B-216554, OCT 10, 1984, OFFICE OF GENERAL COUNSEL

B-216554, OCT 10, 1984, OFFICE OF GENERAL COUNSEL

CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - TIMELINESS OF PROTEST - CONGRESSIONAL TRANSMITTAL OF PROTEST DIGEST: GAO DECLINES TO ISSUE A DECISION ON THE MERITS OF A PROTEST FORWARDED BY A MEMBER OF CONGRESS BECAUSE THE PROTEST IS UNTIMELY UNDER GAO'S BID PROTEST PROCEDURES, BUT ADVISES MEMBER FOR CONSTITUENT'S BENEFIT THAT A BID DELIVERED LATE BY A COMMERCIAL COURIER DOES NOT COME WITHIN THE "REGISTERED OR CERTIFIED MAIL" EXCEPTION TO THE LATE BID RULES.

THE HONORABLE ROBERT A. YOUNG MEMBER, UNITED STATES HOUSE OF REPRESENTATIVES 4150 CYPRESS ROAD ST. ANN, MISSOURI 63074

DEAR MR. YOUNG:

THIS IS IN REPLY TO YOUR LETTER DATED SEPTEMBER 18, 1984, IN WHICH YOU FORWARD AND ASK FOR OUR RULING ON THE PROTEST OF CHEMTECH INDUSTRIES, INC. AGAINST THE REJECTION OF ITS BID AS LATE BY THE BALTIMORE DISTRICT, ARMY CORPS OF ENGINEERS, UNDER INVITATION FOR BIDS NO. DACW31-84-B-0026. CHEMTECH'S BID WAS REJECTED BECAUSE IT WAS DELIVERED TO THE PROCURING AGENCY BY COURIER THE DAY AFTER BIDS WERE OPENED.

ACCORDINGLY TO THE DOCUMENTS ATTACHED TO CHEMTECH'S PROTEST, BIDS WERE SCHEDULED TO BE OPENED AT 11:15 A.M. ON WEDNESDAY, SEPTEMBER 5, 1984. CHEMTECH SUBMITTED ITS BID BY A COMMERCIAL COURIER SERVICE. CHEMTECH'S BILL OF LADING AND THE COURIER SERVICE'S ROUTE MANIFEST BOTH INDICATE THAT THE PACKAGE CONTAINING CHEMTECH'S BID WAS PICKED UP BY THE COURIER AT 5:45 P.M. ON FRIDAY, AUGUST 31, 1984. THE PACKAGE WAS DELIVERED TO THE BALTIMORE DISTRICT OF THE CORPS OF ENGINEERS AT 8:53 A.M. ON THURSDAY, SEPTEMBER 6, THE MORNING AFTER BIDS HAD BEEN OPENED.

UPON BEING ADVISED BY THE CORPS EITHER ON THE AFTERNOON OF SEPTEMBER 5 OR ON SEPTEMBER 6 (CHEMTECH'S CORRESPONDENCE IS NOT CLEAR ON THIS POINT) THAT ITS BID WOULD BE REJECTED AS LATE, CHEMTECH REQUESTED THAT ITS BID BE CONSIDERED UNDER THAT PORTION OF THE LATE BIDS CLAUSE IN THE INVITATION FOR BIDS ("LATE SUBMISSIONS, MODIFICATIONS AND WITHDRAWAL OF BIDS (APR 1984)", FEDERAL ACQUISITION REGULATION SEC. 52.214-07) WHICH PERMITS THE CONSIDERATION OF A LATE BID IF IT:

"(1) WAS SENT BY REGISTERED OR CERTIFIED MAIL NOT LATER THAN THE FIFTH CALENDAR DAY BEFORE THE DATE SPECIFIED FOR RECEIPT OF BIDS. ..."

STATING THAT ITS BID HAD BEEN SENT "VIA A REGISTERED MAIL SERVICE OFFERED BY (THE COURIER SERVICE", CHEMTECH ARGUED THAT IT WAS ELIGIBLE FOR CONSIDERATION SINCE IT HAD BEEN SENT ON THE FIFTH CALENDAR DAY BEFORE THE DATE SPECIFIED FOR RECEIPT OF BIDS. ACCORDINGLY TO CHEMTECH, THE CONTRACTING OFFICER DECLINED TO CONSIDER ITS BID ON THE BASIS THAT THE REFERENCE IN THE LATE BIDS CLAUSE TO "REGISTERED OR CERTIFIED MAIL" WAS APPLICABLE ONLY TO BIDS SENT VIA THE UNITED STATES POSTAL SERVICE AND NOT TO THOSE DELIVERED BY A COMMERCIAL COURIER SERVICE.

AFTER ITS REQUEST HAD BEEN DENIED BY THE CONTRACTING OFFICER, CHEMTECH WROTE YOUR OFFICE ON SEPTEMBER 10 AND YOU IN TURN, BY LETTER OF SEPTEMBER 18, (RECEIVED SEPTEMBER 25) SPECIFICALLY ASKED US FOR A RULING ON CHEMTECH'S PROTEST.

WE WILL NOT FORMALLY RULE UPON CHEMTECH'S PROTEST BECAUSE IT IS UNTIMELY. OUR BID PROTEST PROCEDURES, WHICH APPEAR IN PART 21, TITLE 4 OF THE CODE OF FEDERAL REGULATIONS (A COPY OF WHICH IS ENCLOSED FOR YOUR CONVENIENCE), REQUIRE THAT PROTESTS (OTHER THAN THOSE WHICH CONCERN SOME DEFECT APPARENT ON THE FACT OF THE SOLICITATION) MUST BE FILED (RECEIVED) WITHIN 10 WORKING DAYS FROM WHEN THE BASIS FOR PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN, WHICHEVER IS EARLIER. 4 C.F.R.SEC. 21.2(B)(2). IF SUCH A PROTEST HAS BEEN FILED INITIALLY WITH THE CONTRACTING AGENCY, ANY SUBSEQUENT PROTEST TO OUR OFFICE MUST BE FILED WITHIN 10 WORKING DAYS OF FORMAL NOTIFICATION OF OR ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF INITIAL ADVERSE AGENCY ACTION. 4 C.F.R. SEC. 21.2(A).

IT APPEARS FROM CHEMTECH'S CORRESPONDENCE THAT AS OF SEPTEMBER 6, AT THE LATEST, IT LEARNED THAT ITS BID HAD NOT BEEN RECEIVED PRIOR TO BID OPENING AND THAT THE CORPS INTENDED TO REJECT THE BID AS LATE. IT THEN WAS INCUMBENT UPON CHEMTECH TO FILE A PROTEST WITH THE CORPS OR OUR OFFICE WITHIN 10 WORKING DAYS OF SEPTEMBER 6 - THAT IS, BY SEPTEMBER 20. IF THE FIRM'S "REQUEST" THAT THE CONTRACTING OFFICER CONSIDER ITS BID UNDER THE "REGISTERED OR CERTIFIED MAIL" EXCEPTION IS CONSIDERED TO BE A "PROTEST" TO THE CONTRACTING AGENCY, CHEMTECH WAS REQUIRED TO FILE ANY SUBSEQUENT PROTEST WITH OUR OFFICE WITHIN 10 WORKING DAYS OF INITIAL ADVERSE AGENCY ACTION ON ITS PROTEST. SINCE, FROM CHEMTECH'S ACCOUNT, IT APPEARS THE CONTRACTING OFFICER DENIED CHEMTECH'S REQUEST ON SEPTEMBER 6, CHEMTECH'S SUBSEQUENT PROTEST HERE SHOULD HAVE BEEN FILED ON OR BEFORE SEPTEMBER 20, WHICH IT WAS NOT. IF THE REQUEST TO THE CONTRACTING OFFICER IS NOT CONSIDERED A PROTEST, THEN THE FIRST PROTEST OF ANY KIND WAS THE ONE WE RECEIVED ON SEPTEMBER 25, BEYOND THE SEPTEMBER 20 DEADLINE ESTABLISHED BY OUR PROCEDURES.

FOR YOUR INFORMATION, WE POINT OUT THAT BIDS SENT BY COMMERCIAL CARRIER ARE CONSIDERED TO BE HAND-CARRIED AND DO NOT FALL WITHIN THE EXCEPTION FOR "REGISTERED OR CERTIFIED MAIL." SEE, FOR EXAMPLE, OUR DECISION IN MOORE'S CAFETERIA SERVICES, INC., B-205943, JAN. 12, 1982, 82-1 CPD PARA. 29, COPY ENCLOSED. IN THIS REGARD, WE NOTE THAT SUBSECTION (C) OF THE LATE BIDS CLAUSE CONTAINED IN THE PRESENT SOLICITATION PROVIDES THAT:

"THE ONLY ACCEPTABLE EVIDENCE TO ESTABLISH THE DATE OF MAIL OF A LATE BID ... SENT EITHER BY REGISTERED OR CERTIFIED MAIL IS THE U.S. OR CANADIAN POSTAL SERVICE POSTMARK ON THE WRAPPER OR THE ORIGINAL RECEIPT FROM THE U.S. OR CANADIAN POSTAL SERVICE. ... 'POSTMARK' MEANS (AN IMPRESSION) READILY IDENTIFIABLE WITHOUT FURTHER ACTION AS HAVING BEEN SUPPLIED AND AFFIXED BY EMPLOYEES OF THE U.S. OR CANADIAN POSTAL SERVICE ON THE DATE OF MAILING."