TITLE: B-400065, Aquaterra Contracting, Inc., July 14, 2008
BNUMBER: B-400065
DATE: July 14, 2008
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B-400065, Aquaterra Contracting, Inc., July 14, 2008

   Decision

   Matter of: Aquaterra Contracting, Inc.

   File: B-400065

   Date: July 14, 2008

   Timothy A. Sullivan, Esq., Payne Hackenbracht & Sullivan, for the
   protester.

   Parag J. Rawal, Esq., and Deena G. Braunstein, Esq., Department of the
   Army, Corps of Engineers, for the agency.

   Susan K. McAuliffe, Esq., and Christine S. Melody, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest of agency's rejection of bid as late is denied where bidder's
   failure to address and label its bid package as instructed by the
   solicitation was paramount cause of its late arrival to bid opening
   location.

   DECISION

   Aquaterra Contracting, Inc. protests the rejection of its bid as late
   under invitation for bids (IFB) No. W912P8-08-B-0019, issued by the
   Department of the Army, Corps of Engineers, for dolphin replacement work
   at Calcasieu Lock, Calcasieu Parish, Louisiana.

   We deny the protest.

   The IFB, as amended, required that sealed bids be submitted by 2 p.m. on
   February 11, 2008; bids were to be addressed to the attention of a
   particular contracting specialist (the identified point of contact for the
   procurement) at a post office box address in New Orleans, Louisiana. IFB,
   Standard Form 1442.[1] The IFB also advised that bids were to be submitted
   in sealed envelopes labeled with the time and date for receipt, the
   solicitation number, and the name and address of the bidder; the IFB
   emphasized that it was the bidder's responsibility to submit its bid in a
   timely fashion to reach the designated office by the specified bid opening
   time. Id. at 2-3. A checklist of bid preparation reminders issued with the
   solicitation reiterated that bidders were to identify on the face of their
   bid envelopes the solicitation number and the time and date of the
   scheduled bid opening.

   Aquaterra submitted its bid via commercial carrier in a sealed envelope
   that failed to identify in any way that the package was time-sensitive or
   contained a bid (no solicitation number or bid opening information was
   marked on the envelope); the protester failed to address the envelope to
   the amended point of contact and failed to address the package to the post
   office box address identified in the IFB for the submission of bids.
   Rather, Aquaterra submitted its bid in an envelope addressed to
   "Contracting Officer" at the street address of the agency's contracting
   division, which address was identified in the solicitation amendments as
   the office that issued the amendments.[2]

   Aquaterra's bid package arrived in the agency's mailroom at 9:53 a.m. on
   February 11. At approximately 1:45 p.m., the envelope left the mailroom
   for delivery to the contracting division. At 2 p.m., the contracting
   specialist identified as the point of contact left her office to conduct
   the bid opening in a nearby conference room. Five hand-delivered bids were
   opened at that time; Aquaterra's bid had not reached the contract
   specialist in time for the bid opening.

   The protester's bid package and another firm's bid package were delivered
   to the contracting division at approximately 2 p.m. (the agency reports
   that while it is possible the bids may have arrived at the contracting
   division just prior to the 2 p.m. bid opening, there is no evidence that
   shows the actual time of receipt). The agency reports that since the
   protester's package was only generally addressed to "Contracting Officer"
   (where there are 13 contracting officers in that division), and the other
   bid was addressed to a former agency employee, the packages were left for
   one of the contracting officers to help identify the correct destinations
   for the packages. That contracting officer found the packages upon
   returning from meetings 2 hours later. When she opened Aquaterra's
   package, she found it contained a bid and forwarded it to the point of
   contact for the procurement.

   The next day, the contracting officer handling the procurement reasoned
   that, since Aquaterra's bid package and the other firm's bid package had
   been received at the mailroom approximately 4 hours prior to bid opening,
   it was government mishandling that caused the bids to arrive at the bid
   opening location late. After applying the applicable 10-percent price
   preference for Historically Underutilized Business Zone firms, Aquaterra's
   bid became low and award was made to the firm. However, in reviewing an
   agency-level protest filed by the bidder next in line for award, alleging
   that the Aquaterra bid was submitted late, the contracting officer for the
   first time recognized that Aquaterra's bid package envelope had not been
   addressed or labeled as directed by the solicitation. The contracting
   officer concluded that the firm had significantly contributed to the
   lateness of its bid, and, finding that government mishandling was not the
   paramount cause of the lateness of the bid, the contracting officer
   terminated the award, rejecting the protester's bid as late.[3] This
   protest followed.

   Aquaterra contends that its bid was not late, since it was received by the
   agency's mailroom, and possibly, by the contracting division, before the 2
   p.m. bid opening time, and had been in the government's custody between
   its receipt and the bid opening. In this regard, the protester argues
   that, even though it did not address its bid package envelope as
   instructed by the IFB, since the IFB did not specify a particular location
   for the bid opening, its bid's documented receipt at the agency's
   mailroom, or the possibility that the bid was in fact delivered to the
   contracting division before 2 p.m., should be used to measure the
   timeliness of its bid. Alternatively, the firm argues that if its bid was
   late, government mishandling in not delivering its bid to the contracting
   division sooner was the paramount cause of its lateness. While the
   protester concedes that its own bid package did not provide any indication
   to the mailroom personnel that the package contained a bid to be sent to
   the contracting division immediately, it argues that its bid should be
   considered due to government mishandling, since the other bid package
   delivered with Aquaterra's to the mailroom was labeled as containing a bid
   and it too was delivered late to the bid opening from the mailroom. In
   effect, Aquaterra surmises that even if its bid package had been properly
   addressed and labeled, it still would have been mishandled here.

   As a general rule, bidders are responsible for delivering their bids to
   the proper place at the proper time, and late delivery of a bid generally
   requires its rejection even if it is the lowest bid. J.C.N. Constr. Co.,
   Inc., B-270068, B-270068.2, Feb. 6, 1996, 96-1 CPD para. 42 at 3; Aztec
   Dev. Co., B-256905, July 28, 1994, 94-2 CPD para. 48 at 3. A bid is late
   if it does not arrive at the office designated in the solicitation by the
   time specified, Federal Acquisition Regulation sect. 14.304(b)(1); Aztec
   Dev. Co., supra., and, normally, receipt at other places, such as a post
   office box or the agency's mailroom, is insufficient. Biones Constr. &
   Equipment Co., Inc., B-279575, June 29, 1998, 98-1 CPD para. 175 at 4-5.
   In this regard, bidders must allow a reasonable time for bids to be
   delivered from the designated point of receipt (such as in this case, a
   post office box) to the bid opening room which is the ultimate destination
   for bid opening. See Bay Shipbuilding Corp., B-240301, Oct. 30, 1990, 91-1
   CPD para. 161 at 3, n.1. Our review of the record shows that although the
   protester's bid was received at the agency's mailroom, an intermediate
   stop for delivery of the package, approximately 4 hours prior to bid
   opening, there is no evidence that the bid was received by the contracting
   division before the 2 p.m. bid opening. Further, the contracting
   specialist to whom bids were to be addressed and who conducted the bid
   opening did not receive the protester's bid package until approximately
   2 hours after bid opening. Accordingly, we find reasonable the agency's
   determination that the bid was late.

   While a late hand-carried bid may be considered if it is determined that
   the late receipt was due primarily to government mishandling after receipt
   at the government installation, a late bid should not be accepted if the
   bidder significantly contributed to the late receipt by not acting
   reasonably in fulfilling its own responsibility to submit its bid in a
   timely manner. Comspace Corp., B-281067, Nov. 30, 1998, 98-2 CPD para. 122
   at 2. Where, as here, a bidder fails to record on its bid's sealed
   envelope required information as to the solicitation number it is
   responding to, and the deadline for its receipt, and, moreover, as here,
   also fails to address its bid submission to the required point of contact
   at the address provided in the IFB for bid submission, the bidder is
   usually primarily responsible for any delay in its delivery. Boines
   Constr. & Equipment Co., Inc., supra. In this case, the protester failed
   to address its bid to the appropriate individual, and failed to mark its
   bid package envelope in any way to indicate that it contained
   time-sensitive bid information, which caused the package to be sorted for
   standard delivery to the contracting division, rather than under the
   mailroom's accelerated procedures for delivery of bid documents. We agree
   with the agency that the firm here failed to do what it reasonably could
   and should have done to ensure proper delivery, and its failure to take
   the available steps to ensure timely delivery was the paramount cause of
   the bid's late receipt. Since there has been no showing of government
   mishandling of the bid package, the bid was properly rejected as late.[4]

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1]Amendment No. 2 to the solicitation notified all prospective bidders
   that the contracting specialist initially identified in the IFB would no
   longer be the point of contact for the procurement and identified another
   contracting specialist as the new point of contact.

   [2] Aquaterra notes that the contracting division address is the only
   office location identified in the amended solicitation and that the post
   office box provided for bid submission is inapplicable to handcarried bids
   submitted by commercial carriers that require a street address for
   delivery.

   [3] The agency reports that, since the firm had already ordered the
   required steel for the work, it only partially terminated the award in
   order to receive the ordered steel.

   [4] To the extent the protester speculates that even if it had properly
   identified on its bid envelope that a bid was enclosed, the agency would
   have mishandled its bid, as it allegedly did for the other bid delivered
   late with Aquaterra's bid package (where that other bid was apparently
   marked with the solicitation number and bid opening information), we do
   not find Aquaterra's speculation in this regard persuasive as it provides
   no basis for us to question that Aquaterra's own actions were the
   paramount cause of its bid's late receipt. The protester's speculative
   surmise in this regard merely anticipates improper action by the agency on
   what would be a materially different set of facts than is present here. In
   any event, the argument fails to account for an additional defect in
   Aquaterra's bid submission, the firm's failure to address its bid package
   to the appropriate contact, which alone has been found to preclude a
   finding of government mishandling (i.e., even where a bid package is
   labeled with solicitation and bid opening information). See Comspace
   Corp., supra.