TITLE:  Vijaydimon (U.S.A.) Inc., B-286013, September 29, 2000
BNUMBER:  B-286013
DATE:  September 29, 2000
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Vijaydimon (U.S.A.) Inc., B-286013, September 29, 2000

Decision

Matter of: Vijaydimon (U.S.A.) Inc.

File: B-286013

Date: September 29, 2000

Leonard Reiss, Esq., Toback, Hyman & Bernstein, for the protester.

Sharron J. Philo, Esq., and Essie Schloss, Esq., Defense Logistics Agency,
for the agency.

Paul I. Lieberman, 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 late bid modification is denied where
the modification was sent by certified mail earlier than 5 days prior to the
bid opening date, satisfying the requirements of the solicitation's late bid
exception provision.

DECISION

Vijaydimon (U.S.A.) Inc. protests the award of a contract for the sale of a
number of lots of industrial diamond stones to Oriental Supreme Ltd. by the
Defense Logistics Agency under invitation for bids (IFB) No.
DLA-Diamonds-009. The protester asserts that DLA improperly accepted
Oriental's late bid modification.

We deny the protest.

The IFB, which is for the sale of surplus diamonds to the highest bidders on
a lot by lot basis, states that bid opening would be held on July 6, 2000,
at 1 p.m. at the Defense National Stockpile Center, Fort Belvoir, Virginia.
The solicitation included a provision entitled "Late Submissions,
Modifications, and Withdrawals of Bids," governing the treatment of late
bids. In particular, the provision states that "[a]ny bid [or bid
modification] received . . . after the exact time specified for receipt will
not be considered unless it is received before award and it . . . [w]as sent
by registered or certified mail not later than the fifth calendar day before
the day specified for receipt of bids," providing further that "[t]he only
acceptable evidence to establish the date of mailing of a late bid or
modification sent either by U.S. Postal Service registered or certified mail
is the U.S. . . . postmark both on the envelope or wrapper and on the
original receipt from the U.S. . . . Postal Service." IFB sect.sect. B.4a(1), c, and
d.

Twenty-six bids were received and opened at the July 6 bid opening,
including those submitted by Vijaydimon and Oriental. [1] Shortly after bid
opening the agency contract specialist received a call from an Oriental
representative inquiring whether its bid modification had been received,
which it had not. On July 10, before any award had been made, a bid
modification from Oriental was received by the agency, sent by certified
mail, in an envelope bearing postage metered on June 30 at a Sacramento
California post office, with Sacramento postmarks of both June 30 and July
6. On request, Oriental subsequently provided the agency with its original
certified mail receipt, which is postmarked June 30 and bears a 20-digit
stamped postal identification number that corresponds to the identification
number stamped on the Oriental bid modification envelope received by the
agency.

Because of the delivery delay and the postmark date discrepancy, the
contract specialist brought the envelope to a local post office for
examination. She was advised by a post office employee that the postage
meter stamp dated June 30 was generated by a postal computer and that the
date cannot be altered. The postal employee also noted that the envelope
appeared to have gone through the postal system a second time, generating
the July 6 postmark, and surmised that this was probably the result of the
postal clerk who originally received the envelope having inputted the wrong
nine-digit zip code to the bar code at the bottom of the envelope.

The agency considered the modification in evaluating Oriental's bid, as a
result of which Oriental displaced Vijaydimon and one other bidder, Diabex,
for a number of the lots. The agency provided bidders with the results and,
upon request, provided Vijaydimon and Diabex with copies of the envelope
that contained Oriental's bid modification. Oriental and Diabex then filed
agency-level protests. The agency denied these protests because the evidence
established that Oriental's late bid modification had been mailed by
certified mail more than 5 days before bid opening and satisfied the
solicitation's late bid modification exception criteria.

Vijaydimon then requested a meeting with agency officials at which it
hypothesized that an Oriental employee may have had a post office employee
stamp the envelope and Oriental's certified mail receipt on June 30, then
return the envelope to Oriental to permit subsequent mailing with the
modification having been prepared after bid opening. The agency subsequently
made further inquiries to the postmaster of the Fort Belvoir post office
(the local postal facility which had actually handled the envelope)
regarding the delay in delivery. [2] She stated that Postal Service policy
was that once a U.S. postage meter sticker was placed on an envelope, it was
not to be returned to a sender, and indicated that the delay and the two
different postmark dates did not appear suspicious and was almost certainly
due to post office handling error. She further indicated that there were
various potential explanations, including the possibility that the envelope
had been found in an empty sorter and recirculated, generating a second
postmark, and that delay may also have resulted from the unusually low
placement of the zip code bar code. [3] On August 2, Vijaydimon filed this
protest with our Office.

Vijaydimon complains that as a result of its bid modification, Oriental
"became the highest bidder by just the smallest and slightest of margins on
many lots . . . ." Protest at 2. The protester raises a variety of what it
views as discrepancies, from which it surmises that Oriental must have some
sort of relationship with a Sacramento postal service employee who enabled
Oriental to retrieve the stamped envelope, prepare the modification, and
mail it after learning the lot prices at the bid opening. Vijaydimon points
to the two different postmark dates on the envelope, the long delay in
delivery, the fact that the modification was mailed from Sacramento by
certified mail without return receipt requested while the original bid was
sent from New York (the location of Oriental's business address) by
registered mail, return receipt requested, and that the envelope postal
metering is for 33 cents postage while the weight of the envelope and
contents require more postage. [4] The protester concludes that the bid
modification should be rejected because "Oriental should bear any risks
associated with the untimely delivery . . . , and the July 6, 2000 postmark
should govern the timeliness of this bid." Protester's Comments at 1.

It is the responsibility of bidders to ensure that their bids or bid
modifications arrive at the designated location by the designated time, and
submissions that arrive late must be rejected unless the specific conditions
stated in the solicitation for consideration of late bids are met.
Timber-Mart Southwest, Inc., B-274677, Jan. 22, 1997, 97-1 CPD para. 38 at 2.
Here, consistent with the solicitation provision governing the consideration
of late bids or modifications, Oriental's bid modification was considered
because it was mailed by certified mail on June 30, earlier than the fifth
calendar day prior to the July 6 bid opening date. The record evidences that
the second, July 6, postmark on the envelope reflects that the postal
service mishandled the envelope and that it was either routed back through,
or a second time within, the Sacramento post office. In its discussions with
various postal officials, DLA was consistently advised that the delay and
the second postmark appear to have been the result of postal service error,
and do not suggest that Oriental somehow regained possession of the June 30
stamped, certified envelope.

Vijaydimon's speculative surmise is premised on its belief that Oriental was
able to obtain the June 30 postmark on an envelope that was actually mailed
some time after July 6 as a result of action taken in bad faith by a U.S.
postal employee. Government officials are presumed to act in good faith and,
where a protester contends otherwise, it must provide convincing proof since
this Office will not attribute improper motives to government officials on
the basis of inference or supposition. ACS Sys. & Eng'g, Inc., B-275439.3,
Mar. 31, 1997, 97-1 CPD para. 126 at 5. Here, the protester has provided no
evidence to support its speculation regarding the alleged actions by an
unspecified postal employee, and we see nothing in the record to support the
protester's allegation. As to the other alleged discrepancies, they are
without probative effect. Certified mail is equally acceptable as regular
mail under the solicitation late bid modification exception; we see no
relevance to the different mailing origin locations, which may simply
reflect mailing of the modification by an Oriental employee on travel; and
the envelope postage amount discrepancy is minor and could have resulted
from a clerical error or weight underestimate, or reflect a weighing
anomaly. As to the allegedly suspicious price reductions, Vijaydimon was
awarded more than 40 lots (on several of which Oriental submitted a lower
bid), at a total price of $7,641,865.99, while Oriental was awarded more
than 60 lots at a total price of $6,849,372.17, and our review of Oriental's
price modifications does not suggest any indication of prior knowledge of
bidding information.

Accordingly, we have no basis to object to the agency's determination to
accept Oriental's late bid modification as falling within the certified mail
exception prescribed in the solicitation. See Reyes Indus., Inc., B-219348,
B-219348.2, Sept. 30, 1985, 85-2 CPD para. 366.

The protest is denied.

Anthony H. Gamboa

Acting General Counsel

Notes

1. Oriental's bid was apparently sent from New York by registered mail,
return receipt requested.

2. The agency had initially contacted the U.S. Postal Inspector's Office in
Sacramento, which advised that the matter was outside the purview of the
Inspector's office and suggested that the agency further discuss the matter
with the local post office, which could then request further investigation
if it believed that it was warranted.

3. The Fort Belvoir postmaster also forwarded the envelope to the regional
postal distribution center at Merrifield, which identified bar code and
other envelope errors as the possible causes for the delivery delay and the
second postmark.

4. The agency states that it weighed the Oriental bid modification envelope
with contents on its mail room scales, which indicated that 55 cents was the
required postage.