BNUMBER:  B-274677
DATE:  January 22, 1997
TITLE:  Timber-Mart Southwest, Inc.

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Matter of:Timber-Mart Southwest, Inc.

File:     B-274677

Date:January 22, 1997

Arthur M. Doughty for the protester.
Lori Polin Jones, Esq., Department of Agriculture, for the agency.
Paula A. Williams, Esq., and Michael R. Golden, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest against agency's acceptance of a late bid on a timber sale is 
denied where the record establishes that the mailed bid was received 
by the agency prior to the time set for bid opening and its late 
delivery to the bid opening room was due to government mishandling 
after the bid was received.

DECISION

Timber-Mart Southwest, Inc. protests the acceptance of a late bid 
submitted by Haynes Timber Company under the Kisatchie National Forest 
timber sale conducted by the Forest Service, Department of 
Agriculture.  Timber-Mart argues that
Haynes' bid was delivered late and should not have been considered for 
award.

We deny the protest.

The timber sale was advertised as a sealed-bid sale for an estimated 
3,532 hundred cubic feet (ccf) of pine small roundwood.[1]  The 
advertisement specified that bids    were to be submitted by 9 a.m. on 
Tuesday, September 10, 1996.  At bid opening, three bids were opened 
and Timber Mart was declared the apparent high bidder with a bid of 
$47.11 per ccf.  Later that same day, the cognizant specialist who 
conducted bid opening discovered a bid package from Haynes in her 
mailbox.  The package had no time/date stamp or notation as to the 
time of receipt; however, the package was postmarked September 7, and 
the outside envelope indicated that a bid was enclosed for the timber 
sale at issue and gave the correct date and time of bid opening.  The 
Forest Service reports that the employee who, in the absence of the 
regular mail clerk, had received and distributed the mail on September 
10 informed the specialist that no bids "of any kind" had been 
received in the mailroom or delivered that day.[2]  Upon his return to 
work, the regular mail clerk advised the specialist that he had 
delivered Haynes's bid envelope to the specialist's mailbox on Monday, 
September 9, and confirmed his statement in writing.

After reviewing the circumstances surrounding the receipt of Haynes's 
bid, the contracting officer concluded that because of the agency's 
mishandling after receipt at the agency installation, Haynes's bid 
package would have been opened at bid opening on Tuesday, September 10 
and considered for award.  The contracting officer therefore decided 
to consider the bid; it was opened and Haynes was determined to be the 
high bidder with a bid of $62.59 per ccf.  The Forest Service then 
informed Timber-Mart that its bid had been supplanted by Haynes's 
higher bid and of the agency's intention to award the timber sale 
contract to Haynes.  This protest followed. 

The protester maintains that Haynes's bid cannot be considered by the 
agency since the late bid exceptions set forth at section 62 of the 
Forest Service Handbook do not apply here, noting that Haynes's bid 
package was sent by regular mail only 
3 days prior to the scheduled bid opening and there was no time/date 
stamp by the agency which would establish whether Haynes's bid package 
was received on time. 

A late bid generally must be rejected unless the specific conditions 
stated in the solicitation for consideration of late bids are met.  
Section 62.11 of the Forest Service Handbook, which governs the 
treatment of late bids on timber sales, provides that a late bid shall 
not be considered unless it is received before award is made, and one 
of the following conditions is met:  (1) the bidder sent the late bid 
by registered or certified mail not later than the 5th calendar day 
before the date specified for receipt of bids or (2) the late bid was 
sent by mail and the contracting officer determines that the late 
receipt was due to mishandling by the Forest Service after receipt at 
the post office by the designated Forest Service installation (for 
example, failure to pick up or process the mail).  Haynes's bid was 
not sent by registered or certified mail 5 days prior to bid opening 
and therefore the first exception does not apply.  Thus, the issue 
here is whether the mailed bid was timely received prior to bid 
opening and subsequently mishandled.

The record establishing that the bid was timely received.  The Forest 
Service has provided a signed statement from the mail clerk who placed 
Haynes's bid package in the cognizant specialist's box indicating that 
he did so the day before bid opening.  Under the Forest Service 
Handbook, a time/date stamp is not necessary to establish time of 
receipt.  Accordingly, this may be established by other relevant 
evidence in the record, which may include statements by the 
protester's representatives and government personnel.  See, e.g., 
J.C.N. Constr. Co., Inc.,         B-270068; B-270068.2, Feb. 6, 1996, 
96-1 CPD  para.  42; IPS Group, B-235988, Oct. 6, 1989, 89-2 CPD  para.  327.  We 
see no reason why the statements submitted by the agency here should 
not be viewed as  sufficient to establish timely receipt by the 
agency. 

Further, we think the record establishes government mishandling.  
Where the record shows that a bid was not received prior to bid 
opening due primarily to the agency's failure to establish or adhere 
to reasonable procedures for receiving bids, the agency's actions 
constitute mishandling.  PLAN-Industriefahrzeug GmbH & Co. KG, 73 
Comp. Gen. 67 (1993), 93-2 CPD  para.  338.  For example, we have found 
government mishandling where a bid did not reach the bid opening room 
before bid opening because the bid depository was not checked within a 
reasonable time prior to bid opening.  Wand Elec. Inc., B-250576, Jan. 
22, 1993, 93-1 CPD  para.  59.   Similarly, here, the record indicates that 
the specialist did not check her mailbox until mid-afternoon the day 
of bid opening, substantially after the bid opening.  As a result of 
the specialist's failure to check her mailbox prior to bid opening, 
Haynes's bid package, which, according to the regular mail clerk, had 
been in the mailbox since the day before, was not taken to the 
scheduled bid opening.  In these circumstances, the Forest Service 
could properly consider Haynes's bid as having been mishandled.

Accordingly, consideration of the bid for award was not improper.  The 
protest is denied.

Comptroller General
of the United States  

1. The Forest Service sells timber from National Forest System lands 
under the authority of the National Forest Management Act, 16 U.S.C.  sec.  
472a (1994), and implementing regulations under 36 C.F.R. Part 223 
(1996).

2. The agency has submitted signed statements from both the regular 
mail clerk and the "acting" mail clerk regarding the delivery of the 
bid package.