The GAO, citing FAR 52.212-1, has ruled time and time again that it is an offeror's responsibility to ensure that its proposal is delivered to the proper place at the proper time. There are exceptions to the rule and firms have tried many times to worm their situation into one of the few exceptions but they rarely succeed. Firms have blamed their late proposals on gate security, a malfunctioning internet, or UPS or FedEx failure to deliver on time. But they keep trying to find someone or something to blame.
The Defense Commissary Agency (DeCA) issued a solicitation seeking proposals to provide fresh and frozen beef products for commissaries located in the west and pacific areas and another solicitation seeking proposals for the east and central areas. The deadline for proposal submission for both solicitations was November 15, 2017 at 3:00 p.m. to the DeCA offices at Fort Lee, VA.
National Beef submitted proposals via UPS. They were picked up in Kansas City on November 14th and delivered at 3:27 p.m. on November 15th, about 30 minutes late. On November 21st, DeCA notified National Beef that its proposals had been rejected as untimely.
National Beef filed protests arguing that the proposals should have been considered timely because (i) the proposals should have been considered under the custody of the Government based on the time that the UPS driver entered the Government installation (about 9:30 that morning) and (ii) Government processes at Fort Lee were interrupted in a manner that made it impossible to deliver the proposals by the solicitation deadline (the latter notwithstanding that other bidders proposals were received before 3:00 p.m. that day via UPS and FedEx).
GAO did not sustain the protests.
Concerning National Beef's argument that the Government had control of the document once the UPS truck entered the base, GAO ruled that National Beef misstated the applicable standard for receipt and control. A hand-delivered proposal must be physically relinquished to Government control by the offeror or its agent; interaction between the offeror and an Agency's security personnel, or mere access to the installation does not establish Government control over the proposal. The GAO found no basis to conclude that the Government had control of National Beef's proposals prior to the 3:00 p.m. deadline.
Concerning the interruption of normal Government processes, the GAO found no evidence in the record that the UPS truck was actually delayed at the gate. Although National Beef contended that security and/or construction activities near the gate entrance delayed access by the UPS truck to the base, the protester did not provide any information that could possibly explain a six-hour delay. Even if there was a delay, National Beef did not provide adequate information to establish that there was an interruption of normal Government processes in a manner that precluded submission of proposals.
You can read the full GAO Bid Protest Decision here.
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