B-181612, NOV 7, 1974

B-181612: Nov 7, 1974

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WHERE PROTESTER'S REPRESENTATIVE DELIVERED HAND CARRIED BID 3 MINUTES LATE TO ROOM WHERE BIDS WERE BEING OPENED. SUBSTANTIAL CAUSE OF DELAY WAS REPRESENTATIVE'S FAILURE TO ALLOW SUFFICIENT TIME FOR DELIVERY. LATENESS IS NOT ATTRIBUTABLE TO EXTRAORDINARY DELAY OR MISDIRECTION BY GOVERNMENT PERSONNEL AND BID MAY NOT BE CONSIDERED FOR AWARD. ITS PROTEST IS PREMISED ON THE ASSERTION THAT THE DETERMINATION THAT ITS BID WAS LATE WAS IMPROPER IN VIEW OF THE CIRCUMSTANCES SURROUNDING THE SUBMISSION OF ITS HAND-CARRIED BID. TO WHICH WAS APPENDED SPECIFICATION NO. 200C-94. THERE IS SOME DISPUTE AS TO THE EXACT TIME AT WHICH THE REPRESENTATIVE ENTERED THE BUILDING INASMUCH AS PERSONNEL IN THE ADMINISTRATION BUILDING AT THE TIME RECOUNT THAT THE TIME WAS ONLY A FEW SECONDS BEFORE 10:00 A.M.

B-181612, NOV 7, 1974

WHERE PROTESTER'S REPRESENTATIVE DELIVERED HAND CARRIED BID 3 MINUTES LATE TO ROOM WHERE BIDS WERE BEING OPENED, SUBSTANTIAL CAUSE OF DELAY WAS REPRESENTATIVE'S FAILURE TO ALLOW SUFFICIENT TIME FOR DELIVERY. HENCE, LATENESS IS NOT ATTRIBUTABLE TO EXTRAORDINARY DELAY OR MISDIRECTION BY GOVERNMENT PERSONNEL AND BID MAY NOT BE CONSIDERED FOR AWARD.

JAMES L. FERRY AND SONS, INC.:

JAMES L. FERRY AND SONS, INC. PROTESTS THE REFUSAL OF THE BUREAU OF RECLAMATION TO OPEN ITS BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS (IFB) NO. 200C-904. ITS PROTEST IS PREMISED ON THE ASSERTION THAT THE DETERMINATION THAT ITS BID WAS LATE WAS IMPROPER IN VIEW OF THE CIRCUMSTANCES SURROUNDING THE SUBMISSION OF ITS HAND-CARRIED BID.

THE IFB, TO WHICH WAS APPENDED SPECIFICATION NO. 200C-94, PROVIDED THAT SEALED BIDS WOULD BE RECEIVED AT THE ADMINISTRATION BUILDING, TRACY PUMPING PLANT, IN THE OFFICE OF THE CHIEF, TRACY FIELD DIVISION, BUREAU OF RECLAMATION, UNTIL 10:00 A.M. LOCAL TIME. THE PROTESTER MAINTAINS THAT ITS REPRESENTATIVE ARRIVED AT THE DISIGNATED BUILDING SEVERAL MINUTES BEFORE 10:00 A.M. AND SAT IN HIS CAR UNTIL JUST BEFORE 9:58, AT WHICH TIME HE ENTERED THE BUILDING. THERE IS SOME DISPUTE AS TO THE EXACT TIME AT WHICH THE REPRESENTATIVE ENTERED THE BUILDING INASMUCH AS PERSONNEL IN THE ADMINISTRATION BUILDING AT THE TIME RECOUNT THAT THE TIME WAS ONLY A FEW SECONDS BEFORE 10:00 A.M. NEVERTHELESS, BOTH PARTIES ARE IN GENERAL AGREEMENT AS TO THE EVENTS THAT OCCURRED THEREAFTER.

THE OFFICES WITHIN THE ADMINISTRATION BUILDING ARE LOCATED ON TWO FLOORS, WITH THE ENTRANCE LOCATED MIDWAY BETWEEN. THE INFORMATION TELEPHONE OPERATOR'S OFFICE IS LOCATED AT THE HEAD OF THE STEPS TO THE FIRST FLOOR DIRECTLY ACROSS THE HALL FROM THE OFFICE OF THE CHIEF'S SECRETARY, WHICH IN TURN IS LOCATED JUST OUTSIDE THE OFFICE OF THE CHIEF. THE MAIL AND FILE OFFICE IS LOCATED TO THE RIGHT SIDE OF THE FOOT OF THE STAIRS ON THE BASEMENT FLOOR, WITH THE CONFERENCE ROOM LOCATED APPROXIMATELY 60 FEET ALONG THE CORRIDOR FROM THE FOOT OF THE STAIRS ON THE BASEMENT FLOOR.

UPON ENTERING THE BUILDING THE PROTESTER'S REPRESENTATIVE PROCEEDED TO THE HEAD OF THE FIRST FLOOR STAIRS AND ADVISED THE OPERATOR THAT HE WAS THERE FOR THE BID OPENING. AT THAT POINT THE REPRESENTATIVE WAS JUST OUTSIDE THE ENTRY AREA TO THE OFFICE OF THE CHIEF WHICH HAD BEEN DESIGNATED AS THE PLACE FOR BID DELIVERY. HAVING VERIFIED THAT NEITHER OF THE BUREAU PERSONNEL CONNECTED WITH THE BID OPENING WAS IN HIS OFFICE AND KNOWING THAT THE CHIEF WAS NOT IN THAT DAY, THE INFORMATION TELEPHONE OPERATOR QUICKLY CALLED FOR THE MAIL AND FILES SUPERVISOR TO HELP THE REPRESENTATIVE FIND MR. OTWAY. ACCORDING TO THE MAIL AND FILE SUPERVISOR, SHE TOLD THE OPERATOR THAT SHE BELIEVED THAT MR. OTWAY WAS AT THE BID OPENING AND COULD NOT BE CALLED OUT, WHEREUPON THE OPERATOR RESPONDED STATING THAT SHE BELIEVED THAT THE REPRESENTATIVE HAD A BID. AT THAT POINT THE MAIL AND FILE SUPERVISOR REPORTS THAT SHE LOOKED AT THE CLOCK AND, UPON DETERMINING THAT IT WAS 10:02, TOLD THE OPERATOR THAT THE REPRESENTATIVE WAS TOO LATE BUT THAT SHE WOULD SEE HIM. THEREFORE SHE RAN TO THE CONFERENCE ROOM AND ASKED WHETHER THE REPRESENTATIVE SHOULD BE SENT IN. HAVING BEEN TOLD THAT THE INDIVIDUAL SHOULD BE BROUGHT TO THE CONFERENCE ROOM, SHE RAN BACK DOWN THE HALLWAY AND HALF WAY UP THE STAIRS AND BECKONED THE REPRESENTATIVE TO FOLLOW. HE ARRIVED AT THE CONFERENCE ROOM AND SUBMITTED HIS BID AT 10:03.

ON THE BASIS OF THESE FACTS, THE PROTESTER CONTENDS THAT ITS BID WAS NOT LATE BUT THAT ITS REPRESENTATIVE WAS AT THE APPOINTED PLACE, THE LOCATION OF THE OFFICE OF THE CHIEF, BEFORE THE APPOINTED 10:00 DEADLINE. THE PROTESTER FURTHER SUGGESTS THAT THE LATENESS OF THE BID DELIVERY WAS DUE NOT TO ANY FAULT ON ITS PART, BUT TO THE FACT THAT THE GOVERNMENT OFFICIALS WERE NOT AT THE ROOM DESIGNATED FOR BID DELIVERY BUT HAD REMOVED THEMSELVES TO THE CONFERENCE ROOM ON THE LOWER FLOOR OF THE BUILDING. THE BUREAU OF RECLAMATION, ON THE OTHER HAND, IS OF THE OPINION THAT THE BID WAS NOT DELIVERED TO THE RECEIVING OFFICE BY 10:00 A.M. INASMUCH AS THE PROTESTER'S REPRESENTATIVE AT NO TIME ENTERED THE OFFICE OF THE CHIEF OR THE OFFICE ADJACENT THERETO IN WHICH THE SECRETARY TO THE CHIEF WAS LOCATED. IN SUPPORT OF THIS POSITION, THE SECRETARY TO THE CHIEF HAS SUBMITTED A MEMORANDUM STATING THAT HER OFFICE IS POSITIONED SO AS TO INTERCEPT ALL TRAFFIC LEADING TO AND FROM THE CHIEF'S OFFICE AND THAT FOR THE PERIOD OF TIME FROM APPROXIMATELY 9:30 A.M. TO 10:30 A.M. NO ONE LOOKED INTO THE OFFICE OR ENTERED THE OFFICE FOR THE PURPOSE OF DELIVERING A BID OR INQUIRING WHERE IT SHOULD BE DELIVERED. WHILE APPARENTLY CONCEDING THAT ITS REPRESENTATIVE DID NOT ENTER THE DESIGNATED OFFICE, THE PROTESTER MAINTAINS THAT ITS REPRESENTATIVE WAS IN FACT AT THE OPERATOR'S OFFICE - WITHIN A FEW STEPS OF THE CHIEF'S OFFICE - AND WOULD HAVE DELIVERED THE BID TO THAT OFFICE HAD HE NOT BEEN USHERED TO THE CONFERENCE ROOM IN RESPONSE TO HIS REQUEST FOR DIRECTIONS TO THE PLACE OF BID OPENING.

IN SUPPORT OF ITS REFUSING TO OPEN THE BID SUBMITTED BY JAMES L. FERRY AND SONS, INC., THE BUREAU OF RECLAMATION CITES OUR HOLDING AT 38 COMP. GEN. 234 (1958), FOR THE PROPOSITION THAT IT IS THE RESPONSIBILITY OF THE BIDDER SUBMITTING A HAND-CARRIED BID TO SEE THAT ITS BID IS DELIVERED TO THE DISIGNATED OFFICE PRIOR TO THE TIME SPECIFIED FOR RECEIPT.

IN ATTEMPTING TO DISTINGUISH 38 COMP. GEN. 234, SUPRA, FROM ITS SITUATION, THE PROTESTER CONTENDS THAT ITS BID WAS DELIVERED TO THE DESIGNATED OFFICE BY THE APPOINTED TIME. IN ESSENCE, THE PROTESTER CONTENDS THAT THE INSTANT SITUATION IS SIMILAR TO THAT WHICH IS THE SUBJECT OF OUR HOLDING IN 34 COMP. GEN. 150 (1954), IN WHICH IT WAS FOUND THAT THE LATENESS OF THE HAND-CARRIED BID WAS DUE TO EXTRAORDINARY DELAY CAUSED BY GOVERNMENT PERSONNEL AND THE BID COULD THUS BE CONSIDERED. THAT CASE THE BIDDER'S REPRESENTATIVE HAD IN FACT DELIVERED ITS BID TO THE USUAL AND DESIGNATED BID DEPOSITORY BY THE APPOINTED HOUR; HOWEVER, THE GOVERNMENT EMPLOYEE AT THAT LOCATION HAD RETURNED THE BID TO THE REPRESENTATIVE AND REDIRECTED HIM TO A CONFERENCE ROOM WHERE THE BID OPENING WAS TO TAKE PLACE. HE ARRIVED AT THAT LOCATION 3 MINUTES AFTER THE TIME DESIGNATED FOR DELIVERY OF BIDS.

WHILE IN CERTAIN RESPECTS THE SITUATION INVOLVED IN 34 COMP. GEN. 150, SUPRA, BEARS A RESEMBLANCE TO THE CASE AT HAND, IT IS DISTINGUISHABLE IN ONE CRITICAL REGARD. SPECIFICALLY, THE PROTESTER'S REPRESENTATIVE DID NOT DELIVER ITS BID TO THE DESIGNATED ROOM PRIOR TO 10:00 A.M. AS TO PROTESTER'S SUGGESTION THAT DELIVERY TO THE DESIGNATED ROOM WAS PRECLUDED BY THE ACTIONS OF BUREAU PERSONNEL REMOVING THEMSELVES TO THE CONFERENCE ROOM, WE POINT OUT THAT THE SECRETARY TO THE CHIEF WAS IN THE ANTEROOM TO THE CHIEF'S OFFICE PRIOR TO AND AT 10:00 A.M. WHILE, AS THE PROTESTER CONTENDS, IT MAY HAVE BEEN INAPPROPRIATE FOR ITS REPRESENTATIVE TO ENTER THE CHIEF'S OFFICE WITHOUT HAVING BEEN FIRST INVITED TO DO SO, THERE IS NO INDICATION THAT HE ENTERED THE ANTEROOM TO THAT OFFICE OR ATTEMPTED TO MAKE DELIVERY TO THAT LOCATION. AND, NOTWITHSTANDING THAT THE BID OPENING WAS OCCURRING IN THE CONFERENCE ROOM, THE FACT REMAINS THAT THE CHIEF'S SECRETARY WAS IN A POSITION TO RECEIVE BIDS DELIVERED TO THE CHIEF'S OFFICE.

UPON A REVIEW OF ALL THE CIRCUMSTANCES OF THIS CASE, IT APPEARS THAT A SIGNIFICANT CAUSE OF THE LATE DELIVERY WAS THE FAILURE OF THE PROTESTER'S REPRESENTATIVE TO ALLOW SUFFICIENT TIME FOR DELIVERY. IT IS ARGUABLE THAT THE 2 MINUTES WHICH THE PROTESTER CLAIMS WAS ALLOWED FROM THE TIME OF ENTERING THE BUILDING WOULD HAVE BEEN SUFFICIENT FOR TIMELY DELIVERY, GIVEN DELAYS IN OBTAINING DIRECTIONS. MOREOVER, PROTESTER'S CONTENTION THAT ITS REPRESENTATIVE ENTERED THE BUILDING AT 9:58 IS DISPUTED BY STATEMENTS OF THE INFORMATION TELEPHONE OPERATOR AND THE MAIL AND FILES SUPERVISOR INDICATING THAT THE REPRESENTATIVE ENTERED THE BUILDING ONLY A FEW SECONDS BEFORE 10:00 A.M.

INASMUCH AS THE PROTESTER'S FAILURE TO ATTEMPT DELIVERY TO THE DESIGNATED ROOM, COUPLED WITH HIS FAILURE TO ALLOW SUFFICIENT TIME, APPEAR TO BE THE SUBSTANTIAL CAUSES OF LATE DELIVERY, WE CANNOT CONCLUDE THAT IT RESULTED EITHER FROM SUCH EXTRAORDINARY DELAY OR MISDIRECTION BY GOVERNMENT PERSONNEL AS TO PERMIT ITS EXCEPTION FROM THE RULE THAT A LATE BID MAY NOT BE CONSIDERED FOR AWARD. CF. B 178984, OCTOBER 30, 1973, AND 51 COMP. GEN. 69 (1971). THEREFORE, THE PROTEST OF JAMES L. FERRY AND SONS, INC. IS DENIED.