FAR 14.304:  Bidder's submission, modification, and withdrawal of bids

Comptroller General - Key Excerpts

As relevant to this protest, bid opening was scheduled for September 13, at 9:00 a.m., Eastern Standard Time. Agency Report (AR), Exh. 2, IFB amend. 6 at 1. Williams initially submitted its bid to the contracting officer at 8:30 a.m. on September 13. Contracting Officer’s Statement (COS) at 1. However, at approximately 9:00 a.m., the Williams’ representative asked if he could change Williams’ bid. Id. The contracting officer, believing that Williams intended to exchange one envelope for another, handed the representative the unopened envelope containing the bid. Id. The Williams’ representative opened the sealed envelope, wrote something down, and inserted a bid sheet. Id.; Protest at 3-4. Although the representative intended to remove the original bid sheet, he failed to do so. Protest at 3-4. The representative returned the bid package to the contracting officer at 9:02 a.m. COS at 1. At 9:03 a.m. the contracting officer read the four bids that had been submitted, including Williams’ bid. Id. Williams’ bid package contained two offer forms (standard form (SF) 1442): one in the amount of $4,929,583; and a second one in the amount of $4,795,139, which was written next to a crossed out amount of “$4,7195.” COS at 1-2; AR, Exh. 3, Williams’ Bid Package. The contracting officer read the Williams’ bid as $4,929,583. COS at 1- 2. Nordstrom Contracting and Consulting Group submitted the second lowest bid of $5,385,000. Id. Following protests by Williams and then Nordstrom, the agency rejected Williams’ bid as late. Williams protests that decision.


Williams argues that its bid should be accepted because it is clear that its original bid was $4,795,139. Protest at 5. Specifically, according to Williams, the envelope in which its bid was submitted contained, in addition to the two SF 1442’s, a bid sheet on which Williams crossed out the initial quote $4,795,139 and hand wrote the amended quote $4,929,583. Id. The protester argues that when an attempted bid modification (its attempt to change the bid from $4,795,139 to $4,929,583) is invalid, the bidder is bound by its initial bid. Id. at 6. Thus, according to Williams, if its modified bid--$4,929,583--was late, the agency could accept its original bid--$4,795,139, that was submitted at 8:30 a.m.

The agency argues that when the contracting officer returned the original sealed bid package to Williams, the agency relinquished control over the bid. Memorandum of Law (MOL) at 5. The agency further argues that when Williams returned the bid package to the contracting officer after 9:00 a.m., Williams’ bid was late and properly rejected. Id. Finally, the agency states that there was no bid sheet in the envelope with Williams’ bid, but only the two SF 1442’s for $4,795,139 and $4,929,583. MOL at 5.

Bidders are responsible for submitting bids, and any modifications or withdrawals, so as to reach the government office designated in the invitation for bid by the time specified in the IFB. Federal Acquisition Regulation (FAR) § 14.304; IFB amend. 2 at 50 (incorporating by reference FAR provision 52.214-7). A bid must be submitted so that it is received in the office designated in the IFB not later than the exact time set for the opening of bids. Weeks Marine, Inc., B-292758, Oct. 16, 2003, 2003 CPD ¶ 183 at 3. The time a hand-carried bid is considered submitted is determined by the time the bidder relinquishes control of the bid to the government. Id.; Chestnut Hill Constr., Inc., B-216891, Apr. 18, 1985, 85-1 CPD ¶ 443 at 3.

Here, Williams took its bid back, and did not relinquish control of the bid to the government until 9:02 a.m., after the time set for bid opening. Therefore, the bid was late. Further, although Williams argues that the agency could accept its original bid of $4,795,139, which it contends was submitted at 8:30 a.m., we disagree. Since there were two bids in the Williams’ bid package, there is no way to determine which bid was the original bid. Moreover, what Williams alleges is its original bid--$4,795,139--was in the bid package that Williams submitted to the contracting officer after the 9:00 a.m. time set for bid opening and therefore was late. Again, when Williams took its bid package back, it took the bid that was submitted at 8:30 a.m. out of the government’s control and when it resubmitted the package at 9:02 a.m., the entire bid package, including both bids, was late.  (Williams Building Company, Inc. B-415317.3: Apr 12, 2018)

Athena’s leading argument is that because the solicitation included a statement that bids received after 2:00 p.m. would not be accepted, and because R&R’s bid (and those of the next two low bidders) was received in the bid opening room after 2:00 p.m., the agency simply should have rejected R&R’s bid as late. See Protest at 2, 9-12; Comments at 1-4; Supp. Comments at 2, 4-5. Athena explains its position as follows:

Here, where the Solicitation expressly stated that bids received after 2:00 p.m. would “NOT BE ACCEPTED,” the Agency cannot rescue itself by relying on the provisions [in the provision at FAR § 52.214-7] regarding consideration of late bids . . . . The express language of the Solicitation overrode the more liberal FAR provisions and divested the Contracting Officer of the discretion she may have had, under other circumstances, to consider a late bid, regardless of the time it arrived at the installation.

Comments at 4 (quoting IFB at 1). In other words, Athena contends that the procedures in the provision at FAR § 52.214-7 regarding the acceptance of late bids were essentially inapplicable to this procurement. For the reasons discussed below, we see no merit in this argument.

Where a dispute exists as to the meaning of an IFB’s terms, our Office resolves the matter by reading the IFB as a whole and in a manner that gives effect to all the IFB’s provisions. See Nat’l Servs., Inc., B-400836.2, Mar. 11, 2009, 2009 CPD ¶ 58 at 2; BAE Sys. San Diego Ship Repair, B-400350, Sept. 22, 2008, 2008 CPD ¶ 174 at 3. To be reasonable, an interpretation of the IFB language must be consistent with the IFB when read as a whole. See Nat’l Servs., Inc., supra; BAE Sys. San Diego Ship Repair, supra.

Here, the solicitation provided that bid opening would occur in a given room at 2:00 p.m. and that bids received after 2:00 p.m. would not be accepted. IFB at 1. However, the solicitation also incorporated by reference the provision at FAR § 52.214‑7, which establishes procedures through which an agency may accept a late bid, including procedures for instances where, as here, a bid was received at the government installation and was under government control before the time set for receipt of bids. IFB at 48. While Athena argues that the first provision “overrides” the second, we see no basis for that conclusion.

Instead, we find the two provisions to be harmonious, with the first provision establishing the deadline for the receipt of bids in the bid opening room, and the second one establishing a limited set of circumstances under which a late bid could be accepted. We further find that the record includes acceptable evidence--screen shots from the agency’s package-intake software--to show that R&R’s bid was received at the agency installation and was under agency control before the time set for the receipt of bids. See AR, Tab 21, R&R Bid Receipt Verification, at 1. Additionally, we see no basis to question the contracting officer’s determination that acceptance of R&R’s bid would not unduly delay the procurement. Accordingly, we see the agency’s acceptance of R&R’s bid as reasonable. In sum, we deny Athena’s claim that the agency was somehow required to ignore the solicitation’s inclusion of the provision at FAR § 52.214-7 and simply reject R&R’s bid as late.  (Athena Construction Group, Inc. B-413406, B-413406.2: Oct 21, 2016)

Al-Tahouna argues that its highest-priced bid was timely submitted to DLA, and that the agency unreasonably excluded the protester from the competition. The protester’s argument relies on two documents: (1) a copy of the email it asserts was submitted to the email address set forth in the IFB approximately 6 minutes before the bid closing time; and (2) a document logging the various servers the email message passed through after being transmitted, including the successful receipt at another contractor-controlled email account that was copied on the transmission to the agency. For the reasons set forth below, we find no basis to sustain the protest.

Neither the Competition in Contracting Act of 1984 (CICA) nor the Federal Acquisition Regulation (FAR) apply to sales of government property. Where, as here, CICA and the FAR do not apply to procurements that are otherwise within our jurisdiction, we review the record to determine if the agency’s actions were reasonable and consistent with any statutes or regulations that do apply. See, e.g., Open Spirit, LLC, B-410428, B‑410428.2, Dec. 15, 2014, 2014 CPD ¶ 373 at 6; Great S. Bay Marina, Inc., B‑293649, May 3, 2004, 2004 CPD ¶ 108 at 2-3.

In protests involving IFBs subject to FAR part 14, we have found that bidders are responsible for delivering their bids to the proper place at the proper time, and late delivery of a bid generally requires rejection even if it is the lowest (or, in this case, the highest) bid. See Aquaterra Contracting, Inc., B-400065, July 14, 2008, 2008 CPD ¶ 138 at 3; Amigo-JT Joint Venture, B‑292830, Dec. 9, 2003, 2003 CPD ¶ 224 at 4. We have also found that it is an offeror’s responsibility, when transmitting its bid or proposal electronically, to ensure the bid’s or proposal’s timely delivery by transmitting the bid or proposal sufficiently in advance of the time set for receipt of bids or proposals to allow for timely receipt by the agency. C2G Ltd. Co., B‑411131, May 12, 2015, 2015 CPD ¶ 157 at 4.

Here, we find that Al-Tahouna has failed to establish that its bid was received by DLA prior to the closing time for the receipt of bids. As stated above, it is an offeror’s responsibility to ensure that an electronically submitted bid is received by--not just submitted to--an agency prior to the time set for closing. See also IFB at 17 (stating that it was the offeror’s responsibility to confirm receipt of an emailed bid). Al-Tahouna does not argue, and the record contains no other evidence showing, that the protester attempted to confirm receipt of its emailed bid. The only evidence provided by the protester to demonstrate that the agency received Al-Tahouna’s bid is a copy of the email sent by the protester 6 minutes before the closing time, and a copy of the server route for the message reflecting that another Al-Tahouna controlled email address that was copied on the message successfully received the email. See Protest (May 7, 2015), attach. No. 2, Email from Al-Tahouna (Dec. 18, 2014); attach. No. 3, Gmail Server Information (May 6, 2015). Neither of these documents, however, demonstrates that DLA in fact received the bid prior to the closing time.

DLA conducted an internal investigation and found no evidence demonstrating that the agency received the protester’s bid prior to the IFB’s closing time. See COSF ¶ 13. Furthermore, with regard to the server data submitted by the contractor, DLA submitted a declaration by the Microsoft Windows server team lead and senior Microsoft Exchange email administrator for the agency’s email support contractor (the DLA email administrator). See DLA Email Administrator Statement (June 5, 2015). The DLA email administrator states that he reviewed the server data submitted by the protester, but that none of the internet protocol addresses referenced in the document reflect a received message at a DLA internet protocol. Id. ¶ 5. Rather, the DLA email administrator explains that the internet protocol addresses in the document only reflect that the document was successfully transmitted within the same email environment utilized by the protester. Id. ¶¶ 6‑7. Al-Tahouna does not specifically dispute the DLA email administrator’s explanation of the server data.[2] On this record, we find that the protester has failed to demonstrate that DLA timely received the bid prior to the IFB’s closing time.

Al-Tahouna also argues that our Office should draw a negative inference from DLA’s destruction of electronic files, in the ordinary course of the agency’s business, from the email inbox used for the receipt of bids. The protester argues that the agency’s 30-90 day email retention periods are inconsistent with the requirements of FAR § 4.805. Comments (June 18, 2015) at 1. That provision of the FAR provides, in relevant part, that unsuccessful offers, quotations, bids, and proposals relating to contracts above the simplified acquisition threshold must be retained at least until the contract is completed. FAR § 4.805(b)(5)(i). Although the FAR is not applicable to this scrap sale procurement, we find that DLA was nonetheless required to retain copies of any unsuccessful bids for a reasonable period of time. Under the circumstances here, it is questionable whether DLA’s policy of purging the email inbox used to receive bids after as little as 30 days was reasonable. Had Al-Tahouna provided any evidence indicating the timely receipt of its bid by the government, DLA would have borne the risk that it would be unable to rebut the evidence when the burden would have shifted to the agency. Cf. Southwest Marine, Inc.; Am. Sys. Eng’g Corp., B‑265865.3, B-265865.4, Jan. 23, 1996, 96-1 CPD ¶ 56 at 10 (finding that, in a negotiated procurement, where an agency fails to retain evaluation materials it bears the risk that there is inadequate supporting rationale in the record for the source selection decision), recon. denied, B-265865.5, B-265865.6, June 3, 1996, 96-1 CPD ¶ 261; Hydraudyne Sys. & Eng’g B.V., B-241236, B-241236.2, Jan. 30, 1991, 91‑1 CPD ¶ 88 at 5 n.4 (finding that, in a negotiated procurement, the destruction of evaluation documentation in violation of the FAR’s requirements was “inappropriate”). In the absence of any such evidence from the protester showing that its bid was timely received by the agency, however, we need not resolve this evidentiary matter.  (Al-Tahouna Al-Ahliah General Trading & Contracting Company W.L.L. B-411505: Aug 11, 2015)  (pdf)

The IFB was posted on the Federal Business Opportunities (FedBizOpps) website on August 15, 2011 as a HUBZone small business set-aside. The original IFB instructed bidders that bids were due on September 15, 2011 by 1 p.m. MST at the FHWA Central Federal Lands Division office in Lakewood, Colorado. Agency Report (AR), Tab 2, IFB, at A-1. Amendment No. 2 was issued on September 7 and changed the place for submission of bids to the FHWA, Arizona Division Office in Phoenix, Arizona. AR, Tab 4, Amend. No. 2, at A-1. The amendment did not change the time for receipt of bids.

Five bids were received and accepted. The bids of the protester and another vendor were received before 12:00 p.m. in Arizona on September 15. AR, Tab 5, Bid Receipts. The other three bids, including NAC Construction, the low bidder, were received after 12:00 p.m. but before 1:00 p.m. in Arizona. Id. SBBI submitted the second low bid. Id. The bid opening summary was posted by the agency from Lakewood, Colorado on September 19, which stated the bid opening location as Phoenix, Arizona and the time of bid opening as "2:00 p.m. (1:00 p.m. Arizona)." AR, Tab 11, Bid Opening Summary and Contracting Officer's Statement at 3. The agency states that 2:00 p.m. in the bid opening summary refers to the time in Lakewood, Colorado. Id. On September 20, SBBI filed this protest with our Office.

The protester maintains that although the agency changed the location of the bid opening to Phoenix, Arizona, the agency did not change the time for submission of bids. The protester argues that bids were originally required to be submitted by 1:00 p.m. MST which is actually 12:00 p.m. Arizona time, and that bids received after 1:00 p.m. Colorado time should be rejected. Protest at 3.

The agency responds that both Colorado and Arizona are in the MST time zone, but that Arizona does not observe daylight saving time. Contracting Officer's Statement at 3. The agency states that during the months of daylight saving time Arizona is one hour behind the rest of the MST zone. Id. It is the agency's position that 1:00 pm MST on the IFB referred to the time in Arizona where the solicitation designated bids were to be received, and that all bids were received timely and opened at the proper time and that NAC was properly declared the apparent low bidder. Id.

We agree. We have previously held, that under the Uniform Time Act of 1996, 15 U.S.C. sect. 262 (2006), there is one standard time for most governmental purposes, including the time designated for receipt of proposals or opening bids, and that time is the local time, regardless of whether it is referred to as standard time or as daylight savings time in the solicitation. 49 Comp. Gen. 164 (1969) (standard time and daylight savings time are one and the same for purposes of designating a bid opening time); Environmental Control Division, Inc., B-255181, Feb. 16, 1994, 94-1 CPD para. 115 at 4.

Here, all bids were submitted to the FHWA Phoenix, Arizona office as required by the IFB and all were received prior to the 1:00 p.m. scheduled bid opening. Thus, all the bids were timely received at the 1:00 p.m. local time for Arizona, the designated place for receipt of bids.  (SBBI, Inc., B-405754, November 23, 2011)  (pdf)

The IFB incorporated by reference Federal Acquisition Regulation (FAR) clause 52.214-5, "Submission of Bids," which provides that facsimile bids would not be considered unless authorized by the solicitation. Id. at 16. The IFB also instructed potential offerors to contact the contract specialist in the event of questions. Id. at 1.

One day before bid opening, Heath contacted the contract specialist to ask whether the bid could be submitted by email or facsimile transmission. Agency Report, Tab 2, Emails between Heath and the VA. The contract specialist informed Heath that the firm could transmit its bid by facsimile transmission to the attention of the contracting officer and identified a telephone number for a facsimile machine. Id. Heath transmitted its bid by facsimile to the identified telephone number on the bid opening date. Contracting Officer's Statement of Facts at 1. The contracting officer, who states that she was unaware of the contract specialist's communication with Heath until after bid opening, rejected Heath's bid because facsimile bids were not authorized by the IFB. Id. This protest followed.

Heath argues that the VA should accept its bid because the contract specialist gave Heath permission to submit its bid by facsimile, and it would have submitted its bid by courier if not misled by the contract specialist.

A bid sent by facsimile must be rejected unless permitted by the solicitation. FAR sect. 14.301(c); see GROH GmbH, B-291980, Mar. 26, 2003, 2003 CPD para. 53 at 2; PBM Constr., Inc., B-271344, May 8, 1996, 96-1 CPD para. 216 at 2. Moreover, information that is necessary to submit bids, or the lack of which would be prejudicial to an uninformed bidder, should be provided to all prospective bidders in the form of an amendment to the IFB. FAR sect. 14.308(c). We have found that information concerning the availability of facsimile transmissions is procurement information that must be provided to all bidders since facsimile transmission confers a potential competitive advantage of permitting more time for bid preparation. PBM Constr., Inc., supra, at 2 n.2.

Here, while the record shows that the protester contacted the very person the agency designated for receipt of questions on the face of the solicitation--and received a response via email from that individual--the law and precedent support the VA's decision to reject this bid. The IFB did not authorize the submission of bids by facsimile. In addition, Heath could not rely upon the communication from the contract specialist, who lacked the authority to amend the solicitation. Although Heath asserts that it obtained no competitive advantage and in fact was disadvantaged by faxing its bid, we have long held that the potential for competitive advantage is sufficient to require an agency to reject a faxed proposal when the solicitation did not authorize facsimile transmission.

Finally, although this result is consistent with our prior decisions, we think that procuring agencies should ensure that the personnel designated on the face of solicitation documents to respond to prospective bidders' questions provide accurate information concerning a solicitation.  (Heath Construction, Inc., B-403417, September 1, 2010)  (pdf)

The protester argues that there is no proof that the agency had in its possession the CMEC bid prior to the bid opening. It maintains that the Federal Express tracking document simply shows that "something" was delivered on March 3 and that there is no evidence of a bid document with an agency date stamp proving receipt.

As a general rule, bidders are responsible for delivering their bids to the proper place at the proper time. United Teleplex, B-237160.2, Feb. 2, 1990, 90-1 CPD para. 146 at 2. Where as here, a bid is delivered by a commercial carrier, the bid is regarded as hand-carried. Watson Agency, Inc., B-241072, Dec. 19, 1990, 90-2 CPD para. 506 at 2. A late hand-carried bid may be considered for award, however, where improper government action was the paramount cause of its late delivery and consideration of the late bid would not compromise the integrity of the competitive bid system. Id.

Contrary to the protester's assertion, neither procurement regulations nor decisions of our Office require that timely receipt of hand-carried bids be proved only by a time/date stamp or other documentary evidence maintained by the government installation. Santa Cruz Constr., Inc., B-226773, July 2, l987, 87-2 CPD para. 7 at 2. Where, as here, the issue is whether a hand-carried bid was timely received by the agency, all relevant evidence, including commercial carrier records and statements made by government personnel, may be considered. Id.; Power Connector, Inc., B‑256362, June 15, 1994, 94-1 CPD para. 369 at 2.

The evidence cited by the agency shows that CMEC's original bid was timely received by the agency. For example, the Federal Express tracking sheet submitted by the agency and CMEC shows that an agency employee signed for the original bid package at 10:51 a.m. on March 3. The record also evidences that CMEC acted in a manner reasonably calculated to ensure the delivery of the bid to the contracting officer before bid opening, and it was the agency's actions that were the paramount cause for the contracting officer not having the original bid at bid opening. In this regard, CMEC's bid package was properly addressed to the contracting officer and delivered to the address stated in the IFB, and CMEC confirmed with the contracting officer that its bid had been timely received. The contracting officer, however, failed to pick up the original bid at the proper location prior to bid opening.

The contracting officer states that at 2:50 p.m. on March 3, after he had read the bids at the bid opening, he noticed CMEC's original bid. The contracting officer then verified that the bid was received prior to bid opening. We further note that, since CMEC's bid was delivered to the VA well prior to the bid opening, and it remained in the VA's possession until it was opened, acceptance of the bid does not compromise the integrity of the bidding system. Kelton Contracting, Inc., B-262255, Dec. 12, 1995, 95-2 CPD para. 254 at 3. Moreover, there is no question that CMEC's bid modification was timely received by the agency.  (Stephen Lucas Construction, LLC, B-402654, June 9, 2010) (pdf)

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.  (Aquaterra Contracting, Inc., B-400065, July 14, 2008) (pdf)

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 § 52.214-7 so as to require the agency to consider the protester’s late bid modification. (Amigo-JT Joint Venture, B-292830, December 9, 2003)  (pdf)

When evaluating the acceptability of a late bid outside the strict confines of the late bid regulations, we are guided by the general principle that where a bidder has done all it could and should to fulfill its responsibility, it should not suffer if the bid is untimely because the government failed in its own responsibility, so long as acceptance of the bid would not cast doubt on the integrity of the bidding process. See Palomar Grading & Paving, Inc., B-274885, Jan. 10, 1997, 97-1 CPD ¶ 16 at 3-4. Accordingly, we have found late bids acceptable where the government’s affirmative misdirection—such as erroneous solicitation instructions--was the paramount cause of a bidder’s untimely delivery of its bid since an agency has an affirmative duty to establish procedures for the timely receipt of bids. See id.; Select, Inc., B-245820.2, Jan. 3, 1992, 92-1 CPD ¶ 22 at 4. In this case, the IFB listed the wrong room for delivery of bids. This error, which was attributable solely to the government, directly resulted in Great Lakes submitting its bid 1 minute late. Had the government provided for the receipt of bids in the room identified in the IFB, there is no doubt that Great Lakes’ bid would have been timely; the record clearly demonstrates that Great Lakes was at the room designated for receipt of bids approximately 5 minutes in advance of the time set for bid opening. But, because Great Lakes was required to make its way from the designated bid opening room to the actual bid opening room, the government effectively caused Great Lakes’ bid to be received late. As a consequence, the misdirection by the agency was the paramount cause of Great Lakes’ untimely submission of its bid. As a final matter, it does not appear that accepting Great Lakes’ bid compromised the integrity of the procurement. When addressing this issue, the operative question is whether the late bidder gained an unfair competitive advantage over other bidders as a result of having submitted its bid late. See Brazos Roofing, Inc., B-275113, Jan. 23, 1997, 97-1 CPD ¶ 43 at 5. In this regard, the protester emphasizes the fact that the agency did not receive Great Lakes’ bid until after approximately three of the protester’s 18 bid line items had been disclosed. According to the protester, this provided Great Lakes with the opportunity to decide not to furnish the bid after bid opening. The protester’s concern, however, is tempered by the fact that the position in which Great Lakes was placed resulted from the actions of Corps personnel and was not by its own design or choosing. Moreover, there is nothing in the record to suggest that Mr. Inglis, who delivered Great Lakes’ bid, actually heard the prices when they were read. Mr. Inglis had only a few minutes to go from the the 19th floor to the actual bid opening room on the 18th floor; when he arrived, Corps personnel noted that he appeared hurried and out of breath. Agency personnel also indicated that they did not see anyone outside the bid opening room when the contracting officer called time. Under these circumstances, Mr. Inglis’ statement in his declaration that he did not hear any prices being read prior to handing Great Lakes’ bid to the agency, seems credible. (Weeks Marine, Inc., B-292758, October 16, 2003) (pdf)

GPEA contends that the agency has not adequately shown that its bid was received late. GPEA challenges the agency's reliance on the log maintained by the security guards because the guards are not government employees. In our view, the log is acceptable evidence of the time of receipt. It is undisputed that the log is a record maintained by the security guards in the regular course of monitoring the loading dock for the agency, and there is no reason to challenge its authenticity or reliability. The fact that the log is compiled by security guards who are contract employees rather than government employees does not preclude reliance on the log. See J. L. Malone & Assocs., B-290282, July 2, 2002, 2002 CPD ¶ 116 at 5. 
GPEA itself submitted a copy of a “customer cartage manifest” from Airborne Express that purports to show that the bid package was delivered to the loading dock at 11:49 a.m. on bid opening day.2 Commercial carrier records, standing alone, however, do not serve to establish the time of delivery to the agency, since they are not evidence of receipt maintained or confirmed by the agency. Valenzuela Eng'g, Inc., B-280984, Dec. 16, 1998, 98-2 CPD ¶ 145 at 3. In any event, to the extent that GPEA relies on the Airborne Express document to establish that its bid was not in fact late, receipt of a bid at a mailroom or other receiving area does not constitute receipt at the office specified in the IFB. Inland Marine Indus., supra. Thus, even assuming that GPEA had established that the bid was received at the loading dock before the closing time--which it has not--the bid nevertheless properly would be considered late, since there is no evidence showing receipt of the bid in the specified office by the time set for receipt of bids in the IFB.  (General Power Engineering Associates, Inc., B-292170, May 28, 2003)  (pdf)

Although the contracting officer was the official designated in the prospectus as the recipient of mailed bids, the contracting officer was not present at his desk or in his office prior to bid opening, and did not return to his office prior to bid opening to determine whether any last minute bids had been received. The bid opening official did check the mailroom and the mail clerk's desk prior to bid opening, but she too failed to check the contracting officer's desk. This failure by the cognizant officials to check the desk of the official designated for receipt of bids constituted mishandling.  (Carroll Gene Brewer, B-285484, August 22, 2000)

In short, there is no acceptable evidence which establishes that Cal Marine's bid was received at the installation prior to bid opening, as required under the test set forth in Pershield, Inc., supra, at 3, and it follows that if timely receipt cannot be established by acceptable evidence, then the second requirement of Pershield--i.e., that the bid was in the government's sole custody from prior to bid opening until discovered--is also not met. In this case, the location of Cal Marine's bid at any time prior to its discovery on January 14 remains unaccounted for. Accordingly, the bid cannot be properly considered, Chelsea Clock Co., Inc., B-251348.2, May 24, 1993, 93-1 CPD para. 401 at 4, and the protest is sustained.  (Pacific Tank Cleaning Services, Inc., B-279111.2, July 1, 1998)

However, a late bid should not be accepted if the bidder significantly contributed to the late receipt by not acting reasonably in fulfilling its responsibility for ensuring delivery to the designated place for receipt by the proper time. Aztec Dev. Co., supra, at 3; John Holtman and Sons, Inc., B-246062, Feb. 13, 1992, 92-1 CPD para. 187 at 2; J.E. Steigerwald Co., Inc., supra, at 5. Where the bidder fails to record required information as to the solicitation number, deadline for receipt and ultimate destination on the outside envelope provided by the commercial carrier, the bidder is usually primarily responsible for any delay in delivery. See Systems for Bus., B-224409, Aug. 6, 1986, 86-2 CPD para. 164 at 3-4. Here, Pierce's failure to mark its commercial carrier-provided envelope as required by FAR sec. 52.214-5 was the paramount reason for the delay resulting from the mailroom's "misrouting" of its bid.  (Boines Construction & Equipment Co., Inc., B-279575, June 29, 1998)

Comptroller General - Listing of Decisions

For the Government For the Protester
Williams Building Company, Inc. B-415317.3: Apr 12, 2018 Boines Construction & Equipment Co., Inc., B-279575, June 29, 1998
Athena Construction Group, Inc. B-413406, B-413406.2: Oct 21, 2016 Pacific Tank Cleaning Services, Inc., B-279111.2, July 1, 1998
Al-Tahouna Al-Ahliah General Trading & Contracting Company W.L.L. B-411505: Aug 11, 2015  (pdf)  
Heath Construction, Inc., B-403417, September 1, 2010  (pdf)  
Stephen Lucas Construction, LLC, B-402654, June 9, 2010 (pdf)  
Aquaterra Contracting, Inc., B-400065, July 14, 2008 (pdf)  
Amigo-JT Joint Venture, B-292830, December 9, 2003  (pdf)  
Weeks Marine, Inc., B-292758, October 16, 2003 (pdf)  
General Power Engineering Associates, Inc., B-292170, May 28, 2003  (pdf)  
J. L. Malone & Associates, B-290282, July 2, 2002 (pdf)  
Vijaydimon (U.S.A.) Inc., B-286013, September 29, 2000  
Carroll Gene Brewer, B-285484, August 22, 2000  


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