the road used to be, and the street now dead ends more than a block before Building 570.[] It is impossible to find [building 570] without already knowing where it is.

. . . . .

The time that [USAI's] messenger arrived on base is not the determining factor here. [USAI's] messenger could have arrived minutes--or hours--earlier, and he still never would have found the building until Air Force personnel either provided accurate directions or took him there.  Comments at 7.

It is an offeror's responsibility to deliver its proposal to the proper place at the proper time; proposals that are received after the exact time specified are "late" and must generally be rejected. Federal Acquisition Regulation (FAR) sect. 15.208(a); O.S. Sys., Inc., B-292827, Nov. 17, 2003, 2003 CPD para. 211 at 3; Integrated Support Sys. Inc., B-283137.2, Sept. 10, 1999, 99-2 CPD para. 51 at 2. The late proposal rules include limited exceptions under which late proposals may be considered. Specifically, this Office has held that a late hand-carried offer may be considered for award if the government's misdirection or improper action was the paramount cause of the late delivery and consideration of the offer would not compromise the integrity of the competitive process. See, e.g., ALJUCAR, LLC, B-401148, June 8, 2009, 2009 CPD para. 124 at 3; Palomar Grading & Paving, Inc., B‑274885, Jan. 10, 1997, 97-1 CPD para. 16 at 3; AABLE Tank Servs., Inc., B‑273010, Nov. 12, 1996, 96-2 CPD para. 180 at 3; Select Inc., B‑245820, Jan. 3, 1992, 92-1 CPD para. 22 at 4. Nonetheless, even in cases where the late receipt may have been caused, in part, by erroneous government action, a late proposal should not be considered if the offeror significantly contributed to the late receipt by not doing all it could or should have done to fulfill its responsibility. See ALJUCAR, LLC, supra; O.S. Sys., Inc., supra; Palomar Grading & Paving, Inc., supra.

Here, USAI has not demonstrated that the alleged government misdirection and/or delays associated with its messenger's entry at gate 19B was the paramount cause of the late delivery of USAI's proposal. To the contrary, the record indicates that, even accepting USAI's assertions that the gate guard provided inaccurate directions which delayed the submission of USAI's proposal, USAI's own actions significantly contributed to the late submission of its proposal. As discussed above, it was USAI's decision to attempt entry to Wright-Patterson AFB, a secure military facility, at gate 19B--a gate designated for admission of personnel with military credentials--rather than at gate 1B--the entrance at which visitors without military credentials were directed to arrive. In addition to its decision to attempt entry at a gate not designated for use by non-military visitors, USAI's messenger arrived at the entrance gate with less than an hour remaining before proposals were due, did not obtain advance approval for entry, and failed to previously ascertain the location of, and directions to, the building designated for proposal submission. On this record, we conclude that USAI's own actions were significant contributing factors to the late receipt of its proposal, and we reject USAI's assertion that any delay in obtaining admission through gate 19B and/or the gate guard's alleged misdirection was the paramount cause of the late proposal submission. USAI's protest that the agency was required to accept its proposal because of the government's actions is denied.

Agency Control of the Proposal

Finally, USAI protests that USAI's proposal was "under Air Force control" prior to the 2 p.m. closing time. Protest at 2. In this regard, USAI refers to FAR sect. 52.215‑1(c)(3), which was incorporated into the solicitation and addresses the late submission of proposals. In pertinent part, FAR sect. 52.215-1(c)(3) states:

(ii)(A) Any proposal, modification, or revision received at the Government office designated in the solicitation after the exact time specified for receipt of offers is "late" and will not be considered unless it is received before award is made, the Contracting Officer determines that accepting the late offer would not unduly delay the acquisition; and—

. . . . .

(2) There is acceptable evidence to establish that it was received at the Government installation designated for receipt of offers and was under the Government's control prior to the time set for receipt of offers; or
(3) It is the only proposal received.  FAR sect. 52.215-1(c)(3).

In determining whether a late-submitted proposal was "under the Government's control" prior to the time set for receipt of proposals, it is clear that an offeror must, at a minimum, have relinquished physical custody of the proposal. See, e.g., ALJUCAR, LLC, supra; Einhorn Yaffe Prescott, B-259552, Mar. 20, 1995, 95-2 CPD para. 153; see also Shirlington Limousine & Transp., Inc. v. United States, 77 Fed. Cl. 157 (2007). This requirement is an obvious necessity in order to preclude any potential that an offeror could alter, revise, or otherwise modify its proposal after other offerors' competing proposals have been submitted.

Here, as discussed above, USAI's messenger did not relinquish physical custody of its proposal until it handed the proposal to the COR in the parking lot outside of building 570. As also discussed above, the agency reasonably determined that such transfer of physical custody did not occur until after the 2 p.m. proposal submission deadline. Accordingly, the prerequisite for consideration of a late proposal contained in FAR sect. 52.215-1(c)(3)(ii)(A)(2)--that is, that the proposal "was under the Government's control prior to the time set for receipt of offers"--has not been met, and USAI's assertion that the agency was required to consider USAI's proposal on the basis of that FAR provision is without merit.  (U.S. Aerospace, Inc., B-403464, B-403464.2, October 6, 2010)  (pdf)

ATG does not dispute that its proposal was received by DRMS after 10:00 a.m. local time on April 28. The protester nevertheless contends that its proposal was not late and should not have been rejected because ATG met the RFP requirements, as the offeror understood them, by electronically transmitting its proposal by 10:00 a.m. local time. In support of its position, ATG points to the language of the RFP amendments that stated the time to "submit"--which ATG interprets as "send"--proposals was 10:00 a.m. local time. We disagree.

It is an offeror's responsibility to deliver its proposal to the proper place at the proper time. FAR sect. 15.208(a) (offerors are responsible for submitting proposals so as to reach the designated government office by the specified time); PMTech, Inc., B-291082, Oct. 11, 2002, 2002 CPD para. 172 at 3; Integrated Support Sys. inc, B-283137.2, Sept. 10, 1999, 99-2 CPD para. 51 at 2. Similarly, we view it as an offeror's responsibility, when transmitting its proposal electronically, to ensure the proposal's timely delivery by transmitting the proposal sufficiently in advance of the time set for receipt of proposals to allow for timely receipt by the agency. PMTech, Inc., supra, at 3-4. Proposals that are received in the designated government office after the exact time specified are "late," and generally may not be considered for award. While this rule may seem harsh in some circumstances, it alleviates confusion, ensures equal treatment of all offerors, and prevents one offeror from obtaining a competitive advantage that may accrue where an offeror is permitted to submit a proposal later than the deadline set for all competitors. Inland Serv. Corp., Inc., B-252947.4, Nov. 4, 1993, 93-2 CPD para. 266 at 3.

Here, the RFP provisions established that offerors' proposals were to be received by the designated agency contracting official by April 28 at 10:00 a.m. local time. The email by which DRMS distributed the RFP likewise informed prospective offerors that the defining event was the agency's receipt--rather than an offeror's submission--of proposals by the due date and time. Moreover, to the extent ATG is now alleging that the solicitation as amended was ambiguous about whether the established time was for the submission of proposals, as opposed to the receipt of proposals, ATG was required to protest this apparent solicitation defect prior to the next closing time for receipt of proposals following their incorporation. 4 C.F.R. sect. 21.2(a)(1) (2010); see Sea Box, Inc., B-401523, B-401523.2, Sept. 25, 2009, 2009 CPD para. 190 at 3-4 (conflict regarding solicitation closing date constituted a patent ambiguity that was readily apparent prior to the time set for receipt of submissions). Having failed to seek clarification or file a protest before the closing time of the RFP, ATG may not now assert that its understanding of the solicitation requirements regarding the submission of proposals is controlling. See id. at 4; Kellogg Brown & Root, Inc., B-291769, B-291769.2, Mar. 24, 2003, 2003 CPD para. 96 at 8-9.

ATG also argues that the timing of the actual delivery of its proposal was beyond its control--that the 11-minute transmission times were due to Internet delays and the large files that made up each of its three emails. The protester notes that it is operating in Kuwait City where it has had emails take hours, if not almost all day, to arrive at their destinations. ATG Response to DRMS Dismissal Request, June 11, 2010, at 3.

In our view, the record shows that the primary cause of ATG's late delivery of its electronic proposal was that the offeror delayed attempting to transmit its proposal until shortly before the time set for the receipt of proposals; as noted above, two parts of its proposal were sent 8 minutes and 3 minutes before 10:00 a.m., respectively, and the third was sent at 10:00 a.m. An offeror's responsibility to deliver its proposal to the proper place at the proper time includes allowing a reasonable amount of time for the delivery of the proposal. PMTech, Inc., supra. Here, we conclude that ATG did not act reasonably in waiting to transmit its electronic proposal until minutes before the time set for receipt of proposals, especially when the offeror was apparently aware of the potentially long email delivery times common to its location. We think an offeror accepts the risk of late receipt and rejection of a proposal where it delays transmitting its proposal until the last few minutes before the time set for receipt of proposals. Id.

In sum, since ATG's electronically transmitted proposal was not received in full until 10:11 a.m. (after the time set for receipt of proposals), it is a late proposal; since it was not received at the initial point of entry by 5:00 p.m. the day before proposals were due, the late proposal cannot be accepted. See Sea Box, Inc., B-291056, supra.  (Alalamiah Technology Group, B-402707.2, June 29, 2010)  (pdf)

Due to major winter storms in the Washington D.C. area on February 5 and 6 and again on February 9 and 10, federal agencies in the Washington D.C. area were closed from Monday, February 8 through Thursday, February 11. On February 9, several offerors, including CFS, attempted to hand deliver their proposals to the Triangle Service Center in Washington, D.C., but could not because the agency was closed. On Friday, February 12, federal agencies in Washington D.C. reopened, but Federal employees were allowed to arrive for work up to 2 hours later than they would normally arrive, and employees who could not report for work were allowed to take unscheduled leave. OPM Federal Government Archived Operating Status in the Washington, D.C. Area (Feb. 11, 2010).

On February 12, when GSA reopened, the contracting officer determined that under FAR sect. 52.212-1(f)(4)--the provision included in the RFP--the due date for receipt of proposals was extended from February 9 at 2 p.m. to February 12, at 2 p.m., "because GSA was open for business and ready to accept bids well before 2 p.m. on February 12, 2010." Contracting Officer's Statement at 2. Multiple proposals were submitted by the February 12 closing time. The protester submitted its proposal on February 12, at 2:24 p.m, and it was rejected as late. This protest followed.

CFS contends that the due date for proposals should have been extended until 2 p.m. on Tuesday, February 16, because this was the first day that normal government processes resumed. Therefore, the protester argues that the contracting officer determination to reject CFS's proposal as late was in error. The protester essentially contends that "normal government processes" could not be said to have resumed on a day when the federal agency was operating under a 2-hour delayed arrival/unscheduled leave policy.

We agree with the agency that normal Government processes resumed on February 12. The agency states it "went on with the pursuit of its normal business following a morning that permitted Federal employees some additional time to safely commute to work" and was able to accept proposals at 2 p.m. Agency Report at 6. Contrary to the protester's allegations, the fact that Federal employees were allowed to delay arrival or take unscheduled leave does not mean that the Government had not resumed its normal processes. In fact, procedures of the Office of Personnel Management recognize that situations that allow for delayed arrival or unscheduled leave are different from the situations where the "Federal agencies are closed." OPM Washington, D.C. Area Dismissal or Closure Procedures (Nov. 2009) at 11.

We therefore find that the agency reasonably rejected CFS's proposal as late because it was received after 2 p.m. on "the first work day on which normal Government processes resume[d]."  (CFS-INC, JV, B-401809.2, March 31, 2010) (pdf)
 

The RFP, as amended, required offerors to submit proposals to the CBP's Arlington, Virginia office by 3 p.m. (eastern time), Friday, February 12, 2010. Hunter mailed its proposal from Tucson, Arizona on February 10 via the United States Postal Service's "Next Day Noon Express." Due to severe inclement weather in the Washington D.C. area, airplane flights were cancelled and federal agencies were closed February 8-11. On Friday, February 12, federal agencies reopened, but were operating on a "delayed arrival/unscheduled leave" policy. Hunter's proposal was delivered to the CBP on the morning of Tuesday, February 16--the next business day following February 12. The agency rejected Hunter's proposal as late, and this protest followed.

The protester argues that, given the inclement weather and resulting closures, the CBP should have accepted its proposal under Federal Acquisition Regulation (FAR) sect. 15.208(d). This section provides that

[i]f an emergency or unanticipated event interrupts normal Government processes so that proposals cannot be received at the Government office designated for receipt of proposals by the exact time specified in the solicitation, and urgent Government requirements preclude amendment of the solicitation closing date, the time specified for receipt of proposals will be deemed to be extended to the same time of day specified in the solicitation on the first work day on which normal Government processes resume.

Hunter argues that, consistent with this FAR provision, its proposal was timely submitted because CBP received the proposal prior to 3 p.m. on the first work day that normal government processes resumed.

We agree with the agency that FAR sect. 15.208(d) does not apply to the circumstances here. The CBP concluded that normal government operations resumed on February 12 because the government was open that entire day. Since the government was open on February 12, the earlier closures that Hunter cites did not prevent the CBP from receiving proposals "by the exact time specified in the solicitation." FAR sect. 15.208(d). Indeed, the record shows that the CBP had an individual in place to receive proposals beginning at 8 a.m. on February 12, and CBP received a number of proposals prior to the 3 p.m. closing time. Motion to Dismiss at 2. While Hunter points to the "delayed arrival/unscheduled leave" policy to show that government processes were interrupted on February 12, the relaxed arrival and leave policy did not mean the government had not resumed normal operations, and, in fact, had no bearing on the agency's ability to receive proposals by the specified closing time. Because Hunter did not timely deliver its proposal to the CBP, the proposal was late and properly rejected. See FAR sect. 52.215-1(c)(3); PMTech, Inc., B‑291082, Oct. 11, 2002, 2002 CPD para. 172 at 3 ("It is an offeror's responsibility to deliver its proposal to the proper place at the proper time.")  (Hunter Contracting Company, B-402575, March 31, 2010)  (pdf)

Latvian Connection asserts that contrary to the agency's records, it timely submitted its proposal by e-mail on November 12 at 1:19 a.m. Protest at 4. In support of this assertion, the protester states that its "'sent' e-mail folder confirms the transmission of [Latvian Connection's] proposal," and that it "continued to utilize (without incident) the same e-mail address in its post-proposal submission communications" with the agency. Id. The protest also includes the declaration of Latvian Connection's Chief Executive Officer (CEO), which states that he transmitted the proposal as an attachment to an e-mail "at '1:19 [a.m.]' on 'Thursday, November 12, 2009,'" and that his e-mail records do not "in any way suggest[] that the e-mail and attachments were rejected as undeliverable or otherwise not sent." Protest, exh. 6, Declaration, at 1. The protester asserts that the agency's actions in awarding the contract to any other offeror were unreasonable because, in the protester's view, "[t]he evidence of [Latvian Connection's] timely submission of its lower-priced proposal to the address specified in the RFP is clear, cumulative and undisputed." Protest at 6.

It is an offeror's responsibility to deliver its proposal to the proper place at the proper time. Federal Acquisition Regulation sect. 15.208; Lakeshore Eng'g Servs., B‑401434, July 24, 2009, 2009 CPD para. 155 at 4. Although the protester has submitted certain evidence, including the declaration of its CEO, in support of its assertion that it timely sent its proposal to the agency, there is no evidence establishing that the proposal was actually received by the agency. In this regard, the agency states that in response to Latvian Connection's initial inquiries and protest, searches of the agency's e-mails were performed on five different occasions by four different individuals, including the contracting officer, the cognizant senior systems administrator, and the cognizant information management officer, and that these searches did not result in any finding of the protester's proposal. Contracting Officer's Statement at 2.

On the basis of the record here, we conclude that the protester has failed to satisfy its burden of showing that it timely delivered its proposal to the agency. Lakeshore Eng'g Servs., supra; International Garment Processors, B-299674 et al., July 17, 2007, 2007 CPD para. 130 at 7. Accordingly, we have no basis on which to object to the agency's actions.  (Latvian Connection Trading and Construction, B-402410, LLC, February 25, 2010) (pdf)

The protester contends that it timely submitted part 10 of its cost/price proposal via e-mail and that its delivery receipt proves that the agency received the e-mail prior to the submission due date. In support of its argument, Lakeshore's network administrator submitted a statement that, to the best of his knowledge, the protester's e-mail server was fully functional and operational on May 8, and was capable of sending and receiving e-mail. Protester's Comments, exh. E. The network administrator also confirms that it was Lakeshore's server that generated the delivery status notification, which the protester refers to as a "delivery receipt." Id. The network administrator states that to the best of his knowledge, Lakeshore's May 8 e-mail was delivered to the agency. Id. Therefore, the protester believes that the agency improperly excluded its proposal from the competitive range.

The Navy argues that the protester has shown only that it timely sent part 10 of its proposal, not that the proposal was timely delivered. The Navy contends that it never received the protester's May 8 e-mail. AR, Tab 3, CO's Statement at 3. The agency states that its e-mail system was properly functioning on May 8, and that other incoming e-mails were received in the e-mail box immediately prior to and shortly after the time that protester sent its proposal. AR, Tab 4 at 1; Tab 5 at 1. Therefore, the Navy concludes that the protester failed to timely deliver the proposal in accordance with the terms of the solicitation and FAR sect. 52.215-1.

The Navy's Information Technology (IT) Specialist has submitted a statement explaining that the delivery receipt submitted by the protester is only a relay message, as opposed to a delivery message. According to the IT Specialist, relay messages indicate that an e-mail message was relayed or sent from the sending server (i.e., Lakeshore's server). AR, Tab 7. Thus, the IT Specialist states that the message generated by Lakeshore's server merely confirmed that the e‑mail had been sent or relayed by Landmark's server, but it does not indicate whether the e-mail was received by the NMCI server. Id. Accordingly, the Navy argues that Lakeshore has failed to show timely delivery of part 10 of its cost/price proposal.

It is an offeror's responsibility to deliver its proposal to the proper place at the proper time. FAR sect. 52.215-1(c)(3); PMTech, Inc., B-291082, Oct. 11, 2002, 2002 CPD para. 172 at 3. While the protester has shown that it timely sent part 10 of the proposal, there is no evidence that it was received by the agency prior to the due date for proposal submissions. As explained above, protester's "delivery receipt," which was sent by the protester's own e-mail server, confirms only that the message was successfully relayed from Lakeshore's system. It does not confirm that the proposal arrived at the agency's e-mail system.

Because there is no evidence that part 10 of the protester's cost/price proposal was successfully delivered to the agency's e-mail box prior to the due date for receipt of proposals, the protester has failed to satisfy its burden of showing that it timely delivered its proposal to the agency. Accordingly, we conclude that the agency reasonably excluded the protester's proposal from the competitive range.  (Lakeshore Engineering Services, B-401434, July 24, 2009)  (pdf)

TSG argues that the agency did not have any reasonable grounds to eliminate TSG from the competition prior to evaluation of offers. TSG asserts that the agency was required to consider its late modification pursuant to the RFP provision stating that "a late modification of an otherwise successful proposal that makes its terms more favorable to the government will be considered at any time it is received and may be accepted." RFP at L-2. TSG also contends that at the time it was eliminated from the competition, the agency had not selected an awardee and that TSG, like all other offerors at that point in the procurement, was "in line for award" when it submitted its modification to the agency.

TSG's argument is without merit. Under negotiated procurements, the FAR provides generally that a proposal received after the time set for receipt shall not be considered. FAR sect. 15.208(b)(1). Our Office has long held that the late proposal rule alleviates confusion, ensures equal treatment of offerors and prevents one offeror from obtaining a competitive advantage as result of being permitted to submit a proposal later than the deadline set for all competitors. Tishman Constr. Corp., B-292097, May 29, 2003, 2003 CPD para. 94 at 3. The FAR provides a limited exception for receipt of late proposals that are submitted by the "otherwise successful offeror" and which provide more favorable terms. This exception to the general "late is late" rule is intended to allow the government to receive the benefit of a more advantageous proposal from the offeror who has been selected for award, without offending the general rule that offerors must be treated equally.

As an initial matter, we disagree with TSG's assertion that the limited exception for receipt of late proposals applies here. An "otherwise successful proposal" is one that would result in the award of the contract to the offeror regardless of the late modification; generally, this means that the government may accept a favorable late modification only from the offeror already in line for award. Seven Seas Eng'g & Land Surveying, B-294424.2, Nov. 19, 2004, 2004 CPD para. 236 at 4. This exception is not available for every proposal submitted.

Furthermore, an offeror cannot make itself the "otherwise successful offeror" by submitting a late proposal modification; instead the offeror must already be the offeror in line for award prior to the time the late proposal modification is submitted. Phyllis M. Chestang, B-298394.3, Nov. 20, 2006, 2006 CPD para. 176 at 5 n.3. In this regard, an offeror cannot avail itself of the late proposal submission provision where the agency has not already identified an "otherwise successful offeror." Global Analytic Info. Tech. Servs., Inc., B-298840.2, Feb. 6, 2007, 2007 CPD para. 57 5-6.

Here, the agency had only begun its evaluation of proposals when it was advised by TSG that its project manager was no longer available to perform the contract, or to attend the scheduled oral presentation. Without this individual TSG's proposal was deficient, and TSG can not be viewed as, the "otherwise successful offeror." On this record, we conclude that the agency's determination not to accept TSG's late proposal modification was entirely consistent with the RFP and reasonable under these circumstances.

TSG also argues that the agency's cancellation of its oral presentation and elimination of its proposal from the competition were unreasonable. Where a protester challenges an agency's evaluation of a proposal's technical acceptability, our review is limited to considering whether the evaluation is reasonable and consistent with the terms of the RFP and applicable procurement statutes and regulations. National Shower Express, Inc.; Rickaby Fire Support, B-293970, B‑292970.2, Jul. 15, 2004, 2004 CPD para. 140 at 4-5.

TSG's argument that the agency's decision to reject its proposal was unreasonable is primarily based on its contention that the agency improperly refused to accept its late modification. TSG does not argue that the agency should have evaluated its proposal as originally submitted. In any event, the record shows that once TSG advised the contracting officer that the individual it proposed as its project manager was no longer available, TSG's proposal did not meet the RFP requirement that the proposal identify at a minimum, the key individual responsible for the overall contract, and a letter of commitment for that key person. Under these circumstances, we cannot say that the rejection of TSG's proposal was unreasonable or violated the terms of the RFP.

As a final matter, we recognize that the protester and the agency disagree about whether TSG was attempting to identify for the first time a new key position, director of operations, when TSG advised the agency that it needed to substitute a new project manager. Compare Initial Protest at 5 n.1 (TSG says it was not identifying this individual as one of its key personnel) with Agency Memorandum of Law at 7 n.8 (the agency concluded that by submitting a new resume, a letter of commitment and a request that its director of operations attend the oral presentation, which was only to be attended by key personnel, TSG was identifying a new key position). While TSG may not have intended to identify its new director of operations as a key employee, its actions, at a minimum, created an ambiguity about the extent to which TSG was seeking to modify its proposal weeks after the proposal submission date. We see nothing unreasonable about the agency’s decision not to allow either of these modifications.  (The Sandi Group, Inc., B-401218, June 5, 2009) (pdf)

The protester states that two principals of ALJUCAR arrived at the security checkpoint at 1:52 p.m. to deliver the firm's proposal to building 421 before the scheduled 2 p.m. closing; the protester estimates that it is a 3-5 minute drive to the building from the checkpoint. The protester states there was a delay at the checkpoint, however, because a security guard there determined that one of the protester's representatives did not have adequate identification. According to the protester, the guard would not allow the individual to remain at the security checkpoint or walk unescorted to the base exit at Gate 4; rather, the individual was to be driven back to the nearby exit.

At that point, the protester states, one of its representatives called the contracting officer from the security checkpoint to notify him of the matter, and the contracting officer informed him that the contracting specialist would come to the security checkpoint to receive the firm's proposal. ALJUCAR does not state what time it was when its representative gave its proposal to the contracting specialist at the security checkpoint. The contracting specialist, on the other hand, reports that it was after 2 p.m. when she received the contracting officer's request to leave building 421 to drive to the security checkpoint to receive the proposal. After the firm's proposal was loaded in the contracting specialist's car, she apparently spent several minutes speaking to one of the protester's representatives, then she returned to building 421 where the proposal was logged in as delivered at 2:29 p.m., 29 minutes after the scheduled closing time.

By letter of January 5, 2009, the agency informed ALJUCAR that, since the firm's proposal had not been under government control prior to the time set for the receipt of proposals, it was rejected as late. On January 7, ALJUCAR filed an agency-level protest asserting that the security guard's improper decision not to allow one of ALJUCAR's representative to either walk to the base exit unescorted or remain at the security checkpoint while the other representative delivered the proposal made it impossible for the firm to deliver its proposal on time. The agency denied the protest on February 23, finding that the protester's allegation of improper government action was not adequately supported and concluding that, since the contracting specialist reported she did not receive the proposal from the protester at the security checkpoint until after 2 p.m., the proposal (logged in as delivered at 2:29 p.m.) was late. This protest followed.

It is an offeror's responsibility to deliver its proposal to the proper place at the proper time, and late delivery generally requires rejection of the proposal. Integrated Support Sys. inc, B-283137.2, Sept. 10, 1999, 99-2 CPD para. 51 at 2. However, a hand-carried proposal that arrives late may be considered if improper government action was the paramount cause for the late submission, and where consideration of the proposal would not compromise the integrity of the competitive process; improper government action in this context is affirmative action that makes it impossible for the offeror to deliver the proposal on time. Id. Nonetheless, even in cases where the late receipt may have been caused, in part, by erroneous government action, a late proposal should not be considered if the offeror significantly contributed to the late receipt by not acting reasonably in fulfilling its responsibility to deliver a hand-carried proposal to the proper place by the proper time. See O.S. Sys., Inc., B‑292827, Nov. 17, 2003, 2003 CPD para. 211 at 3.

Our review of the record here shows no evidence that the ALJUCAR proposal was in fact received by the agency prior to the 2 p.m. closing time. The contracting specialist reports arriving after 2 p.m. to retrieve the proposal. While the protester states it was on the telephone with the contracting officer minutes before closing, it has not shown that the proposal was under government control prior to 2 p.m. Rather, the protester argues that the sole cause of the proposal's untimely receipt was the delay caused by the guard at the security checkpoint. ALJUCAR contends that the guard's failure to allow the firm's representative who lacked adequate identification to either wait at the checkpoint or leave the checkpoint, unescorted, to exit the base was improper government action. ALJUCAR disagrees with the agency's position that the guard's action was appropriate under the agency's general security policies regarding access and movement controls at a secure facility such as the Space Center. As the agency points out, however, even if the guard acted in error, we cannot conclude that his action was the sole or paramount cause of the proposal being received late, since the representatives of the protester--which had the primary responsibility for delivering its proposal on time--significantly contributed to the lateness of the proposal.

Despite numerous RFP instructions emphasizing the offeror's responsibility for timely submission, including that the offeror should anticipate it taking up to an hour to complete the required security screening for proposal submissions, the protester's representatives arrived on the base only 8 minutes before closing. ALJUCAR simply did not allow sufficient time to fulfill its responsibility to deliver its proposal by the proper time. See Wyatt and Assocs., B‑243349, July 1, 1991, 91-2 CPD para. 5 at 2-3. Given the RFP warnings and the secure nature of the NASA installation, the protester should have reasonably anticipated delay in gaining access to the facility. See, e.g., Einhorn Yaffee Prescott, B‑259552, Mar. 20, 1995, 95-1 CPD para. 153 at 4. In short, ALJUCAR assumed a risk in allowing so little time for delivery of its proposal here. Id. In these circumstances, where the protester did not act reasonably to fulfill its obligation to deliver its proposal on time, we find no basis to question the agency's decision to reject the proposal as late.  (ALJUCAR, LLC, B-401148, June 8, 2009)  (pdf)

Rehal objects in its protest to our Office that its proposal was "mislaid following delivery and consequently was not evaluated," arguing that it was "clearly stated under Amendment 0001 to the Solicitation that all required documentation required to be submitted" could be delivered to Camp Arifjan. In this regard, Rehal complains that the proposal delivery instructions were very complicated and misleading.

We do not agree with Rehal that amendment 1 changed the RFP delivery instructions that required offerors to submit their technical and price proposals to two different locations. Rather, reading the relevant question and answer included in amendment 1 within the context of the RFQ as a whole, the solicitation informed offerors that they were still required to submit one copy of their technical proposal and all of the copies of their price proposals to the Army Sustainment Command at Rock Island.[2] In this regard, the RFP, as amended, continued to inform offerors that receipt of proposals by the Army Sustainment Command at Rock Island, the only location that was designated to receive both the technical and cost proposals, would determine whether offerors' proposals were timely submitted.

Here, it is undisputed that the protester did not deliver its technical and price proposals to the Army Sustainment Command at Rock Island, as directed by the RFP, for the purpose of establishing the timeliness of the proposal. It is an offeror's responsibility to deliver its proposal to the proper place by the proper time. Shirlington Limousine & Transp., Inc., B-299241.2, Mar. 30, 2007, 2007 CPD para. 68 at 2. Because Rehal did not submit its proposal in accordance with the solicitation instructions, we find reasonable the Army's rejection of Rehal's proposal.

With respect to Rehal's complaint that the RFP's proposal instructions were complex and that it was misled by the solicitation's instructions, even were we to accept Rehal's arguments, these arguments, at best, would establish a patent ambiguity, i.e., one that is obvious from the face of the solicitation. Offerors have an affirmative obligation to seek clarification prior to the first due date for submission of proposals following introduction of an ambiguity into a solicitation. See Bid Protest Regulations, 4 C.F.R. 21.2(a)(1) (2008). Protests of a patent solicitation ambiguity that are not filed before the time set for receipt of initial proposals are untimely and will not be considered by our Office. See Kellogg Brown & Root, Inc., B-291769, B‑291769.2, Mar. 24, 2003, 2003 CPD para. 96; Bank of Am. , B-287608, B-287608.2, July 26, 2001, 2001 CPD para. 137 at 10. The requirement that protests of patent ambiguities be filed prior to time set for receipt of initial proposals is intended to facilitate clarification of legitimate questions prior to preparation of submissions. Since Rehal sought no such clarification of this matter prior to responding to the solicitation, its complaints about being misled by the solicitation instructions are untimely.  (Rehal International Transportation, B-401090, April 7, 2009) (pdf)

With respect to the first issue, we find that HUD correctly concluded that Urban Title’s FPR was late. As explained above, both of Urban Title’s attempts to submit its FPR were received after the time specified by the agency for receipt of FPRs. Although Urban Title objects that the agency has provided no explanation of the anomaly that resulted in the apparent delay of the protester’s first e-mail for 5 weeks, the protester does not dispute that it occurred, and the contracting specialist has provided the facts in a sworn declaration to our Office.

HUD argues that the only exception for a late proposal revision received by electronic means is found in FAR sect. 52.215-1(c)(3)(ii)(A), which could only apply if Urban Title’s electronic submission had reached the “initial point of entry to the Government infrastructure” by 5 p.m. a day before the due date. HUD points out that Urban Title confirms that its FPR submissions were sent on the due date (not a day early), and thus the exception is unavailable.

Urban Title argues HUD elected to limit offerors to submitting FPRs only by e-mail, and that by doing so, HUD was obliged to ensure that its e-mail system was reasonably reliable. In Urban Title’s view, the facts here suggest that HUD failed in meeting that duty.

In our view, the protester’s argument is foreclosed by the specific treatment of the issue in FAR sect. 52.215-1(c)(3)(ii)(A). See Sea Box, Inc., B-291056, Oct. 31, 2002, 2002 CPD para. 181 at 3 (other exception necessarily applies only to proposals not delivered by electronic means). Moreover, any objection to HUD’s decision to specify that FPRs be submitted by e-mail is an allegation of a patent solicitation defect,[3] which is therefore untimely when raised for the first time now, after award.[4] 4 C.F.R. sect. 21.2(a)(1) (2008). Accordingly, Urban Title’s protest to the treatment of its FPR as late is denied.  (Urban Title, LLC, B-311437.3, January 7, 2009) (pdf)

Sector One asserts that it sent its proposal by express mail to the address in the RFP for hand-delivery or courier. The protester has provided the USPS Express Mail label from the package indicating that it had the correct hand-carried address provided by the RFP and that USPS made two attempts to deliver the package, one of which was after the date and time for submission of proposals. The protester argues that express mail is delivered by courier and that someone at the agency marked “refused” in the employee signature box.

It is the responsibility of each firm to deliver its proposal to the proper place at the proper time, and late delivery generally requires rejection of the submission. Sencland CDC Enters., B-252796, B-252797, July 19, 1993, 93-2 CPD para. 36 at 3. Where late receipt results from the failure of a vendor to reasonably fulfill its responsibility for ensuring timely delivery to the specified location, the late offer may not be considered. Aztec Dev. Co., B-256905, July 28, 1994, 94-2 CPD para. 48 at 3. An offer that arrives late may only be considered if it is shown that the paramount reason for late receipt was improper government action, and where consideration of the proposal would not compromise the integrity of the competitive procurement process. Caddell Constr. Co., Inc., B-280405, Aug. 24, 1998, 98-2 CPD para. 50 at 6. Improper government action in this context is affirmative action that makes it impossible for the offeror to deliver the proposal on time. Id.

As an initial matter, the agency denies receiving or rejecting the Sector One proposal submission that was the subject of the alleged delivery attempt by the USPS carrier. As explained above, since USPS does not deliver mail to the building where the Office of Acquisition is located, the RFP contained a P.O. box for mailed proposals, and allowed for hand-carried proposals provided delivery was coordinated with the contracting officer. By its own admission, the protester did not follow the instructions in the RFP for submission of its proposal in that it made no arrangements with the contracting officer for hand-carried delivery.

In our view, the evidence submitted by the protester does not establish that the agency actually received the protester’s submission or that there was an attempt to deliver the proposals to the agency before the closing time established in the solicitation. As explained above, the record here, at best, only demonstrates that the USPS carrier attempted to deliver the protester’s submission to some DOS location and does not specifically demonstrate whether anyone at DOS refused to accept delivery. The record shows that the paramount reason for the nonreceipt of the protester’s submission is the protester’s failure to follow the solicitation instructions to either mail its proposal to the designated P.O. box number or make the proper arrangements for hand-carried delivery. In short, there is nothing in the record showing that any affirmative government action deprived the protester of the ability to make a proper delivery of its proposal.  (Sector One Security Solution, B-400728, December 10, 2008) (pdf)

Late Quote:  The RFQ contemplated the award of an order to a General Services Administration Federal Supply Schedule vendor in accordance with Federal Acquisition Regulation (FAR) Subpart 8.4. The RFQ required that vendors submit their quotations electronically to the contract specialist and the contracting officer by 12 p.m. on Monday, July 21, 2008; email addresses were provided for both agency recipients. Vendors were cautioned that they were responsible for ensuring that quotations were received by the agency at the specified date and time, and that “[q]uotes received after the exact time specified for receipt of quotes shall not be considered.” RFQ sect. L.2.

Turner states that on Sunday, July 20 at 10:12 p.m. (the evening before the due date for receipt of quotations), its vice president (VP) transmitted the firm’s quotation, consisting of an e-mail with five attached files in Adobe portable document format (pdf), to the contract specialist and contracting officer at the email addresses specified in the RFQ. Turner also transmitted copies of this email to two other, non‑agency recipients, one of whom automatically forwarded his email to a government email account that is sponsored by the Office of Management and Budget (OMB) for his work on another project. This addressee received the email and all its attachments at his OMB mailbox a few minutes after Turner’s transmission. Protest at 7.

Turner states that, after sending its quotation to these four recipients, the firm sent a second email to the contract specialist and contracting officer, informing them that Turner had submitted its quotation. Turner did not receive any messages from its email system, informing the firm of errors or problems with the delivery of these emails. After transmitting these emails, Turner’s VP called the contract specialist and left a telephone voicemail message requesting confirmation that the agency had received Turner’s quotation. Turner did not receive any response to this voicemail request.

On Monday, July 21, at 10:05 a.m., Turner again called the contract specialist and left a second voicemail message seeking confirmation of the receipt of its quotation; one minute later, Turner left a similar message with the contracting officer. The contract specialist states that she arrived in her office at 8:10 a.m. but was in another building from 9:30 a.m. until 11:35 a.m. She also states that she received an “unintelligible [voicemail] message” at 10:16 p.m., on Sunday night, and Turner’s 10:05 a.m. Monday voicemail message. She states that after hearing the latter message at 11:35 a.m. on Monday, she searched her email for Turner’s quotation, but did not find it. She did, however, see Turner’s second email (which had no attachments) stating that Turner had submitted its proposal. The contract specialist states that she was still trying to locate Turner’s quotation at 12:25 p.m., after the closing time for receipt of quotations, when Turner’s VP called her, and she informed him that the agency had not received the firm’s quotation. Agency Report, Declaration of Contract Specialist, at 2.

Turner immediately re-sent the email with the five attached pdf files, comprising its quotation, which the agency again did not receive. The contract specialist suggested that Turner separate the attachments and send the quotation in multiple emails. Turner did so, and four of the five attachments were successfully delivered to the contract specialist’s email account. Turner eventually converted the remaining pdf file to a Microsoft Word document, which Turner successfully transmitted to the contract specialist. Id.

Two other firms successfully transmitted quotations to the agency by the noon deadline for receipt of quotations.

The contract specialist contacted the agency’s Office of the Chief Information Officer and requested assistance in investigating the situation, asking whether there was any way to determine whether the agency’s server had rejected Turner’s email with its attachments. After being told that a search of the office’s records had detected no problems in the agency’s server and that there was no record of having received the email, even at the outermost point of entry in the agency’s system, the contracting officer rejected Turner’s quotation as late. This protest followed.

Turner does not dispute that its quotation was received late; rather, the crux of Turner’s protest is that some unspecified error in the agency’s internet system prevented the timely delivery of Turner’s quotation. Turner maintains that, because its email to the agency was simultaneously and successfully transmitted to the two other non-agency recipients, the paramount cause of its quotation not reaching the designated agency email accounts must be something in the agency’s email system or server, such as, Turner speculates, an arbitrary blocking of pdf files or other arbitrary fault in the agency’s system.

DOE does not dispute that Turner attempted to send its quotation by email before the noon deadline, or that Turner took reasonable steps to confirm its delivery. Rather, the agency argues that there is no evidence that Turner’s email ever reached its server and that, since other offerors successfully submitted pdf files, the problem most likely was caused by some technical “glitch” in one of Turner’s pdf files. In this regard, the agency notes that when, after the closing date for receipt of quotations, Turner separately transmitted its attachments, all but one of the attachments was successfully transmitted. That one attachment had to be converted to a different format to be successfully delivered to the agency. Legal Memorandum at 4.

FAR provisions in Parts 14 and 15, governing the late delivery of bids and proposals, generally do not apply to the late delivery of a quotation. However, where as here the RFQ contains a late submission provision that quotations must be received by a stated deadline to be considered, quotations cannot be considered if received after the deadline. See Data Integrators, Inc., B-310928, Jan. 31, 2008, 2008 CPD para. 27 at 2.  (emphasis added by Wifcon.com)

Here, there is no question that Turner’s quotation was not received by the agency by the time required for submission of quotations. Although Turner contends that something in DOE’s internet system prevented the timely receipt of Turner’s quotation, there is no evidence in the record to support this contention. Rather, DOE states that its investigation found no problems with the agency’s servers that would prevent the timely receipt of quotations, and that the agency timely received other emailed quotations which included pdf files, see Contracting Officer’s Statement at 3, which lends support to this view. Moreover, Turner’s late delivery of its quotation could not be completed until after the protester had changed the format of one of its email attachments, which also lends support to the agency’s view that Turner’s inability to timely deliver its quotation to the agency was more likely the result of a corrupted file. We recognize that Turner disputes that its attachments were corrupted and that it continues to contend that it timely transmitted its quotation to DOE; this, however, does not demonstrate that DOE timely received the firm’s quotation or was responsible for Turner’s inability to timely deliver its quotation to the agency. In short, given that there is no evidence in the record to show actual timely receipt of the Turner’s quotation, we have no basis to find unreasonable the agency’s rejection of the quotation as late. See International Garment Processors, B-299674; B-299743; B‑299746, July 17, 2007, 2007 CPD para. 130 at 7.  (Turner Consulting Group, Inc., B-400421, October 29, 2008) (pdf)

On August 5, 2008, the Navy posted the RFQ on the FedBizOpps website. The RFQ specified a closing date and time of 2 p.m., August 21. The RFQ contained instructions for submission of quotations, including the notice that “[e]lectronic bids may be submitted to the following email address: roicc_chpt_ktr_bids@navy.mil by the time stated on the [standard form] 18.” RFQ at 7. The electronic version of the RFQ included a blue, underlined hyperlink for the email address. With the cursor placed over the hyperlink for the email address, it appears as roicc_chpt_ktr_bids@navy.mil, clearly showing the underscoring of the otherwise blank spaces between characters. The agency received one quotation, from Mid-Atlantic Crane, which received the award on September 3.

On September 5, PHC contacted the agency to ask about this procurement and was told that the agency had not received a quotation from PHC and that award had been made to another vendor. PHC maintained that it had sent its quotation by email on August 21, at 11:52 a.m., to the following address: roiccchptktrbids@navy.mil, eliminating the spaces created by the underscoring in the email address as set out in the RFQ. That same day, PHC submitted its quotation directly to the contracting officer, as well as information to show the August 21 submission of its quotation. Upon review of the information provided by PHC, the contracting officer determined that PHC’s quotation had not been received because it was sent to the wrong email address. Because the agency first received PHC’s quotation on September 5, after award already had been made, the agency did not consider PHC’s quotation further.

The protester does not dispute that its quotation was received late and after award. Rather, the protester argues that the circumstances surrounding the late receipt of its quotation compel the agency to consider it. In this regard, the protester argues that the error in the email address it used was the result of the unclear manner in which the address was set out in the RFQ. Moreover, the protester asserts that the email address it used must exist because the protester received a notice of receipt of its email, similar to notices of receipt that it has received in response to other email submissions that were known to have been properly received.

We have long held that the requirement to obtain competition to the maximum extent practicable means that language requesting quotations by a certain date cannot be construed as establishing a firm closing date for the receipt of quotations absent a provision--which was not present here--expressly providing that quotations must be received by that date to be considered. Instruments & Controls Serv. Co., B-222122, June 30, 1986, 86-2 CPD para. 16 at 3. Instead, agencies should consider any quotations received prior to source selection if no substantial activity has transpired in evaluating quotations and other vendors would not be prejudiced. Id. See also KPMG Consulting LLP, B-290716, B-290716.2, Sept. 23, 2002, 2002 CPD para. 196 at 11. Here, where the agency had already made an award prior to its receipt of the protester’s quotation, we see no reason to object to the agency’s refusal to consider that quotation. John Blood, B-274624, Dec. 19, 1996, 96-2 CPD para. 233 at 2.

The protester’s argument that the email address used by the agency for receipt of quotations was “complicated and error-prone,” Comments at 2, and that if the address had been clear the protester would not have made the entry error, does not compel a different result. As noted above, the email address, with the underscoring, was clearly visible in the electronic version of the RFQ once the cursor was placed over the address. To the extent the underscoring was not apparent to PHC, PHC nevertheless failed to act reasonably in the electronic submission of its quotation, which directly resulted in the agency not timely receiving its quotation. Without first raising the issue with the agency, PHC simply assumed that what it perceived as blank spaces between the characters in the agency’s email address were unintended and immaterial--as noted above, the email address used by PHC for the submission of its quotation simply eliminated the underscored spaces. It was unreasonable for PHC to make this assumption and thereby modify the email address designated in the RFQ for the submission of quotations. Given PHC’s own actions, we have no basis to conclude that the agency acted unreasonably by rejecting PHC’s late quotation.  (Piedmont Hoist & Crane, B-400563, October 8, 2008) (pdf)

The protester is one of three offerors whose proposals were included in the most recent competitive range created by the agency. At issue is the mode of transmission permitted by the RFP. As a general matter, offerors may use any transmission method authorized by the solicitation. Federal Acquisition Regulation (FAR) sect. 15.208(a). The solicitation nowhere authorized the use of electronic methods of submission for the original proposal and contemplated the use of facsimile submissions only for revisions of offers. RFP at 2. The RFP did clearly contemplate submission in paper form. See id. (listing the mailing address for offers and instructions for hand delivery, including delivery by courier).

The record shows that throughout this competition the agency has made no objection to the submission by e-mail of proposal revisions by the protester and at least one other offeror. On May 13, 2008, DSCP transmitted amendment 7 to Labatt as an attachment to an e-mail that instructed Labatt to “review, sign, and return this amendment along with your proposal no later than 20 May 2008.” Protest, Exh. 9. The attached amendment specified a deadline of 2:00 p.m. Eastern Standard Time (EST), May 20. Amendment 7 increased the guaranteed minimum and maximum order quantities by over 20 percent and made several changes to the solicitation which directly addressed Labatt’s previous protest. The other two offerors submitted proposals by the 2:00 p.m. deadline; Labatt transmitted its proposal at 4:27 p.m. On May 22, the agency informed the protester that its proposal was transmitted by e-mail, which was not an authorized transmission method, and that it was submitted late. This protest followed.

Labatt does not contest that it failed to meet the 2:00 p.m. solicitation deadline. Rather, Labatt argues that, because the e-mail transmitting the amendment was created after the amendment and did not bear the 2:00 p.m. deadline, Labatt reasonably understood the deadline to be 4:30 p.m. In support of its position, Labatt relies on FAR sect. 52.212-1(f)(1) (incorporated into the RFP here), which provides that “[i]f no time is specified in the solicitation, the time for receipt is 4:30 p.m., local time, . . . on the date that offers or revisions are due.” The protester met that deadline, and thus its proposal was not late, Labatt argues. We disagree. The FAR clause quoted above also stated that “[o]fferors are responsible for submitting offers, and any modifications, revisions, or withdrawals, so as to reach the Government office designated in the solicitation by the time specified in the solicitation.” Solicitation at 75. The “time specified in the solicitation,” specifically, amendment 7, was 2:00 p.m., irrespective of what the transmittal e-mail said, and the protester failed to meet that deadline.

The protester argues that, assuming all of the offerors made submissions via e-mail, which, as noted above, was not a transmission method permitted by the solicitation, the agency was required to reject all of the proposals. We disagree. Even where an agency clearly should have amended a solicitation or otherwise apprised offerors that it had effectively waived a requirement, our Office will not sustain a protest unless the protester demonstrates a reasonable possibility that it was prejudiced by the agency’s actions. 4-D Neuroimaging, B-286155.2; B-286155.3, Oct. 10, 2001, 2001 CPD para. 183 at 9-10. Here, the agency allowed each of the offerors to submit proposals by e-mail, which was not a method permitted by the solicitation; the protester, in fact, benefited from the agency’s decision to relax the transmission method. The protester has not shown how it was harmed by the agency’s acceptance of the offerors' submissions by e-mail. (Labatt Food Service, Inc., B-310939.6, August 18, 2008) (pdf)

Acceptance of the late quotation was improper. GPO is correct that solicitation language setting a certain date and time for submission of quotations generally does not establish a firm deadline for receipt of quotations. However, where the solicitation contains a late submission provision expressly providing that quotations must be received by the stated deadline in order to be considered, quotations cannot be considered if received after the deadline. See M.Braun, Inc., B‑298935.2, May 21, 2007, 2007 CPD para. 96; DataVault Corp., B-248664, Sept. 10, 1992, 92-2 CPD para. 166 at 2; Instruments & Controls Serv. Co., supra. Here, the solicitation stated that “GPO Contract Terms (GPO Pub. 310.2, effective December 1, 1987 (Rev. 6-01)) applies.” AR, Tab B. The referenced GPO contract terms, in section 7(a) under “Solicitation Provisions,” included a late submission provision providing that any bid “received … after the exact time specified for receipt will not be considered” (except under specified exceptions not applicable here). This is precisely the type of provision that we have held precludes an agency from accepting a quotation submitted after the stated deadline. Although section 7 refers to “bids,” it is clear from GPO’s incorporation of this provision in the solicitation that it was intended to apply to the quotations received here. We conclude that, since TDC’s quotation was received after the deadline set forth in the solicitation, it could not be accepted; issuance of the purchase order to TDC therefore was improper. See M.Braun, Inc., supra. On December 13, 2007, GPO advised us by letter that it had determined “continued performance under the purchase order issued for the Quotation Request at issue to be in the best interests of the Government.” Where, as here, an agency determines that it is in the best interest of the government to proceed with performance in the face of a protest to our Office, and we sustain the protest, we are required by the Competition in Contracting Act of 1984, 31 U.S.C. sect. 3554(b)(2) (2000), to make our recommendation for corrective action without regard to any cost or disruption from terminating the contract, or recompeting or reissuing the solicitation. Department of the Navy--Modification of Remedy, B-274944.4, July 15, 1997, 97-2 CPD para. 16 at 2-4. Ordinarily, therefore, we would recommend that GPO cancel the purchase order issued to TDC and issue an order to Data Integrators based on its lowest-priced, timely quotation. See, e.g., e-LYNXX Corp., B-292761, Dec. 3, 2003, 2003 CPD para. 219 at 9-10 (agency directed to conduct new source selection decision and cancel order if necessary).  Here, however, shipment was required by December 31, 2007, and we have been advised by GPO that delivery has been completed. Under these circumstances, we cannot recommend that GPO cancel TDC’s purchase order and issue a new order to Data Integrators, since there is no substantial part of the purchase order remaining to be performed. See Information Ventures, Inc., B-293518, B-293518.2, Mar. 29, 2004, 2004 CPD para. 76 at 5 (GAO cannot recommend disturbing award where contract for educational services was largely completed); International Data Sys., Inc., B‑277385, Oct. 8, 1997, 97-2 CPD para. 96 at 5 (corrective action not available when contract for personal computers fully performed). Accordingly, we recommend that Data Integrators be reimbursed its costs of quotation preparation and of filing and pursuing the protest, including reasonable attorneys’ fees. Bid Protest Regulations, 4 C.F.R. sect. 21.8(d)(1), (2) (2007). Data Integrators should submit its certified claim for costs, detailing the time expended and costs incurred, directly to GPO within 60 days after the receipt of this decision. (emphasis added) (Data Integrators, Inc., B-310928, January 31, 2008) (pdf)

Northwest first argues that the agency should accept and evaluate its submissions because, in the protester’s view, the USPS records show that delivery was attempted prior to the closing time, but could not be completed. Thus, the protester contends that the agency must have failed to make proper arrangements to receive submissions. The protester also argues that since its submissions were not proposals, but merely A-E Qualifications Statements--the evaluation of which are used only to qualify potential vendors for inclusion on a list for issuance of task orders at future dates--acceptance and evaluation of its submissions despite their late receipt causes no harm to other offerors.  It is the responsibility of each firm to deliver its proposal (or here A-E Qualifications Statements) to the proper place at the proper time, and late delivery generally requires rejection of the submission. Sencland CDC Enters., B-252796, B-252797, July 19, 1993, 93-2 CPD para. 36 at 3. Where late receipt results from the failure of a vendor to reasonably fulfill its responsibility for ensuring timely delivery to the specified location, the late offer may not be considered. Axtec Dev.Co., B-256905, July 28, 1994, 94-2 CPD para. 48 at 3. An offer that arrives late may only be considered if it is shown that the paramount reason for late receipt was improper government action, and where consideration of the proposal would not compromise the integrity of the competitive procurement process. Caddell Constr. Co., Inc., B-280405, Aug. 24, 1998 , 98-2 CPD para. 50 at 6. Improper government action in this context is affirmative action that made it impossible for the offeror to deliver the proposal on time. Id.  As an initial matter, the agency denies receiving or rejecting the Northwest submission package that was the subject of the alleged delivery attempt by the USPS carrier. Instead, NPS explains that it followed its standard procedure for receipt and acceptance of proposals on December 22, 2006. In this regard, since the designated installation is a secured facility manned by security personnel on a 24-hour basis, deliveries entering the building lobby are stopped at the security desk, while the guard calls the NPS mailroom to advise that a package had arrived, and needs to be retrieved. CO’s Statement at 3. If mailroom personnel are not available, the practice is for building security personnel to call the contracting and general services offices directly. Moreover, the agency provided a declaration from the security guard who covered the post on the date and time in question, and the guard states that no notice of an attempted delivery was left by the USPS on that date, and that there were no delivery problems that day. Declaration of Security Guard, Apr. 11, 2007 . In addition the CO states that several other proposals were hand-carried to the agency on December 22, and that, in each case, security personnel called to advise that a package had arrived. Upon receipt of these calls, the CO personally greeted individuals seeking to deliver the submissions and took possession of the submissions in the building lobby. Finally, the CO explains that both mailroom and security personnel were aware that the CO was receiving proposals that day.  In our view, the evidence submitted by the protester does not establish that the agency actually received the protester’s submissions or that there was ever an attempt to deliver the submissions to the NPS facility before the closing time established in the solicitation. As explained above, the record here, at best, only demonstrates that the USPS carrier attempted to deliver the protester’s submissions somewhere in Oakland at 11:22 a.m. on December 22. There is also no evidence that the NPS failed to make proper arrangements for deliveries, or in any way mishandled the submissions. Instead, numerous other proposals were received throughout the day, and the security guard on duty has submitted a sworn statement explaining that there were no delivery problems that day. Under these circumstances, we think the agency properly refused to accept the protester’s submissions when they were subsequently delivered by FEDEX.  Alternatively, Northwest asserts that since the submissions here were only Qualifications Statements, and not proposals, no harm will result from the agency evaluating its untimely submissions. For the reasons below, we disagree.  The FedBizOpps notice specifically stated a date and time for delivery of these submissions and warned vendors that late responses would be handled in accordance with FAR sect. 15.208. We have recognized that even when the submissions at issue are not proposals, the late submission rules alleviate confusion, ensure equal treatment of all competitors, and prevent one firm from obtaining any unfair competitive advantage that might accrue where only one firm is permitted additional time to prepare its submissions for evaluation by the agency. See Zebra Techs. Int’l, LLC, B-296158, June 24, 2005, 2005 CPD para. 122 at 3. (agency reasonably declined to waive a late submission of past performance information--requested by the solicitation prior to quotes, and by a date certain--because waiving the clear submission deadline for the protester would effectively confer a competitive advantage not provided to other offerors). While the government may lose the benefit of more advantageous terms included in a late submission, protecting the integrity of the competitive procurement process by ensuring fair and equal treatment among competitors is of greater importance than the possible advantage to be gained by considering a late submission in a single procurement. Id.  Lastly, the protester maintains that it is a veteran-owned emerging small business and may suffer material harm if it is denied the opportunity to be considered as a potential provider of such services. While we recognize that denying the protester an opportunity to participate in these procurements may have an adverse affect on the protester, acceptance of the protester’s untimely submissions is unfair to other vendors who timely submitted responses and inconsistent with protecting the integrity of the procurement system.  (Northwest Heritage Consultants, B-299547, May 10, 2007) (pdf)

It is an offeror’s responsibility to deliver its proposal to the proper place by the proper time, and late delivery generally requires rejection of the proposal. Federal Acquisition Regulation (FAR) sect. 15.208; The Staubach Co., B-276486, May 19, 1997, 97-1 CPD para. 190 at 3. However, a hand-carried proposal that arrives late may be considered if improper government action was the paramount cause for the late submission, and where consideration of the proposal would not compromise the integrity of the competitive procurement process. Caddell Constr. Co., Inc., B-280405, Aug. 24, 1998, 98-2 CPD para. 50 at 6. Improper government action in this context is affirmative action that makes it impossible for the offeror to deliver the proposal on time. Id. Here, as explained below, we find no basis to conclude that improper government action caused the late submission of Shirlington’s proposal.  The record shows that once the inconsistency in the delivery addresses listed in the original RFP was brought to the agency’s attention, the agency issued an amendment clarifying where proposals were to be delivered. Thus, there simply is no support for the protester’s assertion that the agency’s failure “to provide sufficiently clear delivery instructions,” Comments at 3, caused Shirlington to submit its bid late. The protester argues that its past pattern of dealing with the agency, which made it unique among the offerors, led it to conclude that the proper delivery address was the bid room at 7th and D Streets. Whatever the protester may have done to satisfy proposal delivery requirements in prior procurements does not excuse the protester from its burden to ensure timely delivery of its proposal at the location specified in the solicitation. See Schmid & Kalhert GmBH & Co. KG, B‑233467, Feb. 13, 1989, 89-1 CPD para. 148 at 3. In short, there is nothing in the record showing that any affirmative government action deprived the protester of the ability to make proper delivery of its proposal. The protester also asserts that the agency treated offerors unfairly because DHS employees “may have provided more explicit instructions to other offerors without sharing this information with Shirlington.” Comments at 3. As explained above, two offerors received minimal assistance with directions to the proposal delivery locations after calling the contract specialist on the proposal due date. That a contracting official or other agency employee, in response to an inquiry from a prospective offeror, provides that offeror with directions to the proposal delivery location does not form a valid basis of protest. See Aztec Dev. Co., B-256905, July 28, 1994, 94-2 CPD para. 48 at 4 (noting that courier could have called the contracting officer for additional directions to the delivery location). The protester, of course, could have availed itself of the same opportunity to obtain directions.  The protester asserts, alternatively, that its proposal was received and under the government’s control prior to the submission deadline so that an exception to the rule that late proposals must be rejected applies. In this regard, FAR sect. 15.208(b)(1) states that any proposal that

is received at the designated Government office after the exact time specified for receipt of proposals is “late” and will not be considered unless it is received before award is made, the contracting officer determines that accepting the late proposal would not unduly delay the acquisition; and—

* * * * *

(ii) There is acceptable evidence to establish that it was received at the Government installation designated for receipt of proposals and was under the Government’s control prior to the time set for receipt of proposals . . . .

This exception may apply, if all other conditions are also met, when a proposal is late but at the office designated for receipt of proposals, and under the government’s control, before the time set for receipt of proposals. See States Roofing Corp., B-286052, Nov. 8, 2000, 2000 CPD para. 182 at 4-5. This exception clearly does not apply here given that the proposal was not, in fact, at any time delivered to “the designated Government office,” i.e., the address listed in amendment 3 of the RFP; in fact, it was delivered to an entirely different location.  (Shirlington Limousine & Transportation, Inc., B-299241.2, March 30, 2007) (pdf)

Omega asserts that the agency was required to consider its late FPR pursuant to a solicitation provision stating that “a late modification of an otherwise successful proposal that makes its terms more favorable to the government will be considered at any time it is received and may be accepted.” RFP sect. L-1 (incorporating Federal Acquisition Regulation (FAR) sect. 52.215-1). Omega maintains that its proposal was the only acceptable one--and thus was the “otherwise successful proposal” prior to the request for second FPRs--because it was the only one that offered the required OEM warranties; based on discussions it had with component manufacturers, Omega believes GDC4S’s proposal could not have included the required OEM warranties. Omega’s argument is without merit. An “otherwise successful proposal” is one that would result in the award of the contract to the offeror regardless of the late modification; generally, this means that the government may accept a favorable late modification only from the offeror already in line for award. Seven Seas Eng’g & Land Surveying, B‑294424.2, Nov. 19, 2004, 2004 CPD para. 236 at 4; Robotic Sys. Tech., B‑271760, May 14, 1996, 96-1 CPD para. 229 at 3. The record shows that Omega’s proposal would not have been in line for award prior to the late modification. In this regard, the agency informed Omega in its August 17 discussions (prior to the second FPR) that its price proposal was “unreasonably high, relative to the other offerors, and is potentially non‑competitive.” Agency Report (AR), exh. 16. Since the agency found that pricing changes were necessary in order for Omega’s proposed price to be deemed reasonable, and required offerors to respond to the amended solicitation, its proposal was not the “otherwise successful proposal,” and there thus was no basis for the agency to accept its late FPR. (Omega Systems, Inc., B-298767, November 6, 2006) (pdf)

On August 23, 2006, Symetrics transmitted its FPR electronically to the contracting officer’s e-mail address. At 2:58 p.m., the president of Symetrics phoned the contracting officer to notify her that Symetrics had submitted its FPR. Protest, Symetrics’ President’s Affidavit. The contracting officer received the e-mail while on the phone with Symetrics’ president and told him that it was received at 3:01 p.m, according to her computer. The e‑mail, according to the contracting officer’s computer, showed the e-mail message forwarding the FPR was sent at 2:54 p.m. Agency Report, attach. 2, Declaration of Contracting Officer. Symetrics’ computer mail server records evidence that at 14:55:42 p.m. Symetrics commenced transmission, at 14:55:44 p.m. the intended recipient was identified and located, at 14:58:30 p.m. Symetrics’ transmission to the destination was identified as complete, and finally at 14:58:31 p.m. Symetrics’ mail server returned the following message: “SMTP session successful.” Protest, exh. B, Affidavit of Information Technology Specialist Contracted by Symetrics; attach.  The Government’s e-mail relay report showed Symetrics’ FPR was accepted at the server at Wright-Patterson Air Force Base, Ohio at 2:57:41 p.m. and delivered to the contracting officer’s e-mail box at 3:01:00 p.m., and that the process was completed at 3:01:00 p.m. Agency Supplemental Report, Declaration of Computer System Analyst; Agency Report, attach. 2A, E-mail Relay Report. Symetrics argues that the rejection of its FPR was unreasonable because it was within the control of the government by the deadline for receipt of FPRs. However, a late proposal revision submitted electronically may only be accepted if one of the exceptions contained in FAR sect. 52.215-1(c)(3) is applicable. See Sea Box, Inc, B‑291056, Oct. 31, 2002, 2002 CPD para. 181.

Under the first exception to FAR sect. 52.215-1(c)(3), a late proposal submitted via electronic means is late, unless accepting the late offer would not unduly delay the acquisition, and it was received at the initial point of entry to the Government infrastructure not later than 5 p.m. 1 working day prior to the date specified for receipt of proposals. FAR sect. 52.215-1(c)(3)(ii)(A)(1). This exception does not apply, as Symetrics FPR was not submitted by 5 p.m. on August 22, 2006. Our Office has previously determined that the second exception, FAR sect. 52.215‑1(c)(3)(ii)(A)(2), which allows for consideration of proposals received at the Government installation designated for receipt of offers and under the Government's control prior to the time set for receipt of offers, is not applicable to electronic proposals. Sea Box, Inc, supra, at 3. Although not expressly stated in the regulation, we found that the second exception necessarily applies only to proposals delivered by other than electronic means. This is so because if the Government considered a late electronic proposal under the second exception, regardless of whether it was received by 5 p.m. the previous working day, the first exception would effectively be rendered meaningless. Id. Since Symetric’s FPR was not received in the e-mail mailbox of the contracting officer until 3:01:00 p.m., which was validated by the Government’s e-mail relay report, the late proposal cannot be accepted. Id. (Symetrics Industries, LLC, B-298759, October 16, 2006) (pdf)

The protest is without merit because there is no evidence of mishandling or any other improper agency action. USAID’s Director of Mail Management denies receiving or rejecting the Castle proposal package, and reports that the contractor’s mailroom supervisor and mailroom staff also deny handling the package. Director’s Affidavit, paras. 7-8. In this regard, there is no marking on the returned package to indicate it was handled by USAID’s mailroom. Further, as noted by the Director, USAID mailroom procedures do not include handwritten notations for returns but, rather, involve the use of a special “return to sender” label (Id. at para. 6) which, we note, does not appear on the photocopy of the returned package’s label. Further, the package’s tracking information and the returned label both indicate that the package was refused at zip code 20460, which is assigned to the Environmental Protection Agency (EPA), another tenant in the Ronald Reagan Building with its own mailroom. Since, aside from the protester’s speculation, there is no evidence that USAID mishandled the proposal package or contributed in any way to the failed delivery attempt, the agency’s subsequent refusal to accept the late proposal was proper. We find that the record supports the alternative explanation--suggested by the agency--that Castle’s mislabeling of the proposal package may have caused the failed delivery. In this regard, the Reagan Building, where USAID is located, is the second largest federal building in the country, and is shared by three other federal agencies and more than 50 private businesses. There are five separate mailrooms and zip codes for the building--one for each federal agency and one for the private businesses. USAID’s zip code--as stated in the RFP--is 20523 and its mailroom is located on the 13½ Street side of the building, while the private business tenants share the 20004 zip code--the zip code on Castle’s mailing label--and have their mailroom on the Pennsylvania Avenue side. According to USAID’s Director, the mail for each federal agency is delivered by USPS directly to the particular agency’s mailroom. Given the zip code on Castle’s proposal package and the absence of the agency’s name, it appears that USPS may have attempted delivery to the mailroom for the private business tenants, rather than to USAID’s mailroom. The Director explains that, when USAID mail is misdirected to other agencies in the building, those agencies’ staff “will sometimes bring pieces of misdirected mail to our attention--provided, of course, that the address on the letter or package makes clear that it is intended for receipt by USAID.” Id., paras. 3-5. The Director further states that, in his experience, it is uncommon for USAID mail to be misdirected to the private business tenants, and even less common for those firms to alert USAID staff when it does happen. Id. at para. 5. Thus, while it appears that Castle’s proposal package arrived at the proper street address--1300 Pennsylvania Avenue--it also appears that Castle’s failure to use the correct zip code and agency name may have prevented delivery of its proposal. Castle asserts that we should find “government mishandling” based on the “malfunctioning” Click-N-Ship® program, and USPS’s failure to deliver its Express Mail package by the guaranteed time and taking 7 days to return the package to Castle. Supplemental Comments at 5. None of these matters constitute government mishandling. First, we view the alleged Click-N-Ship® problems as a failure on the protester’s part, not the government’s, since the protester chose to use the Click-N-Ship® program to print its mailing label. Castle was responsible for choosing a means of addressing its proposal package--such as simply handwriting all necessary information on an Express Mail envelope and having the postage affixed at the nearest post office--that would result in the package being correctly addressed. Further, any delay connected with USPS’s handling of the Express Mail delivery is not considered to be mishandling by the government; the word “government” in the context of proposal mishandling refers to the procuring agency, not USPS, and the mishandling must occur after the proposal is received at the government installation. California State Univ., Fullerton, B-243040.2, May 9, 1991, 91-1 CPD para. 452 at 2. (The Castle Group, B-297853, March 21, 2006) (pdf)

We find the agency’s action was the paramount cause for the late delivery of the proposal revision on Monday, May 17. In this regard, the agency extended closing to Saturday, May 15, but failed to establish adequate procedures to ensure that reasonable attempts to deliver hand‑carried proposals prior to closing would be received at the place designated for delivery. Specifically, Saturday was not a normal business day for the agency and the doors to the agency were locked. The agency did not post instructions outside the locked door stating that agency personnel would be present to receive deliveries, or how to contact them. Therefore, when a courier attempted to enter the locked doors and received no response from within, it was reasonable for the courier to assume that delivery at that address on Saturday was not possible. While the record shows that Saturday delivery was possible at other times on that day (as evidenced by the single proposal that the agency did receive on that day), delivery was impossible at the time Federal Express attempted to deliver Integrity’s proposal revision (as evidenced by the note left on the locked door by Federal Express), and the circumstances of the locked door and lack of posted instructions regarding delivery of proposals did not create a reasonable basis upon which the courier should have concluded that delivery would be possible later that day. But for the agency’s action here, Integrity’s hand-carried proposal revision would have been delivered prior to the required closing date, and we therefore conclude that the agency’s action was the paramount cause of the late delivery. See Palomar Grading & Paving, Inc., B‑274885, Jan. 10, 1997, 97‑1 CPD para. 16 at 3-4 (agency’s incorrect delivery instructions was the reason for a failed timely hand-carried delivery of bid and the paramount cause of late delivery); Richards Painting Co., B‑232678, Jan. 25, 1989, 89‑1 CPD para. 76 at 2-4 (agency failure to staff room designated for receipt of bids up to the exact time specified for bid opening was the paramount cause of late delivery); Sun Int’l, B‑208146, Jan. 24, 1983, 83‑1 CPD para. 78 at 2-4 (agency failure to apply reasonable procedure for accepting delivery of bids on weekends was the paramount cause of late bid delivery); cf. Bergen Expo Sys., Inc.; Techniarts Eng’g, B‑236970, B‑236970.2, Dec. 11, 1989, 89-2 CPD para. 540 at 2-3 (where courier failed to wait a reasonable time for agency personnel to respond to security guard’s call and courier did not attempt re-delivery later that same business day, agency’s action--restricting access and delay in responding to call--was not the paramount cause of late delivery). We also find that consideration of the late proposal revision did not compromise the integrity of the competitive procurement process. The proposals were not publicly opened and Integrity’s proposal remained in the possession of Federal Express during the time between the attempted delivery on Saturday and the actual delivery by that carrier the following Monday; therefore, there is no evidence that Integrity had an opportunity to alter its submission after closing. See Palomar Grading & Paving, Inc., supra, at 4; Sun Int’l, supra, at 4. (Hospital Klean of Texas, Inc., B-295836; B-295836.2, April 18, 2005) (pdf)

An offer is late if its does not arrive in the office designated in the solicitation by the time specified in the solicitation. Sencland CDC Enters., B-252796, B-252797, July 19, 1993, 93-2 CPD paragraph 36 at 3. An offer that arrives late may only be considered if it is shown that the paramount reason for late receipt was improper government action, and where consideration of the proposal would not compromise the integrity of the competitive procurement process. Caddell Constr. Co., Inc. , B-280405, Aug. 24, 1998, 98-2 CPD paragraph 50 at 6. Here, FedEx records provide the only evidence that the FedEx truck was stopped at a random security checkpoint on the base; the agency maintains it has no record of such a stop. Agency Report (AR), Tab 16. However, even assuming there was a security stop, this would not necessarily constitute improper government action, since a 20 minute security delay on a military base is not on its face unreasonable. Rather, we think this is a situation where an offeror should reasonably anticipate such a delay. We have recognized that delays in gaining access to government facilities are not unusual and should not be unexpected. See , e.g., Einhorn Yaffee Prescott , B-259552, Mar. 20, 1995, 95-1 CPD paragraph 153 at 3. In any case, we do not view the government's actions here as the paramount cause of the late receipt of Kesser's proposal. In this regard, the alleged security delay took place at approximately 11:40 a.m. Thus, the courier still had 2 hours to timely deliver the package once he was allowed to proceed. The courier explained to the CO that, after he was stopped by the military police, he continued to follow his usual route until he received a call from his dispatcher, instructing him to deliver to Building 6 before making his scheduled stop at Building 4. AR, Tab 11. He then proceeded to deliver Kesser's package at that time. Given these circumstances, the paramount cause for the package's late delivery was the courier's decision to continue on his normal route after the alleged security delay--rather than deliver Kesser's proposal at that time--and not the government's actions. (Kesser International, B-296294, June 30, 2005) (pdf)

The record here provides no basis to question the reasonableness of the rejection of Zebra's quotation for failure to timely submit its past performance information. First, since the RFQ's late quotation provision expressly applied to the past performance submission, it is clear that the agency's rejection of Zebra's quotation for failing to meet the closing time specified for that submission falls squarely within the terms of the solicitation. Moreover, the protester has not shown that its failure to meet the mandatory past performance submission deadline was only a minor informality that must be waived, as Zebra argues, as a matter of form over substance. Rather, our review of the record confirms the reasonableness of the agency's position that the RFQ's deadline for the past performance submissions was material to the agency's actual needs, and thus, was not merely a matter of form. This is evident, for example, from the repeated emphasis given in the RFQ (as well as its cover letter, and several answers to vendor questions published by the agency) to the agency's need to prevent any delay in the procurement from the substantial past performance evaluation efforts that were anticipated under the RFQ, including the management and review of the multitude of past performance reference questionnaires for each of the many vendors expected under each of the multiple award groups. (Zebra Technologies International, LLC, B-296158, June 24, 2005) (pdf)

Seven Seas submitted its reply to CECOM's IFNs on July 27, after the required date for its reply; Seven Seas also acknowledged amendment 2 at the same time. The record shows that the protester's IFN responses would have revised the firm's proposal in a number of regards. Comments, attach. H. CECOM did not consider the protesters late response to the IFNs or its late acknowledgment of amendment 2. In the absence of a timely response to the IFNs, CECOM concluded that Seven Seas proposal was technically unacceptable based upon deficiencies and weaknesses identified in all three technical subfactors, and based upon the missing past performance information. AR, Tab K, Letter from CECOM to Seven Seas (Aug. 2, 2004). CECOM rejected Seven Seas proposal, and this protest followed. Seven Seas acknowledges that its reply to the agency's IFNs was late, but protests that the contracting officer should have considered the protesters late response. Seven Seas argues, citing Federal Acquisition Regulation (FAR) 15.307, that the contracting officer is required to establish a common cut-off date for only the receipt of final proposal revisions, and that, because the IFNs did not request the firm's final proposal revisions, the contracting officer had latitude to relax time constraints for the submission of proposal revisions before the final revision. Comments at 4-6. On this basis, Seven Seas contends that the contracting officer could waive the late submission of the firms proposal revisions as a minor informality under FAR14.405. Seven Seas does not contend that its late response to the IFNs was due to any action or inaction by the agency. We disagree with Seven Seas apparent belief that the contracting officer was required to consider the protester's late IFN responses or was required to waive the protesters late proposal revisions. Although it is true that FAR 15.307(b) provides for a common cut-off date only for receipt of final proposal revisions, this does not mean that an offeror is permitted to submit other proposal revisions (not the final proposal revision) after the time specified by an agency. FAR 15.208 provides in this regard that offerors are responsible for submitting proposals, revisions, and modifications to the proper place at the proper time and that late submissions of proposals, revisions, and modifications may not be considered, except, as is pertinent here, where the late submission is received before award, and is a late modification of an otherwise successful proposal that makes its terms more favorable to the government. An otherwise successful proposal is one that would result in the award of the contract to the offeror regardless of the late modification. RMS Indus., B-245539, Dec. 9, 1991, 91-2 CPD 528 at 3. Here, Seven Seas initial proposal was not technically acceptable and therefore could not be considered an otherwise successful proposal. In the absence of any action by the agency causing the protester's late response to the IFNs, we conclude that the contracting officer did not act unreasonably in rejecting Seven Seas late IFNs responses. (Seven Seas Engineering & Land Surveying, B-294424.2, November 19, 2004) (pdf)

It is well established that the standard for late proposals does not generally apply to requests for quotations. An RFQ, unlike a request for proposals (or an invitation for bids), does not seek offers that can be accepted by the government to form a contract. Rather, the government's purchase order represents the offer that the vendor may accept through performance or by a formal acceptance document. DataVault Corp., B-248664, Sept. 10, 1992, 92-2 CPD 166 at 2. It follows that language in an RFQ requesting quotations by a certain date cannot be construed as establishing a firm closing date for receipt of quotations, absent a late quotation provision expressly providing that quotations must be received by that date to be considered. Instruments & Controls Serv. Co. , B-222122, June 30, 1986, 86-2 CPD 16 at 3. An agency may consider late quotations or quotation modifications, so long as the award process has not begun and other offerors would not be prejudiced. KPMG Consulting LLP , B-290716, Sept. 23, 2002, 2002 CPD 196 at 11. Here, AMC considered AFMOs submission substituting that firm for Tactical Gear Now. AMCs action was consistent with the RFQ, which did not contain a late quotation provision. Further, the substitution of AFMO for Tactical Gear Now was received on May 28, only 2 days after the closing time on May 26, and apparently before start of the selection process. Since there is no apparent basis to find that any competitor was prejudiced by the agencys acceptance of the substitution of AFMO for Tactical Gear Now, we find that AMC acted properly when it accepted AFMOs late modification of the quotation. (Armed Forces Merchandise Outlet, Inc., B-294281, October 12, 2004) (pdf)

The FedEx courier arrived at the DOT building with InfoGroup's package (and, apparently, numerous other packages) at around 9:30 a.m. on Friday, August 13. Security personnel x-rayed and date-stamped the package, and the courier then signed in at 9:37 and proceeded into the building to deliver the packages, unescorted, to individual rooms. While at the building, according to the courier, he attempted to telephone the contracting officer at the number on InfoGroup's proposal package to find out the room number to which the package should be delivered, but there was no answer. Letter from FedEx to Protester, Sept. 9, 2004. Before leaving the building at 2:30 p.m., the courier placed a second call to the contracting officer; again, however, there was no answer. The courier therefore left the building and returned to the FedEx office with the package. FedEx telephoned the agency again on the afternoon of Tuesday, August 17, and learned the room number at that time. The proposal package finally was delivered on August 18 at 12:11 p.m. Since this was well after the August 16 closing time, the agency rejected the proposal as late. The protest is without merit. There is no evidence of improper agency action. The RFP clearly set forth the precise location for delivery of proposals, and InfoGroup's courier arrived at the proper address and was permitted access to the building for purposes of delivering packages. While the protester points to the agency's failure to escort the courier or to be available to provide information to the courier, the agency was not required to perform these functions. Rather, the agency fulfilled its responsibility by providing the protester with complete delivery information, including the room number, and then providing the protester's courier with access to the building for purposes of delivering the proposal. The fact that the agency did not proceed in accordance with InfoGroup's understanding regarding DOT building policy is not improper agency action; the RFP did not state that couriers would be escorted to the designated room, and there simply was no basis for the protester to plan the delivery of its proposal using that assumption. InfoGroup, on the other hand, did not reasonably fulfill its responsibility for ensuring timely delivery. The solicitation informed offerors that proposals were to be received in room 5301. InfoGroup failed to list the room number on the proposal package and this, as the record shows, led to the courier's inability to deliver the package. In this regard, as noted above, FedEx states in a September 9 letter sent to the protester in connection with this protest that the courier was unable to deliver the proposal package on August 13 due to the absence of a room number on the package. We note that this explanation is consistent with the courier's attempts to contact the contracting officer while he was in the DOT building on August 13. (InfoGroup Inc., B-294610, September 30, 2004) (pdf)

The dispositive question here is when Immediate’s president relinquished control of its proposal. Even if we agree with the protester that Immediate’s BAFO was properly logged in by the guard at 2 p.m., Immediate’s president retained control of the proposal after the guard signed for the package, because the president (not the guard) delivered the proposal to the contracting specialist. We do not agree with the protester that the brief exchange between the guard and Immediate’s president qualifies as relinquishment of control. See J.C.N. Constr. Co., Inc., B-250815, Feb. 23, 1993, 93-1 CPD ¶ 166 at 3. Since Immediate’s president did not relinquish control of the BAFO until 2:14 p.m., after the time set for the receipt of BAFOs, to the contract specialist, its BAFO was properly rejected as late. (Immediate Systems Resources, Inc., B-292856, December 9, 2003)  (pdf)

In the context of negotiated procurements, such as the one at issue here, there is, of course, no bid opening and thus no requirement that a government official announce when the time for receipt of submissions has arrived. However, just as we believe that it would have been reasonable for a government official, had this been a sealed bid acquisition, to announce bid opening at any point between 14:00:00 and 14:00:59, we believe that the RFP’s reference to a closing time of 14:00 hours could reasonably be interpreted either as requiring that proposals be received by 14:00:00, or as requiring that they be received by 14:00:59. To the extent that is viewed as an ambiguity in the solicitation, it was one that was obvious from the face of the RFP, and we have repeatedly held that an offeror who chooses to compete under a patently ambiguous solicitation does so at its peril and cannot later complain when the agency proceeds in a manner inconsistent with one of the possible interpretations. Wackenhut Servs., Inc., B‑276012.2, Sept. 1, 1998, 98‑2 CPD ¶ 75 at 5.  The protester contends that the fact that the RFP referenced the closing time for receipt of the part 1 proposals as “14:00:00” indicates that the agency intended the reference to “1400 hours” in the instructions for receipt of part 2 proposals to be interpreted as 14:00:00. This argument is not persuasive. It could be argued equally reasonably that the agency’s dropping of the zeroes in the seconds place in the time specified for receipt of part 2 proposals signified that it did not intend that reference to be interpreted as 14:00:00. Accordingly, if the record establishes that Gray’s proposal was received prior to 14:01:00, we think that the agency need not have rejected it as late.  Turning then to our second question, we think that the record here establishes that Gray’s proposal was received by the agency prior to 14:01:00. A proposal is received at the time that the offeror relinquishes control of it to the government. See Weeks Marine, Inc., B-292758, Oct. 16, 2003, 2003 CPD ¶ __; Carothers Constr., Inc., B-235910, Oct. 11, 1989, 89-2 CPD ¶ 338 at 4. Gray’s messenger relinquished control of Gray’s proposal package to the designated contracting official by placing it on her desk in her presence, which, according to the contracting official’s uncontroverted statement, occurred prior to the time/date stamp clock turning to 14:01. The fact that the contracting official may not have picked up the package prior to 14:01 is irrelevant since an individual may gain effective control over an item without actually taking it into his or her hands. The case cited by the protester for the proposition that an offeror does not relinquish control of its proposal by placing it on a desk in the opening room, George W. Kane, Inc., B-245382.2, Feb. 4, 1992, 92-1 CPD ¶ 143, is distinguishable from the case at hand. In the Kane case, no government official was present at the desk at the time the bidder placed its bid on it; thus, placing the bid on the desk did not transfer it to the control of an appropriate government official. (The Haskell Company, B-292756, November 19, 2003) (pdf)

Improper government action in this context is affirmative action that makes it impossible for the offeror to deliver the proposal on time. Id. Nevertheless, even in cases where the late receipt may have been caused, in part, by erroneous government action, a late proposal should not be considered if the offeror significantly contributed to the late receipt by not acting reasonably in fulfilling its responsibility to deliver a hand-carried proposal to the proper place by the proper time. Integrated Support Sys., Inc., B-283137.2, Sept. 10. 1999, 99-2 CPD ¶ 51 at 2. Here, as explained below, we find no basis to conclude that improper government action was the paramount cause for the late submission of O.S.’s proposal. Even conceding that USSOCOM may have complicated delivery of hand-carried proposals by not including more explicit instructions in the RFP and by designating a location with restricted access for receipt of proposals, the record evidences that the delivery driver contributed significantly to the late delivery of the proposal. Indeed, the record indicates that the main reason that the proposal was received late was because the delivery driver was unfamiliar with the exact address on MacDill AFB, and decided to make another delivery first and then to attempt to find the filing location unaided, rather than seeking advice concerning the address and location of the contracting officer immediately upon entering the facility. It was only after this effort proved unsuccessful that the delivery driver attempt to contact the contracting officer (just prior to 2 p.m.), and to seek the assistance of other personnel, including those in the mailroom at the designated address.[3] The delivery driver ultimately was able to deliver the proposal to the contracting officer, albeit 30 minutes after the designated time for receipt of proposals, which evidences that the delivery driver could have delivered the proposal to the proper place at the proper time if he had more prudently utilized his time upon entering the facility. Thus, we find that the delivery driver significantly contributed to the late receipt of O.S.’s proposal, and that improper government action was not the paramount cause of its late receipt.  (O.S. Systems, Inc., B-292827, November 17, 2003)  (pdf)

As a general matter, offerors may use any transmission method authorized by the solicitation. Federal Acquisition Regulation (FAR) § 15.208(a). Here, the RFP incorporated by reference FAR § 52.215-1, which provides in pertinent part as follows:  "Unless other methods (e.g., electronic commerce or facsimile) are permitted in the solicitation, proposals and modifications to proposals shall be submitted in paper media . . . ."  FAR § 52.215-1(c)(1). The solicitation nowhere authorized the use of electronic methods of submission, and in fact clearly contemplated submission in paper form. See RFP § A2 (listing the mailing address for offers and instructions for hand delivery). Accordingly, since the RFP did not authorize submission of offers by e-mail or other electronic methods, NSF properly rejected IBS's electronically submitted FPR. See Environmental Control Div., Inc., B-255181, Feb. 16, 1994, 94-1 CPD ¶ 115 at 4 (facsimile best and final offer (BAFO) was properly rejected where RFP did not provide authorization for facsimile submissions); G.D. Searle & Co., B-247077, Apr. 30, 1992, 92-1 CPD ¶ 406 at 3.  In any event, even if the RFP had authorized electronic submission of offers, the record shows that at the submission deadline--10:30 a.m., March 13--NSF's server had received only the technical portion of IBS's proposal. Two minutes after the deadline, NSF's server received the remaining cost portion.[1] Proposals received after the exact time specified for receipt of proposals are late and will not be considered by the government unless the exceptions outlined in FAR § 15.208(b)(1) apply. PMTech, Inc., B-291082, Oct. 11, 2002, 2002 CPD ¶ 172 at 2.  Nothing in the record suggests that those exceptions apply here. Thus, NSF was under no obligation to consider the submission it received at 10:30 a.m. because that submission was missing a material portion. Cyber Digital, Inc., B-270107, Jan. 24, 1996, 96-1 CPD ¶ 20 at 4. (Integrated Business Solutions, Inc., B-292239, July 9, 2003)

We have always viewed the underlying policy for application of the late proposal rules as ensuring fair and equal competition and avoiding confusion. See, e.g., Phelps-Stokes Fund, B‑194347, May 21, 1979, 79-1 CPD ¶ 366 at 5 (prior to Abt); see also PMTech, Inc., B‑291082, Oct. 11, 2002, 2002 CPD ¶ 172 at 3. Given that HHS had received, by means specifically authorized by the RFP, a complete copy of Tishman's proposal prior to the time set for receipt of proposals, we fail to see how the late proposal rule or policy would be violated by consideration of Tishman's proposal.  HHS argues that consideration of Tishman's proposal would reflect an unequal treatment of those offerors that were able to timely submit both an electronic and paper version of its proposals. HHS neglects, however, to consider that such “unequal treatment,” as asserted by the agency here, is not material nor does it present any possibility that Tishman could obtain competitive advantage over other offerors, given that it undeniably submitted a proposal by the closing time. Rather, as we found in Abt, the protester's failure to timely deliver more than one complete copy of its proposal is nothing more than a minor informality. Moreover, contrary to HHS's suggestion, since no one denies that Tishman's electronic proposal was timely submitted and was identical to its paper proposal, there is nothing that indicates any possible confusion.  (Tishman Construction Corporation, B-292097, May 29, 2003)

It is the contracting agency's right to determine when the negotiation and offer stage of a procurement is finished, and an offeror has no legal right to insist that negotiations be reopened after final proposal revisions have been submitted. Independent Bus. Servs. Inc., B-235569.3, Nov. 2, 1989, 89-2 CPD ¶ 413 at 3. The record shows that more than 2 months after submission of final proposal revisions Dismas requested a site change on the basis that its proposed site was unavailable and had been sold to another party. Nothing in the record suggests that the agency acted unreasonably or in a way inconsistent with the solicitation in deciding not to accept Dismas's proposal revision.  A late proposal modification may be accepted only if the late modification makes the terms of an otherwise successful proposal more favorable to the government. Environmental Tectonics Corp., B-225474, Feb. 17, 1987, 87-1 CPD ¶ 175 at 4. Here, notwithstanding the statement in the agency report that Dismas was “apparently in line for award,” there is nothing in the contemporaneous evaluation record showing that the agency had concluded that the Dismas revised proposal was the “otherwise successful” proposal. Since, as the agency report to our Office indicates, a recommendation concerning Dismas “was being reviewed,” it is not clear from the record which offeror was actually in line for award based on revised proposals. The documents referred to by the agency in its report do not identify any “otherwise successful” proposal. Agency Report, Tab 9B. More importantly, at the time Dismas requested the site change, its revised proposal was no longer acceptable because its proposed facility was no longer available. Thus, under these circumstances, the RFP provision cited by Dismas does not provide a basis to accept Dismas's request for a site change.  (Dismas Charities, Inc. , B-291868, April 23, 2003)  (pdf)

Here, the RFQ's call for “technical proposals” due on the next business day may well have been objectionable in other circumstances.  In the context of the unique facts of this case, however, we do not find the agency's actions to be objectionable.  During a telephonic hearing that our Office conducted, Warden admitted that it could have timely prepared and submitted the requested technical proposal; instead, according to the protester, the critical issue was the medium of submission, not its ability to prepare a technical proposal in the limited time.  Warden apparently believed that it could prepare and submit its proposal by the deadline, if the agency would accept e-mail submission.  Warden was unwilling, however, to fax its proposal (as the contracting officer suggested) because it was concerned that even if transmission began before 1 p.m., the last faxed page might not be received by 1 p.m.  Warden did not raise this concern about facsimile transmission with the SBA during the September 30 telephone calls, and concedes that it probably could have faxed the proposal before 1 p.m., although it would have been close to that deadline.  Furthermore, the contracting officer stated during the telephonic hearing that she would have stood by her offer to accept the facsimile of Warden's submission.  Warden's company personnel nevertheless decided to file a protest instead.  In other words, Warden could have made a timely submission to the contracting agency, but instead chose not to.  (Warden Associates, Inc., B-291440; B-291440.2, December 27, 2002)

Sea Box does not dispute that its proposal could not be accepted under the first exception, FAR § 52.215-1(3)(ii)(A)(1), since it was not transmitted by 5:00 p.m. the working day before the due date. See PMTech, Inc., B-291082, Oct. 11, 2002, 2002 CPD ¶ __ at 2-3 (electronic proposal transmitted 13 minutes prior to deadline for submitting proposals properly rejected). Sea Box argues, however, that its proposal nevertheless could be accepted under the second exception, FAR § 52.215-1(3)(ii)(A)(2).  While the second exception may be broad enough to encompass situations involving electronic commerce delivery methods, we do not read the regulation as providing two alternative means for determining whether a late electronically transmitted proposal may be accepted. The first exception applies, by its express terms, to situations where a proposal has been submitted by an electronic commerce method, and unqualifiedly permits such a late proposal to be considered for award only if it was received at the initial point of entry to the government infrastructure no later than 5:00 p.m. the preceding working day. Although not expressly stated in the regulation, we think the second exception necessarily applies only to proposals delivered by other than electronic means. This is so because, under the protester's alternative interpretation, late electronically transmitted proposals could be considered for award under the second exception whether or not they were received at the initial point of entry by the preceding working day; this would essentially render the first exception a nullity. Since the first exception expressly applies to electronically transmitted proposals, there is no reason to assume that such a result was intended. Moreover, such an interpretation would be inconsistent with the fundamental principle that statutes and regulations must be read and interpreted as a whole, thereby giving effect to all provisions. See Waste Mgmt. of North Am., B-225551, B-225553, Apr. 24, 1987, 87-1 CPD P: 435 at 5. We conclude that the two exceptions are complementary, each addressing the circumstance of a late proposal, depending upon the method of proposal submission. Since Sea Box's electronically transmitted proposal was received at the specified e-mail destination after the time set for receipt of proposals, it is a late proposal; since it was not received at the initial point of entry by 5:00 p.m. the day before proposals were due, the late proposal cannot be considered for award.  (Sea Box, Inc., B-291056, October 31, 2002)  (pdf)

We view it as an offeror's responsibility, when transmitting its proposal electronically, to ensure the proposal's timely delivery by transmitting the proposal sufficiently in advance of the time set for receipt of proposals to allow for timely receipt by the agency.  In our view, the record shows that the primary cause of PMT's late delivery of its electronic proposal was that PMT delayed attempting to transmit its proposal until only 13 minutes before the time set for the receipt of proposals.  An offeror's responsibility to deliver its proposal to the proper place at the proper time includes allowing a reasonable amount of time for the delivery of the proposal.  Thus, we have found that where an offeror delayed transmitting a lengthy facsimile best and final offer until 10 minutes prior to the closing deadline, and the agency otherwise had reasonable facsimile submission procedures in place, the late receipt of the offeror's facsimile transmission was the fault of the offeror and not the government.  See Brookfield Dev., Inc. et al., B-255944, Apr. 21, 1994, 94-1 CPD ¶ 273 at 3; see also Cyber Digital, Inc., supra, at 4 (late receipt of facsimile transmission of best and final offer was offeror's fault where offeror waited until 30 minutes before the closing time to request an extension, which was denied, and thereafter transmitted the proposal).  (PMTech, Inc., B-291082, October 11, 2002)  (pdf)

We do not think the agency was required to anticipate that faxing would make the intended due date unclear such that potential offerors could be misled.[³] We note in this regard that agencies are not guarantors that solicitation documents will be received by offerors in every instance--the risk of nonreceipt rests with offerors. Chem-Fab Corp., B-277795, Oct. 27, 1997, 97-2 CPD ¶ 120. It follows, we think, that agencies are not guarantors that information sent by fax will be accurately printed by an offeror's fax machine. We conclude that the agency properly rejected Centro's offer as late.  (Centro Management, Inc., B-287107, March 9, 2001)

The timeliness of SRC's proposal turns solely on the sequence of two events--the contracting officer's time-stamping of the sheet of paper at 4:01, and the protester's arrival in Suite 100. If SRC arrived prior to the time-stamping, its proposal was timely submitted, since the contracting officer used the time-stamping to signify that the closing time had passed; [4] if the protester's delivery of its proposal occurred after the sheet of paper was time-stamped, it was late. The most probative evidence of the sequence of these events is the statement of the daughter, who undisputedly was actually in Suite 100 during the entire time in question, and was the only person who saw both the contracting officer time-stamp the piece of paper at 4:01, and SRC deliver its proposal. As noted, the daughter states that she observed the contracting officer and chief return from the porch and time-stamp the sheet of paper, and that it was not until after this happened, and the agency officials left Suite 100, that she observed SRC's representative enter with the firm's proposal.  (States Roofing Corporation, B-286052, November 8, 2000)

Here, the contracting officer denies that the agency received the protester's quote, and the protester's facsimile transmission report is inadequate, by itself, to establish receipt by the agency. This is so because our Office does not regard a transmission record within the protester's control, such as this one, to be definitive evidence of transmission, since such a record can be created or altered to support a protester's contention.  (W&W Logistics, B-283998, December 30, 1999)

Agency reasonably rejected protester's hand-delivered proposal as late where the protester significantly contributed to the late receipt of the proposal by failing to allow sufficient time for timely delivery of the proposal.  (Integrated Support Systems inc, B-283137.2, September 10, 1999)

1. Place and time of proposal delivery.

Castle-Rose argues that the solicitation was ambiguous as to the location to which hand-delivered proposals had to be delivered and that “the place for submission of hand-carried [c]ompetitive [p]roposals in response to the [s]olicitation was . . . the first-floor lobby of . . . 4735 East Marginal Way South.” Pl.’s Br. at 11-12. Item eight of the solicitation specified that “[h]and[-]carr[ied]” offers should be brought to “Seattle District, USACE[;] 4735 E. Marginal Way South.” AR 15-92. Correspondingly, item nine of the solicitation specified, “Sealed offers . . . will be received at the place specified in Item 8, or if hand[-]carried, in the depository located in Contracting Division, 2nd Floor, Col C-5 until 2:00 PM local time July 7, 2010.” AR 15-92. Castle-Rose maintains that, because it was the practice of the Corps to accept proposals in the lobby of the building, all that should have been required of its courier was reaching the lobby of 4735 E. Marginal Way by 2:00 p.m., in accord with the requirement of item eight. However, items eight and nine of the solicitation must be read together. Castle-Rose was required to deliver the proposal to the second floor of 4735 E. Marginal Way, although F.A.R. § 15.208(b)(1)(ii) would permit the proposal to be turned over to a government official in the lobby. However, the government was not obliged to accept proposals in the lobby.

Notwithstanding whether the courier had to physically turn over Castle-Rose’s proposal to the government by 2:00 p.m. or merely reach the lobby by 2:00 p.m., Castle-Rose has failed to establish the single fact crucial to its success in this case — that its courier arrived in the lobby on time.

Castle-Rose maintains its courier arrived in the lobby before 2:00:59 p.m. and argues that the decision by GAO in Haskell Co., B-292756, 2003 CPD ¶ 202, 2003 WL 22740610 (Comp. Gen. Nov. 19, 2003), supports the argument that a proposal due at “2:00 p.m.” is not late until after 2:00:59 p.m. In Haskell, a protestor challenged an award to its competitor, arguing that the competitor’s proposal should have been rejected as late. 2003 WL 22740610, at *1. The solicitation had stated that the deadline for receipt of proposals was 2:00 p.m., and the challenged award had been granted to a proposal accepted between 2:00:00 p.m. and 2:00:59 p.m. Id., at *2. Haskell held,

[T]he [Request for Proposal]’s reference to a closing time of 14:00 hours could reasonably be interpreted either as requiring that proposals be received by 14:00:00, or as requiring that they be received by 14:00:59. To the extent that is viewed as an ambiguity in the solicitation, it was one that was obvious from the face of the [Request for Proposal], and we have repeatedly held that an offeror who chooses to compete under a patently ambiguous solicitation does so at its peril and cannot later complain when the agency proceeds in a manner inconsistent with one of the possible interpretations. . . . Accordingly, if the record establishes that [the allegedly late] proposal was received prior to 14:01:00, we think that the agency need not have rejected it as late.

Id., at *3. Haskell explains that a 2:00 p.m. deadline could reasonably be interpreted as either 2:00:00 p.m. or 2:00:59 p.m. Because either deadline is reasonable, Haskell does not stand for the proposition that the government must hold open a 2:00 p.m. solicitation period until 2:00:59 p.m., but rather that it may.

But regardless of whether a proposal arriving during the specified minute of a relatively precise deadline is late, Castle-Rose’s position that the courier arrived before 2:01 p.m. is unsupported by the facts in the administrative record. Ms. Frees, the procurement technician, avers that she left the lobby when the lobby clock struck 2:00 p.m. and that she received the phone call from the security guard to meet with Castle-Rose’s courier, Mr. Kessler, at 2:06 p.m. AR 2.3-9 (Frees Mem.). The boxes in which the proposals arrived were marked as arriving at 2:06 p.m. as well. See AR 3.1-10 to 3.6-15. There is no evidence in the administrative record supporting the claim that Mr. Kessler arrived before 2:00:59 p.m. other than hearsay. Mr. Smith wrote in emails, “[W]e were [told] by our bid runner — he was inside the building at the bid due time.” AR 4.2-20; see also AR 4.2-19 (“[The courier’s] version of events is that he was inside the door at bid time.”).

Ms. Frees states she was called from the lobby at 2:06 p.m. and received Castle-Rose’s proposal at that time. When the proposal was brought to Mr. Britt’s desk, he marked the proposals as “LATE.” See AR 2.1-6; AR 3.1-10 to 3.6-15. Mr. Britt determined that the proposal had arrived late. Given the facts in the administrative record, the court cannot say that this determination was an error in judgment. Castle-Rose bears the burden of showing its proposal arrived on time and that the Corps should have determined its arrival was timely. Based on the factual record in hand, Castle-Rose has failed to meet this burden.

2. Government-control exception.

Castle-Rose relatedly contends that the “government control” exception of F.A.R. § 15.208(b)(1) indicates that its proposal should have been evaluated. This regulatory provision states, in pertinent part:

Any proposal . . . that is received at the designated [g]overnment office after the exact time specified for receipt of proposals is “late” and will not be considered unless it is received before award is made, the contracting officer determines that accepting the late proposal would not unduly delay the acquisition; and . . . [t]here is acceptable evidence to establish that it was received at the [g]overnment installation designated for receipt of proposals and was under the [g]overnment’s control prior to the time set for receipt of proposals.

F.A.R. § 15.208(b)(1)(ii); see also F.A.R. § 52.215-1(c)(3)(ii)(A) (same).

Castle-Rose argues that the proposal was “received” and “under the [g]overnment’s control prior to the time set for receipt of proposals.” Pl.’s Br. at 40. As explained in the previous section, there is not sufficient evidence that Castle-Rose’s courier, Mr. Kessler, arrived at the lobby before 2:01 p.m., and Castle-Rose’s argument that the proposal was received before 2:01 p.m. resultingly fails.

However, even if Castle-Rose’s courier had arrived on time, Castle-Rose’s argument regarding the government-control exception still fails to be persuasive. Castle-Rose avers that the court should find the proposal was under government control the moment Mr. Kessler stepped into the lobby. Castle-Rose cites no law or precedent supporting the proposition that a proposal can be under government control while it physically remains in the hands of the bidder. To the contrary, “[i]n non-electronic commerce cases, the GAO has determined that the [g]overnment receives a bid at the time the bidder relinquishes control.” Watterson Constr. Co. v. United States, __ Fed. Cl. __, __, 2011 WL 1137330, at *6 (Mar. 29, 2011) (citing Weeks Marine, Inc., B- 292758, 2003 CPD ¶ 183, 2003 WL 22383046 (Comp. Gen. Oct. 16, 2003)). To “relinquish control” of a hand-delivered proposal, the offeror must permanently transfer control of the proposal to the government. See Immediate Sys. Res., Inc., B-292856, 2003 CPD ¶ 227, 2003 WL 22922370, at *3 (Comp. Gen. Dec. 9, 2003); Weeks Marine, 2003 WL 22383046, at *3.

Castle-Rose’s courier did not relinquish control of the proposal until 2:06 p.m., past the deadline for receipt of proposals. Had Castle-Rose’s courier given its proposal to the guard when he entered the lobby, the result of this analysis might have been different. But under the facts before the court, Castle-Rose cannot rely on the government control exception to prevail.

3. Unanticipated-events exception.

Castle-Rose also argues its proposal should be considered under the “unanticipated events” exception to the late-is-late rule. F.A.R. § 15.208(d) provides, “If an emergency or unanticipated event interrupts normal [g]overnment processes so that proposals cannot be received at the [g]overnment office designated for receipt of proposals by the exact time specified in the solicitation, and urgent [g]overnment requirements preclude amendment of the solicitation closing date, the time specified for receipt of proposals will be deemed to be extended.” See also F.A.R. § 52.215-1(c)(3)(iv). This exception “focuses upon whether unforeseen events prevent the government from receiving proposals at the site designated, not on whether unforeseen events prevent the offeror from transmitting its proposal.” Conscoop-Consorzia Fra Coop. Di Prod. E Lavoro v. United States, 62 Fed. Cl. 219, 241 (2004), aff’d, 159 Fed. Appx. 184 (Fed. Cir. 2005). Castle-Rose contends that Ms. Frees’ leaving the lobby when the clock struck 2:00 p.m., rather than at 2:00:59 p.m., was an “unanticipated event.” See Pl.’s Br. at 43-44.

Ms. Frees’ leaving the lobby at 2:00 p.m. would be expected and reasonable when she was sitting in the lobby to collect proposals which were due at 2:00 p.m. See Haskell Co., 2003 WL 22740610, at *3 (“[A] closing time of 14:00 hours could reasonably be interpreted either as requiring that proposals be received by 14:00:00, or as requiring that they be received by 14:00:59.”). Additionally, F.A.R. § 15.208(d) only applies when “urgent [g]overnment requirements preclude amendment of the solicitation closing date.” There is no indication, nor has Castle-Rose argued, that urgent requirements precluded amendment of the solicitation. As a result, Castle-Rose cannot succeed in applying the “unanticipated events” exception.

4. Improper-government-action exception.

Finally, Castle-Rose alleges that improper government action caused Castle-Rose’s timing of delivery. When “improper government action was the paramount cause for the late submission, and where consideration of the proposal would not compromise the integrity of the competitive process,” a late, hand-carried proposal may be considered for a contract award. ALJUCAR LLC, B-401148, 2009 CPD ¶ 124, 2009 WL 1588827, at *2 (Comp. Gen. June 8, 2009); see also Shirlington Limousine, 77 Fed. Cl. at 168-69. Improper government action is “affirmative action that makes it impossible for the offeror to deliver the proposal on time.” ALJUCAR, 2009 WL 1588827, at *2; see also Shirlington Limousine, 77 Fed. Cl. at 170 (citing Hospital Klean of Tex., Inc. v. United States, 65 Fed. Cl. 618, 622-24 (2005)). The government’s action does not qualify as the “paramount” cause for late submission where “the offeror or its agent contributed significantly to the late receipt by not acting reasonably in fulfilling its responsibility to deliver a hand-carried proposal to the proper place by the proper time, even though late receipt may have been caused in part by erroneous government action.” Shirlington Limousine, 77 Fed. Cl. at 169 (quoting Hospital Klean, 65 Fed. Cl. at 622) (internal quotation marks omitted).

Castle-Rose claims that a 2:00 p.m. deadline is really a 2:00:59 p.m. deadline and that it was improper for Ms. Frees to leave the lobby of the building before 2:00:59 p.m. Ms. Frees was not under any legal obligation to wait in the lobby to accept proposals. Although the government concedes that it is standard practice for one of its employees to accept hand-delivered proposals in the lobby near the proposal deadline, Ms. Frees’ stated decision to leave the lobby when the clock struck 2:00 p.m. cannot be deemed “improper.” Indeed, Ms. Frees did not have to be standing in the lobby at all because the terms of solicitation specified that proposals had to be delivered to the second floor of 4735 E. Marginal Way South, not to the lobby.  (Castle-Rose, Inc. v. U. S., No. 11-163C, June 28, 2011) (pdf)

1. Whether Plaintiff’s March 16, 2010 E-Mail Proposal Was “Late.”

a. The Plaintiff’s Argument.

The Army Corps’ March 12, 2010 Amendment No. 0009 provided that phase 2 revisions were “due on March 16, 2010 at 12:00 PM [noon] Alaska Time.” AR 288. The Administrative Record evidences that Watterson’s March 16, 2010 e-mail proposal was received by the Army Corps’ server no later than 11:29 a.m., and perhaps as early as 11:01 a.m. AR 412, 416, 419. The fact that it did not arrive in the CO’s e-mail inbox until March 16, 2010 at 12:04 p.m. was not Watterson’s fault. Pl. Mot. at 14-15; Pl. Rep. at 3.

In non-electronic commerce cases, the GAO has determined that the Government receives a bid at the time the bidder relinquishes control. See Weeks Marine, Inc., B-292758, 2003 CPD ¶ 183 (Comp. Gen. Oct. 16, 2003) (“[I]n order for the government to receive a bid, a bidder must relinquish control of the bid to the government (i.e., by transferring it to an appropriate official or by placing it in [an] officially designated location for the submission of bids such as a bid depository box).”). Accordingly, if Watterson’s proposal had been sent “by regular mail and received at the designated Army Corps P.O. Box by the deadline or had Watterson’s proposal been sent by express mail and arrived at the designated street address by the deadline, those proposals would have been considered timely[,] even though they had not arrived at [the CO’s] desk by the appointed time.” Pl. Mot. at 12 n.15.

Watterson argues that the “designated office” in this case either was the CO’s physical Post Office Box address or the CO’s e-mail address. Pl. Rep. at 3 (citing AR 14-15, 269-70, 366). Watterson also emphasizes that there was no express requirement in the Solicitation that the CO actually receive proposals by March 16, 2010 at 12:00 p.m. Pl. Mot. at 11. Sending an e-mail proposal to the Army Corps designated e-mail address was analogous to an offeror’s placing a proposal in a depository box or a P.O. Box, rendering actual possession by the CO unnecessary for the bid to be timely. Pl. Mot. at 12, 14; see also California Marine Cleaning v. United States, 42 Fed. Cl. 281, 297 (1998) (“A timely bid does not become late simply because the [G]overnment overlooks the bid in a bid box . . . .”). Therefore, whether the CO in this case could physically access the e-mail bid is irrelevant, because the proper inquiry is to ascertain when the offeror relinquished control over the proposal. Pl. Mot. at 15-16 (citing Haskell Co., B-292756, 2003 CPD ¶ 202 (Comp. Gen. Nov. 19, 2003) (“A proposal is received at the time that the offeror relinquishes control to the [G]overnment. . . . [The offeror’s] messenger relinquished control of [the offeror’s] proposal package to the designated contracting official by placing it on her desk in her presence. . . . The fact that the contracting official may not have picked up the package [until one minute after the deadline] is irrelevant since an individual may gain effective control over an item without actually taking it into his or her hands.”)); see also Matter of Leland and Melvin Hopp, B-211128, 84-2 CPD ¶ 410 (Comp. Gen. Feb. 15, 1984) (“[A]lthough the . . . bid [previously stored in the Agency’s locked safe] was not discovered until after bid opening, it was timely received and was not a late bid.”).

b. The Government’s Response.

The Government’s response is that the “Government office designated in the solicitation” was the CO’s office or the CO’s e-mail inbox. Gov’t Mot. at 10; AR 380. Since Watterson’s e-mail proposal was not delivered to the CO’s e-mail inbox until 12:04 p.m., it was late. Gov’t Mot. at 11. Delivery to an agency’s gateway server is not analogous to depositing a proposal in a designated box, because the CO could not see or access the proposal until it physically was delivered to the CO’s e-mail inbox. Gov’t Resp. at 3.

c. The Court’s Resolution.

The threshold issue in this case is whether Watterson’s revised proposal was late. FAR 52.215-1(c)(3)(i-ii), the governing regulation, provides:

Offerors are responsible for submitting proposals, and any modifications or revisions, so as to reach the Government office designated in the solicitation by the time specified in the solicitation. . . . Any proposal, modification, or revision, received at the Government office designated in the solicitation after the exact time specified for receipt of offers is “late” and will not be considered . . . .

48 C.F.R. § 52.215-1(c)(3)(i)-(ii) (emphasis added)

Therefore, to ascertain whether a proposal is “late,” the court must determine: what is the “Government office designated in the solicitation”; what time the solicitation specified; and whether the proposal “reached” or was “received” by the designated Government office in specified time. Id.

As to the first element, the July 27, 2009 RFP provided that proposals “will be received until the date and time specified” at either a P.O. Box address or a physical street address. AR 14-15. The RFP did not encourage hand delivery because of “heightened security.” AR 14. Significantly, the RFP anticipated that at least the date and time could change by “subsequent amendment.” AR 14. Amendments 0001-0006 made no changes to the designated Government office. AR 231-57. On August 17, 2009, however, Amendment 0007 provided that revised proposals could be submitted either by express mail delivery to a physical street address or to the CO’s e-mail, Donna.[x.xxxx]@usace.army.mil. AR 263. The cover letter to Amendment 0008 provided: “Please submit your response no later than February 19, 12:00 p.m., Alaska time to the attention of Donna [xxxx] by e-mail to Donna.[x.xxxx]@usace.army.mil.” AR 283. The cover letter did not indicate that offerors could submit proposals by methods other than e-mail. Id. Amendment 0009 did not change the instructions of Amendment 0008 other than to provide: “Please mark the outside of envelope which proposal is submitted to show Amendments received.” AR 288. This could be read to suggest that proposals be sent to the physical address in an envelope, although an e-mail proposal could contain the required acknowledgment of the Amendment, suggesting that an e-mail response would be acceptable. The cover letter to Amendment 0009 was an e-mail. AR 383. Since neither Amendment 0009 nor its cover letter changed the prior instructions in Amendment 0007 to send revised proposals to the CO’s e-mail address, the court has determined that the “Government office designated in the solicitation,” as amended, was the CO’s e-mail address.

As to the second element, there is no dispute that the “time specified in the solicitation,” as amended, was March 16, 2010 at 12:00 p.m., Alaska Time. AR 288.

As to the third element, i.e., whether the proposal “reached” or was “received” at the designated Government office within the specified time, the United States Court of Federal Claims has considered the timeliness of proposals in two other cases. See Conscoop–Consorzia Fra Cooperative Di Prod. E Lavoro v. United States, 62 Fed. Cl. 219, 238 (2004), aff’d 159 Fed. Appx. 184 (Fed. Cir. 2005); California Marine Cleaning, 42 Fed. Cl. at 298. Neither these cases, nor any precedent of the United States Court of Appeals for the Federal Circuit, has reconciled the text in FAR 52.215-1(c)(3)(i-ii) that first speaks to a proposal being sent “so as to reach the Government office,” but subsequently uses the phrase “received at the Government office.” The verb “reach” is defined as “to arrive at.” MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 1035 (11th ed. 2003). In contrast, “received” means “to come unto possession of.” Id. at 1038. In any case, the distinction between “reach” and “receive” is not dispositive, because the proposal was both reached and received by the Government’s e-mail servers before the due date. AR 412, 414, 417. Therefore the proposal reached the Government office designated in the Solicitation by the time specified therein. Accordingly, the court has determined that Watterson’s March 16, 2010 proposal submitted by e-mail was not late.

2. Assuming, Arguendo, That Plaintiff’s March 16, 2010 E-Mail Proposal Was Late, Whether FAR 52.215-1(c)(3)(ii) Excuses That Lateness.

a. The Plaintiff’s Argument.

Assuming, arguendo, that Watterson’s e-mail proposal was late, Watterson argues that it should have been excused under the “Government Control” exception set forth in FAR 52.215-1(c)(3)(ii)(A)(2), despite the fact that the GAO previously has determined that the “Government Control” exception does not apply to e-mail proposals.  Pl. Mot. at 30. Watterson contends that these GAO decisions disregard the plain meaning of FAR 52.215-1(c)(3)(ii)(A), because either the “Electronic Commerce” exception or the “Government Control” exception may be applied to electronic proposals. Pl. Mot. at 22.

Watterson asserts that the regulatory history of the late proposal exceptions in the FAR support this reading. Pl. Mot. at 19. Specifically, in 1995, the FAR regulations governing late proposals were located in 48 C.F.R. § 52.215-10. See 54 FED. REG. 48,978, 48,994 (Nov. 28, 1989), 60 FED. REG. 34,735, 34,738 (July 3, 1995) (codified at 48 C.F.R. § 52.215-10). At that time, the FAR recognized five exceptions that excused late proposals, including an “Electronic Commerce” exception and an “Only Proposal” exception.
Id. Each of these exceptions was tied to a specific method of delivery, except for the “Only Proposal” exception. Id.

In 1997, the so-called “Late Proposal Rule” was moved from 48 C.F.R. § 52.215-10 to 48 C.F.R. § 52.215-1(c)(3). See 62 FED. REG. 51,223, 51,259-51,260 (Sept. 30, 1997). The 1997 version, set forth below in its entirety, included all of the five pre-1997 exceptions and added a “Government Control” exception (E):

(i) Any proposal received at the office designated in the solicitation after the exact time specified for receipt of offers will not be considered unless it is received before award is made and—

(A) It was sent by registered or certified mail not later than the fifth calendar day before 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);

(B) It was sent by mail (or telegram or facsimile, if authorized) or hand-carried (including delivery by a commercial carrier) if it is determined by the Government that the late receipt was due primarily to Government mishandling after receipt at the Government installation;

(C) It was sent by U.S. Postal Service Express Mail Next Day Service-Post Office to Addressee, not later than 5:00 p.m. at the place of mailing two working days prior to the date specified for receipt of proposals. The term "working days" excludes weekends and U.S. Federal holidays;

(D) It was transmitted through an electronic commerce method authorized by the solicitation and was received at the initial point of entry to the Government infrastructure not later than 5:00 p.m. one working day prior to the date specified for receipt of proposals; or

(E) There is acceptable evidence to establish that it was received at the activity designated for receipt of offers and was under the Government's control prior to the time set for receipt of offers, and the Contracting Officer determines that accepting the late offer would not unduly delay the procurement; or

(F) It is the only proposal received.

Id.

The 1997 version of the FAR provided four “safe harbor” provisions applicable to five delivery methods, i.e., hand-delivery, facsimile, telegram, certified or registered mail, and electronic commerce. Pl. Mot. at 19; 62 FED. REG. at 51,259-51,260. In addition, the “Government Control” exception and the “Only Proposal” exception were intended to be applicable regardless of the method of delivery. Pl. Mot. at 19; 62 FED. REG. at 51,259-51,260. Therefore, Watterson reasons that if Sea Box were correct that the “Government Control” exception only applies in the absence of a “safe harbor” provision, then between 1997 and 1999, the “Government Control” exception would be unnecessary since the FAR contained “safe harbor” provisions for every possible method of delivery. Pl. Mot. at 20; Pl. Rep. at 9. Accordingly, Conscoop-Consorzia, 62 Fed. Cl. 219, and Seabox, B-291056, 2002 CPD ¶ 181 (Comp. Gen. Oct. 31 2002), were wrongly decided, and would have been resolved differently if they had addressed the regulatory history. Pl. Mot. at 23 n.23.

Watterson reads the current version of the FAR to apply the “Electronic Communication” exception to “information on the Proposer’s side of the Government firewall,” while the “Government Control” exception addresses “the risks and available information on the Government’s side of its firewall.”Pl. Mot. at 28.

b. The Government’s Response.

The Government responds that the “Government Control” exception does not apply to proposals submitted by e-mail. Gov’t Mot. at 14-15 (citing Conscoop–Consorzia, 62 Fed. Cl. at 239-40);20
see also Sea Box, B-291056, 2002 CPD ¶ 181 (Comp. Gen. Oct. 31 2002). Therefore, the court should adopt the GAO’s Sea Box construction of the “Government Control” exception, because it does not disregard the plain meaning of the FAR and gives effect to all FAR provisions. Gov’t Rep. at 4. The Government also disputes that the “Government Control” exception was a “dead letter” between 1997 and 1999, because it still applied to non-electronic communications. Id.

c. The Court’s Resolution.

Assuming, arguendo, that Watterson’s e-mail proposal was “late,” FAR 52.215-1(c)(3)(ii)(A)(2) excuses “late” proposals, when there is “acceptable evidence to establish that it was received at the Government installation designated for receipt of offers and was under the Government's control prior to the time set for receipt of offers.” FAR 52.215-1(c)(3)(ii)(A)(2). This exception does not by its express terms exclude proposals submitted by e-mail. Id.

Here, the regulatory history is instructive. See Roberto v. Dep't of Navy, 440 F.3d 1341, 1350 (Fed. Cir. 2006) (when the plain meaning of the regulation is clear, “no further inquiry is required into agency interpretations or the regulatory history to determine its meaning”). As of December 28, 1989, late proposals were governed by FAR 52.215-10, including three exceptions based on the method that the proposal was submitted, and a fourth exception to allow an agency to consider a late proposal, if it was the only proposal received. See 54 FED. REG. 48,978, 48,993 (Nov. 28, 1989) (codified at 48 C.F.R. § 52.215-10).

On December 30, 1993, a FAR amendment was proposed “to remove any barriers to the use of Electronic Data Interchange (EDI)22 in Government Contracting.” 58 FED. REG. 69,588, 69,591 (proposed Dec. 30, 1993) (to be codified at 48 C.F.R. § 52.215-10). Under this rule, late proposals submitted by EDI could be excused either under the “Government Mishandling” or “Only Proposal” exceptions. Id. This amended rule, however, was never promulgated.

On March 6, 1995, another rule was proposed to address “the use of electronic commerce/electronic data interchange in Government contracting.” 60 FED. REG. 12,384, 12,384 (proposed Mar. 6, 1995). This proposed rule would amend FAR 52.215-10 to include an “Electronic Commerce” exception to allow consideration of a late proposal that was “transmitted through an electronic commerce method authorized by the solicitation and was received by the Government not later than 5:00 p.m. one working day prior to the date specified for receipt of proposals.” Id. at 12,389 (to be codified at 48 C.F.R. § 52.215-10). The rule, however, was targeted “to accommodate the use of electronic systems which batch-process communications overnight and therefore, require receipt of information one day in advance to ensure timely delivery to the designated address.” Id. at 12,384 (emphasis added). This proposal was promulgated on July 3, 1995. 60 FED. REG. 34,735, 34,738 (July 3, 1995) (codified at 48 C.F.R. § 52.215-10).

Again, on September 12, 1996, another amendment to the FAR was proposed to allow consideration of proposals received after the agency’s deadline, but only in the discretion of the contracting officer, thereby eliminating the existing “Late Proposal Rule.” 61 FED. REG. 48,380, 48,381 (proposed Sept. 12, 1996). This proposed rule was never promulgated. Instead, during the following year, the “Government Control” exception was added to the FAR as a catch-all provision that was not limited to any specific delivery method:

There is acceptable evidence to establish that it was received at the activity designated for receipt of offers and was under the Government's control prior to the time set for receipt of offers, and the Contracting Officer determines that accepting the late offer would not unduly delay the procurement.

62 FED. REG. 51,224, 51,259-51,260 (Sept. 30, 1997) (codified at 48 C.F.R. § 52.215-1(c)(3)(i)(E)) (emphasis added).

The last time the relevant portion of FAR 52.215-1 was modified was in 1999. In this version, only three exceptions applied to late proposals: the “Electronic Commerce” exception, the “Government Control” exception, and the “Only Proposal” exception.  64 FED. REG. 51,837, 51,841 (Sept. 24, 1999) (codified at 48 C.F.R. § 52.215-1(c)(3)(ii)(A)).

As the regulatory history shows, in all versions of the FAR from late 1995 to the present, the “Electronic Commerce”exception has required that proposals be submitted by 5:00 p.m. on the preceding business day. See 48 C.F.R. § 52.215-1(c)(3)(ii)(A)(1) (2010); 62 FED. REG. 51,224, 51,259-51,260; 60 FED. REG. 34735, 34738. But, the raison d’être was concern about “electronic systems which batch-process communications overnight and therefore, require receipt of information one day in advance to ensure timely delivery to the designated address.” 60 FED. REG. at 12,384.

For e-commerce methods of delivery that are not batch-delivered overnight, nothing in the text of FAR 52.215-1(c)(3)(ii)(A) or the regulatory history prohibits application of the “Government Control” exception, particularly since it was intended to be a general exception to be applied when a delay was caused by Government error. See 64 FED. REG. 51,837 (Sept. 24, 1999) (FAR Councils indicating that the “Government Control” exception is intended “to permit consideration of late offers if the Government mishandled the offer”). Moreover, the “Government Control” exception is not limited to any particular method of delivery. Id.

Today, e-commerce electronic communications are transmitted instantaneously in the ordinary course of business. Accordingly, neither the text of FAR 52.215-1(c)(3)(ii)(A) nor the regulatory history supports a construction that would require an offeror, after relinquishing control of an e-mail proposal, to be responsible for the risk of late delivery when technical problems arise after an e-mail proposal reaches the e-gateway to a designated Government office. For these reasons, the court has determined that, in cases of non-batch delivered electronic commerce, late proposals may be excused under any of the three exceptions in FAR 52.215-1(c)(3)(ii)(A). It is particularly appropriate that the “Government Control” exception be available to offerors where there is “acceptable evidence” to establish that the offeror’s e-mail proposal “was received at the Government installation designated for receipt of offers and was under the Government's control prior to the time set for receipt of offers,” as was the case here. See 48 C.F.R § 52.215-1(c)(3)(ii)(A)(2).

Therefore, assuming, arguendo, that Watterson’s e-mail proposal was late, the court has determined that lateness is excused by the “Government Control” exception in 48 C.F.R § 52.215-1(c)(3)(ii)(A)(2).

3. Assuming, Arguendo, That Plaintiff’s E-Mail Proposal Was Late And FAR 52.215-1(c)(3)(ii)(A)(2) Does Not Excuse That Lateness, Whether Plaintiff Was Entitled To A One-Day Extension Of Time To Submit Its Proposal, Pursuant To FAR 52.215-1(c)(3)(iv).

a. The Plaintiff’s Argument.

Further, assuming arguendo that the “Government Control” exception does not apply, Watterson argues that FAR 52.215-1(c)(3)(iv) would excuse a late e-mail proposal. Pl. Mot. at 31. FAR 52.215-1(c)(3)(iv) provides:

If an emergency or unanticipated event interrupts normal Government processes so that proposals cannot be received at the office designated for receipt of proposals by the exact time specified in the solicitation, and urgent Government requirements preclude amendment of the solicitation, the time specified for receipt of proposals will be deemed to be extended to the same time of day specified in the solicitation on the first work day on which normal Government processes resume.

48 C.F.R. § 52.215-1(c)(3)(iv); see also CFS-INC, JV, B-401809.2, 2010 CPD ¶ 85 (Comp. Gen. March 31, 2010) (allowing the proposal delivery date to be postponed for three days while agency offices were closed due to snow storm).

Watterson contends that the March 16, 2010 “e-mail storm” was an “emergency or unanticipated event” that was sufficiently severe to cause the entire Army Corps e-mail system to “come to a crawl” for “several hours.” Pl. Mot. at 31 n. 38 (citing AR 415, 417).

b. The Government’s Response.

The Government responds that FAR 52.215-1(c)(3)(iv) does not apply, because the e-mail storm was not an “emergency” or “unanticipated event” that “interrupted normal Government processes.” Gov’t Mot. at 11. Instead, this was a situation where an e-mail was “sent to many Department of Defense users, some of whom replied back to everyone on the e-mail’s distribution list.” Gov’t Mot. at 11 (citing AR 415). Nevertheless, assuming that FAR 52.215-1(c)(3)(iv) applies, the text states that “the time specified for receipt of proposals will be deemed to be extended to the same time of day specified in the solicitation on the first work day on which normal Government processes resume.” FAR 52.215-1(c)(3)(iv). Because “normal Government processes” resumed on the same day that the disruption began, the Government insists that proposals were still due on the original due date of March 16, 2010 by 12:00p.m. Gov’t Mot. at 12.

c. The Court’s Resolution.

The GAO has considered the “emergency” or “unanticipated event” exception in a number of cases, usually involving weather emergencies. See, e.g., Hunter Contracting Co., B-402575, 2010 CPD ¶ 93 (Comp. Gen. March 31, 2010) (emergency or unanticipated event exception did not apply to a mailed proposal that was not delivered due to a snow storm, since the Government office was open and receiving proposals at the time the proposals were due); CFS, JV, B-401809.2, 2010 CPD ¶ 85 (Comp. Gen. March 31, 2010) (agency correctly gave only a one-day extension due to snowstorms, because normal Government activity resumed the following day); Educ. Planning & Advice, Inc., B-274513, 96-2 CPD ¶ 173 (Comp. Gen. Nov. 5, 1996) (concluding that emergency or unanticipated event exception did not apply even though State required business to close at noon due to a hurricane, because four bidders successfully submitted bids and the Army was able to proceed with bid opening); Unitron Eng’g Co. Inc., B-194707, 79-2 CPD ¶ 155 (Comp. Gen. Aug. 27, 1979) (emergency exception did not apply to a late delivery, even when a common carrier closed offices due to “an emergency at nearby nuclear electric generating plant,” because mail delivery was normal, other offerors submitted bids, and the agency’s workday was not affected).

The only relevant case concerning e-mail proposal delivery before the United States Court of Federal Claims is Conscoop–Consorzia, 62 Fed. Cl. at 241. In that case, the court held that the “emergency” or “unanticipated event” exception would apply if “normal Government processes” were interrupted. Id. The Administrative Record in that case, however, did not evidence any disruption in the Navy’s electronic mail system. Id.

In this case, however, the Administrative Record evidences that at the same time that Watterson submitted its e-mail proposal, the Army Corps’ mail server was “flooded” and e-mail delivery had “come to a crawl.” AR 418. In some cases, e-mail was delayed for several hours. AR 417. An IT Specialist for the Army Corps recalled, “It was certainly something we don’t normally see.” AR 418. Therefore, the “mail storm” was an “unanticipated event [that] interrupt[ed] normal Government processes so that proposals cannot be received at the office designated for receipt of proposals by the exact time specified in the solicitation.” FAR 52.215-1(c)(3)(iv).

It is true that at the time proposals were due, the Army Corps Office was open for business and proposals could have been delivered by hand. AR 405. The court, however, does not construe the phrase “proposals cannot be received” to mean that it must be impossible for the Government to receive proposals, before the “emergency” or “unanticipated event” exception applies. See 48 C.F.R § 52.215-1(c)(3)(iv).

The Government contends that since “normal Government processes” resumed on the same day the mail storm began, proposals were still due on the original due date of March 16, 2010 by 12:00 p.m. Gov’t Mot. at 12. The Government, however, misreads 48 C.F.R. § 52.215-1(c)(3)(iv), because such an interpretation would not allow time extensions for disruptions of “normal Government processes” that occur at the time a proposal is due, if the “emergency” or “unanticipated event” abates later in the day. The text of 48 C.F.R. § 52.215-1(c)(3)(iv) does not compel an absurd outcome. If the “mail storm” were not ongoing at the time that proposals were due, this might be a closer question. But that was not the case. AR 417-18. The “first work day on which normal Government processes resume” necessarily is the following day, and, therefore, under these circumstances, Watterson’s proposal was not due until March 17, 2010 at 12:00 p.m. See 48 C.F.R § 52.215-1(c)(3)(iv).

Accordingly, Watterson’s proposal was improperly eliminated from the competition, as the disturbance in the Army Corps’ servers entitled Watterson to a one-day time extension.  (Watterson Construction Company v. U. S., 10-587C, March 29, 2011)  (pdf)

Plaintiff asserts that because the Amendment extended the deadline for receipt of offers and Plaintiff met that new deadline, it was irrational for the Army to reject its proposal. Specifically, Plaintiff argues that the Amendment changed the deadline for receipt of proposals, extinguishing the original deadline and starting the procurement anew. Pl.’s Posthearing Br. at 5-6. Such was not the import of this amendment. Once Argencord’s initial proposal was late, it could not be revived by a subsequent timely acknowledgment of an amendment Argencord never should have received. By issuing the Amendment to Plaintiff, the Army did not waive its right to reject Plaintiff’s original offer as untimely. In Hausted, Inc., B-257087, 94-2 CPD ¶ 49, GAO found that an agency which did not discover that the protestor’s initial proposal had been submitted late until 19 months after the original deadline, properly rejected the protestor’s proposal as late at that juncture. Id. at 3. The Comptroller General reasoned: To the extent that Hausted suggests that the length of time between the initial closing date and decision to cancel the solicitation (approximately 19 months), coupled with the protestor’s submission of two BAFOs, cures its failure to submit a timely proposal, we disagree. In an analogous situation where an agency had negotiated with an offeror for nearly 1 year, including requesting two BAFOs, we held that the agency correctly rejected the proposed awardee’s proposal as late when it ultimately determined that there had not been timely receipt of the initial proposal, because the subsequent BAFOs, even if considered “new offers,” were ineffective to cure the problem as they too were submitted after the initial closing date. See G.D. Searle & Co., B-247077, 92-1 CPD ¶ 406.Id. This court, applying GAO’s sound analysis in Hausted, concludes that Argencord’s timely offer in response to Amendment 1 did not cure its late original offer. As GAO succinctly recognized in Hausted: “An extended period of negotiation that includes the submission of revised proposals cannot legally cure an initial late submission.” Id. (Argenicord Mach. & Equip., Inc., No. 05-731C, October 7, 2005) (pdf)