DENIED IN PART AND DISMISSED AS UNTIMELY FILED IN PART: April 15, 1994 GSBCA 12790-P NETWORK IMAGING SYSTEMS CORPORATION, Protester, v. DEPARTMENT OF AGRICULTURE, Respondent, and DATA/WARE DEVELOPMENT, INC., Intervenor. Lawrence Michael Kramer, Silver Spring, MD, counsel for Protester. Jane H. Talley, Office of the General Counsel, Department of Agriculture, Washington, DC, counsel for Respondent. James J. Regan and Stephanie B. N. Renzi of Crowell & Moring, Washington, DC, counsel for Intervenor. Before Board Judges DANIELS (Chairman), BORWICK, and GOODMAN. DANIELS, Board Judge. Network Imaging Systems Corporation (NISC) protests the Department of Agriculture's (USDA's) determination not to accept the firm's late proposal. According to NISC, the agency should have accepted the proposal because the tardiness was caused by the action of air traffic controllers (who are federal employees). NISC maintains alternatively that USDA should have permitted the company to submit the proposal by facsimile transmission. USDA has filed two motions -- one to deny summarily the air traffic controller count, and the other to dismiss as untimely filed the facsimile contention. Data/Ware Development, Inc., whose proposal was considered timely, intervened as of right on the side of the Government and supports the two motions. NISC has filed an opposition. Aquidneck Systems International, Inc., another firm which submitted a late proposal, withdrew its notice of intervention as of right in the protest after Government counsel suggested that the notice was late, but was permitted by the Board to participate in the case as a permissive intervenor which could respond to USDA's motions. Aquidneck did not file a response. The motions are well taken. We grant both of them, thereby denying one count of protest and dismissing the other as untimely filed. Findings of Uncontested Fact This protest concerns a request for proposals to supply optical storage systems to USDA's National Finance Center in New Orleans, Louisiana. Protest File, Exhibit 12 at 11. Proposals were due at a specified location in New Orleans at 4 p.m. Central Standard Time on February 10, 1994. Id., Exhibits 5, 10, 12 at 1. Offerors were specifically cautioned, "Proposals received after the deadline are 'late.'" Id., Exhibit 12 at 82. The solicitation incorporates by reference the Federal Acquisition Regulation (FAR) clause set out at 48 CFR 52.215-10 (1993). Protest File, Exhibit 12 at 77. This clause, entitled "Late Submissions, Modifications, and Withdrawals of Proposals," provides in pertinent part as follows: (a) Any proposal received at the office designated in the solicitation after the exact time specified for receipt will not be considered unless it is received before award is made and 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. NISC delivered a copy of its proposal to Federal Express Corporation -- apparently in Armonk, New York -- on February 9, 1994, for delivery to the specified USDA office in New Orleans the next day. Protest, Exhibits 1, 2. On February 9 and 10, severe weather conditions involving ice and snow hampered air traffic throughout the Eastern United States. Respondent's Statement of Uncontested Facts 6; Protester's Brief, Facts 7. The aircraft carrying the proposal was delayed, as a consequence of which delivery could not be made on February 10, as anticipated. Protest, Exhibit 3. Federal Express did not deliver the package until February 12. Id. On February 10, a NISC employee requested by telephone that USDA accept NISC's proposal by facsimile transmission. USDA denied the request. Protest 13; Answer 13. USDA received more than one proposal by the time and date specified in the solicitation. Motion for Summary Relief, Exhibit 1, 7 (contracting officer's affidavit). On February 23, the USDA contracting officer informed NISC that its proposal had been received late and would not be considered. He found that NISC's proposal could not be considered under any of the exceptions stated in FAR clause 52.215-10. Protest, Exhibit 5. The following day, NISC filed an agency protest, asking the contracting officer to reverse his decision. Protest, Exhibit 6. The protest was predicated on this theory: On February 9 and 10, the air traffic flow at Memphis Shelby County Airport was reduced from its normal operating capacity. "The decision to reduce the flow of air traffic at [that airport] was made by the air traffic controllers who are employees of the Federal Government." The reduced flow caused delays to air carriers, including Federal Express, which operate at the Memphis airport. "But for the decision by the air traffic controllers . . . to reduce the flow of air traffic at that airport, NISC's proposal would have been delivered to [the USDA office in] New Orleans on time by FedEx." Id. 13-16.[foot #] 1 The agency protest does not mention anything about facsimile transmissions of proposals. By letter dated March 4 (but not mailed until March 7), the contracting officer denied the agency protest. Protest, Exhibit 7. Protester asserts that it received this letter on March 10. Protest 8. NISC filed its protest at this Board on March 15. Discussion NISC has advanced two alternative arguments as to why its proposal, which admittedly arrived at the specified USDA office after the prescribed deadline, should be considered for award. The principal contention is the one made in the agency protest -- that the proposal should be considered because the Federal Government (through the actions of its air traffic controllers) is responsible for the lateness of the delivery. NISC acknowledges that the tardiness is not excused under any of the exceptions provided in FAR clause 52.215-10. Protester maintains instead that acceptance of the proposal is appropriate under a rule enunciated in SYS v. National Aeronautics & Space Administration, GSBCA 12154-P, 93-2 BCA 25,582, at 127,403, 1992 BPD 366, at 4, reconsideration denied, 93-2 BCA 25,652, 1992 BPD 405: The 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. The facts which are relevant to this contention are uncontested. The matter is appropriately resolved on motion for summary relief. Copelands' Enterprises, Inc. v. CNV, Inc., 945 F.2d 1563, 1565-66 (Fed. Cir. 1991); ViON Corp. v. Department of the Army, GSBCA 12736-P, 1994 BPD 37, at 8 (Feb. 17, 1994). ----------- FOOTNOTE BEGINS --------- [foot #] 1 NISC also maintained in the agency protest that one of the firm's employees had personally attempted to deliver a copy of the proposal by flying from Westchester County, New York, to New Orleans. According to NISC, because air traffic controllers reduced the flow of air traffic, the employee missed a connecting flight in Chicago and was consequently unable to reach New Orleans early enough to make timely delivery of the proposal. Protest, Exhibit 6, Count II. In its Board protest, NISC has not reiterated the argument that the controllers' actions regarding the employee's flights constitute grounds for ordering USDA to accept the proposal. ----------- FOOTNOTE ENDS ----------- The FAR establishes that "[o]fferors are responsible 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) (1993); Fidelipac Corp., GSBCA 11102-P, 91-2 BCA 23,932, 1991 BPD 84. There are many vagaries in life, some of which may occasionally have an impact on the timely delivery of proposals. One of these vagaries is the weather. Offerors are expected to take weather conditions into account in making decisions as to when and how to send proposals to agencies. See Bio-Metric Systems, Inc., B-234330 (Feb. 13, 1989), 89-1 CPD 150. Data/Ware asserts that it did this; it made a conscious choice to send its proposal on February 8th by next-day delivery service, so as to ensure that even if transportation were delayed by adverse weather, the proposal would arrive at the USDA office by the specified time on the 10th. Intervenor's Reply to Respondent's Motions at 5. NISC evidently chose to spend an extra day writing its proposal, leaving only one day for shipment. The facts agreed to by the parties make plain that the paramount cause of the delay in delivery of NISC's proposal to the USDA was a severe storm on the East Coast at the time the proposal was en route to its destination. Whatever air traffic controllers might have done to reduce the numbers of landings and takeoffs was clearly consequent to, and therefore subsidiary to, the bad weather. NISC admits that the controllers did not do anything wrong in the performance of their duties. Protester's Brief at 6-7. The fact that these individuals are employed by the Federal Government is of no importance to this case. The principal count of the protest is denied. NISC's other contention is that the agency acted improperly in refusing to accept transmission of the proposal by facsimile. NISC learned of this refusal on February 10 (the date proposals were due), but did not protest it until March 15. We are not sure whether NISC views the agency's determination as an impropriety in the solicitation (which does not mention delivery by facsimile) or some other violation of law. In either event, however, the allegation is untimely. Under our Rules of Procedure, the former type of protest ground must be filed before the closing time for receipt of initial proposals, and the latter must be made no later than ten working days after the basis for the ground was known or should have been known, whichever is earlier. Rule 5(b)(3)(i), (ii).[foot #] 2 March 15 was more than a month after the closing time for receipt of initial proposals, and 22 working days after the basis for the allegation was known to NISC. This ground of protest is dismissed as untimely filed. ----------- FOOTNOTE BEGINS --------- [foot #] 2 58 Fed. Reg. 69246, 69254 (Dec. 30, 1993) (to be codified at 48 CFR 6101.5(b)(3)(i), (ii)). ----------- FOOTNOTE ENDS ----------- Decision The protest is DENIED IN PART AND DISMISSED AS UNTIMELY FILED IN PART. On March 18, the Board issued an order partially suspending USDA's authority to proceed with the protested procurement. We permitted the agency to evaluate proposals, but not to engage in discussions with offerors, while the protest was pending. That order lapses with the issuance of this decision. _________________________ STEPHEN M. DANIELS Board Judge We concur: _________________________ _________________________ ANTHONY S. BORWICK ALLAN H. GOODMAN Board Judge Board Judge