B-232287, Dec 2, 1988, 68 Comp.Gen. 125

B-232287: Dec 2, 1988

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One minute is not a reasonable or sufficient amount of time to deliver a telefaxed bid modification from the mailroom to the office designated for bid opening. The IFB stated that bids were due by 2:30 p.m. California. /1/ The solicitation also provided for telegraphic bid modifications so long as they were received by the time specified for receipt of bids. Its bid was timely received. The bid opening official was only notified by a mailroom employee of the existence of the telefaxed modification at 2:40 p.m. Would have been the low bid. Arguing that its telefaxed bid modification was received by the agency in advance of bid opening. That the telefax was mishandled by the Navy. The solicitation provided for telegraphic notice of bid modifications so long as the notice was received by the time specified for bid opening.

B-232287, Dec 2, 1988, 68 Comp.Gen. 125

Procurement - Sealed Bidding - Bids - Modification - Late submission - Mail/telegraph delays Bidders must allow a reasonable time for telefaxed bid modifications to be delivered from the point of receipt to the designated location for receipt of bids; when they do not do so, late arrival at the designated location cannot be attributed to government mishandling. One minute is not a reasonable or sufficient amount of time to deliver a telefaxed bid modification from the mailroom to the office designated for bid opening.

Sanchez Painting and Construction Company:

Sanchez Painting and Construction Company protests the rejection of its telefaxed bid modification as late and the award of a contract to Dawson Construction and Electric Company by the Department of the Navy under invitation for bids (IFB) No. N62474-88-B-4300 for repairs to 16 housing units located at Naval Air Station, Point Mugu, California.

We deny the protest.

The IFB stated that bids were due by 2:30 p.m., local time-- Pacific Daylight time (PDT)-- on June 15, 1988, at the following address: Officer in Charge of Construction, Building 632, Point Mugu, California. /1/ The solicitation also provided for telegraphic bid modifications so long as they were received by the time specified for receipt of bids.

On June 14, Sanchez mailed its bid by overnight mail to the Navy at Point Mugu, and its bid was timely received. On the morning of June 15, Sanchez informed the Navy by telephone that it intended to submit a bid modification by Western Union telefax. On that same day, Sanchez telefaxed a bid modification lowering its price. According to Sanchez, this modification arrived at the Navy installation at 1:31 p.m. PDT, 59 minutes before bid opening. According to the Navy, the bid opening official was only notified by a mailroom employee of the existence of the telefaxed modification at 2:40 p.m., 10 minutes after the time set for bid opening. The agency also maintains that the modification did not arrive at its facility's mailroom until approximately 2:29 p.m., 1 minute before bid opening. The Navy received five bids; it did not consider Sanchez's telefaxed bid modification because it arrived late from the mailroom to the office designated for receipt of bids. Sanchez's bid, considering its downward modification, would have been the low bid.

Sanchez filed an agency-level protest, arguing that its telefaxed bid modification was received by the agency in advance of bid opening, and that the telefax was mishandled by the Navy, resulting in the bid modification being late. By letter of August 1, 1988, the Navy found no evidence of mishandling and awarded the contract to Dawson. This protest followed.

As stated above, the solicitation provided for telegraphic notice of bid modifications so long as the notice was received by the time specified for bid opening. The solicitation further provided that consideration of a late telegraphic bid modification was permitted if the lateness was due to government mishandling. For the reasons that follow, we find that the paramount cause for the late receipt was Sanchez's failure to send the modification until 1 minute before bid opening rather than to mishandling by the Navy.

The parties disagree as to the time of arrival of the telefax at the Navy's mailroom. We have been provided with a true copy of the telefax as received by the Navy. Based on our review of the telefax and after consultation with Western Union, we find that the telefax arrived at the Navy's facility at 2:29 p.m. PDT, 1 minute before the time set for bid opening.

At the top of the Western Union transmission the following line appears, "JUN 15'88 16:29 FROM WU MTWN CTB."

According to Western Union, this line indicates that Western Union transmitted Sanchez's bid modification on June 15, 1988 at 4:29 p.m., Eastern Standard Time (EST), or 2:29 p.m., PDT, from the Morristown, New Jersey Centralized Telephone Bureau. According to Western Union, its computers are always set on EST. When transmission occurred at 4:29 p.m. EST, it was 1:29 p.m., Pacific Standard Time, a 3 hour time difference. However, because the transmission occurred in June during daylight savings time, it was 2:29 p.m., PDT, at Point Mugu when the transmission occurred. Therefore, we find that receipt of the bid modification on the telefax machine in the mailroom at the Pacific Missile Test Center, located approximately one-half mile from the place of bid opening at Point Mugu, occurred, at the earliest, simultaneously with transmission, i.e., 2:29 p.m., PDT, 1 minute before bids were due. /2/

Bidders must allow a reasonable time for bid modifications to be delivered from the point of receipt to the designated location for receipt of bids; when they do not do so, late arrival at the designated location cannot be attributed to government mishandling. Happy Penguin - Request for Reconsideration, B-225715.2, Mar. 20, 1987, 87-1 CPD Para. 324. Sanchez's modification was telefaxed 1 minute before the deadline for receipt of bids. Although the modification was in the Navy's possession, 1 minute certainly was not a reasonable or sufficient amount of time to deliver the modification from the mailroom to the place designated for receipt of bids (a distance of one-half mile). It was Sanchez's responsibility to ensure timely delivery of its modification. Sanchez and its agent, Western Union, contributed to the late receipt of the bid modification by not allowing a reasonable length of time to deliver the modification to the designated office for receipt of bids. There is no evidence of Navy mishandling leading to lateness.

Accordingly, the protest is denied.

/1/ The IFB also erroneously required hand-delivered bids to be deposited in a bid box at a government facility in San Diego, California. The agency orally advised bidders before bid opening that hand-delivered bids should be taken to Point Mugu. Sanchez complied with this revised instruction for delivery.

/2/ Sanchez also relies on a Western Union mailgram to the firm on June 22, 1 week after bid opening, in which Western Union states that the telefax "was delivered" at 4:31 p.m., Eastern Daylight Time (1:31 p.m. Pacific Daylight Time). First, this is contrary to what our office was told by Western Union as to the meaning of the date and time on the face of the telefax. Second, contrary to our use of Western Union's information solely to interpret the telefax, information from Western Union purporting to establish receipt by the agency at a specific time is unacceptable evidence and will not be considered. See Cecile Industries, Inc., B-206796, July 7, 1982, 82-2 CPD Para 29.