DENIED: October 18, 1994 GSBCA 12991-P WHITE OAK TELECOM, INC., Protester, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent. Rito Perez, President of White Oak Telecom, Inc., appearing for Protester. Philip S. Kauffman, Dennis Foley, and Jane S. Converse, Office of General Counsel, Department of Veterans Affairs, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), BORWICK, and WILLIAMS. DANIELS, Board Judge. White Oak Telecom, Inc. (White Oak), protests that the Department of Veterans Affairs (VA) acted improperly in not accepting a best and final offer (BAFO) the firm submitted.[foot #] 1 We find that the proposal was delivered after the deadline established for receipt; that the circumstances of the tardiness do not fit within any of the exceptions to the general rule that a late offer may not be considered for award; and that the agency therefore acted properly in not considering this proposal. Findings of Fact White Oak submitted an initial proposal to the VA in response to a request for proposals to replace the ----------- FOOTNOTE BEGINS --------- [foot #] 1 The protest as filed contained additional allegations. In a conference convened by the Board, protester announced that it would not pursue these counts. Board's Memorandum of Conference of Oct. 4, 1994, at 1. ----------- FOOTNOTE ENDS ----------- telecommunications system at the agency's medical center in Cincinnati, Ohio. Respondent's Brief at 1. By letter dated September 23, 1994, a VA contracting officer told White Oak: You are invited to submit a Best and Final Offer (BAFO) for this solicitation. Your response is due no later than 2:00 PM, local time, September 27, 1994 to the following address: [specified]. . . . . Late receipt of your BAFO will be subject to FAR [Federal Acquisition Regulation] 52.215-10, Late Submissions, Modifications, and Withdrawals of Proposals. Respondent's Brief, Exhibit 4 at 6. On the same date, the contracting officer sent the same message to other offerors in this procurement. Id., Exhibit 9 2. White Oak gave its BAFO to a commercial courier service for delivery to the specified place. The courier affirms: "To the best of my recollection, I arrived in the [specified] office . . . at 2:03 p.m. on September 27, 1994." Protester's Brief, Exhibit 1 1. The receptionist who was on duty there believes that the courier arrived at 2:10. Respondent's Brief, Exhibit 6 5. Whichever is correct as to the exact minute, the two clearly agree that the courier carrying the proposal did not arrive until after 2:00 p.m. The two also agree that the receptionist did not accept the package. Protester's Brief, Exhibit 1 1; Respondent's Brief, Exhibit 6 8. The VA received BAFOs from other firms, in response to this solicitation, earlier than 2:00 p.m. on September 27. Respondent's Brief, Exhibit 9 4. Discussion 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) (FAR 15.412(b)); Fidelipac Corp., GSBCA 11102-P, 91-2 BCA 23,932, 1991 BPD 84. The regulation draws a clear, easily understood line: if a proposal arrives after the specified time, it is late and may not be considered for award unless it arrives before award is made and the circumstances surrounding the lateness fall within an established exception to the rule. FAR 15.412(c). There are only five of these recognized exceptions. Four of them are stated in the FAR clause referenced in the contracting officer's letter. FAR 15.412(c), 52.215-10. A late proposal may be considered if "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. We have explained: 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. Network Imaging Systems Corp. v. Department of Agriculture, GSBCA 12790-P, 94-2 BCA 26,883, at 133,800, 1994 BPD 83, at 4 (quoting 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). White Oak's proposal plainly does not fall within any of the exceptions. The contracting officer's determination not to consider the proposal was consequently proper. It is true, as White Oak points out, that the receptionist should have marked the date and hour of receipt on the package handed her by the courier, and the agency should have kept that package, unopened, with other unsuccessful proposals. FAR 15.412(f), (g). The failure to follow this instruction does not affect the correctness of the decision not to consider the proposal, however. Andersen Consulting v. United States, 959 F.2d 929 (Fed. Cir. 1992). It may also be true, as White Oak alleges, that another VA contracting officer, in another procurement, accepted a late proposal from White Oak. Even if this incident occurred, however, it does not require this contracting officer, in this procurement, to deviate from the law. We sympathize with a vendor which has invested considerable resources in preparing an offer to the Government, only to lose any opportunity to have that proposal considered because delivery is made a few minutes late. As a matter of law, however, we cannot find that the Government has acted inconsistently with statute in establishing by regulation a bright line as to when proposals may be accepted. Nor can we find that a contracting officer has violated the law when she follows the regulation. SYS, 93-2 BCA at 127,404-05, 1992 BPD 366, at 6. Decision The protest is DENIED. The VA may proceed to evaluate BAFOs which were timely delivered, and then award a contract, consistent with the requirements of statute and regulation. _________________________ STEPHEN M. DANIELS Board Judge We concur: _________________________ _________________________ ANTHONY S. BORWICK MARY ELLEN COSTER WILLIAMS Board Judge Board Judge