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