BNUMBER: B-278597
DATE: January 23, 1998
TITLE: Denny's Rock & Driveway, B-278597, January 23, 1998
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Matter of:Denny's Rock & Driveway
File: B-278597
Date:January 23, 1998
William V. Baumgartner, Esq., for the protester.
James L. Weiner, Esq., Department of the Interior, for the agency.
Linda C. Glass, Esq., and Paul I. Lieberman, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Bid sent via United States Postal Service Express Mail only 1 business
day before bid opening was properly rejected as late where it was
received at the agency installation after bid opening as a result of
the protester's actions.
DECISION
Denny's Rock & Driveway protests the rejection of its bid as late
under invitation for bids (IFB) No. 1448-98695-97-B505, issued by the
United States Department of the Interior, United States Fish and
Wildlife Service for certain dike repairs. The protester's bid was
rejected because it was not received by the agency until after bid
opening.
We deny the protest.
The solicitation, as amended, instructed bidders that bids were due by
2 p.m. on October 15, 1997, and that bid envelopes should be marked to
show the bidder's name and address, the solicitation number, and the
time specified for receipt. The IFB included the late bid clause,
Federal Acquisition Regulation (FAR) sec. 52.214-7(a), which provides, in
relevant part, as follows:
Any bid received at the office designated in the solicitation
after the exact time specified for receipt will not be considered
unless . . . sent by U.S. Postal Service Express Mail Next Day
Service . . . not later than 5:00 P.M. at the place of mailing
two working days prior to the date specified for receipt of bids.
The protester addressed its bid package to the office designated for
"handcarry/overnight" bids and sent the package via United States
Postal Service Express Mail at 6:25 p.m. on October 14, the day before
the bid was due. The bid package mailing label, which does not
indicate a solicitation number or the time and date of bid opening,
shows that the post office accepted the bid package for delivery by 12
p.m. the next day. The postal carrier's uncontroverted explanation of
what subsequently transpired is that he attempted to deliver the
package twice on October 15, at 11:30 a.m. and 4:30 p.m., but both
times failed to complete delivery because the installation's mail room
door was locked. The agency agrees that the mail room door was locked
at 11:30 a.m. because of the mail room workers' regularly scheduled
lunch hour. The carrier further explains that he did not go to the
installation's main entrance where security guards were situated,
because, from past experience, he knew that the guards would not sign
for express mail, and would not allow him to wander through the
building.
The contracting officer reports that on the morning of bid opening, he
went to the mail room and notified the mail room personnel and the
main entrance security personnel of the upcoming bid opening location
and time. He states that he had several physical checks made at the
mail room prior to the bid opening date and several times on the bid
opening date. Bid opening was held, as scheduled, at 2 p.m. on
October 15. Four bids were received and recorded on the bid abstract;
the protester's bid was not among them. The protester's bid was
eventually delivered to the agency at 11 a.m. on October 16. Because
it was received after bid opening, the bid was not opened and was
rejected as late by the contracting officer, who determined that none
of the exceptions for consideration of late bids set forth in FAR sec.
14.304-1(a) was applicable.
The protester maintains that it did everything possible to ensure that
its bid would be delivered timely to the place specified in the
solicitation. The protester states that it sent the document via
overnight-express mail addressed in accordance with the solicitation
instructions, and contends that the attempted delivery to the
designated office before the time that bids were due was thwarted
because agency employees "wrongfully closed their office during
business hours." The protester argues that this constitutes
government mishandling during the process of receipt which caused
Denny's bid to be late.
A bid received in the office designated for the receipt of bids after
the time set for bid opening is a late bid. FAR sec. 14.304-1. It is
the bidder's responsibility to ensure timely receipt of its bid, and
the bidder must bear responsibility for late delivery unless specific
conditions which govern consideration of late bids are met. Id.,
Environmental Systematics of Minn., Inc., B-247518, Apr. 23, 1992,
92-1 CPD para. 388 at 2. Since the record shows that Denny's mailed its
bid package only 1 working day before bid opening, the above-quoted 2
working day Express Mail exception does not apply. Environmental
Control Techs., B-250859, Feb. 23, 1993, 93-1 CPD para. 172 at 2-3; FAR sec.
14.304-1(a)(3).
As for the protester's allegation that the government mishandled the
bid by closing the mail room for lunch only hours prior to the bid
deadline, the "government mishandling" exception at FAR sec.
14.304-1(a)(2) only applies if a government impropriety after receipt
at the government installation was the sole or paramount reason for
the late receipt. See Secure Applications, Inc., B-261885, Oct. 26,
1995, 95-2 CPD para. 190. Here, the contracting officer alerted both the
mail room personnel and the main entrance security guards of possible
incoming bids and had periodic physical checks of the mail room made
for incoming bids. The agency did not receive the bid prior to bid
opening at the government installation, and the protester's own
actions were the most immediate cause of the late delivery. By
waiting until the day before bids were due to mail its bid package,
the protester assumed the risk that delivery to the bid opening
location would not occur prior to the 2 p.m. bid opening.
The protester's contention that the installation was "wrongfully
closed" when delivery was attempted is factually misplaced. It is
clear from the record that the installation was open and accessible
via the main entrance at 11:30 a.m. when the postal carrier arrived,
prior to the bid opening, and found the mail room door locked.
Thereupon, the postal carrier did not deliver the bid package (which
Denny's had failed to identify as a bid), electing not to attempt
delivery via the main entrance to the installation. The postal
carrier's failure to take available steps to ensure timely delivery
does not constitute government mishandling under the late bid rules.
Goodwin Contractors, B-228336, Dec. 17, 1987, 87-2 CPD para. 604 at 5. In
short, there was no government mishandling; the protester's own
actions, which include those of his delivery carrier, were the
paramount cause for the late receipt of his bid, and the bid was
properly rejected as late.
The protest is denied.
Comptroller General
of the United States