Russo & Sons, Inc., B-280948, December 11, 1998

B-280948 Dec 11, 1998 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Since applying the exception is not inconsistent with the intent of the FAR provision. Postal Service Express Mail to agency mail room approximately 1 hour and 20 minutes before time established for receipt of proposals but not routed to the contracting office specified in solicitation until after the time set for receipt of proposals was properly rejected as late where: (1) offeror failed to identify the package as containing a proposal and otherwise failed to mark it with an identifying solicitation number or closing date deadline and time. Russo contends that its proposal should not have been rejected since government mishandling prevented it from being timely delivered to the contracting officer. View Decision Matter of: Russo & Sons, Inc. File: B-280948 Date: December 11, 1998 DIGEST Attorneys DECISION Russo & Sons, Inc. protests the rejection of its proposal as late under request for proposals (RFP) No. 640-112-98, issued by the Department of Veterans Affairs (VA) for data collection services. Russo contends that its proposal should not have been rejected since government mishandling prevented it from being timely delivered to the contracting officer. We deny the protest. Initial proposals were required to be submitted by 1 p.m. on Friday, August 14, 1998, to the following address: VA Palo Alto Health Care System ATTN: Lupe Arroyo (90C) 3801 Miranda Avenue Palo Alto, CA 94304 RFP block 9, at 1. According to the agency, Ms. Lupe Arroyo is the contracting officer conducting the procurement and the symbol "90C" next to her name indicated to the mail room staff that she was located in the Acquisitions and Material Management Service (A&MMS) office. The procurement was conducted under Federal Acquisition Regulation (FAR) Part 12, which prescribes policies and procedures unique to the acquisition of commercial items. Section E of the RFP contained the clause found at FAR Sec. 52.212-1, which instructs offerors to "[s]ubmit signed and dated offers to the office specified in this solicitation at or before the exact time specified in this solicitation." FAR Sec. 52.212-1(b). On Thursday, August 13, at 11:50 a.m., Russo mailed its proposal from a United States Postal Service (USPS) Illinois post office via the Express Mail Next Day service delivery method. On Friday, August 14, at 11:40 a.m.--less than 2 hours prior to closing--the USPS delivered Russo's proposal to the VA's Palo Alto facility central mail room. The agency explains that the mail room routinely makes two mail deliveries per day: a morning mail distribution from 8:30 a.m. to 9 a.m., and an afternoon mail distribution from 1 p.m. to 3:30 p.m. The mail room also provides priority handling of packages which are identified as bids or proposals with a due date, time, and solicitation number. These packages receive special attention and are immediately delivered to the addressee. Contracting officer's Sept. 14, 1998, finding of fact at 1. Because the central mail room received Russo's package after it had conducted its routine morning mail delivery run, and it was not marked as a proposal with a due date or time, Russo's package was not delivered to the A&MMS office until some time after 2 p.m. on August 14--as part of the standard afternoon mail delivery run. Consequently, since Russo's proposal was not received at the A&MMS office until after the scheduled 1 p.m. closing time, the contracting officer rejected the proposal as late. Russo contends that the cause of the VA's late receipt of its proposal was mishandling by the government. The protester argues that its proposal arrived at the address designated in the solicitation and was in the government's control prior to the time set for receipt of offers. Russo's argument is based on the "government mishandling" exception found in FAR Sec. 52.215-1(c)(3)(i)(B), which permits agencies to consider a late proposal if "[i]t was sent by mail . . . if it is determined by the Government that the late receipt was due primarily to Government mishandling after receipt at the Government installation." See also FAR Sec. 15.208(b)(2). This provision, however, was not included in the solicitation. Instead, section E of the RFP contained the clause found at FAR Sec. 52.212-1, which is applicable when acquiring commercial items and governs this procurement. See FAR Sec. 12.301(b)(1). With respect to late offers, FAR Sec. 52.212-1(f) simply states that "[o]ffers or modifications of offers received at the address specified for the receipt of offers after the exact time specified for receipt of offers will not be considered," /1/ and does not explicitly contain any of the exceptions to the rules governing late offers included in FAR Sec. 52.215-1. Despite the language of FAR Sec.