_______________________ DENIED: May 19, 1993 _______________________ GSBCA 12368-P J.A. BRUNTON, INC., Protester, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent, and SCIENCE APPLICATIONS INTERNATIONAL CORPORATION, Intervenor. James A. Brunton, Jr., President of J.A. Brunton, Inc., Westport, CT, appearing for Protester. Lloyd M. Weinerman and Jonathan A. Baker, Office of the General Counsel, Department of Health and Human Services, Baltimore, MD, counsel for Respondent. William K. Dix of Science Applications International Corporation, San Diego, CA, counsel for Intervenor. Before Board Judges PARKER, WILLIAMS, and GOODMAN. PARKER, Board Judge. J.A. Brunton, Inc. submitted its proposal fourteen minutes past the closing time for receipt of proposals. The Department of Health and Human Services, Health Care Financing Administration (HCFA), refused to accept the late proposal. Brunton protests. For the reasons discussed below, we hold that HCFA correctly refused to accept the proposal. Thus, we deny the protest. Findings of Fact 1. HCFA requested proposals to provide analysis, design, development, validation, implementation, and maintenance of a Medicare Transaction System. The system is intended to simplify and improve the processing and adjudication of Medicare claims. Protest File, Exhibit 1. As amended, the solicitation required hand-carried proposals to be delivered to Room 118, 7000 Security Boulevard, Baltimore, Maryland, no later than April 2, 1993, at 2:00 p.m. local prevailing time.[foot #] 1 Id., Exhibits 1, 5. 2. The solicitation informed offerors that a reference library would be available to potential offerors at another building in the HCFA headquarters complex. Protest File, Exhibit 1. The headquarters complex is made up of several buildings within about a one-mile radius of the main building located at 6325 Security Boulevard. Respondent's Record Submission, Exhibit 6. Protester's president, Mr. James A. Brunton, visited the library on two occasions: once on March 10, 1993, and again on March 25, 1993, one week prior to the time for receipt of proposals. Protest File, Exhibits 9, 10. On neither of these occasions did Mr. Brunton attempt to ascertain the location of the building located at 7000 Security Boulevard. Respondent's Record Submission, Exhibit 10 (Protester's Responses to Respondent's Interrogatories). 3. Protester's plan was to hand-carry the proposal to the delivery point by driving to Baltimore from its offices in Westport, Connecticut. At approximately 9:15 a.m. on April 2, the day proposals were due, one of protester's employees, Mr. William Martinez, telephoned the contracting officer (CO) for directions to the drop-off point for hand-carried proposals. Mr. Martinez told the CO that he was familiar with HCFA's location and that he would be coming south on Interstate 95 to Interstate 695. Interstate 695 is the "Baltimore Beltway," a highway that encircles the city of Baltimore. In giving directions, the contracting officer assumed that Mr. Martinez would exit Interstate 95 at first point at which it intersects with Interstate 695, on the northeast side of Baltimore. The CO told Mr. Martinez to take Interstate 695 to the Security Boulevard exit, and bear right onto westbound Security Boulevard. Once Mr. Martinez had entered onto Security Boulevard, he was to proceed past the second traffic light and turn right into the entrance to 7000 Security Boulevard. Respondent's Record Submission, Exhibit 2. 4. Mr. Brunton and Mr. Martinez left Westport at about 9:20 a.m. They experienced at least one delay along the way prior to reaching Interstate 695. Respondent's Record Submission, Exhibit 10. Protester's crew determined that "the optimal approach to Security Boulevard coming from the [sic] Connecticut requires entrance onto the beltway from I-95 at the ----------- FOOTNOTE BEGINS --------- [foot #] 1 A different address was provided for mailed proposals. Protest File, Exhibits 1, 5. ----------- FOOTNOTE ENDS ----------- southern intersection which is the approach we took. Subsequent investigation revealed that the difference is not as great as it appears on the map." Protester's Record Submission C. 5. The "southern intersection" referred to by protester is the second point at which Interstate 695 intersects with Interstate 95, on the southwest side of Baltimore. See Respondent's Record Submission, Exhibit 4. To reach the Security Boulevard exit from the south intersection, one travels north, rather than south, on Interstate 695. To enter Security Boulevard westbound, one must bear left, instead of right and, because of the location of the exit ramps, one must pass three, rather than two, traffic lights to find 7000 Security Boulevard. Id., Exhibit 3. 6. Protester took the second, or south, exit onto Interstate 695, arriving there "slightly before 2:00 p.m."[foot #] 2 Respondent's Record Submission, Exhibit 10. At that point, protester was still about thirteen miles from the building. Id. Protester passed the second light (following the CO's directions) at "almost precisely 2:00 p.m," and "realized it couldn't be the correct turn because the buildings at that intersection didn't resemble those [the CO] had described." Protest Complaint at 1. Protester continues: We then continued on, looking for the number 7000 which we didn't see until we were beyond the entrance to the complex. As a result, we were forced to continue until the next intersection where we waited for the light to change. We then turned right, hoping to be able [to] take another right up into the parking lot on the far side of the 7000 complex. That road looks like it continues interminably without an intersection so we turned left into someone's driveway only to find ourselves trapped for several minutes by on coming [sic] traffic. Finally we backed out and headed for the light on Security ----------- FOOTNOTE BEGINS --------- [foot #] 2 In its unsworn reply submission, protester alleges that its original answers to respondent's interrogatories were "inaccurate and inconsistent," and that protester is "uncertain of the time we arrived at the I-95/I-695 intersection." We find more credible protester's original responses to the interrogatories; they were prepared before protester had the benefit of reading respondent's brief. In any event, protester's "amended" response does not prove that protester would have arrived at the drop-off point in time to deliver the proposal by the deadline. ----------- FOOTNOTE ENDS ----------- Boulevard which naturally turned red the minute we got there. Finally after that light changed, we turned left onto Security Boulevard, and promptly ran into the red light at the entrance to 7000. We arrived in the lobby at 2:16 by my watch which is two minutes fast. Id. 7. The CO reluctantly informed protester that HCFA could not consider the late proposal. Protest File, Exhibits 14, 16; Respondent's Record Submission, Exhibit 2. Respondent received more than one timely proposal in response to the solicitation. Respondent's Record Submission, Exhibit 2. 8. The only significant dispute of fact in this protest is the extent to which the number "7000" was visible from the roadway, a fact which we do not consider necessary to the resolution of the protest. Discussion Protester contends that HCFA erred in refusing to accept protester's late proposal. According to protester, its failure to submit the proposal on time was the direct result of inadequate directions provided by the contracting officer. As discussed below, we find that HCFA properly rejected protester's proposal. As a general rule, the Government is prohibited from accepting late proposals: (b) Offerors are responsible for submitting offers, and any modification to them, so as to reach the Government office designated in the solicitation on time. . . . (c) Proposals, and modifications to them, that are received in the designated Government office after the exact time specified are "late" and shall be considered only if (1) they are received before award is made, and (2) the circumstances, including acceptable evidence of the date of mailing or receipt at the Government installation, meet the specific requirements at 52.215-10, Late Submissions, Modifications and Withdrawals or Proposals. 48 CFR 15.412(b), (c) (1992) (FAR 15.412(b), (c)). There are four requirements listed in the above-referenced provision, about which protester was notified 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. The Board and the Comptroller General have created a fifth, equitable, exception to the requirement that the Government reject a late proposal: "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." SYS v. National Aeronautics and Space Administration, GSBCA 12154-P, 1992 BPD 366, at 4 (Nov. 24, 1992), reconsideration denied, 1992 BPD 405 (Dec. 16, 1992); Computer Literacy World v. Department of Agriculture, GSBCA 11767-P, 92-3 BCA 25,112, 1992 BPD 140; Scot, Inc., 57 Comp. Gen. 119 (1977), 77-2 CPD 425. A late proposal should not be considered for award if the offeror significantly contributed to its late receipt by not acting reasonably in fulfilling its responsibility of delivering a hand-carried offer to the proper place at the proper time, even where the lateness may have been caused, in part, by erroneous government action or advice. Pacific Meridian Resources, B-247142, 92-1 CPD 402, at 3 (Apr. 28, 1992); Seer Publishing, Inc., B-237359, 90-1 CPD 181 (Feb. 12, 1990). This fifth exception is clearly the only one even arguably available to protester, for its proposal was hand- carried, rather than delivered by mail, telegram, or facsimile, and protester's proposal was not the only one received in response to the solicitation. Findings 6, 7. For several reasons, we hold that the fifth exception does not apply, either. First, there was no "affirmative interference" on the part of the Government. The record shows that the directions provided by the CO, reasonably interpreted, were correct. When the CO told Mr. Martinez to take Interstate 695 from Interstate 95, he reasonably assumed that protester would take the first exit for Interstate 695, rather than continuing on Interstate 95 through the city of Baltimore and taking the second exit on the other side of the city. Finding 3. Even the protester does not dispute that, had he taken the first exit, the CO's directions would have led him directly to the correct building. See Findings 5, 6. Protester decided to take what he thought was a shorter route, without calling to confirm the directions. His late arrival was not caused by the CO's directions. The paramount cause of protester's lateness was his failure to allow an adequate time for the trip from Connecticut. Given the length of the journey, and the inherent uncertainties involved in such a journey, protester's decision to seek directions and leave "at the last minute" was negligent. The fact that protester's proposal was not finished in time to leave earlier was not the fault of the Government. Moreover, protester had been at HCFA headquarters only a week earlier, but did not even attempt to ascertain the location of the building at which he was to deliver the proposal. Finding 2. Finally, protester has not established that he would have arrived on time even if he had not gotten lost on Security Boulevard. Protester arrived at the second exit for Interstate 695 "slightly before 2:00 p.m." Finding 6. At that point, protester was still about thirteen miles from the building. Id. At "almost precisely 2:00," protester passed the second light, where the entrance to the building was located. Id. At that point, the allegedly erroneous directions had not yet affected protester's journey. Protester simply has not established that he could have delivered the proposal on time, even if he had not passed the entrance. Thus, protester could not have been prejudiced by the allegedly erroneous directions. Decision For the reasons discussed above, the protest is DENIED. ____________________ ROBERT W. PARKER Board Judge We concur: ___________________________ MARY ELLEN COSTER WILLIAMS Board Judge ___________________________ ALLAN H. GOODMAN Board Judge