BNUMBER:  B-279575.2           
DATE:  November 4, 1998
TITLE: Department of Housing and Urban Development--Reconsideration,
B-279575.2, November 4, 1998
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Matter of:Department of Housing and Urban Development--Reconsideration

File:B-279575.2          
        
Date:November 4, 1998

Jud E. McNatt, Esq., Department of Housing and Urban Development,
for the agency. 
John I. Hulse IV, Esq., Hulse & Wanek, for the protester. 
Adam Vodraska, Esq., and James A. Spangenberg, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  On reconsideration, contracting agency has not shown that the low 
bid, hand-carried by a commercial carrier to the agency's mailroom 
prior to bid opening, was timely received, where the bid was not 
received in the office designated in the invitation for bids until 
after bid opening.

2.  A contracting agency has the discretion to initially determine 
whether or not it may have been the paramount cause of the late 
receipt of a bid.  The agency, however, did not act reasonably in 
determining that the low bid's late receipt at the office designated 
for receipt of bids was primarily due to government mishandling in the 
mailroom (which received the bid prior to bid opening) where the 
bidder did not properly address and mark the envelope containing its 
bid with the office designated in the invitation for bids (IFB), the 
solicitation number, and bid opening time and date, as required by the 
IFB, and the agency does not establish that the mailroom acted 
unreasonably in its handling of the bid.

DECISION

The Department of Housing and Urban Development (HUD) requests 
reconsideration of our decision in Boines Constr. & Equip. Co., Inc., 
B-279575, June 29, 1998, 98-1 CPD  para.  175, in which we sustained the 
protest filed by Boines Construction & Equipment Co., Inc. of an award 
to Pierce Foundations, Inc., under invitation for bids (IFB) No. 
B-FTW-00041, issued by HUD for demolition of vacant buildings and 
related site work at public housing projects in Louisiana.  

We deny the request for reconsideration.

We sustained the protest because Pierce's low bid, delivered by 
commercial carrier to HUD's mailroom prior to bid opening, was not 
received at the location designated in the IFB--the bid depository in 
the building's contracting division--by bid opening, as required.  We 
also concluded that HUD's acceptance of Pierce's late bid did not 
comply with the Federal Acquisition Regulation (FAR)  sec.  
14.304-1(a)(2), 52.214-7(a)(2) standard for consideration of a late 
hand-carried bid:  the late receipt must be due primarily to 
government mishandling after receipt at the government installation.  
We found that the lateness of Pierce's hand-carried bid was 
attributable to that bidder's failure to ensure that the outermost 
envelope of its bid was addressed to the office designated in the IFB, 
and marked with the solicitation number and bid opening time and date, 
as required by the FAR  sec.  52.214-5 bid submission instructions 
incorporated into the IFB.

To prevail on a request for reconsideration, the requesting party must 
show that our prior decision contains either errors of fact or law or 
present information not previously considered that warrants the 
decision's reversal or modification.  
4 C.F.R.  sec.  21.14(a) (1998); Department of the Army--Recon., 
B-271492.2, Nov. 27, 1996, 96-2 CPD  para.  203 at 5.  HUD has made no such 
showing.

HUD asserts that the IFB in Boines did not designate a particular 
office for the receipt of hand-carried bids, so that the receipt of 
Pierce's bid in the HUD mailroom prior to bid opening should have been 
sufficient to render Pierce's bid timely received.  As support for its 
position, HUD points to C.R. Hipp Constr. Co., Inc., B-274328, Nov. 
20, 1996, 96-2 CPD  para.  195, in which we regarded as timely a mailed bid 
received in an agency's mailroom by the bid opening time because the 
solicitation did not designate a particular office for receipt of 
bids.

HUD's reliance on C.R. Hipp is misplaced.  In that case, there was the 
unusual circumstance that no particular office at all was designated 
in that IFB to which a bidder could address or deliver its bid.[1]  
Here, in contrast, the IFB effectively designated the HUD contracting 
division as the office for receipt of bids.  Notwithstanding HUD's 
objection that the IFB did not explicitly state that the depository 
for hand-carried bids was located in the contracting division, this 
can be the only reasonable interpretation of the IFB, since the 
contracting division was the office designated in the IFB to which 
bids were to be addressed, and was the office that issued the 
solicitation and listed its telephone number on the IFB cover sheet 
for purposes of providing any needed information.  (We also note that 
in its request for reconsideration HUD does not dispute that the bid 
depository was actually located in the contracting division.)  
Accordingly, since Pierce's bid was received in the office designated 
in the IFB (the contracting division) after the exact time set for bid 
opening, it was a late bid under FAR  sec.  14.304-1, 52.214-7(a).

HUD next contends that, even if Pierce's bid was late, our Office 
erroneously overruled the contracting officer's determination that 
Pierce's omission from the outermost envelope of its bid of the office 
designated in the IFB, the solicitation number, and the bid opening 
time and date did not contribute to the late receipt of the bid.  HUD 
maintains that we failed to adequately explain why we disregarded the 
contracting officer's determination that Pierce's bid was late due 
primarily to government mishandling, considering that it was delivered 
to the mailroom approximately 5 hours prior to bid opening and the 
outermost envelope of Pierce's bid was marked "BID ENCLOSED" with the 
telephone number of the contracting division.

We agree that it is within the contracting agency's discretion to 
initially determine whether or not it may have been the primary cause 
of the late receipt of a bid or proposal.  Nevertheless, although our 
Office will not substitute its judgment in this regard, we will review 
the reasonableness of the agency's determination, including its 
determination that the late receipt of a hand-carried bid was due 
primarily to government mishandling after receipt at the government 
installation.  See FAR  sec.  14.304-1(a)(2), 52.214-7(a)(2); Caddell 
Constr. Co., Inc., B-280405, Aug. 24, 1998, 98-2 CPD  para.  50 at 6-7.

As we explained in Boines at 5-6, we essentially found unreasonable 
the agency's determination that it, rather than Pierce, was the 
primary cause of the late receipt of Pierce's bid because the 
mailroom's misrouting of Pierce's bid was directly attributable itself 
to Pierce's failure to address and mark the bid as required by the bid 
submission instructions incorporated into the IFB.  Although the 
envelope containing Pierce's bid was marked as a bid, the record 
showed that another HUD office in the same building also handled bids, 
and the contracting officer herself stated that "the word 
'Contracting,' the mail code 6AAC for Contracting, or a room/floor 
number would have given more specific direction as to distribution of 
the bid."  Contracting Officer's Statement at 4.  HUD has not 
established why, under these circumstances, the agency could 
reasonably expect the mailroom to have routed Pierce's bid to the 
contracting division. 

Further, due to Pierce's failure to address and mark its bid envelope 
as required the mailroom had no particular reason to expedite delivery 
or to call the telephone number of the contracting division on the 
mailing label of Pierce's bid envelope.  HUD has supplied no evidence 
that the mailroom was required or expected to take such action in the 
absence of a clear indication that immediate attention was required.  
In sum, as Pierce did not address and mark its bid as required by the 
IFB, it was unreasonable for HUD to conclude, under the circumstances 
here, that the government was primarily responsible for the lateness 
of Pierce's bid.[2]

Since HUD has not shown that our prior decision contains either errors 
of fact or law, or presented information not previously considered 
that warrants reversal or modification of our decision, HUD's request 
for reconsideration is denied.

Comptroller General
of the United States

1. Also, unlike Boines, the bid at issue in C.R. Hipp was delivered by 
the mailroom clerk to the bid opening official before the actual 
opening of bids.  C.R. Hipp Constr. Co., Inc., supra, at 1-2.

2. Even if, as HUD contends, Pierce's marking of the outside of its 
bid envelope with the solicitation number and bid opening time and 
date would not have ensured timely delivery by the mailroom, we note 
that if Pierce had done so (as well as correctly addressed its bid), 
it would have done all it reasonably could have to properly address 
and mark its bid envelope.  This then would have supported a 
determination that government mishandling was the paramount cause for 
the late receipt of the bid.