BNUMBER:  B-275113
DATE:  January 23, 1997
TITLE:  Brazos Roofing, Inc.

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Matter of:Brazos Roofing, Inc. 

File:     B-275113

Date:January 23, 1997

Alan M. Grayson, Esq., and Ronald B. Vogt, Esq., Grayson and 
Associates, for the protester.
Karl Dix, Jr., Esq., Smith Currie & Hancock, for ACC Construction 
Company, Inc., an intervenor.
Anne W. Westbrook, Esq., and Gregory W. Vanagel, Esq., Department of 
the Army, for the agency.
Scott H. Riback, Esq., and John M. Melody, Esq., Office of the General 
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest that agency improperly rejected protester's bid as late is 
sustained where:  (1) agency amended solicitation so close to the 
deadline for submitting bids that bid submission by facsimile was the 
only practicable alternative available to bidders;  (2) facsimile 
machine designated in solicitation became inoperable for some 
indefinite period of time during the morning of the bid submission 
deadline;        (3) protester transmitted its bid to an alternate 
facsimile machine based on advice from an agency employee other than 
the designated point of contact only after unsuccessfully attempting 
to telephone the designated contact; and (4) the protester's bid 
package arrived at the installation and was in the hands of agency 
officials by the deadline for submitting bids. 

DECISION

Brazos Roofing, Inc. protests the award of a contract to ACC 
Construction Company, Inc. under invitation for bids (IFB) No. 
DACA21-96-B-0137, issued by the U.S. Army Corps of Engineers for 
hurricane damage repairs at Seymour Johnson Air Force Base, North 
Carolina.  Brazos contends that the Army improperly rejected its low 
bid as late.

We sustain the protest.

The IFB was issued on September 13, 1996 and, because of the urgent 
need for the repairs, called for bids to be submitted by September 
17.[1]  Two amendments were issued and bid opening was ultimately set 
for Monday, September 23 at 1:00 p.m. local time.  The second 
amendment, which made numerous substantive changes to the work 
contemplated, was provided to prospective bidders on Friday, September 
20, by overnight delivery; because of the late issuance of this 
amendment in relation to the deadline for submitting bids, the agency 
orally advised firms that bids could be submitted by facsimile (fax) 
and specified the contracting activity's official fax number for 
receiving bids.

On the day of bid opening, Brazos made several unsuccessful attempts 
to transmit its bid to the agency's official fax machine, beginning  
at approximately 10:30 a.m. agency time.  After these unsuccessful 
attempts, the Brazos employee responsible for transmitting the firm's 
bid attempted several times to telephone the individual designated in 
the solicitation as the agency's official point of contact to 
determine what steps to take to fax its bid.  Brazos was unable to 
contact the individual after three or four attempts.  The final call 
was routed by an operator to another individual in the contracting 
office.  After the Brazos employee explained that she had been 
unsuccessfully attempting to transmit to the designated fax machine, 
the agency's employee (a secretary) provided an alternate fax number 
to the Brazos employee.  After receiving this information, the Brazos 
employee began attempting to fax to both numbers.  At approximately 
11:30 a.m., three pages of Brazos's 35-page bid document were 
successfully transmitted to the official fax machine, after which the 
transmission was interrupted.  Thereafter, at approximately 12:20 
p.m., the Brazos employee transmitted the bid document to the 
alternate fax machine; this transmission lasted approximately 21 
minutes, and was completed at approximately 12:41 p.m.

At some point during this time period, the agency's official fax 
machine was inoperable because it had run out of ink; the record does 
not show how long the machine remained inoperable, but does show that 
it was not until shortly before the 1:00 p.m. deadline for submitting 
bids that agency personnel became aware of the problem and fixed it.  
Further, because a bid was being received at about 1:00 p.m., and 
because this was the only bid received on the official fax machine up 
to that time, the contracting officer decided to extend bid opening to 
1:30 p.m. (apparently without advising bidders).  Two more bids were 
received at the official fax machine by 1:30 p.m.[2]  At approximately 
1:30 p.m., an agency employee discovered the Brazos bid on the 
alternate fax machine, which he then delivered to the bid opening 
official sometime between 1:30 p.m. and 1:40 p.m.  The official 
determined that, because the bid had not been received in the bid 
opening room by the 1:30 p.m. deadline, it was late and could not be 
accepted.[3]

As a general rule, a bid received in the office designated in a 
solicitation for the receipt of bids after the time set for bid 
opening is a late bid and cannot be considered for award.  Butt 
Constr. Co., Inc., B-258507, Jan. 30, 1995, 95-1 CPD  para.  45.  On the 
other hand, where a bid that has been mailed or faxed does not timely 
arrive at the bid opening room due solely to government mishandling at 
the contracting installation, the bid may be considered even though it 
is late.  Id.;     Federal Acquisition Regulation (FAR)  sec.  14.304-1.  
In addition, as a general principle, where a bidder has done all that 
it could and should to ensure the timely delivery of its bid, it 
should not suffer if the government fails in its own responsibilities, 
provided that acceptance of the bid does not compromise the integrity 
of the competitive bidding process.  AABLE Tank Servs., Inc., 
B-273010, Nov. 12, 1996, 96-2 CPD  para.  180 (and cases cited therein).

We conclude that Brazos did everything it reasonably could in order to 
timely deliver its bid, and that the agency's actions were the cause 
of Brazos's bid being received in the bid opening room late.  First, 
the late IFB amendment--provided to bidders the business day before 
bid opening--made fax transmission the only practicable alternative 
for remotely located bidders to deliver their bids, and the agency 
apparently realized this in orally authorizing faxed bids after 
issuance of the second amendment.  Second--and centrally--Brazos was 
unable to timely transmit its bid to the official fax machine because 
the machine ran out of ink for some indeterminate amount of time prior 
to bid opening.[4]  Although Brazos tried to fax its bid well before 
the original 1:00 p.m. deadline, it was unable to do so because of 
this problem.  Third, Brazos repeatedly attempted to telephone the 
agency's designated contact to determine how to proceed in faxing its 
bid, but that individual was unavailable; the agency does not explain 
why no contracting official was available to respond to bidder 
questions during the period before bid opening.  It was only due to 
this unavailability that Brazos ultimately was transferred to another 
individual, who gave Brazos  the alternate fax number.  Finally, 
Brazos transmitted its bid to this alternate number (and also actually 
transmitted three pages--received at 11:49 a.m.--to the official fax 
machine) and it is undisputed by the agency that the bid was received 
at the installation no later than the extended bid opening time.[5]  
It thus is apparent that the bid would have been transmitted to the 
official fax machine, and received in the bid opening room, prior to 
the extended bid opening time but for the agency's actions.
 
The Army argues that Brazos's own actions--relying on the oral advice 
of an unauthorized agency employee in faxing its bid to other than the 
official fax machine--were the cause of the lateness of its bid.  
However, while Brazos's actions may have been in the chain of events 
that resulted in the late receipt, those actions were solely in 
response to the agency's actions:  had the ink been replenished in the 
official fax machine, Brazos could have timely transmitted its bid to 
that machine, would have had no need to call the agency, and would not 
have been advised of the alternate fax number; or, had the designated 
contact been available after Brazos was unable to transmit its bid, 
that individual could have advised Brazos how to proceed, and Brazos 
never would have spoken to the unauthorized agency employee.  Not only 
were Brazos's actions in response to the agency's, but Brazos's 
actions were reasonable at each step of the way--indeed, each step 
Brazos took was the only reasonable step it could take at that 
juncture.[6]  Therefore, we do not consider Brazos's actions to be the 
cause of the late receipt of its bid.

The Army notes that the IFB incorporated, and Brazos thus was on 
notice of, the clause appearing at FAR  sec.  52.214-31 (FAC 90-39), which 
advises bidders that if they chose to submit a bid or modification by 
fax, the government is not responsible for any failure of receipt 
attributable to the "availability or condition" of the receiving fax 
machine; it concludes that availability or condition encompasses the 
problem encountered here, and that Brazos thus must suffer the 
consequences of the official fax machine being inoperable.  We 
disagree.  First, the IFB provision here was different from the 
standard FAR provision in that, by its terms, it applied only to bid 
modifications, not bids; thus, contrary to the premise of the Army's 
position, Brazos was not on express notice that the agency was not 
responsible for the availability or condition of the official fax 
machine for purposes of receiving Brazos's bid.  More significantly, 
the provision, by its terms, applies where "the bidder chooses to 
transmit a facsimile bid. . . ."  Because the agency amended the IFB 
only 1 working day before bid opening, remotely located bidders such 
as Brazos effectively could not "choose" among bid submission methods 
(for example, bids could not be sent by registered or certified mail 
at least 5 days prior to bid opening, the method Brazos states it 
ordinarily uses); again, the agency's last minute authorization of 
faxed bids seems to have been in recognition of the limited bid 
delivery options available to bidders following issuance of the second 
amendment.  We conclude that the provision did not apply under the 
facts of this case.

Finally, we find that acceptance of the Brazos bid would not 
compromise the integrity of the competitive bidding process.  The 
operative consideration in this respect is whether the late bidder 
would gain an unfair competitive advantage over other bidders by, for 
example, being able to offer more favorable pricing as a result of 
submitting its bid late.  AABLE Tank Servs., Inc., supra.  Although 
the alternate fax machine did not imprint a time/date stamp on the 
fax, the bid was in fact received by the agency, Brazos's telephone 
billing statement shows that its transmission was completed well prior 
to the original 1:00 p.m. deadline for submission of bids, and the 
record includes a statement from an agency employee showing that the 
bid was discovered on the alternate fax machine at approximately 1:30 
p.m., the extended bid opening time.  Thus, although the Brazos bid 
was not in the possession of the bid opening official until 
approximately 1:40 p.m., under these circumstances Brazos could not 
have gained an unfair competitive advantage over the other bidders by 
virtue of this late receipt.  We conclude that the Army therefore 
should have accepted Brazos's bid.

We understand that the agency has suspended performance of the 
contract pending resolution of the protest.  Accordingly, and in view 
of the foregoing discussion, we are recommending by separate letter of 
today to the Secretary of the Army that the contract awarded to ACC be 
terminated for the convenience of the government, and that award be 
made to Brazos, if otherwise proper.  We also recommend that Brazos be 
paid the costs of filing and pursuing its protest, including 
reasonable attorneys' fees.  Brazos should submit its certified claim, 
detailing the time expended and the costs incurred, directly to the 
Army within 60 days of its receipt of this decision.  Bid Protest 
Regulations, section 21.8(f)(1), 61 Fed. Reg. 39039, 39046 (1996) (to 
be codified at 4 C.F.R.  sec.  21.8(f)(1)).

The protest is sustained.

Comptroller General
of the United States

1. The procurement utilized other than full and open competitive 
procedures because of urgency pursuant to  10 U.S.C.  sec.  2304(c)(2) 
(1994).

2. The record shows that it was the awardee's bid that was being 
received at the time the official fax machine was repaired.  The 
record further shows that the awardee's entire bid document was not 
successfully transmitted at that time, and that at some time after 
1:30 p.m., ACC transmitted the remainder of its bid document.  The 
agency concluded that, because all of the essential portions of the 
bid (such as the firm's pricing schedule and essential representations 
and certifications) had been received prior to 1:30 p.m., the firm had 
submitted a timely, responsive bid.  As for the two remaining bids 
received at the official fax machine, one was not transmitted in its 
entirety before the original 1:00 p.m. deadline, and transmission of 
the second did not commence until approximately 1:13 p.m.

3. The Brazos bid document did not have the legend typically imprinted 
by a receiving fax machine showing the time and date of receipt.  
This, in part, led the bid opening official to find that he could not 
determine with certainty whether the bid had arrived at the facility 
by 1:30 p.m.  The record before our Office, however, includes a copy 
of the telephone bill for Brazos's fax machine.  This bill shows 
dispositively that a call was placed to the alternate fax machine at 
approximately 12:20 p.m. and that the duration of the call was 
approximately 21 minutes.

4. The agency states that its fax machine has a memory function which 
permits the receipt of documents even when the machine has run out of 
ink.  The protester has submitted the manual for the machine, however, 
which shows that it has only a   28-page memory capacity.  The agency 
has not rebutted this evidence, and also has not addressed whether the 
machine's memory was full at the time of Brazos's unsuccessful 
transmission attempts.  We thus have no reason to question the 
protester's assertion that the agency's fax machine would not accept 
its attempted transmission.

5. We note that the time of receipt on the alternate machine, while 
not in dispute, is established by Brazos's telephone bill, as 
corroborated by statements and affidavits by agency personnel.  See 
generally J.C.N. Constr. Co, Inc., B-270068; B-270068.2, Feb. 6, 1996, 
96-1 CPD  para.  42.

6. The agency suggests that Brazos should have telephoned the agency 
to advise that it had transmitted its bid to the unauthorized machine.  
However, Brazos faxed its bid to the alternate machine without first 
contacting contracting officials only because it was unable to reach 
the designated official; in light of those prior difficulties--and 
since the agency does not assert that the contact in fact would have 
been available had Brazos called again--we do not think Brazos 
reasonably could be required to telephone the agency again after 
transmitting its bid.