B-216048.2, FEB 11, 1985, 85-1 CPD 179

B-216048.2: Feb 11, 1985

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BIDS - LATE - HAND CARRIED DELAY - ACCEPTANCE OF BID DIGEST: A HAND-CARRIED BID WHICH IS DEPOSITED IN THE DESIGNATED BID BOX ON TIME. DOES NOT REACH THE BID OPENING ROOM BEFORE BIDS ARE OPENED BECAUSE THE BID DEPOSITORY WAS NOT CHECKED ON SCHEDULE. IS NOT A LATE BID AND MAY BE CONSIDERED. ALL-STATES ARGUES THAT ITS OWN BID WAS THE LOWEST RESPONSIVE. THAT IT WAS IMPROPERLY REJECTED AS LATE. WERE TO BE DEPOSITED IN THE "BID DEPOSITORY" IN ROOM 13A01. WERE TO BE DEPOSITED IN THE BID DEPOSITORY IN ROOM 13A08. THERE WAS NO TIME-DATE STAMP AVAILABLE FOR MARKING THE BID. NOR DID THE OFFICE HAVE ANY PROCEDURE FOR RECORDING THE TIME BIDS WERE RECEIVED. SINCE NO ALL-STATES REPRESENTATIVE WAS PRESENT AT BID OPENING.

B-216048.2, FEB 11, 1985, 85-1 CPD 179

BIDS - LATE - HAND CARRIED DELAY - ACCEPTANCE OF BID DIGEST: A HAND-CARRIED BID WHICH IS DEPOSITED IN THE DESIGNATED BID BOX ON TIME, BUT DOES NOT REACH THE BID OPENING ROOM BEFORE BIDS ARE OPENED BECAUSE THE BID DEPOSITORY WAS NOT CHECKED ON SCHEDULE, IS NOT A LATE BID AND MAY BE CONSIDERED.

ALL-STATES RAILROAD CONTRACTING, INC.:

ALL-STATES RAILROAD CONTRACTING, INC. (ALL-STATES), PROTESTS THE U.S. ARMY CORPS OF ENGINEERS' (CORPS) AWARD OF A CONTRACT TO TRANSCO PACIFIC COMPANY (TRANSCO) UNDER INVITATION FOR BIDS (IFB) NO. DACA63-84 B-0094 FOR RAILROAD REHABILITATION WORK. ALL-STATES ARGUES THAT ITS OWN BID WAS THE LOWEST RESPONSIVE, RESPONSIBLE BID, AND THAT IT WAS IMPROPERLY REJECTED AS LATE.

WE SUSTAIN THE PROTEST.

THE IFB SPECIFIED THAT BID OPENING WOULD BE AT 2 P.M., JULY 25, 1984. HAND-CARRIED BIDS DELIVERED BEFORE 1:30 P.M. WERE TO BE DEPOSITED IN THE "BID DEPOSITORY" IN ROOM 13A01, 819 TAYLOR STREET, FORT WORTH, TEXAS. BIDS DELIVERED AFTER 1:30, HOWEVER, WERE TO BE DEPOSITED IN THE BID DEPOSITORY IN ROOM 13A08. RONALD BANKS, OPERATIONS MANAGER FOR ALL- STATES, REPORTS THAT HE ENTERED ROOM 13A01 WITH ALL-STATES' BID SOMETIME BETWEEN 1:10 AND 1:14 ON JULY 25 AND INFORMED THE SECRETARY AT THE FRONT DESK THAT HE HAD A BID. SHE THEN DIRECTED HIM TO PLACE IT IN THE LOCKED BID DEPOSITORY LOCATED BEHIND A SCREEN IN THE FRONT OFFICE, AND MR. BANKS DEPOSITED THE BID. THERE WAS NO TIME-DATE STAMP AVAILABLE FOR MARKING THE BID, NOR DID THE OFFICE HAVE ANY PROCEDURE FOR RECORDING THE TIME BIDS WERE RECEIVED.

MR. BANKS STATES THAT HE LEFT THE PREMISES AFTER SUBMITTING THE BID AND, SINCE NO ALL-STATES REPRESENTATIVE WAS PRESENT AT BID OPENING, HE LATER TELEPHONED TO INQUIRE ABOUT THE BID RESULTS. UPON BEING TOLD THAT TRANSCO HAD THE APPARENT LOW BID AT $359,961.00, MR. BANKS INQUIRED WHY ALL- STATES' BID, AT $345,933.67, HAD NOT BEEN ACCEPTED. IT WAS THEN ASCERTAINED THAT BIDS HAD LAST BEEN REMOVED FROM THE BID BOX IN ROOM 13A01 AT 1 P.M.; THE BID OPENING OFFICER, MS. HUBBARD, HAD NEGLECTED ON THIS ONE OCCASION TO CHECK THE BOX AS SCHEDULED AT 1:30.

AFTER ALL-STATES CALLED, MS. HUBBARD OPENED THE BID BOX IN ROOM 13A01 AND FOUND THE ALL-STATES BID. SHE INFORMED HER BRANCH CHIEF ABOUT THE SITUATION, AND THE OFFICE PERSONNEL WERE QUESTIONED ABOUT WHETHER THEY HAD SEEN MR. BANKS DEPOSIT THE BID. THE CHIEF SECRETARY AND MS. HUBBARD BOTH SPECIFICALLY REMEMBERED A MAN COMING INTO THE OFFICE AT APPROXIMATELY 1:10. SINCE THE BID BOX IS LOCATED BEHIND A PARTITION TO ONE SIDE OF THE OFFICE, THEY WERE NOT ABLE TO WITNESS WHETHER OR NOT HE DEPOSITED A BID. THEY DID NOT REMEMBER ANYONE ENTERING THE OFFICE WITH A BID AFTER THAT TIME.

THE CORPS DECIDED TO ACCEPT THE BID. IT WAS OPENED AND DETERMINED TO BE LOW, AND MR. BANKS WAS ADVISED THAT ALL-STATES WOULD BE AWARDED THE CONTRACT. THE CORPS THEN INFORMED TRANSCO THAT ITS BID HAD BEEN SUPPLANTED BY ALL-STATES' LOWER BID. CORPS PERSONNEL ADVISED TRANSCO THEY WERE SURE THAT ALL-STATES' BID HAD BEEN TIMELY SUBMITTED TO THE AGENCY, AND THAT IT WOULD HAVE BEEN OPENED WITH THE OTHER BIDS IF THE BID BOX HAD BEEN OPENED AS SCHEDULED. TRANSCO PROTESTED THE PROPOSED AWARD TO ALL- STATES, NOTING THAT THERE WAS NO TIME-DATE STAMP OR OTHER DOCUMENTARY EVIDENCE MAINTAINED BY THE AGENCY WHICH WOULD ESTABLISH WHETHER ALL- STATES' BID WAS RECEIVED ON TIME. THE CORPS REVERSED ITS POSITION AND AWARDED THE CONTRACT TO TRANSCO. ALL-STATES CHALLENGES THIS DECISION.

ALL-STATES ARGUES THAT ITS BID WAS TIMELY SUBMITTED IN ACCORDANCE WITH THE IFB DIRECTIONS AND WOULD HAVE BEEN OPENED WITH THE OTHER BIDS BUT FOR THE AGENCY'S FAILURE TO CHECK THE BID DEPOSITORY ON SCHEDULE. SINCE IT WAS THE LOWEST RESPONSIVE, RESPONSIBLE BIDDER, ALL-STATES CONTENDS THAT IT SHOULD BE AWARDED THE CONTRACT. IN THIS UNIQUE SET OF CIRCUMSTANCES, WE AGREE.

NEITHER THE SOLICITATION SPECIFICATIONS, FEDERAL REGULATIONS, NOR DECISIONS OF OUR OFFICE REQUIRE THAT TIMELY RECEIPT OF HAND-CARRIED BIDS BE PROVED ONLY BY A TIME-DATE STAMP OR OTHER DOCUMENTARY EVIDENCE MAINTAINED BY THE GOVERNMENT INSTALLATION. INSTEAD, WHERE THE ISSUE IS WHETHER A HAND-CARRIED BID WAS TIMELY RECEIVED, ALL RELEVANT EVIDENCE IN THE RECORD MAY BE CONSIDERED. LARRY CARLSON & ASSOCIATES, INC., B-211918, NOV. 21, 1983, 83-2 CPD PARA. 599; VISIONS, LTD., D/B/A VISIONS PARATECHNICAL, B-210104, MAY 17, 1983, 83-1 CPD PARA. 525. WE HAVE HELD, FOR EXAMPLE, THAT STATEMENTS BY GOVERNMENT PERSONNEL AS TO TIME OF RECEIPT OF A LOW PROPOSAL ARE COMPETENT EVIDENCE OF THAT FACT. HALLCREST SYSTEMS, INC., B-215328, SEPT. 24, 1984, 84-2 CPD PARA. 334.

IN THIS CASE, AS EVIDENCE CORROBORATING MR. BANKS' SWORN STATEMENT THAT THE BID WAS DEPOSITED BETWEEN 1:10 AND 1:14, WE HAVE THE SPECIFIC RECOLLECTION OF THE SECRETARY AND THE BID BOX OPENING OFFICER THAT A MAN CAME INTO THE OFFICE AT APPROXIMATELY THAT TIME, AND WE HAVE THE FACT THAT NO ONE IN ROOM 13A01 REMEMBERS ANYONE COMING INTO THE BID DEPOSITORY AREA AFTER 1:30. IN ADDITION, WE HAVE THE FACT THAT THE IFB PROVIDED FOR HAND- CARRIED BIDS TO BE DEPOSITED IN THE BID DEPOSITORY IN ROOM 13A01 BEFORE 1:30, BUT IN A BID DEPOSITORY IN ANOTHER ROOM BETWEEN 1:30 AND 2 P.M., SO THAT A BIDDER WHO DEPOSITED A BID AFTER THE 2 P.M. DEADLINE FOR RECEIPT OF BIDS WOULD HAVE NO REASON TO USE THE BID DEPOSITORY IN ROOM 13A01. THE FAILURE TO CHECK THE DEPOSITORY IN ROOM 13A01 WAS COMPLETELY UNFORESEEABLE AND THEREFORE, ANY ATTEMPT TO CLAIM A BID SUBMITTED AFTER 2 P.M. HAD BEEN DEPOSITED ON TIME WOULD ORDINARILY BE REFUTED BY THE FACT THAT THE BID WAS NOT PRESENT WHEN THE BOX WAS EMPTIED. UNDER THESE CIRCUMSTANCES, IT IS ILLOGICAL TO HYPOTHESIZE SUCH ABUSE, DEPENDENT AS IT IS ON THE UNFORESEEABLE OVERSIGHT OF THE BID OPENING OFFICER.

TO BE WEIGHED AGAINST THIS EVIDENCE, THERE IS NOT EVEN A DIRECT ALLEGATION THAT THE BID WAS NOT SUBMITTED PRIOR TO BID OPENING. RATHER, TRANSCO AND THE CORPS CITE OUR DECISION IN FREE STATE BUILDERS, INC., B-184155, FEB. 26, 1976, 76-1 CPD PARA. 133, AND ARGUE THAT THE INTEGRITY OF THE BIDDING PROCESS MIGHT BE COMPROMISED BY THE ACCEPTANCE OF ALL-STATES' BID.

IN FREE STATE, THE PROTESTER ALLEGED THAT HE HAD DEPOSITED HIS BID ON TIME, YET IT WAS NOT FOUND IN THE BOX UNTIL AFTER BID OPENING. THE BID BOX WAS EQUIPPED WITH A BUZZER WHICH WAS ACTIVATED BY THE DEPOSIT OF A BID. AGENCY PERSONNEL RELIED UPON THE BUZZER SYSTEM TO ALERT THEM TO BID DEPOSITS AND DID NOT RECALL HEARING THE BUZZER OR CHECKING THE BOX BEFORE BID OPENING. WE FOUND THAT SINCE THERE WAS NO EVIDENCE INDEPENDENT OF FREE STATE'S OWN STATEMENTS TO ESTABLISH THAT THE BID WAS OUT OF FREE STATE'S CONTROL AND IN THE BID BOX PRIOR TO BID OPENING, THE INTEGRITY OF THE BIDDING PROCESS WOULD BE COMPROMISED BY CONSIDERING THE BID. THEREFORE DENIED FREE STATE'S PROTEST.

THIS CASE, HOWEVER, IS DISTINGUISHABLE FROM FREE STATE. IN FREE STATE, ALTHOUGH PROCUREMENT PERSONNEL WERE PRESENT IN THE BID DEPOSITORY ROOM AT ALL TIMES PRIOR TO BID OPENING, NO ONE HEARD THE BUZZER UNTIL 18 MINUTES AFTER THE DEADLINE FOR BID SUBMISSION. FURTHER, A FREE STATE REPRESENTATIVE WAS PRESENT AT THE BID OPENING, YET HE MADE NO COMMENT ON THE ABSENCE OF HIS FIRM'S BID, EVEN THOUGH THE AGENCY MARKED ON IT PRIOR TO OPENING THE BIDS. FINALLY, THE FREE STATE SITUATION DID NOT DESIGNATE A DIFFERENT DEPOSITORY FOR SUBMITTING LAST-MINUTE BIDS, AS WAS PRESENT HERE. THUS, IN FREE STATE, THE EVIDENCE SIMPLY DID NOT SUPPORT A CONCLUSION THAT THE BID HAD BEEN DEPOSITED ON TIME. HERE, HOWEVER, THE EVIDENCE OF THE TIMELINESS OF ALL-STATE'S BID, TAKEN AS A WHOLE, IS COMPELLING.

MOREOVER, BECAUSE THE PROTESTER SURRENDERED CONTROL OF HIS BID UPON DEPOSITING IT INTO THE LOCKED BOX, THERE IS NO ISSUE OF COMPROMISING THE INTEGRITY OF THE PROCUREMENT SYSTEM. WE THEREFORE SUSTAIN THE PROTEST.

ALL-STATES WAS THE LOW BIDDER, AND THERE IS NO SUGGESTION IN THE RECORD THAT THE BID WAS NONRESPONSIVE OR THE BIDDER NONRESPONSIBLE. WE THEREFORE RECOMMEND THAT TRANSCO'S CONTRACT BE TERMINATED FOR THE CONVENIENCE OF THE GOVERNMENT, IF PRACTICABLE, AND THAT CONTRACT AWARD BE MADE TO ALL- STATES. IF TERMINATION IS NOT PRACTICABLE, WE RECOMMEND THAT ALL-STATES BE REIMBURSED THE COSTS OF PREPARING ITS BID.

SINCE THIS DECISION CONTAINS A RECOMMENDATION THAT CORRECTIVE ACTION BE TAKEN, WE ARE FURNISHING COPIES TO THE SENATE COMMITTEES ON GOVERNMENTAL AFFAIRS AND APPROPRIATIONS AND THE HOUSE COMMITTEES ON APPROPRIATIONS AND GOVERNMENT OPERATIONS IN ACCORDANCE WITH SECTION 236 OF THE LEGISLATIVE REORGANIZATION ACT OF 1970, 31 U.S.C. SEC. 720 (1982), WHICH REQUIRES THE SUBMISSION OF WRITTEN STATEMENTS BY THE AGENCY WITH RESPECT TO OUR RECOMMENDATIONS.