B-217256, MAR 21, 1985, 85-1 CPD 330

B-217256: Mar 21, 1985

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A BIDDER IS RESPONSIBLE FOR DELIVERING HIS BID TO THE PROPER PLACE AT THE PROPER TIME. PROPERLY WAS NOT CONSIDERED AS THE EVIDENCE DOES NOT DEMONSTRATE THAT GOVERNMENT MISHANDLING WAS THE PARAMOUNT CAUSE FOR THE LATENESS. THE PROCUREMENT WAS FOR SERVICES AND SUPPLIED NECESSARY TO MANAGE THE PROTECTIVE COATING MAINTENANCE FUNCTION. THE PROTEST IS DENIED. THE FEDERAL EXPRESS ENVELOPE WAS ADDRESSED AS FOLLOWS: "DEPARTMENT OF THE AIR FORCE BID OPENING OFF. IS TO DELIVER THEM TO THE CENTRAL MAILROOM AS DIRECTED BY MCCLELLAN AIR FORCE BASE PERSONNEL. FEDERAL EXPRESS RECORDS SHOW THAT THIS DELIVERY WAS MADE AT 9:55 A.M. CMN CONTENDS THAT THE BID WAS DELIVERED ON TIME. THAT THE CAUSE OF THE LATE DELIVERY TO THE BID OPENING ROOM WAS THE AIR FORCE'S POLICY OF REQUIRING ALL MAIL TO BE DELIVERED TO THE CENTRAL MAILROOM.

B-217256, MAR 21, 1985, 85-1 CPD 330

BIDS - LATE - BIDDER'S RESPONSIBILITY FOR DELIVERY DIGEST: 1. A BIDDER IS RESPONSIBLE FOR DELIVERING HIS BID TO THE PROPER PLACE AT THE PROPER TIME. LATE BIDS MAY BE CONSIDERED ONLY AS PROVIDED FOR IN THE SOLICITATION. BIDS - LATE - MISHANDLING DETERMINATION 2. LATE BID, DELIVERED BY COMMERCIAL CARRIER TO A CENTRAL MAIL FACILITY 5 MINUTES BEFORE BID OPENING IN AN ENVELOPE NOT CLEARLY IDENTIFYING CONTENTS AS BID, PROPERLY WAS NOT CONSIDERED AS THE EVIDENCE DOES NOT DEMONSTRATE THAT GOVERNMENT MISHANDLING WAS THE PARAMOUNT CAUSE FOR THE LATENESS.

CONSOLIDATED MARKETING NETWORK, INC:

CONSOLIDATED MARKETING NETWORK, INC. (CMN), PROTESTS THE REJECTION OF ITS BID AS LATE UNDER INVITATION FOR BIDS (IFB) NO. F04699-84-B0105, ISSUED BY MCCLELLAN AIR FORCE BASE, CALIFORNIA (AIR FORCE). THE PROCUREMENT WAS FOR SERVICES AND SUPPLIED NECESSARY TO MANAGE THE PROTECTIVE COATING MAINTENANCE FUNCTION.

THE PROTEST IS DENIED.

THE AIR FORCE ISSUED THE IFB ON AUGUST 22, 1984. THE SOLICITATION, AS AMENDED, STATED THAT BIDS WOULD BE RECEIVED IN ROOM 5 OF BUILDING 335 UNTIL 10 A.M. ON NOVEMBER 28, 1984. THE SOLICITATION ALSO PROVIDED THAT HAND-CARRIED BIDS WOULD BE RECEIVED IN THE DEPOSITORY LOCATED IN ROOM 5 OF BUILDING 335 UNTIL THE TIME SCHEDULED FOR BID OPENING.

THE PROTESTER SENT ITS BID ON NOVEMBER 27, 1984, BY FEDERAL EXPRESS, A COMMERCIAL CARRIER. THE FEDERAL EXPRESS ENVELOPE WAS ADDRESSED AS FOLLOWS:

"DEPARTMENT OF THE AIR FORCE BID OPENING OFF. DIRECTORATE OF CONTRACTING & MFG. SACRAMENTO AIR LOGISTICS CENTER BLDG 335 MCCLELLAN AIR FORCE BASE, CA."

FEDERAL EXPRESS STATES THAT ITS STANDARD PROCEDURE FOR MATERIALS, ADDRESSED AS ABOVE, IS TO DELIVER THEM TO THE CENTRAL MAILROOM AS DIRECTED BY MCCLELLAN AIR FORCE BASE PERSONNEL. FEDERAL EXPRESS RECORDS SHOW THAT THIS DELIVERY WAS MADE AT 9:55 A.M., 5 MINUTES PRIOR TO BID OPENING.

ON THIS BASIS, CMN CONTENDS THAT THE BID WAS DELIVERED ON TIME, AND THAT THE CAUSE OF THE LATE DELIVERY TO THE BID OPENING ROOM WAS THE AIR FORCE'S POLICY OF REQUIRING ALL MAIL TO BE DELIVERED TO THE CENTRAL MAILROOM. THE PROTESTER ALLEGES THAT, AS IN SCOT, INC., 57 COMP.GEN. 119 (1977), 77-2 CPD PARA. 425, ITS BID WAS LATE BECAUSE OF IMPROPER GOVERNMENT ACTION AND SHOULD HAVE BEEN CONSIDERED.

THE AIR FORCE CONTENDS THAT CMN'S BID WAS NOT DELIVERED BY FEDERAL EXPRESS UNTIL AFTER 10 A.M. AND ALSO ASSERTS THAT, IN ANY EVENT, THE FEDERAL EXPRESS ENVELOPE DID NOT IDENTIFY ITS CONTENTS AS A BID REQUIRING IMMEDIATE ACTION. THE AIR FORCE ARGUES THAT, IN THESE CIRCUMSTANCES, NO IMPROPER CONDUCT CAN BE IMPUTED TO THE GOVERNMENT.

IN VIEW OF WHAT WE HOLD BELOW, IT IS NOT NECESSARY TO RESOLVE THE DISCREPANCY WITH REGARD TO THE TIME OF RECEIPT OF THE BID IN THE CENTRAL MAILROOM.

AS A GENERAL RULE, A BIDDER IS RESPONSIBLE FOR DELIVERING HIS BID TO THE PROPER PLACE AT THE PROPER TIME. LATE BIDS MAY BE CONSIDERED ONLY AS PROVIDED FOR IN THE SOLICITATION. CHEMICAL WASTE MANAGEMENT, INC., B-215382, SEPT. 10, 1984, 84-2 CPD PARA. 274. THE APPLICABLE LATE BID PROVISION INCORPORATED IN THE IFB, FEDERAL ACQUISITION REGULATION, 48 C.F.R. SEC. 52.214-7 (1984), APPLIES TO BIDS SENT BY MAIL. IN THIS CASE, CMN SENT ITS BID BY COMMERCIAL CARRIER, AND NOT BY MAIL, SO THE IFB PROVISION DOES NOT APPLY. CHEMICAL WASTE MANAGEMENT, INC., B-215382, SUPRA.

BIDS DELIVERED BY COMMERCIAL CARRIER ARE REGARDED AS HAND-CARRIED BIDS. SCOT, INC., SUPRA. WE HAVE ALLOWED LATE HAND-CARRIED BIDS TO BE CONSIDERED WHERE IT CAN BE SHOWN THAT THE GOVERNMENT'S ACTION WAS THE PARAMOUNT CAUSE FOR THE LATE ARRIVAL OF THE BID AT THE DESIGNATED PLACE. CHEMICAL WASTE MANAGEMENT, INC., B-215382, SUPRA.

IN SCOT, INC., SUPRA, WHICH CMN CONTENDS IS IDENTICAL TO THIS CASE, THE COMMERCIAL CARRIER WAS PREVENTED FROM DELIVERING THE BID TO THE SPECIFIED LOCATION BY GOVERNMENT PERSONNEL WHO WERE FOLLOWING INTERNAL SECURITY REGULATIONS. IN SCOT, INC., THE IFB DID NOT PROVIDE NOTICE AND THE CARRIER WAS UNAWARE OF AN INTERNAL SECURITY REGULATION AT THE GOVERNMENT FACILITY WHICH REQUIRED COMMERCIAL CARRIERS TO BE DIRECTED TO A CENTRAL RECEIVING AREA. ADDITIONALLY, IN THAT CASE, THE BID WAS DELIVERED 2-1/2 HOURS PRIOR TO THE BID OPENING TIME AND WAS DELIVERED TO THE BID OPENING ROOM 4 DAYS LATER.

WE THINK THE SCOT, INC. CASE IS DISTINGUISHABLE FROM THIS MATTER BECAUSE, ALTHOUGH FEDERAL EXPRESS STATES THAT THE DELIVERY PROCEDURE WAS ESTABLISHED AT THE DIRECTION OF MCCLELLAN AIR FORCE BASE PERSONNEL, THE AIR FORCE MAINTAINS THAT THE AIR FORCE BASE HAS NO PROCEDURE OR REGULATION WHICH WOULD REQUIRE A COMMERCIAL CARRIER TO DELIVER BIDS TO THE CENTRAL MAILROOM. IN THIS RESPECT, THE RECORD CONTAINS NO EVIDENCE, OTHER THAN THE UNSUPPORTED STATEMENTS BY CMN AND FEDERAL EXPRESS, WHICH PERSUADES US THAT FEDERAL EXPRESS WAS PRECLUDED FROM DELIVERING THE BID TO THE BID OPENING ROOM. MOREOVER, EVEN IF, FOR THE SAKE OF ARGUMENT, WE ACCEPT CMN'S ASSERTION THAT ITS BID WAS DELIVERED TO THE CENTRAL MAIL FACILITY 5 MINUTES PRIOR TO BID OPENING, AT BEST, THIS WOULD MEAN ONLY THAT CMN'S BID WAS DELIVERED TO A DIFFERENT BUILDING, IN AN ENVELOPE NOT CLEARLY IDENTIFYING THE CONTENTS AS A BID, JUST 5 MINUTES PRIOR TO BID OPENING.

IN THESE CIRCUMSTANCES, WE AGREE WITH THE AIR FORCE THAT THE EVIDENCE DOES NOT SUPPORT A DETERMINATION THAT GOVERNMENT ACTION WAS THE PARAMOUNT CAUSE OF THE LATE DELIVERY OF CMN'S BID.

THE PROTEST IS DENIED.