Late is Late – darn few exceptions!

April 2, 2007 on 12:18 pm | In Bids and Proposals | Comments Off

For the novice, let me first explain that the Government Accountability Office (GAO) is a branch of the legislative arm or our government. When a participant in any federal procurement believes that it may have been treated unfairly, it has a right to complain to GAO for review of the agency’s actions. This action is called a “protest.” Thus a large body of law related to how procurements are supposed to be conducted revolves around GAO decisions. What I want to discuss today involves a GAO decision.

An incumbent transportation contractor submitted its proposal to one of two addresses listed in the original RFP which happened to be where it had submitted its proposals previously. Upon delivery, a clerk in that room acknowledged that it was the proper location for delivery of the proposal, and provided a receipt evidencing timely receipt of the proposal. Prior to this date, the agency had issued a modification correcting one of the two addresses for receipt, but not clarifying which was correct. The purchasing contracting officer (PCO) was unaware a proposal from this entity until the protest was filed.

The protestor argued that it had made timely delivery or alternatively that the late receipt was due to government mishandling after receipt, one of the very few exceptions that permits the acceptance of a late proposal. In response, the GAO said:

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) § 15.208; The Staubach Co., B-276486, May 19, 1997, 97-1 CPD ¶ 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 ¶ 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.

In reviewing the facts, the GAO further stated:  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 ¶ 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.  In a footnote GAO also addressed the standard rule concerning the timeliness of proposals complaining of defects in the RFP must be filed PRIOR to proposal submission. Specifically:
To the extent the protester challenges the delivery instructions themselves, this ground of protest is untimely. Here, any alleged flaws in the delivery instructions constituted a defect in the solicitation that was apparent prior to the time for submitting proposals and had to be protested prior to that time, which [the protestor] did not do here. See Bid Protest Regulations, 4 C.F.R. § 21.2(a)(1) (2006). 

In conclusion GAO held that “we find no basis to conclude that improper government action caused the late submission of [the protestor’s] proposal.”

What is the lesson to be learned? It is YOUR job to get the proposal or bid to the right office before the due date. Only in very rare situations will an exception be made. Placing the package in the mail, entrusting it to a FedEx or UPS-type of carrier, or having someone deliver it personally still places the full burden on you. Late is late.

This is a significant deviation from many commercial standard practices, so it is important to recognize that all of your work of preparing a proposal can be lost in the wind over this simple logistic matter. Don’t take such risks. If there is confusion – contact the CO; if there is an ambiguity in the RFP, request clarification or file a protest prior to the due date; but whatever you do – get it to the right office on time!

Shirlington Limousine & Transportation, Inc., B-299241.2 , March 30, 2007.

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