B-220203.2, JAN 8, 1986, 86-1 CPD 15

B-220203.2: Jan 8, 1986

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BIDS - LATE - MODIFICATION - REJECTION DIGEST: WHERE ONLY DOCUMENTARY EVIDENCE AS TO TIME OF RECEIPT OF BID MODIFICATION AT GOVERNMENT INSTALLATION SHOWS IT WAS RECEIVED AFTER BID OPENING. IT IS NOT NECESSARY TO REACH THE ISSUE OF GOVERNMENT MISHANDLING AFTER RECEIPT AT INSTALLATION. PRICE MODIFICATION WAS PROPERLY REJECTED AS LATE. BECAUSE WE FOUND THE PROTESTER WAS NOT IN LINE FOR AWARD WITH OR WITHOUT TIMELY RECEIPT OF ITS PRICE MODIFICATION AND ZINGER HAD NOT DEMONSTRATED THAT STAGG ELECTRIC (STAGG). WAS INELIGIBLE TO RECEIVE THE AWARD. ZINGER WAS NOT AN INTERESTED PARTY TO MAINTAIN ITS PROTEST. ZINGER CONTENDS THAT OUR DECISION IS ERRONEOUS BECAUSE STAGG'S BID IS SO LOW AS TO INDICATE THAT THERE MUST BE A MISTAKE IN THE BID.

B-220203.2, JAN 8, 1986, 86-1 CPD 15

BIDS - LATE - MODIFICATION - REJECTION DIGEST: WHERE ONLY DOCUMENTARY EVIDENCE AS TO TIME OF RECEIPT OF BID MODIFICATION AT GOVERNMENT INSTALLATION SHOWS IT WAS RECEIVED AFTER BID OPENING, IT IS NOT NECESSARY TO REACH THE ISSUE OF GOVERNMENT MISHANDLING AFTER RECEIPT AT INSTALLATION. THEREFORE, PRICE MODIFICATION WAS PROPERLY REJECTED AS LATE.

ZINGER CONSTRUCTION CO., INC.-- REQUEST FOR RECONSIDERATION:

ZINGER CONSTRUCTION COMPANY, INC. (ZINGER), REQUESTS RECONSIDERATION OF OUR DECISION IN ZINGER CONSTRUCTION COMPANY, INC., B-220203.1, OCT. 30, 1985, 85-2 CPD PARA. 493. WE DISMISSED ZINGER'S PROTEST AGAINST THE REJECTION OF ITS BID MODIFICATION AS LATE BY THE NAVAL FACILITIES ENGINEERING COMMAND (NAVFAC) UNDER INVITATION FOR BIDS (IFB) NO. N62472 84 -B-0665, BECAUSE WE FOUND THE PROTESTER WAS NOT IN LINE FOR AWARD WITH OR WITHOUT TIMELY RECEIPT OF ITS PRICE MODIFICATION AND ZINGER HAD NOT DEMONSTRATED THAT STAGG ELECTRIC (STAGG), THE LOW BIDDER, WAS INELIGIBLE TO RECEIVE THE AWARD. WE CONCLUDED THAT, UNDER OUR BID PROTEST REGULATIONS, ZINGER WAS NOT AN INTERESTED PARTY TO MAINTAIN ITS PROTEST.

IN ITS REQUEST FOR RECONSIDERATION, ZINGER CONTENDS THAT OUR DECISION IS ERRONEOUS BECAUSE STAGG'S BID IS SO LOW AS TO INDICATE THAT THERE MUST BE A MISTAKE IN THE BID. IN THIS REGARD, ZINGER ASKS US TO RECONSIDER OUR FINDING THAT IT IS NOT AN INTERESTED PARTY BECAUSE, IF STAGG MADE A MISTAKE IN ITS BID AND IS ALLOWED TO WITHDRAW THE BID OR IS DETERMINED TO BE OTHERWISE INELIGIBLE FOR AWARD, ACCEPTANCE OF ZINGER'S PRICE REDUCTION WOULD PUT ZINGER IN LINE FOR AWARD.

IN RESPONSE TO ZINGER'S RECONSIDERATION REQUEST, WE WERE INFORMALLY ADVISED BY NAVFAC THAT STAGG'S BID HAS BEEN DETERMINED TO BE NONRESPONSIVE AND HAS BEEN REJECTED. ACCORDINGLY, CONSIDERATION OF THE MERITS OF ZINGER'S PROTEST IS NOW APPROPRIATE.

FOR THE REASONS STATED BELOW, WE DENY THE PROTEST.

THE SOLICITATION SOUGHT BIDS FOR VARIOUS REPAIRS TO THE NAVAL AND MARINE CORPS RESERVE CENTER IN NEW ROCHELLE, NEW YORK. BID OPENING WAS SCHEDULED FOR 2 P.M. ON WEDNESDAY, SEPTEMBER 4, 1985. THE IFB PROVIDED THAT BIDS WOULD BE RECEIVED AT THE OFFICE OF THE NORTHERN DIVISION OF NAVFAC, BUILDING 77-L. HOWEVER, ZINGER'S PRICE MODIFICATION MAILGRAM WAS NOT RECEIVED BY THE DESIGNATED OFFICE UNTIL 2:58 P.M. ON SEPTEMBER 4, 1985, AS EVIDENCED BY THE INSTALLATION'S TIME/DATE STAMP. THEREFORE, THE MODIFICATION WAS DETERMINED TO BE LATE AND WAS NOT CONSIDERED BY THE AGENCY.

ZINGER CONTENDS THAT ITS BID MODIFICATION WAS RECEIVED LATE AT THE OFFICE DESIGNATED FOR RECEIPT OF BIDS BECAUSE OF MISHANDLING BY THE NAVY. ZINGER SUPPORTS ITS ASSERTION THAT THE BID MODIFICATION WAS TIMELY RECEIVED AT THE INSTALLATION BY STATING THAT ITS BID MODIFICATION WAS CALLED IN TO WESTERN UNION ON SEPTEMBER 3, 1985, AND THE MAILGRAM SHOULD HAVE ARRIVED AT THE GOVERNMENT INSTALLATION IN ADVANCE OF THE SCHEDULED BID OPENING. THE RECORD SHOWS THAT THE MAILGRAM WAS CALLED INTO WESTERN UNION AT 4:25 P.M. ON SEPTEMBER 3. THE PROTESTER STATES THAT IT HAS SUCCESSFULLY USED THIS METHOD OF COMMUNICATION IN THE PAST AND NOTES THAT BOTH WESTERN UNION AND THE POSTAL SERVICE GUARANTEE NEXT-DAY DELIVERY OF MAILGRAMS. ZINGER BELIEVES THAT RECEIPT OF ITS BID MODIFICATION BY THE DESIGNATED OFFICE WAS SOMEHOW DELAYED BY EMPLOYEES AT THE PHILADELPHIA NAVAL BASE.

THE FEDERAL ACQUISITION REGULATION (FAR), WHICH GOVERNS PROCUREMENT OF SERVICES THROUGH FORMAL ADVERTISING, PERMITS CONSIDERATION OF A BID OR A BID MODIFICATION NOT RECEIVED PRIOR TO BID OPENING, IF IT WAS SENT BY MAIL (OR TELEGRAM IF AUTHORIZED) AND IT IS DETERMINED THAT LATE RECEIPT WAS DUE SOLELY TO GOVERNMENT MISHANDLING AFTER RECEIPT AT THE GOVERNMENT INSTALLATION. FAR SEC. 52.214-7(A)(2), FEDERAL ACQUISITION CIRCULAR NO. 84-5, APRIL 1, 1985. THE TIME OF RECEIPT AT THE INSTALLATION MUST BE ESTABLISHED BEFORE THE QUESTION OF GOVERNMENT MISHANDLING CAN BE CONSIDERED. ALLIED ELECTRIC INC., B-216548, MAR. 12, 1985, 85-1 CPD PARA. 304. THE ONLY ACCEPTABLE EVIDENCE TO ESTABLISH THE TIME OF RECEIPT AT THE GOVERNMENT INSTALLATION IS THE AGENCY'S TIME/DATE STAMP ON THE BID WRAPPER OR OTHER DOCUMENTARY EVIDENCE MAINTAINED BY THE INSTALLATION. ID.

HERE, THE DOCUMENTARY EVIDENCE OF RECEIPT MAINTAINED BY THE INSTALLATION IS THE TIME/DATE STAMP OF THE OFFICE DESIGNATED FOR BID RECEIPT, WHICH INDICATES THAT THE MODIFICATION WAS RECEIVED AFTER BID OPENING. SINCE THE PROTESTER HAS NOT ESTABLISHED THAT ITS BID MODIFICATION WAS TIMELY RECEIVED AT THE NAVY INSTALLATION PRIOR TO THE TIME OF BID OPENING, WE NEED NOT REACH THE ISSUE OF WHETHER GOVERNMENT MISHANDLING CAUSED THE MODIFICATION TO ARRIVE LATE AT THE BID OPENING LOCATION. ID.

THE PROTEST IS DENIED.