MOTION FOR RECONSIDERATION DENIED: December 16, 1992 GSBCA 12154-P-R SYS, Protester, v. NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, Respondent. Nancy O. Dix and Ted D. Billbe of Gray, Cary, Ames & Frye, San Diego, CA, counsel 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. We consider here, and deny, protester's motion for reconsideration of our decision in SYS v. National Aeronautics & Space Administration, GSBCA 12154-P (Nov. 24, 1992). The relevant facts, which are set out fully in that opinion, may be summarized as follows: Protester, a firm named SYS, misaddressed its proposal to respondent, the National Aeronautics and Space Administration (NASA), to supply computer workstations to the agency. Proposals were due at a specified bid room on September 14, 1992, at 4 p.m. SYS sent its proposal not to the bid room, as NASA instructed, but rather to the contracting officer, at an unspecified room at the same NASA facility. SYS's agent, a commercial courier service, arrived with the package at the facility on the morning of September 14. Under the facility's standard operating procedures, when a courier arrives with a package at the receiving platform, if the address on that parcel contains a room number, the parcel is to be delivered by the courier, but if a room number is not designated, a facility representative accepts the parcel for later delivery. If the package is received before noon, it "will be delivered the same day." SYS's proposal was not actually delivered to the addressee, the contracting officer, until September 15. The Board noted that the Government has set by regulation a very strict standard for the timeliness of proposals, and that the only exception to that standard which might excuse the late delivery of SYS's proposal is "Government mishandling, misdirection, or other affirmative interference with what would otherwise have been timely delivery." We found that the record does not support a finding of this sort of action on NASA's part. Instead, we concluded that the paramount cause of late delivery was SYS's misaddressing of the proposal. Had protester followed the agency's instructions and sent its package to the bid room, the courier would have been permitted to make direct, timely delivery. Because the package was addressed instead to the contracting officer, at an unspecified room, it had to be left for subsequent delivery by agency representatives. Under the facility's procedures, that delivery should have occurred "the same day" that the courier brought the parcel to the receiving platform. We found of no particular consequence the fact that the proposal did not reach the contracting officer until the next day. The reason is that even if we were to consider that the facility's procedures rise to the level of a regulation, the violation of which could cause us to grant a protest, conformance with the procedures would not necessarily have resulted in timely delivery. The procedures require only that a package received from a courier in the morning be delivered to the addressee on "the same day," and that day continues on beyond the four o'clock deadline. Furthermore, even if the parcel had been delivered to the contracting officer's suite before 4 p.m., it would not necessarily have arrived at the bid room by that time. A contracting officer is not expected to be on the lookout for packages which might be proposals, so he might be able to redeliver those parcels in a timely fashion. SYS appeared pro se in this protest. The firm is now represented by counsel, who have filed the motion for reconsideration. In this motion, counsel maintain that the material issue of fact is when the contracting officer would have received SYS's proposal if NASA had followed its mail delivery procedures. Counsel contend that "[t]here is no evidence in the record that the work day of NASA's mail delivery personnel continued beyond four o'clock, either in usual practice or on the specific day in question. Thus, the Board assumed a fact without any evidence." Motion for Reconsideration at 4. Counsel further say that SYS did not recognize the need for additional evidence, to be obtained through depositions, as to the issue of causation of the late delivery. Counsel urge us to reopen the record to permit the taking of such evidence and the rearguing of the case. In our judgment, protester misconstrues the breadth of the relevant exception to the rule against acceptance of late proposals, and also applies an unreasonably restrictive meaning to the terms of the facility's standard operating procedures. In the case the firm newly calls to our attention, Watson Agency, Inc., B-241072, 90-2 CPD 506 (Dec. 19, 1990), the General Accounting Office held that the exception justifies acceptance of a proposal only if timely delivery would have occurred but for the agency's mishandling of the parcel. This case does not support a conclusion that an offeror's errors which are a significant cause of late delivery will be excused if the Government somehow errs, too. Additionally, by construing NASA's procedure requiring delivery "the same day" that a package is received, to mean "the same work day," protester is placing in the procedures a limitation that does not exist. A "day" is "the mean solar day of 24 hours beginning at mean midnight." Webster's Third New International Dictionary 578 (definition 3) (1986). NASA's procedures permit delivery far later than the time specified for receipt of proposals. Additional discovery -- which could have been requested while the protest was originally pending, but was not -- cannot change this fact. We note that SYS has asked, in its motion for reconsideration, that we suspend NASA's authority to award a contract or contracts for the classes of workstations in question while the motion is pending. Alternatively, SYS urges us to stay the effect of our order, which permits NASA to continue with the procurement, until we decide the motion for reconsideration. Counsel for NASA told us, in a telephonic conference on December 11, that award will be made no earlier than December 17. This decision is being issued earlier than the award date, so SYS's requests are moot. We take this opportunity, however, to clarify the law with regard to the requests. The Board's authority to suspend an agency's procurement authority is statutory in nature and may be exercised in only two circumstances: following the filing of a protest, between the date such a suspension is timely requested and the date our decision is issued; and whenever we determine that a challenged agency action violates a statute, regulation, or the conditions of any delegation of procurement authority. 40 U.S.C. 759(f)(2), (3), (5)(B) (1988). Having already decided this case, and determined that the challenged action did not violate a law, we have no authority to suspend NASA's authority to proceed to contract award. A motion for a stay of an order, pending reconsideration, could be considered, but only if the moving party can -- demonstrate the following four factors: (1) a likelihood of prevailing on the merits on appeal, (2) irreparable injury if the stay is not granted, (3) no substantial harm to other interested parties, and (4) no harm to the public interest. Data Switch Corp., GSBCA 10034-P-R, 89-3 BCA 22,138, at 111,401, 1989 BPD 227, at 4 (citing Amdahl Corp., GSBCA 7859-P, et al., 85-3 BCA 18,287, at 91,773, 1985 BPD 43, at 5). Decision SYS's motion for reconsideration is DENIED. _________________________ STEPHEN M. DANIELS Board Judge We concur: _________________________ _________________________ DONALD W. DEVINE ROBERT W. PARKER Board Judge Board Judge