B-185919, JUL 8, 1976

B-185919, JUL 8, 1976

1. WHERE PROTESTER'S BID WAS SENT BY CERTIFIED MAIL LESS THAN FIVE CALENDAR DAYS BEFORE BID OPENING, BID MAY BE CONSIDERED ONLY IF ITS LATE RECEIPT CAN BE ATTRIBUTED TO MISHANDLING BY GOVERNMENT AFTER RECEIPT AT "GOVERNMENT INSTALLATION." IFB INSTRUCTED BIDDERS TO ADDRESS OFFERS TO PROCURING AGENCY AT POST OFFICE BOX FROM WHICH MAIL WAS BROUGHT BY AGENCY EMPLOYEE TO AGENCY'S LOCAL OFFICE. IN THESE CIRCUMSTANCES, "GOVERNMENT INSTALLATION" WITHIN CONTEXT OF "LATE BIDS" CLAUSE MEANS LOCAL AGENCY OFFICE AND NOT AGENCY'S POST OFFICE BOX. 2. PROTESTER'S BID WAS NOT MISHANDLED AFTER RECEIPT AT "GOVERNMENT INSTALLATION" WHERE RECORD SHOWS THAT BID WAS SENT BY CERTIFIED MAIL ON JANUARY 16 AND ARRIVED AT DESTINATION POST OFFICE FOLLOWING DAY, BUT THAT DESPITE MAIL PICKUP BY AGENCY EMPLOYEE EVERY WEEK DAY AND SPECIAL CHECK OF POST OFFICE BOX PRIOR TO JANUARY 20 BID OPENING, SLIP GIVING NOTICE OF ARRIVAL OF BID DID NOT APPEAR IN BOX UNTIL JANUARY 26. 3. WHERE AGENCY RECEIVES MAILED BIDS AT LOCAL POST OFFICE BOX, THERE IS NO OBLIGATION ON AGENCY EMPLOYEE PICKING UP MAIL TO INQUIRE AT POST OFFICE WINDOW ABOUT RECEIPT OF CERTIFIED OR REGISTERED MAIL IN THE ABSENCE OF A "NOTICE OF ARRIVAL" SLIP IN POSTAL BOX. 4. THERE IS NO LEGAL BASIS FOR AN UNSUCCESSFUL BIDDER TO RECOVER ANTICIPATED PROFITS LOST WHEN IT WAS NOT AWARDED CONTRACT.

THE HOEDADS:

THE FOREST SERVICE, DEPARTMENT OF AGRICULTURE (FOREST SERVICE) ISSUED INVITATION FOR BIDS (IFB) NO. 11-76-18 ON DECEMBER 19, 1975, FOR THE PLANTING OF CONTAINERIZED TREES WITH BID OPENING SCHEDULED FOR 2 P.M., JANUARY 20, 1976. THE IFB IDENTIFIED THE ISSUING OFFICE AS:

"USDA - FOREST SERVICE SISKIYOU NATIONAL FOREST 1504 NW SIXTH STREET GRANTS PASS, OREGON 97526" AND INSTRUCTED BIDDERS TO ADDRESS THEIR OFFERS TO:

"CONTRACTING OFFICER SISKIYOU NATIONAL FOREST P.O. BOX 440 GRANTS PASS, OREGON 97526."

THE HOEDADS MAILED ITS BID BY CERTIFIED MAIL, POSTMARKED JANUARY 16, 1976, TO BOX 440, GRANTS PASS, OREGON AS REQUIRED BY THE IFB. THE BID ENVELOPE WAS STAMPED AS RECEIVED BY THE GRANTS PASS POST OFFICE ON "JANUARY 17, 1977" (1976). WE ARE ADVISED THAT AFTER CERTIFIED MAIL IS STAMPED AS RECEIVED, THE USUAL GRANTS PASS POST OFFICE PROCEDURE IS TO ISSUE A NOTICE OF ARRIVAL SLIP WHICH IS PLACED IN THE ADDRESSEE'S POSTAL BOX. HOWEVER, THE FOREST SERVICE EMPLOYEE ASSIGNED THE DUTY OF COLLECTING THE FOREST SERVICE MAIL AT THE POST OFFICE HAS STATED HE MADE HIS REGULAR WEEKDAY COLLECTION EACH MORNING DURING THE WEEK OF JANUARY 19, AND FOUND NO ARRIVAL SLIPS RELATED TO THE HOEDADS' BID IN THE POSTAL BOX. THE POSTAL BOX WAS ALSO EXAMINED A SECOND TIME ON JANUARY 20, 1976, PURSUANT TO AN ESTABLISHED FOREST SERVICE PROCEDURE TO CHECK THE BOX PRIOR TO SCHEDULED BID OPENINGS FOR BIDS OR ARRIVAL SLIPS THAT MAY BE RELATED TO BIDS. THIS SECOND EXAMINATION OF JANUARY 20, 1976, PRODUCED NEITHER BIDS NOR ARRIVAL SLIPS. WHEN BIDS WERE OPENED AT THE SCHEDULED TIME ON JANUARY 20, 1976, A TELEGRAPHIC AMENDMENT OF THE HOEDADS' BID WAS RECEIVED BUT THERE WAS NO BASIC BID FROM THAT FIRM.

ON MONDAY, JANUARY 26, 1976, A FOREST SERVICE EMPLOYEE, MAKING HIS REGULAR WEEKDAY MAIL COLLECTION AT THE GRANTS PASS POST OFFICE, FOUND AN ARRIVAL SLIP IN THE FOREST SERVICE POSTAL BOX. FOLLOWING HIS STANDARD PROCEDURE, THE EMPLOYEE SIGNED THE ARRIVAL SLIP, PRESENTED IT TO A POSTAL EMPLOYEE, SIGNED THE RETURN RECEIPT FORM, AND RECEIVED AN ENVELOPE IDENTIFIED AS CONTAINING THE HOEDADS' BID. THE EMPLOYEE THEN DELIVERED THE ENVELOPE TO THE FOREST SERVICE HEADQUARTERS WHERE IT WAS DATE STAMPED: "SISKIYOU NATIONAL FOREST, GRANTS PASS, OREGON JAN 26 1976 RECEIVED." THE FOLLOWING DAY, THE FOREST SERVICE CONTRACTING OFFICER ORALLY INFORMED A REPRESENTATIVE OF THE HOEDADS THAT THE BID WAS REJECTED AS LATE AND ON JANUARY 29, 1976, THE FOREST SERVICE RETURNED THE UNOPENED BID TO THE HOEDADS PURSUANT TO FEDERAL PROCUREMENT REGULATIONS (FPR) SEC. 1-2.303-7 (AMEND. 118 1964 ED.). THE CONTRACT WAS AWARDED TO ANOTHER FIRM ON JANUARY 28, 1976, WITH CONTRACT PERFORMANCE BEGINNING ON FEBRUARY 11, 1976, AND ENDING MARCH 15, 1976.

BY LETTER OF JANUARY 30, 1976, THE HOEDADS ASKED THE FOREST SERVICE TO RECONSIDER ITS DECISION, ALLEGING THE GOVERNMENT MISHANDLED ITS BID. FEBRUARY 4, 1976, THE FOREST SERVICE REAFFIRMED ITS EARLIER DECISION. THIS OFFICE SUBSEQUENTLY RECEIVED THE HOEDADS' TIMELY PROTEST ON FEBRUARY 17, 1976. THE PROTESTER ALLEGES THAT THE LATE RECEIPT OF ITS BID WAS DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AFTER THE BID ARRIVED AT THE FOREST SERVICE "INSTALLATION." IT FURTHER ALLEGES SUCH MISHANDLING RESULTED FROM THE FOREST SERVICE'S FAILURE TO RETRIEVE THE HOEDADS' BID AFTER IT ARRIVED AT THE POSTAL BOX OR FROM THE FAILURE OF THE FOREST SERVICE TO MAKE A REASONABLE INQUIRY OF POSTAL SERVICE PERSONNEL ABOUT THE POSSIBLE ARRIVAL OF ANY CERTIFIED MAIL CONCERNING IFB NO. 11-76-18. THE PROTESTER HAS REQUESTED THIS OFFICE TO REQUIRE THE CONTRACTING OFFICER TO DETERMINE IF THE CONTRACT WOULD HAVE BEEN AWARDED TO PROTESTER AND ALSO TO REQUIRE THE FOREST SERVICE TO PAY PROTESTER THE PROFITS IT LOST FROM THE CONTRACTING OFFICER'S ALLEGED FAILURE TO PROPERLY CONSIDER THE BID.

THE HOEDADS BASED ITS PROTEST ON FPR SEC. 1-2.201(31) (AMEND. 153 1964 ED.) WHICH WAS INCORPORATED INTO THE IFB AS CLAUSE 8, SUPPLEMENTALS TO SOLICITATION INSTRUCTIONS AND CONDITIONS - SF-33A, AND WHICH READS IN PERTINENT PART AS FOLLOWS:

"LATE BIDS, MODIFICATIONS OF BIDS, OR WITHDRAWAL OF BIDS"

"(A) ANY BID RECEIVED AT THE OFFICE DESIGNATED IN THE SOLICITATION AFTER THE EXACT TIME SPECIFIED FOR RECEIPT WILL NOT BE CONSIDERED UNLESS IT IS RECEIVED BEFORE AWARD IS MADE AND EITHER:

"(1) IT WAS SENT BY REGISTERED OR CERTIFIED MAIL NOT LATER THAN THE FIFTH CALENDAR DAY PRIOR TO THE DATE SPECIFIED FOR THE RECEIPT OF BIDS (E.G., A BID SUBMITTED IN RESPONSE TO A SOLICITATION REQUIRING RECEIPT OF BIDS BY THE 20TH OF THE MONTH MUST HAVE BEEN MAILED BY THE 15TH OR EARLIER); OR

"(2)IT WAS SENT BY MAIL (OR TELEGRAM IF AUTHORIZED) AND IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION.

"(C) THE ONLY ACCEPTABLE EVIDENCE TO ESTABLISH:

"(1) THE DATE OF MAILING OF A LATE BID, MODIFICATION, OR WITHDRAWAL SENT EITHER BY REGISTERED OR CERTIFIED MAIL IS THE U.S. POSTAL SERVICE POSTMARK ON THE WRAPPER OR ON THE ORIGINAL RECEIPT FROM THE U.S. POSTAL SERVICE.

"(2) THE TIME OF RECEIPT AT THE GOVERNMENT INSTALLATION IS THE TIME DATE STAMP OF SUCH INSTALLATION ON THE BID WRAPPER OR OTHER DOCUMENTARY EVIDENCE OF SUCH RECEIPT MAINTAINED BY THE INSTALLATION."

IT IS THE POSITION OF THIS OFFICE THAT THE BIDDER MUST BEAR THE RESPONSIBILITY OF ASSURING THE TIMELY ARRIVAL OF ITS BID FOR A SCHEDULED BID OPENING AND LATE RECEIPT OF A BID WILL RESULT IN THE BID'S REJECTION UNLESS THE SPECIFIC CONDITIONS OF THE IFB ARE MET. B.E. WILSON CONTRACTING CORP., 55 COMP.GEN. 220 (1975), 75-2 CPD 145. WITH REGARD TO THE "LATE BIDS" CLAUSE QUOTED ABOVE WE HAVE OBSERVED:

"IN VIEW OF THE FACT THAT SUBPARAGRAPHS ((A)(1) AND (2)) ARE STATED IN THE ALTERNATIVE, IT IS NOT NECESSARY TO ESTABLISH THAT THE LATENESS WAS DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION IF THE REQUIREMENTS OF ((A)(1)) ARE FULFILLED: NAMELY, THAT THE BID WAS SENT BY REGISTERED OR CERTIFIED MAIL NOT LATER THAN THE FIFTH CALENDAR DAY SPECIFIED FOR RECEIPT OF BIDS. ***"

GEMINI FOOD SERVICES, INC., B-181645, SEPTEMBER 12, 1974, 74-2 CPD 164. IT IS UNDISPUTED THAT THE HOEDADS' BID WAS MAILED ON JANUARY 16, FOUR DAYS BEFORE THE JANUARY 20 BID OPENING. SINCE THE HOEDADS FAILED TO FULFILL THE REQUIREMENTS OF SUBPARAGRAPH (A)(1) OF THE "LATE BIDS" CLAUSE, ITS BID MAY BE CONSIDERED ONLY IF IT IS ESTABLISHED THAT THE LATE RECEIPT WAS SOLELY DUE TO MISHANDLING BY THE FOREST SERVICE AFTER RECEIPT AT THE "GOVERNMENT INSTALLATION." SUCH RECEIPT MUST BE EVIDENCED BY THE TIME- DATE STAMP ON THE WRAPPER OR OTHER DOCUMENTARY EVIDENCE OF RECEIPT MAINTAINED BY THE INSTALLATION. WE HAVE HELD THAT "OTHER DOCUMENTARY EVIDENCE" MEANS CONTEMPORANEOUS EVIDENCE RATHER THAN AFTER-THE-FACT EVIDENCE SUCH AS AFFIDAVITS. B.E. WILSON CONTRACTING CORP., SUPRA.

THE FAILURE TO CONSIDER THE HOEDADS' BID CANNOT BE ATTRIBUTED TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE SISKIYOU NATIONAL FOREST OFFICE SINCE THE EVIDENCE CLEARLY ESTABLISHES THAT THE BID WAS PICKED UP AT THE POST OFFICE AND DELIVERED TO THE SISKIYOU NATIONAL FOREST OFFICE ON JANUARY 26, SIX DAYS AFTER BID OPENING. ANY MISHANDLING MUST HAVE TAKEN PLACE BETWEEN JANUARY 17, WHEN THE BID ARRIVED AT THE GRANTS PASS POST OFFICE, AND JANUARY 26, WHEN IT WAS DELIVERED TO THE SISKIYOU NATIONAL FOREST OFFICE.

IN THIS REGARD, THE PROTESTER'S COUNSEL HAS ARGUED THAT THE "GOVERNMENT INSTALLATION" FOR PURPOSES OF THE "LATE BIDS" CLAUSE IN THIS INSTANCE IS BOX 440 AT THE GRANTS PASS POST OFFICE, AND THAT THE MISHANDLING CONSISTED OF THE ALLEGED FAILURE OF FOREST SERVICE EMPLOYEES "TO MAKE REASONABLE INQUIRY WITH THE POSTAL AUTHORITIES FOR THE RECEIPT AND ARRIVAL OF ANY CERTIFIED MAIL REGARDING SOLICITATION NO. 11-76-18."

WE DO NOT AGREE WITH THE HOEDADS' INTERPRETATION OF "GOVERNMENT INSTALLATION": WE BELIEVE THAT TERM REFERS NOT TO THE POST OFFICE BOX BUT TO THE SISKIYOU NATIONAL FOREST OFFICE AT 1504 NW SIXTH STREET IN GRANTS PASS. IN THE INSTANT CASE, HOWEVER, WE DO NOT BELIEVE THIS DISTINCTION IS CRITICAL BECAUSE FROM THE RECORD BEFORE US WE CANNOT CONCLUDE THAT MISHANDLING BY FOREST SERVICE PERSONNEL OCCURRED BETWEEN JANUARY 17 AND 26. THE PROTESTER HAS PRESENTED NO EVIDENCE TO DISPROVE THE INFORMATION WHICH WE HAVE BEEN FURNISHED THAT IN ADDITION TO THE REGULAR MAIL PICKUP MADE EVERY WEEKDAY DURING THIS PERIOD, A SPECIAL CHECK OF THE POST OFFICE BOX WAS MADE SHORTLY BEFORE BID OPENING, AND AT NO TIME PRIOR TO JANUARY 26 WAS THERE ANY INDICATION THAT AN ARTICLE OF CERTIFIED MAIL HAD BEEN RECEIVED FROM THE HOEDADS. WE DO NOT THINK IT WAS INCUMBENT UPON THE FOREST SERVICE EMPLOYEE TO INQUIRE AT THE POST OFFICE WINDOW ABOUT THE RECEIPT OF CERTIFIED OR REGISTERED MAIL IN THE ABSENCE OF A "NOTICE OF ARRIVAL" SLIP IN THE POST OFFICE BOX. SINCE THE RECORD SHOWS THE SPECIFIC CONDITIONS IN THE IFB FOR CONSIDERATION OF LATE BIDS WERE NOT MET, THE UNOPENED ENVELOPE WAS PROPERLY REJECTED. B.E. WILSON CONTRACTING CORP., SUPRA.

FURTHERMORE, THERE IS NO LEGAL BASIS FOR THE HOEDADS, AS AN UNSUCCESSFUL BIDDER, TO RECOVER THE PROFITS IT ANTICIPATED EARNING IF IT WERE AWARDED THE CONTRACT. SEE MACK ELECTRIC COMPANY, B-180392, MAY 6, 1974, 74-1 CPD 227 AND THE CASES CITED THEREIN.

ACCORDINGLY, THE PROTEST IS DENIED.