TITLE:  Amigo-JT Joint Venture, B-292830, December 9, 2003
BNUMBER:  B-292830
DATE:  December 9, 2003
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Amigo-JT Joint Venture, B-292830, December 9, 2003

   Decision
    
    
Matter of:   Amigo-JT Joint Venture
    
File:            B-292830
    
Date:              December 9, 2003
    
Johnathan M. Bailey, Esq., Bailey & Bailey, for the protester.
Dava-Kay F. Kaitala, Esq., and Albert C. Proctor, Esq., U.S. Army Corps of
Engineers, 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 challenging agency*s rejection of facsimile bid modification as
late is denied where the record shows protester began transmitting
modification only a few minutes before scheduled bid opening, the
transmission was completed after bid opening was declared, and the
modification therefore did not reach the designated bid opening room prior
to bid opening; even if the modification was in the facsimile machine*s
memory before bid opening (as the protester contends), the agency was not
required to accept it.
DECISION
    

   Amigo-JT Joint Venture protests the rejection of its second bid
modification as late under invitation for bids (IFB) No. DACA63-03-B-0012,
issued by the Army Corps of Engineers for construction of a consolidated
wing support facility at Laughlin Air Force Base in Del Rio, Texas.The
protester*s second bid modification, which was transmitted by facsimile,
was rejected because it was not received by the agency until after bid
opening.
    

   We deny the protest.
    
The IFB, as amended, instructed bidders that bids were due by 2 p.m.,
local time, on August 29, 2003, and that bid opening would be held in Room
2A20 at the Corps*s Fort Worth District Office in Texas.  IFB at 00100-1;
amend. 5, at 2.  The IFB included the clause at Federal Acquisition
Regulation (FAR) S: 52.214-31, which authorized the submission of
facsimile bids and bid modifications; the solicitation also stated that
the facsimile machine was *subject to heavy use for long periods of time*
and bidders were cautioned that *last minute* bids might be received late
due to heavy message traffic.  IFB at 00100-1 and 00100-7.  Further,
another solicitation clause at FARS: 52.214-31(g) stated that:
    
If the bidder chooses to transmit a facsimile bid, the Government will not
be responsible for any failure attributable to the transmission or receipt
of the facsimile bid including, but not limited to, the following:
                           *          *          *          *          *
               (4) Delay in transmission or receipt of bid.
IFB at 00100-7.  The solicitation also included the late bid clause at FAR
S: 52.214-7, which stated, in relevant part, that a bid or bid
modification received at the office designated after the *exact time
specified for receipt . . . will not be considered unless it is received
before award* and 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.*  This clause also stated that acceptable evidence to establish
the time of receipt of a bid or bid modification included the agency*s
time/date stamp on the bid, other documentary evidence of receipt
maintained by the agency, and oral testimony or statements of government
personnel.  IFB at 00100-6. 
    
Amigo*s original bid was sent by commercial carrier and received by the
Corps on August 28.  On the scheduled opening date, Amigo sent two bid
modifications by facsimile.  A contracting employee retrieved Amigo*s
first modification from the facsimile machine which was located in a
conference room adjoining the bid opening room, placed it in an envelope,
wrote the name of the sender, the solicitation number, the date and time
received (8/29 at 11:35 a.m.), and initialed the envelope.  Agency Report
(AR) exh. 4, Amigo*s First Bid Modification. [2]  This employee gave the
envelope to the assigned contract specialist who secured the package in
accordance with the agency*s internal control procedures.  Contracting
Officer*s (CO) Statement at 3.
    
The contract specialist, who served as the bid opening official, reports
that at approximately 1:58 p.m. local time, he went to the conference room
adjoining the bid opening room to check the facsimile machine for other
bids and discovered that the facsimile machine had printed the cover page
of Amigo*s second bid modification, which indicated that a 4-page
submission (including cover sheet) was being transmitted to the agency. 
According to the contract specialist, as the facsimile machine began to
print the third page, the procurement clerk advised him that it was 2
p.m.; therefore, the contract specialist left the conference room, entered
the adjoining bid opening room, and commenced bid opening.  AR exh. 5,
Contract Specialist*s Memorandum for Record.  Three bids, including a bid
and the first bid modification from Amigo, were opened and recorded on the
bid abstract.  Amigo*s total bid, as modified, was the highest priced at
$8,427,290.24.  AR exh. 6, Abstract of Bids.
    
Following bid opening, the contract specialist states that he returned to
the conference room to retrieve the facsimile transmission from Amigo
which he considered late since the complete bid modification had not been
received before bid opening.[3]  Upon returning to his office, the
contract specialist received a message that a representative from Amigo
had telephoned the contracting office to alert him that the firm had sent
a second bid modification by facsimile.  The contract specialist then
telephoned Amigo*s representative and advised her that the second bid
modification had been received after the official bid opening time and
would not be considered.  CO*s Statement at 4.  The contracting officer
subsequently determined that Amigo*s second bid modification could not be
accepted because it was not received in its entirety until after bid
opening and the exceptions for consideration of a late bid modification as
set forth at FAR clause S: 52.214-7, were not applicable.  Accordingly,
the contracting officer rejected Amigo*s second bid modification as late,
notwithstanding its lower price.  AR exh. 10, CO*s Letter to Protester,
Sept. 2, 2003.  This protest followed.
    
The protester maintains that it did everything possible to ensure that its
bid modification would be timely delivered to the place specified in the
solicitation.  As support, Amigo asserts that prior to sending its first
bid modification at 10:08 a.m. on bid opening day, one of its
representatives telephoned the assigned contract specialist to ascertain
the current time of the official bid opening clock in order to synchronize
its clock; the contract specialist refused to provide this information. 
In Amigo*s view, the contract specialist*s refusal *directly and
affirmatively prevented the timely submission* of Amigo*s second bid
modification.  Protester*s Comments
at 3.[4]  Nonetheless, the protester insists that, as evidenced by the
local telephone company records, the second bid modification was sent at
1:51 p.m. and the transmission was completed 7.51 minutes later at 1:59
p.m.  Protest at 3; Protester*s Comments at 5.  Since the facsimile
machine was located in a room *immediately adjacent* to the bid opening
room, Amigo argues that there *still was a reasonable time* for delivery
of its second facsimile modification *from the point of receipt to the
designated location.*  Protest at 4.
    
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.  Weeks Marine, Inc., B-292758, Oct. 16, 2003,
2003 CPD P: ____ at 4; Roy McGinnis & Co., Inc., B-275988, Apr. 28, 1997,
97-1 CPD
P: 156 at 2.  Bidders must allow a reasonable time for bids or bid
modifications to be delivered from the designated point of receipt (in
this case, a facsimile machine) to the bid opening room which was the
ultimate destination.  Butt Constr. Co., Inc.,
B-258507, Jan. 30, 1995, 95-1 CPD P: 45 at 4; Roy McGinnis & Co., Inc.,
supra, at 3.
    
We find nothing objectionable in the agency*s rejection of Amigo*s second
bid modification.  The modification was plainly late, since it did not
reach the designated location for receipt of bids prior to bid opening. 
To the extent that the protester believes that government mishandling was
the cause of the modification*s being late or that Amigo did all it could
reasonably be expected to do to ensure timely delivery, see Weeks Marine,
Inc., supra, we believe that the record establishes that the protester*s
belief is unsupported.  As indicated, by the protester*s own account, the
modification was sent by facsimile at 1:51 p.m. and the transmission took
7.51 minutes to reach the agency*s facsimile machine, thereby allowing one
minute for agency personnel to retrieve, process, and deliver this
modification to the bid opening room.  The record shows that at the time
the contract specialist was notified that it was time to conduct the bid
opening, the second bid modification was not printed in its entirety--page
3 of the four pages (containing the second page of the bid schedule) was
still printing.  This being the case, it was primarily (if not entirely)
the protester*s tardy beginning of the transmission that caused the
failure of the modification to reach the bid opening room on time. 
Nothing in the record suggests mishandling of the modification by the
government.
    
Finally, the protester alleges that the government was legally required to
consider the bid modification, since it was received in the memory of the
agency*s facsimile machine before 2 p.m. and was therefore effectively in
the Corps*s control before bid opening.  We disagree.  At least in the
circumstances of this case--where the solicitation clearly placed the risk
of facsimile transmission problems on bidders and yet Amigo nonetheless
began transmitting its second bid modification within the final few
minutes before the start of bid opening--we do not believe that receipt in
the facsimile machine*s memory (assuming, arguendo, that the modification
was in the machine*s memory before bid opening) qualifies as *under the
Government*s control* prior to the time for receipt of bids as
contemplated by the clause at FAR S: 52.214-7 so as to require the agency
to consider the protester*s late bid modification.
    
The protest is denied.
    
Anthony H. Gamboa
General Counsel
    

   ------------------------

   [1]Without consideration of this second modification, Amigo*s bid was not
low.
[2]The record shows that this 4-page bid modification had the sender*s
facsimile machine date stamp of *Aug. 29 03* at *10:08 a.m.,* as well as
the sender*s facsimile number on each page.  The record also shows that
the bid modifications sent by Amigo did not have the legend typically
imprinted by a receiving facsimile machine showing the time and date of
receipt.
[3]The record shows that the second facsimile modification from Amigo
consisted of the cover page, the second and third pages, which were the
completed bid schedule, and the fourth page, which was a signed copy of
amendment 6.  AR exh. 9, Protester*s Second Bid Modification.  The
contract specialist reports that when he returned to the facsimile machine
after bid opening only three pages of the modification had been printed
because the facsimile machine ran out of paper before the last page was
printed; he then printed the fourth page.  AR exh. 5, Contract
Specialist*s Memorandum for Record.  Notwithstanding the protester*s
arguments to the contrary, the fact that the facsimile machine ran out of
paper while bid opening was conducted is not relevant here because when
the contract specialist left the conference room to commence bid opening,
the transmission from Amigo was still printing.
[4]Amigo*s complaint that the contract specialist impermissibly refused to
provide over the telephone to the firm the current time on the official
bid opening clock is without merit.  The protester has cited no legal
authority to support its position, the protester*s statement that other
contract specialists have provided this information under previous
solicitations does not establish that an impropriety occurred here, and
the protester has not established any causal nexus between the agency*s
response to the telephone request and the late arrival of the bid
modification.