TITLE: J. L. Malone & Associates
BNUMBER: B-290282
DATE: July 2, 2002
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J. L. Malone & Associates, B-290282, July 2, 2002
Decision
Matter of: J. L. Malone & Associates
File: B-290282
Date: July 2, 2002
Joel S. Rubinstein, Esq., Bell Boyd & Lloyd, for the protester.
Matthew S. Simchak, Esq., John A. McCullough, Esq., and Emily W. Murphy,
Esq., Wiley Rein & Fielding, for Garnet Electric Company, Inc., an
intervenor.
Sumara M. Thompson-King, Esq., and Christi L. Dame, Esq., National
Aeronautics and Space Administration, for the agency.
Paula A. Williams, 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 hand-carried bid is denied where
the bid was received at the government installation and was effectively
under the government's control prior to the scheduled bid opening,
notwithstanding the role played by a contractor in receiving and controlling
the bid.
DECISION
J. L. Malone & Associates protests the decision by the National Aeronautics
and Space Administration to accept the apparent low bid submitted by Garnet
Electric Company, Inc. under invitation for bids (IFB) No. MSFC0-02-05,
issued for the construction of an electrical substation at the Marshall
Space Flight Center (MSFC) in Huntsville, Alabama. Malone, the second low
bidder, argues that the Garnet bid should have been rejected as late because
the bid was not received in the designated bid opening room until after the
time scheduled for bid opening, and the circumstances did not meet the
regulatory standard for acceptance of a late bid.
We deny the protest.
The IFB required bids to be submitted by 1:30 p.m. on April 9, 2002 in room
36 of MSFC's Building 4250; the designated place for bid opening was Room 38
in Building 4250.[1] IFB at 1. As amended, the IFB incorporated by
reference the Federal Acquisition Regulation (FAR) � 52.214-7 provision
entitled "Late Submissions, Modifications, and Withdrawal of Bids,"
governing the treatment of late bids. As relevant here, the current
regulatory language of FAR � 52.214-7(b)(1) states:
Any bid, modification, or withdrawal received at the Government office
designated in the IFB after the exact time specified for receipt of bids is
"late" and will not be considered unless it is received before award is
made, the Contracting Officer determines that accepting the late bid would
not unduly delay the acquisition; and--
. . . .
(ii) There is acceptable evidence to establish that it was received at the
Government installation designated for receipt of bids and was under the
Government's control prior to the time set for receipt of bids.
FAR � 52.214-7(c) provides:
Acceptable evidence to establish the time of receipt at the Government
installation includes the time/date stamp of that installation on the bid
wrapper, other documentary evidence of receipt maintained by the
installation, or oral testimony or statements of Government personnel.
The propriety of the agency's acceptance of Garnet's bid is the central
issue in this protest; the protester alleges it should have been rejected as
late. Our Office conducted a hearing, recorded by videotape, to ascertain
the facts and to assess the credibility of the respective parties' witnesses
concerning the circumstances of the bid delivery. Testimony was obtained
from the contracting officer, who served as the bid opening official; the
Project Manager for R.W. Beck, Inc.--the MSFC's construction management and
inspection services contractor; the Beck construction manager; and the
Garnet representative.
The contracting officer states that, on April 9, the day of bid opening,
because bidders might have difficulty gaining access to the base, he asked
the Beck project manager to send an employee to Gate 9 of Redstone Arsenal
to escort bidders through security to the bid opening room.[2] Contracting
Officer's Supplemental Statement, May 14, 2002, at 3. The Beck project
manager designated the Beck construction manager, who had conducted the
pre-bid site visits for this project, to serve as the point of contact at
Gate 9. The contracting officer testified that he met with the Beck
construction manager and instructed him "to be at the gate at 1:00 and stay
until 1:30 and receive any bids [and] to act as a courier only for those
bids." Video Transcript (VT) at 10:28:24. The Beck construction manager
was further advised that when the time set for bid opening had arrived, the
contracting officer would contact him and instruct him to return to the bid
opening room with any bids in his possession. VT at 14:05:53; 14:51:20;
12:19:26.
The record shows that the Garnet representative arrived at Gate 9 of
Redstone Arsenal to deliver Garnet's bid on April 9 and was logged in by
security personnel on the visitors' roster at 12:59 p.m. VT at 17:19:23;
Agency Report (AR) exh. K, Roster of Visitors Entering Redstone Arsenal.
Upon learning from security personnel that he needed an escort, the Garnet
representative called the Beck construction manager on his cellular
telephone since the Beck construction manager had been the point of contact
on Garnet's previous site visit. VT at 17:19:40; Hearing Exhibit (HE) 2,
Verizon Cellular Billing Statement. When the Beck construction manager
arrived at Gate 9, he informed the Garnet representative that the
contracting officer had directed him to collect bids and deliver them to the
bid opening room. The Beck construction manager then telephoned the
contracting officer at his office at 1:07 p.m. to inform him that Garnet's
representative was there with a bid, and the contracting officer reports
that he made a contemporaneous notation on his desk calendar for April 9,
which reads "1:08 pm from Garnet." AR exh. J, Desk Calendar. At the
hearing, the Beck construction manager explained that in collecting Garnet's
bid package, he gave the Garnet representative his business card on which he
wrote "1:08 p.m. 4/9/02," took the bid package to his vehicle where he
"locked it up." VT at 15:46:50 to 15:47:48. The Beck construction manager
did not escort the Garnet representative onto the base since the contracting
officer had instructed him to remain there until 1:30 p.m. Garnet's
representative gained access to the base without an escort and arrived in
Room 38 of MSFC's Building 4250 at approximately 1:40 p.m.
Meanwhile, the record indicates that the contracting officer entered the bid
opening room between 1:15 p.m. and 1:20 p.m. where several bidders'
representatives, including Malone's, were present. The contracting officer
reports that he accepted bid packages from these bidders' representatives
and, although he did not use a time/date stamp, he sequentially numbered
each sealed package he accepted. Contracting Officer's Supplemental
Statement, May 14, 2002, at 5-6. At approximately 1:28 p.m., the Beck
project manager, who was in the bid opening room, telephoned the Beck
construction manager to inform him that the time set for opening bids had
arrived and instructed the Beck construction manager to return to the bid
opening room with any bids already in his possession.[3] VT at 12:31:27.
While bids were being opened, the Beck construction manager arrived in the
bid opening room and delivered Garnet's bid package to the contracting
officer at 1:38 p.m. VT at 16:10:46. The contracting officer accepted the
Garnet bid because he believed the bid was timely delivered when the Beck
construction manager took possession of it at Gate 9 at 1:08 p.m., some 22
minutes before the scheduled opening. The contracting officer also believed
that the responsibility for the late delivery to the bid opening room was
due to his instructions to the Beck construction manager to remain at Gate 9
until the time set for bid opening. Agency Initial Memorandum of Law, May
3, 2002, at 2. The contracting officer therefore opened Garnet's bid and it
was determined to be the apparent low bid, of the eight bids received. AR
exh. C, Abstract of Bids.
Malone protests that Garnet's bid was late and cannot be considered by the
agency because of Garnet's alleged failure to allow sufficient time to
ensure delivery of its bid to the designated opening room before bid
opening. Specifically, given the security procedures in effect, the
protester alleges that 31 minutes was not a reasonable amount of time to
gain access to Redstone Arsenal, complete the MSFC visitor badging process,
and arrive at the scheduled place for bid opening. In its post-hearing
comments, Malone alleges that the information relied on by the contracting
officer to establish the time of receipt of Garnet's bid at Redstone Arsenal
and that the bid was under the control of the government prior to bid
opening was not acceptable evidence as contemplated by the FAR. Protester's
Post-Hearing Comments at 11-14.
Bidders generally are responsible for delivering their bids to the proper
place at the proper time, and late delivery of a bid generally requires its
rejection. As the clause quoted above explains, however, a late
hand-carried bid can be considered for award if it was at the government
installation designated for receipt of bids, and under the control of the
agency, prior to the time set for receipt of bids. FAR �
52.214-7(b)(1)(ii). Under the governing language in the FAR, it is the
contracting officer, in the first instance, who should make the
determination whether a late bid should be accepted, FAR � 52.214-7(b)(1),
and our Office will not substitute its judgment in this regard, but will
review the reasonableness of the agency's determination. States Roofing
Corp., B-286052, Nov. 8, 2000, 2000 CPD � 182 at 4. We find reasonable the
decision made here by the agency to accept Garnet's bid.
The Garnet bid was clearly late, since it was not received at the office
designated in the IFB until after the designated time. The question thus
becomes whether the contracting officer reasonably concluded that the
circumstances here met the criteria for acceptance of a late bid under FAR
� 52.214-7(b)(1). Some of those criteria are not at issue: the protester
does not claim that the Garnet bid was received after award was made or that
its acceptance would unduly delay the acquisition. The dispute, rather,
arises from the contracting officer's findings in two key areas: whether
the Garnet bid was received at the government installation prior to the time
set for receipt of bids (that is, 1:30 p.m.), and whether the bid then
remained under the government's control until 1:30 p.m. Finally, there is a
dispute about whether the evidence relied on for the contracting officer's
findings was acceptable under the FAR.
There is no doubt that the bid was at the government installation, that is,
Redstone Arsenal, by 1:30 p.m. The protester does not contend otherwise.
Instead, the protester's concern (other than the evidentiary one discussed
below) is about whether the bid was "received" at Redstone prior to 1:30
p.m., since the person who took custody of the bid from the Garnet
representative was a contractor, not a government employee. We see no basis
to find that a contracting officer cannot have a contractor employee fulfill
the ministerial task of taking custody of bids, at least in these
circumstances, where doing so in no way cast doubt on the integrity of the
process. Accordingly, we conclude that the contracting officer reasonably
found that the Garnet bid had been received at the government installation
prior to the time set for receipt of bids.
Our conclusion is the same regarding whether the bid remained under the
government's control between its receipt at Redstone Arsenal and the 1:30
p.m. bid opening time. We see no basis to question the reasonableness of
the contracting officer's determination that the Garnet bid was effectively
under the government's control between its receipt at 1:08 p.m. and the bid
opening time. There is no evidence that the Beck construction manager acted
other than in a purely ministerial capacity, and at the direction of the
contracting officer. Consistent with the contracting officer's
instructions, the Beck construction manager could not relinquish control of
the bids collected without the contracting officer's authorization, and, in
any event, it is undisputed that the Beck construction manager maintained
custody of the bid package until he handed it to the contracting officer.
In these circumstances, we find reasonable the contracting officer's finding
that the Garnet bid was effectively under the government's control from 1:08
p.m.
We recognize that circumstances may exist where a contracting officer might
reasonably find that concerns about the integrity of the process meant that
control by a contractor employee did not meet the regulatory standard. In
the facts of this case, though, we think it was reasonable for the
contracting officer to find that consideration of the Garnet bid did not
compromise the integrity of the competitive process.
Finally, we turn to the acceptability of the evidence relied on by the
contracting officer in reaching these two findings. The protester's
contention that the information provided by the agency was not acceptable
evidence as contemplated by the FAR disregards the actual language of the
applicable provision. As quoted above, the FAR specifies that acceptable
evidence to establish time of receipt at the government installation
"includes" the installation's time/date stamp or other documentary evidence
maintained by the installation. FAR � 52.214-7(c). The clause does not
restrict acceptable evidence to the examples listed, and we believe that
reasonable consideration of other relevant information is permissible. In
particular, the evidence that the contracting officer relied on here appears
both relevant and reliable.
In sum, we conclude that the contracting officer reasonably found that the
Garnet bid was received at Redstone Arsenal prior to the time set for
receipt of bids and then remained under the control of the government until
the time of bid opening, and we thus have no basis to question the
contracting officer's decision to accept Garnet's late bid.
The protest is denied.
Anthony H. Gamboa
General Counsel
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[1] MSFC is located within Redstone Arsenal Army base and visitors to MSFC
must pass through military checkpoints and comply with security measures.
These include photo identification and a point of contact to escort the
visitor onto the base. The point of contact may be either a federal
employee or a contractor employee for Redstone Arsenal or MSFC. After the
military checkpoint, visitors to MSFC must proceed to the Visitor Badging
and Registration Office in MSFC's Building 4312 to obtain a visitor's badge
that must be worn for the duration of the visit. Contracting Officer's
Initial Statement, May 3, 2002, at 1.
[2] The agency reports that Gate 9 is the main and most active gate at
Redstone Arsenal which facilitates access to MSFC.
[3] Telephone records for the Beck project manager's cellular telephone and
that of the Beck construction manager corroborated the Beck project
manager's testimony. AR exh. E, Cellular Telephone Record for Beck
Construction Manager and exh. G, Cellular Telephone Record for Beck Project
Manager.