Matter of: The Chappy Corporation File: B-252757 Date: July 20, 1993

Matter of: The Chappy Corporation File: B-252757 Date: July 20, 1993

PROCUREMENT Sealed Bidding Hand-carried bids Late submission Acceptance criteria Hand-carried bid delivered after bid opening by Federal Express properly was rejected as late where the bidder required that the carrier obtain a signed receipt before the bid could be delivered, thereby causing the
carrier to decline to deliver the bid to the bid box in accordance with
the solicitation instructions.

Attorneys

DECISION The Chappy Corporation protests the rejection of its bid under
invitation for bids (IFB) No. N62472-92-B-5048, issued by the Officer in
Charge of Construction (OICC), Naval Facilities Engineering Command
(NAVFAC), Naval Air Warfare Center, Warminster, Pennsylvania, for the
repair of a runway at the Willow Grove Naval Air Station. The agency
rejected the Chappy bid because it was submitted after bid opening. Chappy
contends that the bid was delivered late due to improper government
action.

We deny the protest.

Bids were to be submitted by 2 p.m. on February 23. The IFB instructed
bidders to identify the solicitation number and time of bid opening. The
IFB provided an address to which mailed bids were to be sent; it also
identified the location of a bid box which was to be used for hand-carried
bids. The IFB stated that hand-carried bids were to be deposited in the
bid box marked "#1" and "OICC" located at column S-35 in the main entrance
lobby of building 3 of the Naval Air Warfare Center. Chappy's mailing
label contained the address of the bid box; contrary to the IFB
instructions, the solicitation number and the time of bid opening were not
on the package.

According to Federal Express, as explained in a letter to the protester,
its courier arrived at building 3 at 10:28 a.m. on February 23 to deliver
Chappy's bid to the required bid box. Federal Express reports that its
courier did not deposit Chappy's bid in the bid box, however, because, in
accordance with the bidder's instructions, it was required to obtain a
signed delivery receipt. Federal Express states that a person near the bid
box, whom it does not identify, presumably the security clerk on duty in
the lobby, would not provide its courier with a signed receipt for the
bid. The courier returned at approximately 2:31 p.m. that afternoon and
delivered the package to an office automation clerk in the OICC office in
building 2. This clerk signed the delivery receipt.

Chappy argues that a timely delivery of its bid was not made because an
employee of the agency wrongfully refused to accept the bid and advised
Federal Express to return later.

The agency reports that security clerks stationed in the lobby of
building 3 are employed by the Naval Air Warfare Center, not NAVFAC, and
that the clerks are responsible for issuing passes to enter the building,
not for supervising the submission of bids and signing receipts. The Navy
points out that the IFB instructions for delivery of hand-carried bids to
the bid box were explicit and did not in any way suggest that a person
would be at the bid box to give receipts or that receipts would be
provided for hand-delivered bids. Further, the agency points out that a
receipt is not a requirement of commercial carrier delivery--the agency
states that a sender using the services of Federal Express may permit that
carrier to make deliveries without obtaining a signed receipt and that the
airbill contains a section which provides for a sender's waiver of the
signature requirement. Chappy did not waive the signature requirement.

In addition, the security clerk on duty on February 23 reports that the
bid box is located across the lobby from her desk and that bidders and
commercial carriers can deliver packages to the box without a security
pass. She also states that she has no specific recollection of any
conversation with a Federal Express courier on the day of the bid opening.
She states that "I would not, however, have told any . . . delivery person
to come back later, for there would have been no reason to do so."

A proposal delivered to an agency by Federal Express or other commercial
carrier is considered to be hand-carried and, if it arrives late, can be
considered if it is shown that some government impropriety during or after
receipt at the government installation was the sole or paramount cause of
the late arrival at the designated place. Weather Data Servs. Inc.,
B-238970, June 22, 1990, 90-1 CPD Para. 582.

We do not believe that there was any improper action on the part of the
government in this case. The IFB instructions explicitly stated that bids
tendered by Federal Express or other commercial carriers would be
considered hand-carried bids and were to be deposited in the appropriate
bid box. The instructions did not obligate the government to provide any
bidder or any commercial carrier with a receipt for the delivery of the
bid or suggest that an OICC employee would be available to sign for bids
that were to be deposited in the bid box. Federal Express was not
prevented by any government action from depositing Chappy's bid in the bid
box at 10:28 a.m. Rather, it was Chappy's requirement that Federal Express
obtain a receipt before depositing the bid that directly led to the
delivery delay.

Furthermore, assuming that NAVFAC would accept from Federal Express a bid
delivered directly to the OICC offices in building 2, as it did later that
afternoon, no reason has been presented as to why Federal Express waited
until approximately 2:31 p.m., after the bid opening had taken place, to
make delivery. We do note, in this connection, that Chappy's bid package
did not contain notice of the time of bid opening.

In short, it is clear from the record that the late delivery of the
protester's bid was due not to any improper government action, but to the
various actions of the protester and its delivery agent, Federal Express.
Accordingly, the protest is denied.