B-216554.2, DEC 20, 1984, OFFICE OF GENERAL COUNSEL

B-216554.2, DEC 20, 1984, OFFICE OF GENERAL COUNSEL

CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PRODUCES - TIMELINESS OF PROTEST - CONGRESSIONAL TRANSMITTAL OF PROTEST DIGEST: GAO AFFIRMS ITS REFUSAL TO ISSUE A DECISION ON THE MERITS OF A PROTEST FORWARDED BY A MEMBER OF CONGRESS BECAUSE THE PROTEST IS UNTIMELY AND CONSIDERATION OF IT WOULD CIRCUMVENT THE TIMELINESS RULES OF GAO'S BID PROTEST PROCEDURES, BUT ADVISES MEMBER THAT EVEN IF PROTEST WERE CONSIDERED ON THE MERITS, IT WOULD BE SUMMARILY DENIED.

THE HONORABLE ROBERT A. YOUNG: MEMBER, UNITED STATES HOUSE OF REPRESENTATIVES 4150 CYPRESS ROAD ST. ANN, MISSOURI 63074

DEAR MR. YOUNG:

THIS IS IN REPLY TO YOUR LETTER DATED OCTOBER 26, 1984, CONCERNING THE PROTEST OF CHEMTECH INDUSTRIES, INC., AGAINST THE REJECTION OF ITS BID AS LATE BY THE BALTIMORE DISTRICT, ARMY CORPS OF ENGINEERS. BY LETTER OF OCTOBER 10, 1984, WE ADVISED YOU THAT WE WOULD NOT ISSUE A FORMAL RULING ON CHEMTECH'S PROTEST BECAUSE IT WAS NOT FILED WITH OUR OFFICE WITHIN THE TIME LIMITS PRESCRIBED BY OUR BID PROTEST PROCEDURES. AT THE CONCLUSION OF OUR LETTER, HOWEVER, WE INDICATED THAT EVEN IF WE WERE TO CONSIDER CHEMTECH'S PROTEST ON THE MERITS, IT WOULD BE DENIED BECAUSE, CONTRARY TO CHEMTECH'S CONTENTION, A BID DELIVERED LATE BY A COMMERICAL COURIER SERVICE DOES NOT FALL WITHIN THE "REGISTERED OR CERTIFIED MAIL" EXCEPTION TO THE LATE BID RULE.

IN YOUR MOST RECENT CORRESPONDENCE, YOU QUESTION BOTH THE PROPRIETY OF OUR REFUSAL TO ISSUE A FORMAL DECISION ON THE MERITS OF CHEMTECH'S PROTEST AND THE CORP'S REJECTION OF CHEMTECH'S BID, WHICH MAY HAVE BEEN LOWER IN PRICE THAN THAT WHICH WAS ACCEPTED.

OUR PREVIOUS LETTER SET FORTH THE RATIONALE BY WHICH WE CONCLUDED THAT CHEMTECH'S PROTEST OF THE REJECTION OF ITS BID WAS NOT FILED WITH OUR OFFICE WITHIN THE TIME PRESCRIBED BY OUR PROCEDURES. IN THE ABSENCE OF ANY INDICATION THAT OUR UNDERSTANDING OF THE FACTS WAS IN ERROR, WE HAVE NO BASIS TO CONCLUDE THAT OUR REFUSAL TO ISSUE A DECISION ON THE MERITS WAS INAPPROPRIATE. MOREOVER, THIS ISSUE IS SOMEWHAT BESIDE THE POINT BECAUSE, EVEN WERE WE TO ISSUE A DECISION, CHEMTECH'S PROTEST WOULD BE DENIED UNDER LAW WHICH IS WELL SETTLED.

CHEMTECH DOES NOT DISPUTE THAT ITS BID WAS DELIVERED BY A COMMERICAL COURIER SERVICE TO THE CORPS THE DAY AFTER BIDS HAD BEEN OPENED. CHEMTECH'S ARGUMENT IS THAT ITS BID SHOULD BE CONSIDERED FOR AWARD NONETHELESS BECAUSE IT FELL WITHIN THE SOLICITATION PROVISION PERMITTING THE CONSIDERATION OF A LATE BID IF THE BID "WAS SENT BY REGISTERED OR CERTIFIED MAIL NOT LATER THAN THE FIFTH CALENDAR DAY BEFORE THE DATE SPECIFIED FOR RECEIPT OF BIDS." THE ISSUE PRESENTED BY CHEMTECH'S PROTEST, THEREFORE, IS WHETHER A LATE BID SENT BY COMMERICAL COURIER SERVICE MAY BE CONSIDERED UNDER THE EXCEPTION ESTABLISHED FOR "REGISTERED OR CERTIFIED MAIL." CHEMTECH HAS CITED NO PRECEDENT FOR THIS PROPOSITION AND WE ARE AWARE OF NONE. A BIDDER IS NOT REQUIRED TO SENT ITS BID THROUGH THE MAILS. IT MAY CHOOSE TO HANDCAARRY ITS BID TO THE CONTRACTING AGENCY ITSELF OR BY HIRING A PRIVATE COURIER SERVICE. IN THE EVENT A BID IS HAND-DELIVERED TO THE CONTRACTING AGENCY AFTER THE PUBLIC BID OPENING, HOWEVER, IT MUST BE REJECTED. A BIDDER MAY ALSO CHOOSE TO SEND ITS BID BY "REGISTERED OR CERTIFIED MAIL," WHICH, WHEN READ IN THE CONTEXT OF THE LATE BIDS CLAUSE, IS A CLEAR REFERENCE TO THAT SERVICE AS OFFERED BY THE UNITED STATES OR THE CANADIAN POSTAL SERVICE. PROVIDED THAT A POSTAL SERVICE POSTMARK ESTABLISHES THAT THE BID HAD BEEN MAILED AT LEAST 5 CALENDAR DAYS PRIOR TO THE DATE SPECIFIED FOR RECEIPT OF BIDS, THE LATE BID MAY BE CONSIDERED. THE LAW PERTAINING TO CHEMTECH'S SITUATION IS SET FORTH IN OUR DECISION IN MILITARY BASE MANAGEMENT, INC., B-215649.2, SEPT. 10, 1984, 84-2 CPD PARA. 275, WHICH IS REPRESENTATIVE OF A NUMBER OF DECISIONS OF OUR OFFICE ON THE SAME SUBJECT.

WITH REGARD TO THE FACT THAT CHEMTECH'S PRICE MAY HAVE BEEN LOWER THAN THAT AT WHICH THE CONTRACT WAS AWARDED, WE HAVE HELD THAT THE POSSIBILITY THAT THE GOVERNMENT MIGHT REALIZE A MONETARY SAVINGS IF A LATE BID IS ACCEPTED IS OUTWEIGHED BY THE IMPORTANCE OF MAINTAINING THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM. SEE PARMATI FILTER CORP., B-209296, MAR. 8, 1983, 83-1 CPD PARA. 234.

THEREFORE, EVEN IF CHEMTECH'S PROTEST TO OUR OFFICE WERE NOT UNTIMELY AND WE CONSIDERED IT ON THE MERITS, IT WOULD BE DENIED.