B-182826, APR 22, 1975

B-182826, APR 22, 1975

1. ALLEGATION THAT LATE BID WAS MISHANDLED AT GOVERNMENT INSTALLATION IS WITHOUT MERIT WHERE RECORD SHOWS THAT BID PACKAGE WAS DELIVERED BY COMMERCIAL CARRIER TO WRONG BUILDING ON INSTALLATION 1 DAY PRIOR TO BID OPENING. IN ANY EVENT, LATE BID CLAUSE ALLOWS CONSIDERATION OF A LATE BID DUE TO GOVERNMENT MISHANDLING ONLY WHEN BID HAS BEEN SENT BY MAIL. 2. THE ERRONEOUS OPENING OF A LATE BID DOES NOT JUSTIFY DISREGARDING THE REQUIREMENT THAT A CONTRACT AWARD BE MADE TO THE LOWEST RESPONSIBLE AND RESPONSIVE TIMELY BIDDER.

GREER HYDRAULICS, INC.:

INVITATION FOR BIDS (IFB) DSA 700-75-B-0516 ISSUED BY THE DEFENSE SUPPLY AGENCY, DEFENSE CONSTRUCTION SUPPLY CENTER, COLUMBUS, OHIO (DSA) ON AUGUST 19, 1974, SOLICITED BIDS FOR DELIVERY OF 214 FUEL SERVICING UNITS. THREE BIDS WERE RECEIVED AND OPENED AT 10:30 A.M. ON OCTOBER 31, 1974. NOVEMBER 1, 1974, A BID BY GREER HYDRAULICS, INC. (GREER) ARRIVED AT THE DSA BID OPENING ROOM. AFTER INITIALLY CONTEMPLATING WHETHER THE BID MAY BE CONSIDERED, DSA NOTIFIED GREER THAT BASED ON LATE BID RULES, THE BID WOULD NOT BE CONSIDERED. GREER THEN PROTESTED DSA'S REJECTION OF ITS BID.

FOR THE REASONS DISCUSSED BELOW, THE PROTEST IS DENIED.

CLAUSE C39 OF THE SUBJECT IFB, ENTITLED "LATE BIDS, MODIFICATIONS OF BIDS OR WITHDRAWAL OF BIDS," PROVIDES IN PERTINENT PART:

"(A) ANY BID RECEIVED AT THE OFFICE DESIGNATED IN THE SOLICITATION AFTER THE EXACT TIME SPECIFIED FOR RECEIPT WILL NOT BE CONSIDERED UNLESS IT IS RECEIVED BEFORE AWARD IS MADE AND EITHER:

"(I) IT WAS SENT BY REGISTERED OR CERTIFIED MAIL NOT LATER THAN THE FIFTH CALENDAR DAY PRIOR TO THE DATE SPECIFIED FOR RECEIPT OF BIDS (E.G., A BID SUBMITTED IN RESPONSE TO A SOLICITATION REQUIRING RECEIPT OF BIDS BY THE 20TH OF THE MONTH MUST HAVE BEEN MAILED BY THE 15TH OR EARLIER); OR

"(II) IT WAS SENT BY MAIL (OR TELEGRAM IF AUTHORIZED) AND IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION."

THE RECORD INDICATES THAT GREER CHOSE TO HAVE ITS BID DELIVERED BY COMMERCIAL CARRIER. WHILE THE SUBJECT IFB ALLOWED FOR DELIVERY OTHER THAN BY MAIL, THE IFB WAS CLEAR THAT BOTH MAILED AND HAND-DELIVERED BIDS WERE TO BE ADDRESSED AND DELIVERED TO THE DEPOSITORY IN BUILDING 12-1B (BID OPENING ROOM). IN THIS CONNECTION, BLOCK 9 OF THE IFB WAS SPECIFIC IN ITS INSTRUCTIONS TO BIDDERS WHO WISHED TO HAVE THEIR BIDS "HAND DELIVERED." IN PART, THE INSTRUCTIONS NOTED THAT IF BIDDERS CHOSE TO HAVE THEIR BIDS DELIVERED SUCH BIDS WOULD BE RECEIVED "*** IN THE DEPOSITORY LOCATED IN BLDG. 12-1B, DCSC, COLUMBUS, OHIO, UNTIL 10:30 A.M., LOCAL TIME AT THE PLACE OF OPENING, 1974 OCTOBER 31."

THE RECORD FURTHER INDICATES THAT GREER'S BID PACKAGE, ALTHOUGH ADDRESSED TO BUILDING 12-1B, WAS DELIVERED BY THE COMMERCIAL CARRIER ON OCTOBER 30, 1974, TO DSA BUILDING 42-1, RATHER THAN TO THE BID OPENING ROOM. DSA HAS INFORMED THIS OFFICE THAT BUILDING 42-1 IS APPROXIMATELY 3/4 OF A MILE FROM THE BID OPENING ROOM. DSA'S REPORT FURTHER STATES THAT THE NORMAL PROCEDURE WHICH IS FOLLOWED WHEN MAIL FOR OTHER PORTIONS OF THE COMPLEX IS RECEIVED AT BUILDING 42-1 "*** IS TO PLACE THE MAIL IN A SPECIAL MAIL TUB FOR DELIVERY BY TRUCK TO THE CENTRAL MAILROOM AT DCSC. THE CENTRAL MAILROOM THEN PICKS UP THIS MAIL AND ROUTES IT TO THE CORRECT LOCATION."

THE PROTESTER CONTENDS THAT THE DELAY IN GETTING ITS BID FROM BUILDING 42 -1 TO THE BID OPENING ROOM WAS TANTAMOUNT TO MISHANDLING BY THE GOVERNMENT. INASMUCH AS THE BID PACKAGE WAS DELIVERED BY ITS COMMERCIAL CARRIER TO THE WRONG BUILDING 1 DAY BEFORE BID OPENING, WE DO NOT BELIEVE THE PROTESTER HAS SHOWN THAT THE LATE DELIVERY OF THE BID TO THE OPENING ROOM WAS DUE TO THE GOVERNMENT'S MISHANDLING. MOREOVER, AS WE RECENTLY POINTED OUT IN A VERY SIMILAR CASE (MATTER OF FEDERAL CONTRACTING CORP., B -181286, OCTOBER 25, 1974, 54 COMP. GEN. ), THE APPLICABLE "LATE BID CLAUSE" ALLOWS CONSIDERATION OF A LATE BID DUE TO GOVERNMENT BID WAS SENT BY COMMERCIAL CARRIER RATHER THAN BY MAIL, CONSIDERATION OF GREER'S LATE BID FOR AWARD WOULD NOT BE PROPER IN ANY EVENT. MATTER OF FEDERAL CONTRACTING CORP., SUPRA, MATTER OF ROCKET RESEARCH CORPORATION, B-179405, JANUARY 24, 1974.

FINALLY, THE PROTESTER CONTENDS THAT SINCE ITS LATE BID WAS OPENED AND DETERMINED TO BE LOW, THE ENSUING CONTRACT MUST BE AWARDED TO GREER. THIS REGARD, THE OPENING AND PUBLIC READING OF GREER'S BID WAS UNAUTHORIZED, SINCE ARMED SERVICES PROCUREMENT REGULATION 2.303-7 PROVIDES THAT LATE BIDS INELIGIBLE FOR CONSIDERATION ARE TO BE HELD UNOPENED UNTIL AFTER AWARD AND THEN RETURNED TO THE BIDDER. HOWEVER, THE FACT THAT THE BID WAS OPENED CONFERS NO ADDITIONAL RIGHTS UPON THE PROTESTER. MATTER OF V.J. GAUTIERI, INC., B-181720, SEPTEMBER 17, 1974.