BNUMBER: B-262255
DATE: December 12, 1995
TITLE: Kelton Contracting, Inc.
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Matter of:Kelton Contracting, Inc.
File: B-262255
Date: December 12, 1995
John Kelton for the protester.
Emily C. Hewitt, Esq., and Donald R. Jayne, Esq., General Services
Administration, for the agency.
John L. Formica, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest against an agency's acceptance of a late bid is denied where
the record establishes that the hand-carried bid was received by the
agency prior to the time set for bid opening, the agency's mishandling
of the bid after its receipt was the paramount cause for the bid's
receipt by the cognizant contracting specialist after the time set for
bid opening, and the integrity of the procurement system was not
compromised by the agency's consideration of the bid.
DECISION
Kelton Contracting, Inc. protests the award of a contract to INCA
Contracting Company under invitation for bids (IFB) No.
GS-09P-95-KTC-0047, issued by the General Services Administration
(GSA) for the removal and replacement of pavements, roadways,
driveways, and parking lots at the U.S. Geological Services Complex,
Flagstaff, Arizona. The protester argues that INCA's bid was
delivered late and therefore should have been rejected by the agency.
We deny the protest.
The cover to the IFB stated that bid opening would be held at 1 p.m.
on July 21, 1995, and immediately thereunder listed the following
address:
General Services Administration
Pacific Service Center
Attn: Deborah A. Ford (9PMC)
525 Market Street 30th Fl.
San Francisco, CA 94105-2799
The standard form (SF) 1442 included in the IFB provided that bidders
were to address their bids to
General Services Administration
Business Service Center
525 Market Street
San Francisco, CA 94105-2799
The solicitation included Federal Acquisition Regulation (FAR)
52.214-7, "Late Submissions, Modifications, and Withdrawals of Bids,"
which provides that a bid received at the office designated for bid
opening after the specified bid opening time and date but prior to
award will not be considered unless: (1) the bid was sent by
registered or certified mail no later than 5 calendar days prior to
the scheduled bid opening; (2) the bid--only if sent by mail,
telegraph or facsimile--was late solely due to government mishandling
after timely receipt at the government installation; or (3) the bid
was sent by U.S. Postal Service Express Mail Next Day Service-Post
Office to Addressee no later than 2 working days prior to the
scheduled bid opening date. This provision also states that "[t]he
only acceptable evidence to establish the time of receipt at the
Government installation is the time/date stamp of that installation on
the bid wrapper or other documentary evidence of receipt maintained by
the installation." FAR 52.214-7(e).
Four bids were opened at the 1 p.m. bid opening, with Kelton
submitting the apparent low bid of $484,600. INCA's bid of $452,087
was not opened at that time because it was not delivered to Ms. Ford,
the contracting specialist responsible for conducting the bid opening,
until 2:30 p.m.
INCA sent its bid by Federal Express to the following address:
Deborah A. Ford (9PMC)
General Services Administration 30th Floor
525 Market Street
San Francisco, CA 94105-2799
INCA's bid was received by the agency at 10:26 a.m. on the date of bid
opening. According to the agency, because Ms. Sandy Dale, the GSA
employee who normally receives packages delivered by Federal Express,
was away from her desk, Ms. Sandy Sitton of GSA signed for INCA's
bid, and observed the Federal Express delivery person place the
package on Ms. Dale's desk. Ms. Dale, whose normal practice is to
immediately deliver Federal Express packages to the addressee,
returned to her desk shortly after the delivery was made. However, no
one informed her upon her return to her desk that a delivery had been
made, and the package containing INCA's bid was no longer on Ms.
Dale's desk. According to the agency, the package had erroneously
been placed in the agency's Construction Services Branch mail slot.
The package was discovered in the mail
slot--unopened--by another GSA employee at approximately 2:30 p.m. and
was delivered at that time to Ms. Ford.
The agency determined that INCA's bid could be considered for award
because the IFB was ambiguous as to where bids were to be sent, and
government mishandling upon receipt of the bid was the paramount cause
for its late receipt by the contracting specialist responsible for the
conduct of the bid opening. Award was made to INCA on August 3.
Kelton protests that INCA's bid cannot be considered by the agency
because the three late bid exceptions set forth at FAR 52.214-7 do
not apply to hand-carried bids. Kelton also asserts that the
information cited by the agency as proof that INCA's bid was timely
received at the agency is not acceptable under FAR 52.214-7(e).
As a general rule, bidders are responsible for delivering their bids
to the proper place at the proper time. Watson Agency, Inc.,
B-241072, Dec. 19, 1990, 90-2 CPD 506. Where, as here, a bid is
delivered by a commercial carrier, the bid is regarded as
hand-carried. Id. A late bid, hand-carried by a commercial carrier,
can be considered for award if government mishandling after the timely
receipt at the agency is the sole or paramount cause for the bid's
late receipt at the office designated for bid opening, and if
consideration of the late bid would not compromise the integrity of
the procurement process. John J. Kirlin, Inc., B-250244, Dec. 15,
1992, 92-2 CPD 419; Weather Data Servs., Inc., B-238970, June 22,
1990, 90-1 CPD 582. In this regard, we have held that a strict and
literal application of the late bid rules set forth at FAR 52.214-7
should not be used to reject a bid where to do so would contravene the
intent and spirit of full competition. Select, Inc., B-245820.2, Jan.
3, 1992, 92-1 CPD 22.
Contrary to the protester's assertions, FAR 52.214-7(e), which the
protester argues renders unacceptable the information provided by the
agency as proof that INCA's bid was timely received, is irrelevant
here because it applies only to bids sent by mail, and not to
hand-carried bids such as INCA's. Santa Cruz Constr., Inc. B-226773,
July 2, 1987, 87-2 CPD 7. Neither procurement regulations nor
decisions of our Office require that timely receipt of hand-carried
bids be proved only by a time/date stamp or other documentary evidence
maintained by the government installation. Id. Where, as here, the
issue is whether a hand-carried bid was timely received by the agency,
all relevant evidence, including statements made by government
personnel, may be considered. Power Connector, Inc., B-256362, June
15, 1994, 94-1 CPD 369.
The evidence cited by the agency reasonably supports a conclusion that
timely delivery of the bid to the agency was accomplished. For
example, the Federal Express tracking sheet submitted by the agency
shows that Ms. Sitton signed for the package at 10:26 a.m. on July 21.
The agency has also furnished a letter from Federal Express which, in
addition to again providing that Ms. Sitton signed for the package
containing INCA's bid at 10:26 a.m. on July 21, includes a photocopy
of Ms. Sitton's signature attesting to delivery. Further, the agency
has furnished the affidavit of Ms. Sitton, wherein she states that she
signed for the Federal Express package containing INCA's bid at 10:26
a.m. on July 21, and observed the Federal Express delivery person
place the package at that time on Ms. Dale's desk. Ms. Dale has also
provided an affidavit in which she states that she was away from her
desk at 10:26 a.m. on July 21, and that she was informed later by Ms.
Sitton that Ms. Sitton had signed for INCA's package at 10:26 a.m. and
that Ms. Sitton had observed the Federal Express delivery person place
INCA's bid package on Ms. Dale's desk at that time. Because
the evidence in this case supports without exception the agency's
position that INCA's bid was received by the agency at
10:26 a.m. on July 21, and its accuracy and veracity is unchallenged
by the protester, we can only conclude that INCA's bid was timely
received by the agency.
The record also evidences that INCA acted in a manner reasonably
calculated to ensure the delivery of its bid before bid opening, and
that the agency's actions were the paramount cause for the bid's late
receipt. Specifically, although INCA's bid was not sent to the
address set forth on the IFB's SF 1442, it was addressed to the
contracting specialist identified in the solicitation as the agency's
point of contact, and was received by the agency at its offices on the
30th floor of 525 Market Street--where the contracting specialist has
her office--more than 2-1/2 hours prior to the time set for bid
opening. As reported by the agency, had the agency's normal
procedures for receipt and distribution of Federal Express packages
been followed, the package would have been received by the contracting
specialist well before the time set for bid opening. However, the
package was misdirected to the Construction Services Branch mail slot
and was not discovered for 4 hours. This misdelivery negated the
agency's standard procedures for the receipt and immediate delivery of
Federal Express packages to the addressees, and effectively precluded
the timely delivery of INCA's bid to Ms. Ford for bid opening. In
sum, even though INCA's bid was not precisely addressed in accordance
with the instructions set forth on the IFB's SF 1442, the record
demonstrates that the agency's mishandling of INCA's bid was the
paramount cause for the bid's late receipt at the office designated
for bid opening. Power Connector, Inc., supra.
In addition, the record establishes a reasonable chain of custody for
INCA's bid after its receipt by the agency at 10:26 a.m., and shows
that the bid was in the sole custody of the agency at the time of bid
opening and thus could not have been changed by INCA. Therefore,
consideration of INCA's bid did not introduce any unfair advantage
into the competitive process and thereby compromise its integrity.
Power Connector, Inc., supra.
Based on the foregoing, the agency's decision to consider INCA's bid
was proper.
The protest is denied.
Comptroller General
of the United States