B-236740, Sep 7, 1989, 89-2 CPD 223

B-236740: Sep 7, 1989

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PROCUREMENT - Sealed Bidding - Bids - Late submission - Rejection - Propriety DIGEST: Late bid was properly rejected where there was no allegation or indication of government mishandling and bid. Was mailed less than 5 days before bid opening. Bid which is late under applicable regulatory standards may not be accepted under provision which permits consideration of a late modification which makes more favorable to the government the terms of an "otherwise successful" bid. We dismiss the protest without obtaining an agency report since it is clear from the record that the protest is without legal merit. 4 C.F.R. Bids under the IFB were due on August 10. The protester's bid was sent by certified mail on August 7.

B-236740, Sep 7, 1989, 89-2 CPD 223

PROCUREMENT - Sealed Bidding - Bids - Late submission - Rejection - Propriety DIGEST: Late bid was properly rejected where there was no allegation or indication of government mishandling and bid, although sent by certified mail, was mailed less than 5 days before bid opening. Bid which is late under applicable regulatory standards may not be accepted under provision which permits consideration of a late modification which makes more favorable to the government the terms of an "otherwise successful" bid.

Medasys, Inc.:

Medasys, Inc. protests the rejection of its bid under invitation for bids (IFB) No. 672-7-90, issued by the Veterans Administration (VA) for providing preventive maintenance and emergency repairs to the Medical Data System at the San Juan, Pureto Rico, VA Medical Center. We dismiss the protest without obtaining an agency report since it is clear from the record that the protest is without legal merit. 4 C.F.R. Sec. 21.3(m) (1988).

Bids under the IFB were due on August 10, 1989, at 10 a.m. The protester's bid was sent by certified mail on August 7, and received by the agency on August 15. By a letter dated August 22, the VA advised the protester that its bid had been rejected as late because it was not received until after bid opening.

The protester challenges the rejection of its bid, arguing that the bid was mailed 7 days prior to its receipt by the agency and that even though received late the terms of its bid are "more favorable to the government." A late bid may be considered, however, only where (1) it was sent by registered or certified mail not later than 5 calender days before bid receipt date or (2) it was sent by mail and it is determined that the late receipt was due solely to government mishandling after receipt at the government installation. FAR Sec. 14.304-1 (FAC 84-11); Damon Co., B-224821, Oct. 6, 1986, 86-2 CPD Para. 400. Since the protester's bid was sent by certified mail only 3 days before the bid opening date, the bid cannot be considered under the 5 day mailing rule. Further, the protester does not contend, and there is no indication in the record, that late receipt of the bid was due to government mishandling. Accordingly, there was no basis on which the VA could accept the protester's late bid.

In this regard, we have noted Medasys' argument that late bids may be accepted and considered for award under the IFB's "Late Submissions, Modifications, and Withdrawals of Bids" clause, found at Federal Acquisition Regulation Sec. 52.214-7 (FAC 84-40), which states in part that "a late modification of an otherwise successful bid that makes its terms more favorable to the government will be considered at any time it is received and may be accepted." Here, it was the bid itself which was late, and not a modification. Therefore the provision upon which Medasys relies, which is directed solely to modifications of bids which are otherwise in line for award, is inapplicable. Medasys's bid was not "otherwise successful" as of the time of bid opening because the bid had not even been received by then and properly was for rejection as late under the regulatory standards discussed above.

The protest is dismissed.