BNUMBER:  B-278597 
DATE:  January 23, 1998
TITLE: Denny's Rock & Driveway, B-278597, January 23, 1998
**********************************************************************

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