B-218676, MAY 22, 1985, OFFICE OF GENERAL COUNSEL

B-218676, MAY 22, 1985, OFFICE OF GENERAL COUNSEL

CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - TIMELINESS OF PROTEST - DATE BASIS OF PROTEST MADE KNOWN TO PROTESTER DIGEST: A SENATOR IS INFORMED THAT HIS CONSTITUENT'S LETTER PROTESTING THE REJECTION OF ITS LATE BID WHICH WAS FILED 6 WEEKS AFTER THE REJECTION IS UNTIMELY. MOREOVER, GSA'S BASIS FOR REJECTING THE BID IS SOUND SINCE THE PROTESTER'S HAND-CARRIED BID WAS 15 MINUTES LATE. THE FACT THAT A SCHEDULED AIRCRAFT WAS LATE BECAUSE OF WEATHER AND MECHANICAL PROBLEMS DOES NOT PROVIDE A BASIS FOR CONSIDERING THE BID OR FOR DELAYING BID OPENING.

THE HONORABLE JOHN GLENN: UNITED STATES SENATE

DEAR SENATOR GLENN:

THIS REFERS TO YOUR LETTER OF MARCH 25, 1985, IN WHICH YOU REQUEST THAT WE RESPOND TO THE CONCERNS OF MR. JEFFREY GILBERT, PRESIDENT OF LA PLACE TRAVEL SERVICE, INC. (LA PLACE), WHO WROTE YOU REGARDING THE REJECTION OF HIS LATE BID BY THE GENERAL SERVICES ADMINISTRATION (GSA).

ACCORDING TO MR. GILBERT'S LETTER, GSA SOLICITATION NO. SFCG-71-85 024 REQUIRED THAT BIDS BE DELIVERED TO 230 SOUTH DEARBORN STREET, ROOM 3425, CHICAGO, ILLINOIS, 60604, BY FEBRUARY 12, 1985, AT 4:30 P.M. MR. GILBERT STATES THAT LA PLACE COULD HAVE MAILED ITS BID BUT ITS PREFERRED PRACTICE IS TO HAND-DELIVER BIDS. ACCORDINGLY, A LA PLACE EMPLOYEE WAS SCHEDULED TO DEPART CLEVELAND ON FEBRUARY 12, 1985, AT 2:15 P.M., ON UNITED AIRLINES FLIGHT 277 AND WAS SCHEDULED TO ARRIVE IN CHICAGO AT 2:28 P.M. MR. GILBERT STATES THAT THIS WOULD HAVE PROVIDED AMPLE TIME TO TAKE A TAXI TO THE FEDERAL BUILDING WHERE BID OPENING WAS TO BE HELD AT 4:30 P.M. FLIGHT 277 WAS DELAYED DUE TO WEATHER AND MECHANICAL PROBLEMS AND LA PLACE'S BID WAS NOT HAND-DELIVERED TO THE SITE FOR BID OPENING UNTIL 4:45 P.M. THE CONTRACTING OFFICER REJECTED LA PLACE'S BID AS LATE.

MR. GILBERT STATES THAT HE HAD CALLED THE CONTRACTING OFFICER AT 3 P.M. AND INFORMED HER OF THE PLANE'S DELAY. THE CONTRACTING OFFICER INFORMED MR. GILBERT THAT IF THE BID WAS NOT THERE BY 4:30 P.M., IT WOULD NOT BE CONSIDERED. MR. GILBERT STATES THAT HE DID NOT KNOW THAT THE PLANE WOULD HAVE MECHANICAL DIFFICULTIES OR THAT ADVERSE WEATHER CONDITIONS WOULD DEVELOP. HE ASSERTS THAT IT WOULD BE IMPROPER TO NOT CONSIDER LA PLACE'S BID WHICH WAS LATE DUE TO CIRCUMSTANCES BEYOND ITS CONTROL.

YOU HAVE ASKED US TO PROVIDE INFORMATION ON PROCEDURES WHICH WOULD ENABLE GSA TO CONSIDER LA PLACE'S BID AND TO RESPOND TO THE POINTS WHICH MR. GILBERT HAS RAISED.

THE REJECTION OF LA PLACE'S BID BY GSA OCCURRED ON FEBRUARY 12, 1985, BUT LA PLACE'S PROTEST OF THIS ACTION WAS NOT RECEIVED IN THIS OFFICE UNTIL APRIL 9, WHEN IT WAS RECEIVED HERE AS AN ATTACHMENT TO YOUR LETTER. OUR BID PROTEST REGULATIONS REQUIRE THAT A PROTEST BE FILED NOT LATER THAN 10 DAYS AFTER THE BASIS OF PROTEST IS KNOWN. 4 C.F.R. SEC. 21.2(A)(2) (1985). SINCE LA PLACE'S PROTEST WAS NOT FILED UNTIL APPROXIMATELY 6 WEEKS AFTER LA PLACE KNEW OF GSA'S REJECTION OF ITS BID, ITS PROTEST HERE IS UNTIMELY. ACCORDINGLY, GAO WILL NOT CONSIDER THE MERITS OF LA PLACE'S PROTEST.

EVEN THOUGH WE WILL NOT FORMALLY CONSIDER THE MERITS OF LA PLACE'S PROTEST, WE NOTE THAT ARGUMENTS SUCH AS THOSE LA PLACE HAS MADE IN SEEKING CONSIDERATION OF ITS LATE BID HAVE BEEN CONSIDERED BY OUR OFFICE. GENERALLY, IT IS THE BIDDER'S RESPONSIBILITY TO ASSURE TIMELY ARRIVAL OF ITS BID AT THE PLACE OF BID OPENING. T.E. DELOSS EQUIPMENT RENTALS, B-214029 JULY 10, 1984, 84-2 CPD PARA. 35. THE FEDERAL ACQUISITION REGULATION (FAR) STATES IN REGARD TO LATE BIDS THAT:

"(A) A LATE BID, MODIFICATION OF BID, OR WITHDRAWAL OF BID SHALL NOT BE CONSIDERED UNLESS RECEIVED BEFORE CONTRACT AWARD, AND EITHER--

"(1) IT WAS SENT BY REGISTERED OR CERTIFIED MAIL NOT LATER THAN 5 CALENDAR DAYS BEFORE THE BID RECEIPT DATE SPECIFIED; OR

"(2) IT WAS SENT BY MAIL (OR TELEGRAM IF AUTHORIZED) AND IT IS DETERMINED BY THE GOVERNMENT THAT LATE RECEIPT WAS DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION." FAR, 48 C.F.R. SEC. 14.304-1 (1984).

NEITHER OF THE ABOVE TWO EXCEPTIONS IS APPLICABLE HERE. MOREOVER, WE HAVE HELD THAT DELAYS CAUSED BY SEVERE WEATHER DO NOT PROVIDE A BASIS FOR CONSIDERING A LATE BID. DEVOE & RAYNOLDS COMPANY, B-197457, FEB. 7, 1980, 80-1 CPD PARA. 111. BY CHOOSING A METHOD OF DELIVERY OTHER THAN THOSE SPECIFIED IN THE LATE BID CLAUSE, AN OFFEROR ASSUMES A HIGH DEGREE OF RISK THAT ITS BID WILL BE REJECTED IF UNTIMELY DELIVERED. BERTOLINI ENGINEERING COMPANY, B-186292, JUNE 16, 1976, 76-1 CPD PARA. 386. THE LATTER DECISION, WE HELD THAT LATE DELIVERY PRECLUDED CONSIDERATION OF A HAND-CARRIED BID, WHERE DELIVERY WAS DELAYED BY CANCELLATION OF A COMMERICAL AIRLINE FLIGHT.

WHILE THE APPLICATION OF THE RULES FOR LATE BIDS OR PROPOSALS MAY LEAD TO HARSH RESULTS, TO ENSURE FAIR AND IMPARTIAL TREATMENT OF BIDDERS AND AVOID CONFUSION, THE GOVERNMENT MUST CONDUCT ITS PROCUREMENTS IN ACCORD WITH CLEARLY DEFINED STANDARDS THAT APPLY EQUALLY TO ALL. ACCORDINGLY, OUR OFFICE HAS DENIED PROTESTS CONCERNING REJECTION OF LATE BIDS EVEN THOUGH THEY ALLEGEDLY OFFERED SIGNIFICANT ADVANTAGES TO THE GOVERNMENT. NIKON INC., B-211047, APR. 1, 1983, 83-1 CPD PARA. 345. MOREOVER, WE KNOW OF NO PROCEDURES WHICH WOULD ENABLE GSA TO CONSIDER THE LATE BID.

WITH REGARD TO THE SUGGESTION THAT THE CONTRACTING OFFICER SHOULD HAVE DELAYED BID OPENING, FAR SEC. 402-3 STATES, IN PART:

"(A) A BID OPENING MAY BE POSTPONED EVEN AFTER THE TIME SCHEDULED FOR BID OPENING (BUT OTHERWISE IN ACCORDANCE WITH 14.208) WHEN

"(1) THE CONTRACTING OFFICER HAS REASON TO BELIEVE THAT THE BIDS OF AN IMPORTANT SEGMENT OF BIDDERS HAVE BEEN DELAYED IN THE MAILS FOR CAUSES BEYOND THEIR CONTROL AND WITHOUT THEIR FAULT OR NEGLIGENCE (E.G., FLOOD, FIRE, ACCIDENT, WHETHER CONDITIONS, OR STRIKES); OR

"(2) EMERGENCY OR UNANTICIPATED EVENTS INTERRUPT NORMAL GOVERNMENTAL PROCESSES SO THAT THE CONDUCT OF BID OPENINGS AS SCHEDULED IS IMPRACTICAL."

WITH REGARD TO SUBPARAGRAPH (A)(1) ABOVE, WE HAVE OBSERVED THAT IT APPLIES ONLY TO BIDS DELAYED IN THE MAILS AND NOT TO THOSE, AS HERE, DELIVERED BY COMMON CARRIER, AND ITS USE IS DISCRETIONARY WITH THE CONTRACTING OFFICER. FRASIER DEASON, INC., B-214860, MAY 1, 1984, 84-1 CPD PARA. 490. LIKEWISE, SUBPARAGRAPH (A)(2) IS INAPPLICABLE AS THE UNANTICIPATED EVENTS DID NOT INTERRUPT NORMAL GOVERNMENTAL PROCESSES. THEREFORE, THERE WOULD HAVE BEEN NO BASIS TO DELAY THE BID OPENING.

IN VIEW OF THE RULES DESCRIBED, WE HAVE NO BASIS TO QUESTION GSA'S REJECTION OF LA PLACE'S BID.