DENIED: November 24, 1992 GSBCA 12154-P SYS, Protester, v. NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, Respondent. Charles H. Werner, president of SYS, San Diego, CA, appearing for Protester. Sumara M. Thompson-King, Office of the General Counsel, National Aeronautics and Space Administration, Washington, DC, and Geoffrey Swanson, Office of Chief Counsel, Goddard Space Flight Center, Greenbelt, MD, counsel for Respondent. Before Board Judges DEVINE, DANIELS, and PARKER. DANIELS, Board Judge. In this protest, a company called SYS maintains that its proposal, which reached the agency's designated bid room late, should be considered for award because the lateness was the result of agency mishandling. We find instead that the firm's own error of misaddressing the proposal package was the cause of the late delivery. The protest is denied. Findings of Fact 1. This protest concerns a procurement by the National Aeronautics and Space Administration's (NASA's) Goddard Space Flight Center (GSFC) for seven classes of workstations and two types of supporting equipment. Protest File, Exhibit 2 at 15, 23-25 ( B.1, C.1.1.4). The acquisition goes by the name "Scientific and Engineering Workstation Procurement," or "SEWP." Id. at 25 ( C.1.2.1). 2. SYS responded to the agency's solicitation with proposals regarding workstation classes 4 and 7. Protest File, Exhibits 1 at 33 ( C.2), 2. The firm was invited to submit a best and final offer (BAFO). Id., Exhibit 3 at 1. The letter of invitation included these paragraphs: Your response shall be submitted . . . to the following address: NASA/Goddard Space Flight Center Attn: C. O'Carroll/L. A. Lewis Bid Room, Bldg. 17, Room S-142 Greenbelt, MD 20771 Mark as: Best and Final Offer RFP5-00243/3230 If received after [the specified] date and time, your response will be treated in accordance with Section L, FAR 52.215-10 entitled "Late Submissions, Modifications, and Withdrawals of Proposals or Quotations". Id. at 2. The letter was signed by Myron L. Kemerer, contracting officer. Id. The specified date and time, as provided in a later amendment to the solicitation, were September 14, 1992, at 4 p.m. Id., Exhibit 1 at 1st unnumbered page. 3. In giving this instruction regarding address and consequence of lateness, Mr. Kemerer's letter was consistent with a provision of the solicitation entitled "External Marking and Delivery." This provision stated clearly: If a commercial delivery service is used, the package shall be additionally marked as follows: DELIVERY PERSONNEL: THIS PROPOSAL MUST BE HAND CARRIED DIRECTLY TO THE BID ROOM . . . NO LATER THAN THE DATE SPECIFIED. Protest File, Exhibit 1 at 135 ( L.36.1). SYS had followed these instructions when submitting its initial proposal, the timeliness of which is not in question. Id., Exhibit 13 (response to request for admission no. 1). 4. SYS sent its BAFO to GSFC by a commercial courier service, Federal Express. The addressee, according to the airbill, was Mr. Myron L. Kemerer, NASA Goddard Space Flight Center, Greenbelt, MD 20771. Protest File, Exhibit 4. SYS admits that it "mis-addressed the label on its proposal, thereby sending the proposal directly to the Contracting Officer in lieu of the Bid Room." Protest, 3. 5. GSFC has a standard operating procedure for receipt of parcels. Protest File, Exhibit 9. Under this procedure, with an exception not relevant here, "Material consigned to an individual having a building and room number . . . will be turned over for delivery by the carrier directly to the consignee." Id. at 5 ( 7.2.1.2). Other shipments arriving by courier "will be considered priority shipments" and accepted for research of the building and room number of the addressee. If received before noon, these parcels "will be delivered the same day." If received later than noon, they "will be delivered within eight working hours." Id. at 5, 10 ( 7.2.1.1, 7.2.4.1). 6. According to the Federal Express airbill, the BAFO was shipped on September 12 and received at GSFC at 8:54 a.m. on September 14. Protest File, Exhibit 4. The receiving supervisor states that the BAFO was not delivered on September 14 "due to an unforeseen shortage of personnel." Id., Exhibit 10 at 2. He says that the package was delivered to Mr. Kemerer's office "sometime in the morning of September 15, 1992." Id.; see also id., Exhibit 11 at 1. 7. GSFC received two timely submitted BAFOs for the supply of class 4 workstations and four timely BAFOs for the supply of class 7 workstations. Protest File, Exhibit 12 at 6 ( 16). 8. On September 18, a GSFC contracting official told SYS that the proposal had been late and consequently would not be considered further. Protest File, Exhibit 6 at 1. SYS filed a protest with the contracting officer, contending that the tardiness was caused by the agency's mishandling of the package and could be considered a "minor informality or irregularity" which should be excused in the agency's best interests. Id., Exhibit 6. The contracting officer denied this protest on October 15. She determined that the proposal was late because SYS misaddressed it, and that the Federal Acquisition Regulation (FAR) does not permit the correction of mistakes on an offeror's proposal packaging. Id., Exhibit 7. SYS then filed the instant protest with the Board on October 29. Discussion The Federal Government places on offerors the responsibility "for submitting offers, and any modifications to them, so as to reach the Government office designated in the solicitation on time." 48 CFR 15.412(b) (1991) (FAR 15.412(b)). The Government has set a very strict standard for timeliness: a proposal may not be considered for award unless it is delivered to the designated office by the exact date and time specified. FAR 15.412(c). Proposals which do not meet this standard -- shall be considered only if (1) they are received before award is made, and (2) the circumstances, including acceptable evidence of date of mailing or receipt at the Government installation, meet the specific requirements of the provision at 52.215-10, Late Submissions, Modifications, and Withdrawals of Proposals. Id. There are four requirements listed in the referenced provision, about which SYS was cautioned in the solicitation: a proposal will be considered if, in addition to having been received before award is made, it -- (1) Was sent by registered or certified mail not later than the fifth calendar day before the date specified for receipt of offers . . . ; (2) Was sent by mail or, if authorized by the solicitation, was sent by telegram or via facsimile and it is determined by the Government that the late receipt was due solely to mishandling by the Government after receipt at the Government installation; (3) 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 . . . ; or (4) Is the only proposal received. This Board and the General Accounting Office, in the interest of equity, have established a fifth exception: if the proposal was sent by commercial courier service or otherwise hand-carried, and the paramount cause of the late receipt was Government mishandling, misdirection, or other affirmative interference with what would otherwise have been timely delivery, the proposal should be considered. Computer Literacy World, Inc. v. Department of Agriculture, GSBCA 11767-P, 92-3 BCA 25,112, 1992 BPD 140; Rocky Mountain Trading Co., GSBCA 8671-P, 87-1 BCA 19,406, at 98,127-28, 1986 BPD 175, at 10-11; Pearl Properties, B-249519 (Nov. 9, 1992); Southern Oregon Aggregate, Inc., B-190159, 77-2 CPD 477, at 4 (Dec. 16, 1977); Scot, Inc., 57 Comp. Gen. 119 (1977), 77-2 CPD 425. This is clearly the only exception available to SYS in the instant case, for its proposal was sent by a commercial courier, rather than the United States Postal Service, and protester's proposal was not the only one received for either of the relevant classes of workstations. A case on which SYS relies, Lyttos International Inc., B-246419, 92-1 CPD 265 (Mar. 6, 1992), is inapposite because it pertains to exception three above, a parcel that was sent by U. S. Postal Service Express Mail prior to the relevant cut-off time. What happened here is plain: SYS did not follow NASA's instructions as to where to send the BAFO; instead of addressing the proposal to the specified bid room -- which it had done with regard to its initial proposal -- it sent the package to the contracting officer at a location identified only by facility. SYS gave the proposal to a commercial courier service two days before BAFOs were due. The courier delivered the package to the facility's receiving platform on the morning of the due date. Had the address been marked as instructed by NASA, the courier would have been permitted to make delivery directly to the bid room. Because the address was not specific, the package was left at the receiving platform for subsequent delivery. Under the facility's procedures, delivery should have occurred later that day; in reality, it was not made until the next morning. This sequence of events does not establish any Government mishandling of the proposal, as charged by SYS. The FAR requires that for a proposal to be timely, it must be delivered to a specified bid room. Delivery to a receiving platform is insufficient. Robinson & Robinson, GSBCA 10247-P, 90-1 BCA 22,434, 1989 BPD 348. Delivery to an agency office different from the one indicated is not acceptable, either. Tristar Dynamic, Inc., GSBCA 9923-P, 89-2 BCA 21,748, at 109,428, 1989 BPD 101, at 15. Thus, even if the package had reached the contracting officer's suite prior to the time at which proposals were due, that in itself would not establish that the agency had mishandled the proposal by not forwarding it to the bid room on time. The FAR does not impose on contracting officers a responsibility to sit at their desks, on the lookout for packages which might be proposals, so that those parcels might be redelivered in a timely fashion to a bid room. The best that can be said for SYS's position is that under agency procedures, the package should have been delivered to the contracting officer on the day that proposals were due. This does not mean, however, that delivery was required to be made before 4 p.m., when proposals were due in the bid room; the "same day" continued on beyond four o'clock. SYS cannot establish anything other than its misaddressing of the package as the cause of the late delivery. Wom/AC Government Sales, Inc., GSBCA 8104-P, 85-3 BCA 18,490, at 92,863. SYS observes that NASA misaddressed several communications that were directed to protester in the course of this procurement. This also has no impact on our conclusion as to the reason for the late arrival of SYS's BAFO; it might support a contention that the agency impaired protester's ability to submit a complete BAFO, but SYS expressly disavows such a complaint. The quality of SYS as a corporation and the excellence of the workstations being offered by the firm -- both of which, SYS maintains, are high -- similarly have nothing to do with this case. SYS also contends, as it did before the agency, that FAR provisions regarding clarifications of mistakes in proposals permit the acceptance of this offer. Protester misconstrues the provisions; they pertain to proposals which were submitted in timely fashion, not to allowing a late offer to be construed as timely. See Valix Federal Partnership I v. Department of the Army, GSBCA 12113-P (Nov. 16, 1992) (clarification of mistakes in bids). The FAR's exceptions to a strict prohibition against acceptance of proposals which arrive after the prescribed date and time are limited to the ones described above. SYS makes an alternate contention on policy grounds. The purpose of the regulation, SYS suggests, is to prevent an offeror from altering its proposal after the time set for receipt. This purpose would be met, protester asserts, by NASA's acceptance of its BAFO since it had no opportunity to revise the proposal after it gave the document to Federal Express. SYS suggests that the rule should be "no harm, no foul." Unfortunately for protester, this Board functions as a court of law, not of basketball. The law is clear that a commercial courier service is the agent of the sender in delivering proposals, and that when an offeror entrusts a proposal to such a service, the offeror retains responsibility for delivery. Fidelipac Corp., GSBCA 11102-P, 91-2 BCA 23,932, at 119,884, 1991 BPD 84, at 4; Eagle International, Inc., B-229922, 88-1 CPD 214 (Mar. 1, 1988). The writers of the FAR could decide to revise the regulation to read as SYS wishes. They have not done so, however, and SYS has cited no statute as to which the existing rule might be found inconsistent and consequently invalid. See 40 U.S.C. 759(f)(1) (1988) (Board may review regulations to determine their consistency with statutes). We have no license to rewrite regulations ourselves. Decision The protest is DENIED. Our order of November 3, suspending NASA's authority to award contracts for the supply of the two classes of workstations for which SYS submitted proposals, lapses with the issuance of this opinion. _________________________ STEPHEN M. DANIELS Board Judge We concur: _________________________ _________________________ DONALD W. DEVINE ROBERT W. PARKER Board Judge Board Judge