B-230002, Mar 29, 1988, 67 Comp.Gen. 363

B-230002, Mar 29, 1988, 67 Comp.Gen. 363

DIGEST: The Government Printing Office (GPO), a legislative branch agency, is not subject to the Federal Acquisition Regulation but is governed by its own Printing Procurement Regulation as to the acceptance of late bids. GAO does not find unreasonable GPO's determination that a late bid sent by express mail may be accepted where the Postal Service states that the majority of such express mail is delivered prior to bid opening time as GPO found this to show the bid was mailed in sufficient time to arrive in the normal course of the mails.

Custom Printing Company:

Custom Printing Company protests the award of a contract to Gateway Press, Inc., under invitation for bids (IFB) No. J195-613, issued by the Government Printing Office (GPO) for 1,104,700 copies of a 536 page publication. Custom contends that Gateway's bid was received by GPO after the time set for bid opening and should have been rejected as a late bid. Custom contends GPO improperly opened and considered Gateway's bid prior to determining whether the bid had been mailed in sufficient time to have been delivered by the scheduled bid opening.

The protest is denied.

Bid opening was at 11 a.m., on December 29, 1987. Custom's bid of $931,767 was the only bid present at the opening. After bid opening, at 12:11 p.m., a bid from Gateway was received at GPO via the United States Postal Service's major market network express mail service. Later that day, Gateway's president called GPO and was informed that Gateway's bid was considered late. On December 30, at Gateway's request, GPO and Gateway representatives met to discuss Gateway's late bid. Gateway argued that its bid was mailed from Louisville, Kentucky, in sufficient time to arrive at GPO prior to bid opening and produced a letter from the Postal Service's Louisville express mail coordinator to this effect. Gateway contended that its bid should therefore be accepted in accordance with GPO's regulations. GPO states that although Gateway's bid had not been opened at that time, Gateway told GPO at the meeting that its bid was $80,000 to $90,000 less than Custom's bid.

On December 31, the cognizant GPO official spoke with the Postal Service's express mail manager for the District of Columbia who informed GPO that 91 percent of mail sent from Louisville was delivered in Washington prior to noon and 90 percent of that number, or over 80 percent of the total, was delivered by 11 a.m. Based upon this evidence GPO determined that Gateway's bid was mailed in sufficient time to have been delivered to GPO prior to bid opening. Gateway's bid was opened and award made to it at $851,484. In a subsequent letter to GPO memorializing the conversation, the express mail manager stated that express mail from Gateway's zip code in Kentucky to Washington, D.C., was "approximately 90.9 percent on time for Label B, Post Office to Addressee. Of this amount approximately 80 percent is delivered in the A.M. hours." The express mail manager in an even later letter revised this statement by declaring that "approximately 90.9 percent (of express mail was) on time for Label B, Post Office to Addressee (and) is delivered during the A.M. Of this amount, I would say that approximately 80 percent is delivered by 11 a.m."

Initially, Custom and GPO dispute the applicability of the Federal Acquisition Regulation (FAR) to this case. Custom argues that in the past we have applied the FAR to GPO specifically. Custom also cites decisions of this Office interpreting the late bid rules as set out in the FAR to the effect that a late bid sent via the Postal Service's express mail may not be accepted when it arrives late due to the Postal Service, not the procuring agency's, mishandling. See Triumph United Corp. , B-216546, Oct. 18, 1984, 84-2 CPD Custom argues that this rule should govern and Gateway's late bid be rejected.

Although we may have looked to the FAR for guidance in protests involving GPO, we have recognized that GPO, as a legislative branch agency, is not subject to the FAR. Capitol Hill Blueprint Co., B-220354, Nov. 13, 1985, 85-2 CPD para. 550. Therefore, since GPO's late bid regulations differ from the FAR, GPO's own regulations govern.

The GPO Printing Procurement Regulation concerning late bids states:

"1.General. Bids received after the exact time set for opening of bids are late bids and shall not be considered for award except as authorized in this Section . . . .

"2.Metered Mail. Bids transmitted via metered mail, unless metered by the Post Office (Letters P and O shown in the metered stamp), will not be considered for award if received after time set for opening of bids.

"5.Consideration of Late Bids. Late bids, modifications-of-bids, or withdrawals, which are delivered by mail . . . prior to award, shall be considered if the Contracting Officer determines that the bid was properly addressed and was mailed in sufficient time to have been delivered, in the normal course of the mails, by the date and hour scheduled for opening. The determination shall be made by use of the Post Office cancellation stamp indicating the date and hour (or a.m./p.m.) of mailing. Information concerning the normal time for mail delivery shall be obtained from the postmaster, superintendent of mails, or a duly authorized representative for that purpose, of the post office serving the procurement office. When time permits, such information shall be obtained in writing."

Printing Procurement Regulation, chapter 5, section 5.

Custom contends that since the Postal Service's express mail guarantee is only to deliver express mail by 3 p.m. the next day, Gateway did not provide sufficient time for its bid to arrive for the 11 a.m. bid opening. Further, Custom argues that the Postal Service's express mail manager did not provide any data as to what portion of the express mail from Louisville to Washington, D.C., arrives prior to 11 a.m. but rather only supplied her personal guess. As to the on time figures the express mail manager did provide in writing, Custom states that these show only 73 percent of the express mail is delivered by 11 a.m. (80 percent of the 91 percent on time mail). Further, Custom contends that this figure relates to delivery to an address, not to the specific bid opening room and GPO does not state how long Gateway's bid took to get to the bid opening room.

Our decisions applying the FAR's late bid provisions are inapplicable here in view of GPO's specific late bid regulation. We note that under the FAR, Gateway's bid could not have been accepted as it was mailed in less than 5 days prior to bid opening. FAR 14.304 1(a)(1) (FAC 84-5). However, GPO's regulation does not limit the acceptance of late bids to those sent 5 days prior to bid opening by registered or certified mail as does the FAR. Rather, under GPO's regulations, a late bid sent by the Postal Service's express mail, which was transmitted by mail metered by the post office and which was delivered prior to award, as here, shall be considered if the contracting officer determines that the bid was properly addressed and was mailed in sufficient time to have been delivered, in the normal course of the mails, by the date and hour scheduled for opening. Printing Procurement Regulation chapter III section 5, paragraph 5. The only question here, therefore, is whether GPO abused its discretion in finding that Gateway's late bid was mailed in sufficient time to have been delivered, in the normal course of the mails, by the date and hour scheduled for opening.

GPO followed its own regulation in obtaining information from the Postal Service as to the normal time for mail delivery and we find GPO's determination that Custom's bid was mailed in sufficient time to be reasonable. GPO considered Gateway's contention that it had similarly mailed other bids to GPO by express mail and they had all arrived on time for 11 a.m. bid openings. Moreover, a Postal Service official provided her best estimate to GPO as to the delivery time of express mail (73 percent by 11 a.m.) and we are in no position to question that estimate by the postal official. We do not think that the fact GPO was earlier orally informed that the delivery rate was over 80 percent, which differs from later written advice that the rate was 73 percent, is significant. Nor can we say that a 73 percent express mail delivery by 11 a.m., from Louisville to Washington, is not a high enough percentage for GPO to find a bid so mailed would arrive in sufficient time in the normal course of the mails.

The protest is denied.