Security at federal government buildings can sometimes make it difficult to visit agency employees or make deliveries to the agency. At the same time, many solicitations still require offerors to hand-deliver hard copies of proposals to a designated official at the agency before a certain date and time. As a recent decision from the U.S. Government Accountability Office (“GAO”) demonstrates, the offeror usually assumes the burden of navigating agency security and cannot blame the agency when security procedures prevent timely delivery of a proposal.
In B&S Transport, Inc., B-404648.3, Apr. 8, 2011, B&S failed to deliver its proposal to the contracting officer at the Defense Logistics Agency by the 1:00 p.m. deadline on the due date. A videotape provided by the agency showed that B&S’s courier arrived at the agency’s visitor processing center at 12:50:12 p.m. — less than 10 minutes before the deadline. The agency’s security guard would not let the courier through the visitor processing center because the courier was not entered into the agency’s visitor notification system and did not have a sponsor at the agency. The security guard told the courier that he needed a sponsor. The courier called B&S. B&S called a contracting specialist at the agency for help getting its courier cleared. But the 1:00 p.m. deadline expired before the entry clearance could be arranged. The agency rejected B&S’s proposal as late, and B&S protested to GAO.
B&S raised two issues in its protest. First it argued that the agency was the primary cause of the late proposal. On this issue, GAO applied the rule 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 ….” Id. GAO held that B&S’s actions were the paramount cause for the late delivery because it did not provide notice to the agency in advance that its courier would be delivering its proposal. The solicitation specified that visitors to the agency were required to be sponsored by an agency official and entered into the visitor notification system. B&S ignored these requirements and sent its courier to the agency unannounced. As a result, GAO found that B&S, not the agency, was responsible for the late delivery.
Second, B&S argued that its proposal should have been accepted because it was under the control of the agency before the 1:00 p.m. deadline. GAO denied this argument because, even though the courier was on the agency’s premises, he never relinquished physical custody of the proposal until after the deadline. GAO noted that for a late-submitted proposal to be considered “under the Government’s control” prior to the time set for receipt of proposals, the offeror must, at a minimum, have relinquished physical custody of the proposal to the agency. B&S’s courier retained physical custody of the proposal while at the agency’s visitor processing center awaiting access to the contracting officer. As a result, GAO denied this protest argument.
Recognizing that government agencies maintain secure installations, government contractors should not be surprised to encounter security delays when hand-delivering proposals. Government contractors need to be diligent in reading and understanding the solicitation’s instructions for delivering proposals. In most cases, the solicitation will describe in detail the procedures that need to be followed to gain access to the contracting officer at the agency. If there are any questions about the procedures, contractors should ask the contracting officer for guidance long before the deadline for delivering proposals. Also, it is always wise to forego a standard courier and have a company official who understands the nature of the solicitation and proposal hand-deliver the proposal to the agency. A company official is in a much better position than a courier to solve unexpected problems encountered when hand-delivering a proposal.