BNUMBER:  B-270068; B-270068.2
DATE:  February 6, 1996
TITLE:  J.C.N. Construction Co., Inc.

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Matter of:J.C.N. Construction Co., Inc.

File:     B-270068; B-270068.2

Date:     February 6, 1996

Douglas L. Patin, Esq., Spriggs & Hollingsworth, for the protester.
David P. Ray, Esq., Amerling & Burns, for D.L. Poulin, Inc., an 
interested party.
Howard B. Rein, Esq., Cynthia S. Guill, Esq., and Christopher M. 
Bellomy, Esq., Department of the Navy, for the agency.
Wm. David Hasfurther, Esq., and Michael R. Golden, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

A late commercial carrier-delivered bid may be considered if its late 
receipt is due to government mishandling after the bid is received.  
However, the time of the agency's receipt of the bid prior to bid 
opening must be established.  Where the sole evidence of receipt is 
the carrier's records, the time of receipt cannot be properly 
established, and the bid must be rejected. 

DECISION

J.C.N. Construction Co., Inc. protests the award to D.L. Poulin, Inc. 
under Department of the Navy invitation for bids (IFB) No. 
N62472-94-B-0421, issued for construction on a hangar at the 
Brunswick, Maine, Naval Air Station.  J.C.N. maintains that Poulin's 
bid should have been rejected as late.

We sustain the protest.

The IFB, issued on August 8, 1995, set bid opening for 2 p.m. on 
September 8.  Seven bids were received.  Poulin's "bid" consisted of a 
facsimile of a telegram submitted by Western Union to the agency from 
Poulin acknowledging its receipt of amendment 0003 and reducing its 
bid price by $1,141,496.  The telegram, however, gave no indication of 
what bid amount was being reduced.  When bids were opened, J.C.N.'s 
bid was the low responsive bid.  

After bid opening, Poulin complained that the agency had failed to 
consider the bid it submitted prior to its telegram.  On September 20, 
the agency discovered Poulin's original bid in the agency bid box 
under a yellow page of paper that the agency maintained on the bottom 
of the box.  The agency reports that the box can be opened only with 
keys controlled by the bid room clerk, and, the bid could only have 
been placed under the yellow page by someone who had obtained the keys 
from that clerk.  The bid package had no time/date stamp or notation 
as to time of receipt.  

The only available evidence of delivery was the commercial carrier's 
cartage record.  This log showed that the bid had been delivered by 
Airborne Express on August 30 (nine days prior to bid opening) to the 
agency's mail room (instead of the bid depository location designated 
in the IFB for hand-delivered bids), and that the mail room clerk had 
signed for its receipt at 9:47 a.m.  Poulin's bid package, using the 
label supplied by the agency, was clearly marked as a bid, and 
included the IFB number, the date and time of opening, and a 
description of the project.  The carrier's label placed on the bid 
envelope included a sticker, which was separable into three portions 
(each with the same airbill number)--one portion had been placed on 
the carrier's delivery records, and the other two were left on the bid 
envelope.  

 The agency determined that the paramount cause for the bid being 
received late was government mishandling--the failure to timely 
transmit the bid from the mail room to the bid depository down the 
hall from the mail room.  After the agency determined that the bid 
envelope had not been opened or tampered with after having been 
sealed, Poulin's bid was opened.  After adjusting the price by the 
price reduction in the telegram, the agency found that Poulin bid was 
low.  Award was made to Poulin.  Performance has been suspended 
pending resolution of this protest.

J.C.N. contends that Poulin's bid should have been rejected because 
the primary cause of its late receipt was the improper delivery of the 
hand-carried bid to the mail room (the location designated for the 
delivery of bid sent by mail) and not to the bid box, which was 
designated as the location for depositing hand-carried bids.  J.C.N. 
also notes that no documentation was maintained by the installation to 
show when Poulin's bid was received--the bid envelope was not 
time/date stamped--and thus under the evidentiary requirements of FAR  sec.  
14.304-1(c) the requisite proof of when the agency received Poulin's 
bid does not exist.  In any event, J.C.N. notes that the agency has 
offered no explanation of where Poulin's bid was between August 30 and 
September 20.  Since the agency has not established that the bid was 
in the exclusive possession of agency personnel during this period of 
time and since if Poulin had regained possession of the bid after its 
submission it could, after learning the results of bid opening, have 
changed its original price to ensure its being low, J.C.N. believes 
that Poulin's bid should be rejected so as to maintain the integrity 
of the competitive bidding system.  

As a general rule, bidders are responsible for delivering their bids 
to the proper place at the proper time.  International Steel Erectors, 
B-233238, Feb. 13, 1989, 89-1 CPD  para.  146.  While a late bid, hand 
carried by a commercial carrier to either the location designated for 
hand-carried bids or to the mail room, may not be considered where it 
is late due to the failure of the bidder to fulfill its responsibility 
for ensuring timely delivery, it may be considered if the sole or 
paramount cause of its late receipt in the bid opening room is due to 
government mishandling after timely receipt at the agency.  Gould 
Metal Specialties Inc., B-246686, Mar. 27, 1992, 92-1 CPD  para.  311.

However, before the issue of whether the late receipt of a bid by 
contracting officials was caused solely by government mishandling may 
be considered, it must be shown that the bid was received by the 
agency prior to bid opening.  Power Connector, Inc., B-256362, June 
15, 1994, 94-1 CPD  para.  369; Qualimetrics, Inc., B-213162, Mar. 20, 1984, 
84-1 CPD  para.  332.  Where 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.  Kelton 
Contracting, Inc., B-262265, Dec. 12, 1995, 95-2 CPD  para.  ___.   As noted 
by the protester, FAR  sec.  14.304-1(c) provides: 

     "[t]he only acceptable evidence to establish the time of receipt 
     at the Government installation is the time/date stamp of such 
     installation on the bid wrapper or other documentary evidence of 
     receipt maintained by the installation."

While this provision does not by its language encompass late 
hand-carried bids, and thus the strict evidentiary requirements of the 
clause are technically inapplicable, Pan Am Constr. and Management 
Co., B-191238, May 9, 1978, 78-1 CPD 352, we have recognized that this 
provision for establishing bid receipt should apply to hand-carried 
bids by commercial carriers.   Thus, commercial carrier records 
standing alone may not serve to establish the time of delivery to the 
agency, since they are not evidence of receipt maintained or confirmed 
by the agency.  Hausted, Inc., B-257087, July 28, 1994, 94-2 CPD  para.  49; 
Qualimetrics, Inc., supra .  On the other hand, commercial carrier 
records may be considered in determining when a bid is submitted to a 
government installation, if the record contains corroborating relevant 
evidence (e.g., an agency time/date stamp, other documentary evidence 
in the possession of the agency, and statements by government 
personnel).  Power Connector, Inc., supra (the corroborating evidence 
of commercial carrier records consisted of agency logs showing receipt 
that were maintained by the agency); M.J.S., Inc., B-244410, Oct. 17, 
1991, 91-2 CPD  para.  344 (besides the commercial carrier records, the 
agency had retained a copy of the Federal Express receipt signed by an 
agency employee and thus had evidence in its possession of the time of 
receipt prior to government mishandling).  

Here, the agency has been unable to furnish any evidence beyond the 
signed receipt furnished by the carrier to establish that Poulin's bid 
was received at the agency prior to bid opening.  The agency offers 
neither an explanation of how or when the bid was placed in the bid 
box or any evidence in its possession as to when Poulin's bid was 
delivered to the agency.  The sole evidence establishing the time of 
receipt of the Poulin bid at the agency consists of the delivery 
records of Poulin's commercial carrier.  The agency has only one mail 
room clerk, but he is unable to remember the receipt of Poulin's bid 
envelope.  In short, the agency cannot corroborate the bidder's 
agent's time of delivery.

Therefore, Poulin's bid must be considered late and cannot be 
accepted.  To hold otherwise would be counter to the long-standing 
goal of the late bid rules--protecting the integrity of the 
competitive bidding system--because of the possibility that the bid 
discovered in the bid box on September 20 was not the bid allegedly 
delivered on August 30.  Since performance has been suspended, we 
recommend that the agency terminate the contract to Poulin and award 
the contract to J.C.N., if otherwise proper.  We also recommend that 
the protester be reimbursed its costs of filing and pursuing the 
protest, including reasonable attorneys' fees.   Bid Protest 
Regulations, section 21.8(d)(1), 60 Fed. Reg. 40,737, 40,743 (Aug. 10, 
1995) (to be codified at 4 C.F.R.  sec.  21.8(d)(1)).  The protester should 
submit its detailed and certified claim for its costs directly to the 
agency within 90 days after receipt of this decision.  Bid Protest 
Regulations, section 21.8(f)(1). 

The protest is sustained.

Comptroller General
of the United States