B-181720, SEP 17, 1974

B-181720: Sep 17, 1974

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AGENCY'S SUBSEQUENT REJECTION OF BID AS LATE WAS PROPER IN VIEW OF EXPRESS PROHIBITION OF FPR 1-2.303-5 AGAINST CONSIDERATION OF LATE HAND-CARRIED BIDS. OPENING OF BIDS WAS SCHEDULED FOR 1:30 P.M. THE VICE PRESIDENT OF THE PROTESTING CONCERN ARRIVED AT THE AREA OF BID SUBMISSION AND WAS ADVISED BY THE CONTRACTING OFFICER'S SECRETARY THAT HIS BID WAS LATE. HE EXPLAINED THAT HE REALIZED THAT THE BID WAS LATE. THE BID WAS STAMPED BY THE CONTRACTING OFFICER'S SECRETARY WHO THEN INTERRUPTED THE READING OF THE BIDS TO APPRISE THE CONTRACTING OFFICER OF THE RECEIPT OF THE PROTESTER'S BID. IT IS REPORTED THAT THE BID WAS TENDERED TO THE CONTRACTING OFFICER AT 1:35 P.M. THE PROTESTER'S BID WAS OPENED AND DETERMINED TO BE LOW.

B-181720, SEP 17, 1974

WHERE LOW BIDDER HAND-DELIVERED ITS BID FIVE MINUTES AFTER BID OPENING BUT PERSUADED CONTRACTING OFFICER AND OTHER BIDDERS PRESENT THAT BID SHOULD BE OPENED, AGENCY'S SUBSEQUENT REJECTION OF BID AS LATE WAS PROPER IN VIEW OF EXPRESS PROHIBITION OF FPR 1-2.303-5 AGAINST CONSIDERATION OF LATE HAND-CARRIED BIDS.

V. J. GAUTIERI, INC.:

THE FOREGOING CONCERN HAS PROTESTED THE FAILURE OF THE VETERANS ADMINISTRATION (VA) TO AWARD IT A CONTRACT FOLLOWING THE SUBMISSION OF ITS LATE HAND-DELIVERED BID FOR REMODELING OF THE VA HOSPITAL, BATAVIA, NEW YORK.

OPENING OF BIDS WAS SCHEDULED FOR 1:30 P.M. ON JUNE 20, 1974, AND THE RECORD INDICATES THAT THE OPENING TRANSPIRED PUNCTUALLY. THE CONTRACTING AGENCY REPORTED THAT AT 1:34 P.M., THE VICE PRESIDENT OF THE PROTESTING CONCERN ARRIVED AT THE AREA OF BID SUBMISSION AND WAS ADVISED BY THE CONTRACTING OFFICER'S SECRETARY THAT HIS BID WAS LATE. HE EXPLAINED THAT HE REALIZED THAT THE BID WAS LATE, BUT THAT HE HAD ENCOUNTERED DELAYS IN LOCATING THE PROPER SUBMISSION AREA DESPITE HIS ARRIVAL AT THE HOSPITAL GROUNDS AT 1:25 P.M. THE BID WAS STAMPED BY THE CONTRACTING OFFICER'S SECRETARY WHO THEN INTERRUPTED THE READING OF THE BIDS TO APPRISE THE CONTRACTING OFFICER OF THE RECEIPT OF THE PROTESTER'S BID. IT IS REPORTED THAT THE BID WAS TENDERED TO THE CONTRACTING OFFICER AT 1:35 P.M. AFTER POLLING THE OTHER BIDDERS PRESENT, THE PROTESTER'S BID WAS OPENED AND DETERMINED TO BE LOW. UPON SUBSEQUENTLY REVIEWING THE MATTER AND DETERMINING THAT AUTHORITY WAS LACKING TO CONSIDER THE PROTESTER'S BID FOR AWARD, A CONTRACT WAS AWARDED TO THE LOW TIMELY BIDDER ON JUNE 28, 1974, AND THE PROTESTER WAS SO NOTIFIED.

COUNSEL FOR THE PROTESTER SUBMITS THAT THE AWARD TO THE NEXT HIGH BIDDER COULD BE JUSTIFIED IF THE LATE BID HAD BEEN REJECTED ON THE BASIS OF ITS LATE RECEIPT, BUT THAT ONCE THE LATE BID WAS OPENED AND DETERMINED TO BE LOW, THE ENSUING CONTRACT MUST BE AWARDED THEREON. ACCORDINGLY, IT IS REQUESTED THAT THE CONTRACT BE TERMINATED.

THE SUBJECT SOLICITATION INCLUDED STANDARD FORM 22, "INSTRUCTIONS TO BIDDERS", WHICH ADVISED THAT A BID RECEIVED AFTER THE EXACT TIME SET FOR OPENING OF BIDS WOULD BE CONSIDERED ONLY IF TRANSMITTED BY REGISTERED OR CERTIFIED MAIL IN THE FIRST INSTANCE, IN ADDITION TO CERTAIN FURTHER CONDITIONS. MOREOVER, FEDERAL PROCUREMENT REGULATIONS (FPR) 1-3.303-1 STIPULATES THAT BIDS RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS AFTER THE EXACT TIME SET FOR OPENING OF BIDS ARE "LATE" BIDS WHICH SHALL NOT BE CONSIDERED FOR AWARD EXCEPT AS AUTHORIZED IN FPR 1- 2.303. THAT SECTION MAKES PROVISION FOR THE CONSIDERATION OF LATE BIDS ONLY IN THE CASE OF SUBMISSION BY CERTIFIED OR REGISTERED MAIL AND ONLY UNDER CERTAIN CONDITIONS. WITH REGARD TO LATE HAND-CARRIED BIDS, FPR 1- 2.303-5 EXPRESSLY PROHIBITS THEIR CONSIDERATION FOR AWARD.

WHILE ACKNOWLEDGING THAT CONGESTED TRAFFIC AND INCERTAINTY AS TO THE PRECISE LOCATION OF THE BID OPENING MAY HAVE CONTRIBUTED SUBSTANTIALLY TO THE BID'S LATE SUBMISSION, WE HAVE NEVERTHELESS HELD THAT THE FOREGOING AUTHORITIES IMPOSE UPON BIDDERS THE PRIME RESPONSIBILITY TO SEE THAT BIDS REACH THE DESIGNATED OFFICE BEFORE THE TIME FIXED FOR THE OPENING OF BIDS, AND A HAND-CARRIED BID MAY NOT BE CONSIDERED EVEN WHEN LATE BY ONLY ONE OR TWO MINUTES. 47 COMP. GEN. 784, 787 (1968).

THE OPENING AND PUBLIC READING OF THE PROTESTER'S BID WAS IN ERROR, SINCE FPR 1-2.303-7 PROVIDES THAT LATE BIDS INELIGIBLE FOR CONSIDERATION ARE TO BE HELD UNOPENED UNTIL AFTER AWARD AND THEN RETURNED TO THE BIDDER. THE FACT THAT THE BID WAS OPENED CONFERS NO ADDITIONAL RIGHTS UPON THE PROTESTER. AS WE OBSERVED IN OUR DECISION WHICH IS REPORTED AT 49 COMP. GEN. 191, 195 (1969):

"THE ERRONEOUS OPENING OF A LATE BID ***WILL NOT ALONE JUSTIFY DISREGARDING THE REQUIREMENT THAT AWARD BE MADE TO THE LOWEST RESPONSIBLE AND RESPONSIVE BIDDER UNLESS COMPELLING REASONS EXIST TO REJECT ALL BIDS. B-155568 DATED JANUARY 4, 1965."

ADDITIONALLY, MATERIAL IN THE CONTRACT FILE INDICATED

ADDITIONALLY, MATERIAL IN THE CONTRACT FILE INDICATES THAT AT LEAST ONE OF THE BIDDERS PRESENT DID NOT UNEQUIVOCALLY CONSENT TO THE CONSIDERATION OF THE LATE BID.

IN VIEW THEREOF, AND OF THE FPR CITATIONS SET OUT ABOVE, WE HAVE CONCLUDED THAT THE CONTRACTING OFFICER LACKED THE LEGAL AUTHORITY TO CONSIDER THE PROTESTER'S LATE BID.

WE FURTHER NOTE THAT THE PROTESTER'S INITIAL PROTEST TO THE CONTRACTING AGENCY WAS DENIED BY LETTER OF JULY 17, 1974. WHILE THE RECORD DOES NOT INDICATE THE DATE UPON WHICH THE PROTESTER RECEIVED THAT LETTER, THE PROTEST TO OUR OFFICE WAS NOT RECEIVED UNTIL AUGUST 8, 1974. INASMUCH AS OUR BID PROTEST REGULATIONS REQUIRE, IN PERTINENT PART, THAT PROTESTS BE FILED WITH THIS OFFICE WITHIN FIVE DAYS OF NOTIFICATION OF ADVERSE AGENCY ACTION (4 C.F.R. 20.2(A)), IT APPEARS QUESTIONABLE WHETHER THE PROTEST WAS TIMELY FILED.

NOTWITHSTANDING, THE PROTEST IS DENIED ON THE MERITS. B-182047, SEP 17, 1974 ..END :