B-228336, Dec 17, 1987, 87-2 CPD 604

B-228336, Dec 17, 1987, 87-2 CPD 604

PROCUREMENT - Sealed Bidding - Bids - Late Submission - Rejection - Propriety DIGEST: 1. Late bid was properly rejected where paramount cause of lateness was Postal Service's attempted deliveries of express mail parcel outside of contracting agency's normal business hours after which the Postal Service turned express mail parcel over to regular route unit for normal delivery. 2. Late bid may not be considered on ground that during pre-bid opening telephone conversation with contracting agency, in which arrival of its bid modification was confirmed, protester inferred its bid also had arrived. Contracting agency has no duty to volunteer bid arrival status. A bidder has the responsibility to ensure the timely arrival of its bid and must bear the responsibility for late arrival. 3. Protest that agency should have postponed bid opening due to unannounced closure of agency office on day prior to opening date due to Papal visit is denied, where office was open on bid opening day and only protester's bid was late.

Goodwin Contractors:

Goodwin Contractors protests the rejection of its bid as late under solicitation No. AZ-PEFO 10 (1), issued by the Arizona division, Federal Highway Administration (FHWA), for a highway project in the Petrified Forest National Park.

We deny the protest.

The solicitation was issued on August 14, 1987, and provided that bids would be opened at the FHWA division office in Phoenix, Arizona, at 11 a.m., Tuesday, September 15, 1987. The division office is located on the third floor of a sixstory private office building in downtown Phoenix.

Goodwin mailed its bid from Blackfoot, Idaho, via United States Postal Service express mail at 2:52 p.m., Saturday, September 12, 1987. The Postal Service accepted the package for guaranteed delivery "by the second day."

Delivery was first attempted by the Postal Service on Sunday, September 13 (not a working day) at 2:03 p.m. According to the express mail label there was no notice of delivery left since the building was closed. The Postal Service again attempted delivery on Monday, September l4 at 7 a.m. According to FHWA, 7 a.m. is outside normal working hours. Again, no notice of attempted delivery was made.

The Secret Service had ordered the building closed and locked Sunday and Monday because of a parade in honor of the Pope's September 14 visit that would proceed down the street outside the building in which the FHWA office was located. The contracting officer was aware of this plan on Thursday, September 10. Since the office would be closed on Monday, an otherwise normal business day, he considered postponing the bid opening. /l/ However, since the FHWA office would be open during normal business hours on the day of bid opening, September 15, he decided not to postpone the opening because an important segment of bidders would not have delivery of bids delayed by the September 14 closure.

After the second unsuccessful delivery attempt, the package was turned over to the regular route unit for normal mail delivery the next day. Tuesday, September 15, 1987, the FHWA office returned to normal operations, but it did not receive any notice that prior mail deliveries had been attempted.

At approximately 9:30 a.m., Goodwin telephoned the Arizona Division of FHWA to confirm that a telefaxed bid modification had arrived. Goodwin, which was unaware of the September l4 closure, did not inquire whether its original bid had arrived. According to Goodwin, as the FHWA employee with whom it spoke requested the amount of Goodwin's bid and stated that "the bid hasn't been opened," Goodwin concluded that its bid had arrived. Goodwin's call had been directed to the Assistant Division Administrator, who was aware of the receipt of the bid modification because the telefax machine is in his office, but who does not conduct the bid openings and was unaware of what bid packages actually had been received. Ordinarily, the Assistant Division Administrator states, he would have referred Goodwin to a more knowledgeable person, but that employee was occupied at the time of the call and unable to come to the telephone.

Three hand-carried bids arrived prior to bid opening on September 15, of which two were from concerns outside of Phoenix. At 11 a.m., those bids were opened and recorded. Goodwin's bid arrived at 11:15 a.m. as part of the regular mail. Although the express mail label indicates time of delivery as "11 a.m.," as well as "11:15 a.m." the FHWA employee who signed for the package and the postman agree that it was not delivered
until 11:15 a.m. The 11 a.m. notation reportedly indicates the time the
postman entered the building.

Because it was received after bid opening time, Goodwin's bid was not
opened and was rejected as late.
Goodwin's modified bid apparently would
be the low bid.
Pending the resolution of the protest, FHWA has withheld
award of the contract.

Goodwin relies upon a combination of circumstances to support its claim
that its bid should not be considered late.
Goodwin first suggests that
FHWA should have post-poned the bid opening due to the unexpected closure
of its offices the day before bid opening, consistent with the regulatory
guidance to do so when there is reason to believe that the bids of an
important segment of bidders have been delayed in the mails for reasons
beyond their control and not due to their negligence.
Goodwin argues that
since it represents 25 percent of all bidders who responded to the
solicitation, an "important segment" of bidders was denied the opportunity
to compete because the bid opening was not extended.
Goodwin next alleges
that FHWA, knowing its offices were closed on a regular business day, and
having notice of attempted delivery, should have arranged to pick up the
express mail package prior to the time set for bid opening.
Similarly,
Goodwin maintains that when it inquired about its bid modification, FHWA
should have informed it that its bid had not been received, so that
Goodwin could arrange for delivery.
Finally, Goodwin alleges that in
spite of these circumstances, its bid was delivered in time for the bid
opening.

The FHWA denies any mishandling and maintains that Goodwin's bid was
received after bid opening time.
It contends that neither of the
exceptions for consideration of late bids provided in the FAR, 48 C.F.R.
Sec. 52.214-7, and incorporated by reference in the solicitation,
applies.
Further, postponement of the bid opening was not appropriate.
We agree with the FHWA.

The late bid clause provides that a late bid will be considered only if
it was received before award and (1) was sent by registered or certified
mail at least 5 days prior to the opening date, or (2) the late receipt
was due solely to government mishandling after receipt at the government
installation.
Neither of these exceptions applies here.
Express mail is
not considered certified or registered mail for purposes of the first
exception, Nuaire, Inc., B-221551, Apr. 2, 1986, 86-1 CPD Para. 314,
and, in any event, Goodwin's bid was not mailed until 3 days before bid
opening.
The second exception does not apply because the bid itself was
already late when it was received at the government installation, which in
the context of the late bid clause, means the local agency office, not the
local post office.
Id. Contrary to Goodwin's allegation, the record only
supports a finding that the bid was received at 11:15 a.m., after the time
set for bid opening.

We have recognized, however, that where a protester shows that government
mishandling during the process of receipt (as distinguished from
mishandling after receipt) was the paramount reason its bid was late, the
bid may be considered.
Nuaire, Inc., B-221551, supra. For instance, where
bids are delivered to a local post office for pick up by agency personnel,
the agency has a duty to establish procedures to ensure that the physical
transmission of bids is accomplished within a reasonable time of their
receipt.
Federal Contracting Corp., 56 Comp.Gen. 737 (1977), 77-1 CPD
Para. 444.
Thus, mishandling may be charged to the government where the
delay in the transmission of a bid is due to the agency's failure to use a
transmittal procedure that would have permitted the bid to be delivered to
the bid opening location within a reasonable time before bid opening.
order to conclude that a bid was late solely as a result of government
mishandling, it must be established that the agency had been given some
notice concerning the bid prior to the time set for bid opening.
Nuaire,
Inc., B-221551, supra; Data Monitor Systems, Inc., B-220917, Jan. 23,
1986, 86-1 CPD Para. 82.

Here, bids were to be addressed not to a post office box, but to the
street address of the FHWA office; there is no indication that the
contracting agency had a regular practice of collecting bids from a post
office box prior to scheduled openings.
Goodwin dispatched its bid on the
Saturday afternoon prior to a Tuesday bid opening.
The Postal Service
made two attempts at delivery which from their timing would appear doomed
to failure even if the Pope's visit had not occurred.
These delivery
attempts were made on Sunday, a non-business day, and at 7 a.m. on Monday,
before regular business hours.
There apparently was no one with whom to
leave notice at these times, as a result of which, it would appear, the
Postal Service failed to provide any written notice to FHWA of these
attempted deliveries.
The Postal Service also failed to telephone the
FHWA on Tuesday morning even though the recipient's telephone number had
been provided on the package label.

Where, as here, the Postal Service does not hold mail for collection by
agency personnel, absent notice from the Postal Service, we are unwilling
to infer a duty to inquire about the possible delivery of mail and thereby
arrange to pick it up prior to a bid opening.
The acts and omissions of
the Postal Service, not the contracting agency, were the paramount cause
of delay in receipt of Goodwin's bid and mishandling by the Postal Service
is not within the ambit of government mishandling.
See Minority Business
Enterprises, Inc., B-211836, May 31, 1983, 83-1 CPD Para. 583.

We also find no duty to volunteer the arrival status of bids prior to bid
opening.
Although Goodwin assured itself that its modification had
arrived, it failed to inquire about its original bid.
By failing to do
so, Goodwin assumed the risk that the agency representative to whom it
spoke was unaware of whether the bid had arrived.
The ambiguous statement
attributed to the agency employee to the effect that the bid had not been
opened does not change our conclusion.
Under the circumstances, we do not
find that Goodwin could reasonably have relied on such a statement.
light of the proximity of the call to bid opening time, and the agency
representative's ignorance of any particular bid's arrival status, the
only possible meaning of the statement was that no bids had been opened.
In any case, a contracting officer's failure to respond to an inquiry
about a bid's arrival is not ground for consideration of a late bid, since
a bidder has the responsibility to ensure the timely arrival of its bid
and must bear the responsibility for late arrival.
See Tenavision Inc.,
B-207977, July 20, 1982, 82-2 CPD Para. 64.
/2/

Finally, we find unobjectionable the contracting officer's decision not
to postpone the bid opening.
The office was open to receive bids on the
bid opening day and three hand carried bids arrived that day prior to 11
a.m. Even though Goodwin's bid was 25 percent of all bids ultimately
received, we agree with FHWA that one delayed bid is not an "important
segment" within the meaning of FAR, 48 C.F.R. Sec. 14.402 3.
One affected
bidder is insufficient to warrant postponement of bid opening.
See Nikon
Inc., B-211047, Apr. 1, 1983, 83-1 CPD Para. 345; Ecology and
Environment, Inc., B-188354, June 15, 1977, 77-1 CPD Para. 428.

The protest is denied.

/1/ In accordance with the Federal Acquisition Regulation (FAR), 48 C.F.R. Sec. 14.402-3 (1986), a bid opening may be postponed where "the contracting office has reason to believe that the bids of an important segment of bidders have been delayed in the mails or causes beyond their control and without their fault or negligence (e.g., flood, fire, accident, weather conditions, or strikes) . ***"

/2/ In any event, since the protester was in Idaho and, as of Tuesday morning, the Postal Service had turned the bid over for regular route delivery in Arizona, we doubt the likely success of any efforts to locate the bid or arrange for a substitute in the hour and a half remaining before bid opening.