B-193953, JUN 6, 1979

B-193953, JUN 6, 1979

DIGEST: 1. WHERE PROTESTER RAISES ISSUES THAT HAD BEEN THOROUGHLY CONSIDERED IN PRIOR DECISIONS AND PROTESTER HAS FAILED TO SUPPLY ADDITIONAL FACTS OR OFFER ANY ARGUMENTS OF LAW TO DEMONSTRATE PRIOR DECISIONS WERE IN ERROR, PRIOR DECISIONS DENYING PROTEST ARE REAFFIRMED. 2. WHERE GOVERNMENT INSTALLATION EMPLOYEE PICKS UP MAIL AT POSTAL SERVICE BRANCH AND TIME/DATE STAMP INDICATING RECEIPT OF BID BY POSTAL SERVICE WAS ILLEGIBLE, IT MUST BE ASSUMED THAT BID HAD BEEN RECEIVED LATE BY BOTH POSTAL SERVICE AND GOVERNMENT INSTALLATION EMPLOYEE.

GROSS ENGINEERING COMPANY - RECONSIDERATION:

GROSS ENGINEERING COMPANY (GROSS) REQUESTS RECONSIDERATION OF OUR DECISION IN GROSS ENGINEERING COMPANY, B-193953, FEBRUARY 23, 1979, 79-1 CPD 129, AFFIRMED APRIL 24, 1979. OUR PRIOR DECISIONS DENIED GROSS' PROTEST AGAINST THE REJECTION OF ITS BID AS LATE UNDER INVITATION FOR BIDS NO. 132-8918, ISSUED BY THE UNITED STATES PENITENTIARY, LEAVENWORTH, KANSAS (LEAVENWORTH). WE DENIED THE PROTEST BECAUSE THE ONLY DOCUMENTARY EVIDENCE INDICATED THAT THE BID HAD NOT BEEN RECEIVED AT LEAVENWORTH UNTIL AFTER THE DATE SET FOR BID OPENING.

SECTION 20.9(C) OF OUR BID PROTEST PROCEDURES, 4 C.F.R. PART 20 (1978), PROVIDES THAT A "REQUEST FOR RECONSIDERATION SHALL CONTAIN A DETAILED STATEMENT OF THE FACTUAL AND LEGAL GROUNDS UPON WHICH REVERSAL OR MODIFICATION IS DEEMED WARRANTED, SPECIFYING ANY ERRORS OF LAW MADE OR INFORMATION NOT PREVIOUSLY CONSIDERED."

IN ITS REQUEST FOR RECONSIDERATION, GROSS RAISES SEVERAL ISSUES THAT HAVE ALREADY BEEN THOROUGHLY CONSIDERED AND REPORTED IN OUR PRIOR DECISIONS WITH REASONS FOR THE CONCLUSIONS REACHED. GROSS HAS FAILED TO SUPPLY ADDITIONAL FACTS OR OFFER ANY ARGUMENTS OF LAW TO DEMONSTRATE THAT OUR INITIAL DECISION WAS IN ERROR WITH RESPECT TO THESE ISSUES.

HOWEVER, GROSS DOES RAISE ONE ISSUE WHICH HAS NOT BEEN CONSIDERED IN OUR PRIOR DECISIONS AND, THEREFORE, WILL BE ADDRESSED AT THIS TIME. GROSS CONTENDS THAT SINCE THE LEAVENWORTH POST OFFICE DOES NOT DELIVER MAIL TO LEAVENWORTH BUT IT IS PICKED UP BY A LEAVENWORTH EMPLOYEE, "RECEIPT AT THE GOVERNMENT INSTALLATION" SHOULD BE DETERMINED WHEN THAT EMPLOYEE HAS RECEIVED THE PACKAGE.

AS WE HAVE STATED PREVIOUSLY, DOCUMENTARY EVIDENCE IS NECESSARY TO ESTABLISH WHETHER A BID WAS TIMELY RECEIVED AND THE ONLY ACCEPTABLE EVIDENCE TO ESTABLISH RECEIPT "AT (BY) THE GOVERNMENT INSTALLATION IS THE TIME/DATE STAMP ON THE BID WRAPPER OR OTHER DOCUMENTARY EVIDENCE."

IN OUR PRIOR DECISION, WE NOTED THAT THE TIME/DATE STAMP AFFIXED TO THE ENVELOPE INDICATING RECEIPT AT THE LEAVENWORTH POST OFFICE WAS NOT LEGIBLE. THE ONLY DOCUMENTARY EVIDENCE INDICATED THAT THE HAD BEEN RECEIVED AT (BY) LEAVENWORTH AFTER THE DATE SET FOR BID OPENING. SINCE THE POST OFFICE'S TIME/DATE STAMP WAS ILLEGIBLE, THERE IS NO EVIDENCE AS TO WHEN THE BID HAD BEEN RECEIVED BY THE POST OFFICE AND SUBSEQUENTLY PICKED UP BY THE LEAVENWORTH EMPLOYEE. WE THEREFORE CONCLUDE THAT THE ONLY EVIDENCE AVAILABLE TO SHOW RECEIPT AT OR "BY" THE GOVERNMENT INSTALLATION IS THE TIME/DATE STAMP ON THE ENVELOPE, WHICH INDICATED LATE RECEIPT.

FURTHERMORE, WE HAVE BEEN INFORMED BY LEAVENWORTH THAT SINCE THE MAIL IS PICKED UP AT THE POST OFFICE LEAVENWORTH FOLLOWS A STANDARD PROCEDURE TO DETERMINE WHETHER A BID PACKAGE COULD HAVE BEEN RECEIVED PRIOR TO BID OPENING BUT NOT PICKED UP. UNDER THE PROCEDURE THE CONTRACTING OFFICER CONTACTS THE (1) LEAVENWORTH CONTROL CENTER (FRONT DOOR), (2) SWITCHBOARD (RECEPTIONIST), AND (3) THE MAILROOM (LEAVENWORTH POST OFFICE) TO DETERMINE WHETHER A BID PACKAGE HAS BEEN RECEIVED BUT NOT PICKED UP. IN THIS CASE, THE PROCEDURE WAS FOLLOWED AND IT WAS DETERMINED THAT NO BID PACKAGE HAD BEEN RECEIVED BUT NOT PICKED UP PRIOR TO BID OPENING.

IN VIEW OF THE ABOVE, OUR DECISION IS REAFFIRMED.