BNUMBER:  B-273010
DATE:  November 12, 1996
TITLE:  AABLE Tank Services, Inc.

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Matter of:AABLE Tank Services, Inc.

File:     B-273010

Date:November 12, 1996

Emmett Bonfield for the protester.
Daryl L. Streed for Environmental Contractors of Illinois, Inc., an 
intervenor.
Joshua A. Kranzberg, Esq., and Melinda N. Finucane, Esq., Department 
of the Army, for the agency.
Jerold D. Cohen, Esq., Office of the General Counsel, GAO, 
participated in the preparation of the decision.

DIGEST

Solicitation provided that bids were due at Savanna, Illinois by 2 
p.m. local time, but low bidder sent its bid to Letterkenny Army Depot 
in Pennsylvania--which had  issued the solicitation--at the direction 
of the Letterkenny contract specialist (identified in the solicitation 
as the person to contact for further information), where the bid was 
opened at 2 p.m. Letterkenny time (1 hour ahead of Savanna time).  
Acceptance of the bid was proper, since government misdirection of the 
bid to Letterkenny was the sole cause of the bid's nonreceipt at 
Savanna, and acceptance would not compromise the integrity of the 
competitive system.

DECISION

AABLE Tank Services, Inc. protests the proposed award of a contract to 
Environmental Contractors of Illinois, Inc. (ECI) under invitation for 
bids (IFB) 
No. DAAC67-96-B-0027 issued by the Department of the Armyï¿½s 
Letterkenny Army Depot (LEAD) in Chambersburg, Pennsylvania, for the 
removal and installation of underground fuel storage tanks at the 
Savanna Army Depot Activity in Savanna, Illinois.  AABLE argues that 
ECIï¿½s bid should be rejected because it was not delivered to the 
address specified in the solicitation.

We deny the protest.

The IFBï¿½s cover page (Standard Form 1442) indicated that the 
solicitation was ï¿½issued byï¿½ LEAD (item 7); that a vendor should 
ï¿½address offer toï¿½ Savanna (item 8); and that bids were due, for 
public opening, "at the place specified in item 8" by 
2 p.m. ï¿½local timeï¿½ on Thursday June 20, 1996 (item 13).  According to 
the Army, the cover page was mistaken in that LEAD normally both 
issues solicitations and holds bid openings for Savanna procurements 
expected to exceed $25,000 (Savanna is 
a depot activity under LEAD); vendors thus should have been advised to 
send bids to LEAD by 2 p.m.  The contract specialist, located at LEAD 
and unaware of the IFB error, advised a number of prospective bidders 
who called for information to send their bids to LEAD, in keeping with 
normal procedures.

Savanna received six bids on June 20 shortly before noon Central 
Daylight Time (CDT), which is local Savanna time.  The bids had been 
delivered by commercial carriers, and were forwarded unopened by a 
Savanna employee to the contracting officerï¿½s representative (COR) at 
Savanna who was to be responsible for the project after award.  
Meanwhile, the LEAD contract specialist, assuming that bid opening was 
2 p.m. Eastern Daylight Time (EDT)--the local LEAD time--accepted and 
opened two bids in the presence of another LEAD contract specialist.  
ECIï¿½s bid, which had arrived at LEAD via UPS 4 hours early, was the 
lower of the two opened, at $104,100.  

The Savanna COR, upon noting the six bids at his desk, called the LEAD 
contract specialist at 1:15 p.m. CDT, or 2:15 p.m. LEAD time--15 
minutes after the two LEAD  bids had been opened--at which time the 
IFB error finally was noted.  Because Savanna bids normally are opened 
at LEAD, the COR sent the six unopened bids to LEAD the next morning 
(Friday June 21) via certified priority mail, and they arrived and 
were opened on June 24.  AABLE submitted the lowest of the Savanna 
bids, $127,530, which was second low overall.

AABLE protests that as the low bidder based on the bids sent to the 
proper address as designated in the solicitation--Savanna--AABLE is 
entitled to the contract award. ECI, in commenting on AABLE's protest, 
states that after receiving the solicitation and noting the different 
addresses in items 7 and 8 of the cover sheet it called the LEAD 
contract specialist, whom the IFB identified as the source for further 
information, in order to verify where the bid was to be mailed.  ECI 
asserts that it was told to send the bid to LEAD, and argues that 
award to ECI thus is proper as ECI submitted the lowest of all bids 
received.  The Army responds to AABLE's protest as follows:

     ï¿½. . . all eight bids submitted in response to the solicitation 
     were received prior to [2:00 p.m.] EDT at LEAD and [1:00 p.m.] 
     CDT at Savanna, so none can be considered late no matter at which 
     location they were received.  Once the bids were received, they 
     remained under Government control, and the bidders did not have 
     an opportunity to change their bids.  Although the bid opening at 
     LEAD on July [sic] 20 was public, only the contract specialist 
     and another government employee were present at that time.  
     Immediately after the bids were opened, the COR from Savanna 
     called, so the results of the LEAD bid opening were not revealed 
     at that time.  It was not until June 24, 1996, after the bids 
     were received from Savanna, that the remaining bids were opened, 
     and that information about all of the bids was released.ï¿½

The Army concludes that acceptance of ECI's bid therefore is proper.

As a general rule, the place and time for bid submission is determined 
by the relevant provision in the IFB itself.  In this case, according 
to the IFB bids clearly were to be submitted to Savanna by 2 p.m. CDT 
("local time") on June 20, so that, in our view, any bids submitted 
elsewhere were sent to the wrong place.  The fact that the Army may 
have considered Savanna to be the wrong place, based on LEAD/Savanna 
standard operating procedures, does not change the submission 
groundrules the agency advertised to potential competitors.  The 
issue, then, is whether award to ECI, which timely sent its bid to 
LEAD in response to the contract specialist's misdirection, instead of 
award to AABLE, which correctly sent its bid on time to Savanna, is 
proper.  

We believe the issue should be resolved by reference to the rules 
governing late bids.  The reason is that ECI's bid was, in effect, 
"late" in that it never reached Savanna--a bid can only be timely if 
it is received at the office designated in the solicitation by the 
exact time specified for receipt.  See Federal Acquisition Regulation 
(FAR)  sec.  14.304.  Reference to late bid rules supports award to ECI.

Bidders generally 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  para.  506.  At the same time, however, the government 
has the duty to establish procedures for the timely receipt of bids.  
Select, Inc., B-245820.2, Jan. 3, 1992, 92-1 CPD  para.  22.  Accordingly, 
one of the fundamental principles underlying the rules for the 
consideration of late bids is that a bidder who has done all it could 
and should to fulfill its responsibility should not suffer if the bid 
did not arrive as required because the government failed in its own 
responsibility, if otherwise consistent with the integrity of the 
competitive system.  We therefore have held that a late hand-carried 
bid may be considered for award if to do so would not compromise the 
competitive system and either the government's "affirmative 
misdirection" made timely delivery impossible, see Select, Inc., 
supra, or government mishandling after timely receipt by the agency 
was the sole or paramount cause for the bid's late receipt at the 
designated location.  See, e.g., Kelton Contracting, Inc., B-262255, 
Dec. 12, 1995, 95-2 CPD  para.  254.  For other late bids, FAR  sec.  14.304 
provides that they may be considered basically if the bidder sent the 
bid enough in advance so that normal delivery should have resulted in 
timely receipt at the bid opening location.[1] 

Recognizing the late bid rules' underlying principle as set out above, 
we long have held that a strict and literal application of the rule 
that a bid must be at the right place on time in order to be 
considered should not be used to reject a bid where to do so would 
contravene the intent and spirit of the competitive system.  See, 
e.g., 42 Comp. Gen. 508 (1963); I&E Constr. Co., Inc., 55 Comp. Gen. 
1340 (1976), 76-2 CPD  para.  139; Saint Louis Truckpointing and Painting 
Co., Inc., B-212351.2, 
Nov. 18, 1983, 83-2 CPD  para.  588.  While the late bid regulations are 
intended to ensure that a late bid will not be considered if there 
exists any possibility that the late bidder would gain an unfair 
competitive advantage over other bidders, I&E Constr. Co., Inc., 
supra, as we stated in Hydro Fitting Mfg. Corp., 54 Comp. Gen. 999, 
1003 (1975), 75-1 CPD  para.  331: 

     "The purpose of the rules governing consideration of late bids is 
     to insure for the Government the benefits of the maximum of 
     legitimate competition, not to give one bidder a wholly unmerited 
     advantage over another by over-technical application of the 
     rules."  

In our view, the government was the paramount cause of the "late" 
receipt of ECI's hand-carried bid.  We have permitted late 
hand-carried bids to be considered where the bidder's reasonable 
reliance on improper delivery instructions by knowledgeable government 
personnel made it impossible for the bid to be timely delivered to the 
bid opening location.  See, e.g., Scot, Inc., 57 Comp. Gen. 119 
(1977), 77-2 CPD  para.  425; Select, Inc., supra; LeChase Constr. Corp., 
B-183609, July 1, 1975, 75-2 CPD  para.  5.[2]  Here, ECI asserts that it 
submitted its bid to LEAD based on direction from the contract 
specialist, specified in the IFB as the person to provide bidding 
information--although the Army has not provided direct support of an 
ECI/contract specialist conversation, ECI's assertion in that regard 
is consistent with the Army's statement about the contract 
specialist's advice to prospective bidders.[3]  We do not see how ECI, 
having received such instruction, could have been expected to send the 
bid to other than LEAD--in short, we find no fault on ECI's part with 
respect to the submission of its bid.

We also see no jeopardy to the integrity of the competitive bidding 
system by award to ECI.  The government had custody of ECI's bid well 
before 2 p.m. Savanna time--even before the protester submitted its 
bid to Savanna--and in fact opened and exposed it (to two contract 
specialists) at 1 p.m. Savanna time (after all the bids were in 
government custody).  ECI obviously never had the opportunity to alter 
its bid after submission to acquire an advantage over other bidders, 
see Scot, Inc., supra, nor, given the way Savanna and LEAD handled the 
situation, did the firm have the chance to withdraw the bid before the 
Savanna bids were opened at LEAD on June 24.  We do not see how the 
system can be considered to be compromised in any way--or AABLE 
competitively prejudiced--by accepting the earlier-opened (albeit in 
the wrong place) lower bid. 

In sum, the government was the cause of ECI's submission of its bid to 
LEAD rather than to Savanna, and award to ECI would have no adverse 
effect on the competitive bidding system.  Application of the late bid 
rules to preclude award to ECI simply because it was not one of the 
bids received at Savanna on time would, in these circumstances, be 
illogical.

The protest is denied.

Comptroller General
of the United States

1. Specifically, a late bid may be considered if the bid (1) was sent 
by registered or certified mail not later than the fifth calendar day 
before bid opening; (2) was sent by mail (or by telegram or facsimile, 
if authorized) and the late receipt was due solely to government 
mishandling after receipt at the government installation; 
(3) was sent by U.S. Postal Service Express Mail Next Day Service not 
later than 
2 working days before bid opening; or (4) was transmitted through an 
electronic commerce method authorized by the solicitation and was 
received no later than 
1 working day before bid opening. 

2. The Army advises that even if the contract specialist had 
recognized the error upon receiving ECI's bid, there would not have 
been enough time to get it to Savanna before 2 p.m. CDT.

3. ECI actually included both the Savanna and LEAD addresses on its 
bid envelope, which identified the contents as a sealed bid for the 
instant solicitation, and on the UPS delivery label, which specified 
the contents as a sealed bid for Savanna with delivery to LEAD.