J.C.N. Construction Co., Inc.

J.C.N. Construction Co., Inc. BNUMBER: B-270068; B-270068.2 DATE: February 6, 1996 TITLE: J.C.N. Construction Co., Inc. ********************************************************************** Matter of:J.C.N. Construction Co., Inc. File: B-270068; B-270068.2 Date: February 6, 1996 Douglas L. Patin, Esq., Spriggs & Hollingsworth, for the protester. David P. Ray, Esq., Amerling & Burns, for D.L. Poulin, Inc., an interested party. Howard B. Rein, Esq., Cynthia S. Guill, Esq., and Christopher M. Bellomy, Esq., Department of the Navy, for the agency. Wm. David Hasfurther, Esq., and Michael R. Golden, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST A late commercial carrier-delivered bid may be considered if its late receipt is due to government mishandling after the bid is received. However, the time of the agency's receipt of the bid prior to bid opening must be established. Where the sole evidence of receipt is the carrier's records, the time of receipt cannot be properly established, and the bid must be rejected. DECISION J.C.N. Construction Co., Inc. protests the award to D.L. Poulin, Inc. under Department of the Navy invitation for bids (IFB) No. N62472-94-B-0421, issued for construction on a hangar at the Brunswick, Maine, Naval Air Station. J.C.N. maintains that Poulin's bid should have been rejected as late. We sustain the protest. The IFB, issued on August 8, 1995, set bid opening for 2 p.m. on September 8. Seven bids were received. Poulin's "bid" consisted of a facsimile of a telegram submitted by Western Union to the agency from Poulin acknowledging its receipt of amendment 0003 and reducing its bid price by $1,141,496. The telegram, however, gave no indication of what bid amount was being reduced. When bids were opened, J.C.N.'s bid was the low responsive bid. After bid opening, Poulin complained that the agency had failed to consider the bid it submitted prior to its telegram. On September 20, the agency discovered Poulin's original bid in the agency bid box under a yellow page of paper that the agency maintained on the bottom of the box. The agency reports that the box can be opened only with keys controlled by the bid room clerk, and, the bid could only have been placed under the yellow page by someone who had obtained the keys from that clerk. The bid package had no time/date stamp or notation as to time of receipt. The only available evidence of delivery was the commercial carrier's cartage record. This log showed that the bid had been delivered by Airborne Express on August 30 (nine days prior to bid opening) to the agency's mail room (instead of the bid depository location designated in the IFB for hand-delivered bids), and that the mail room clerk had signed for its receipt at 9:47 a.m. Poulin's bid package, using the label supplied by the agency, was clearly marked as a bid, and included the IFB number, the date and time of opening, and a description of the project. The carrier's label placed on the bid envelope included a sticker, which was separable into three portions (each with the same airbill number)--one portion had been placed on the carrier's delivery records, and the other two were left on the bid envelope. The agency determined that the paramount cause for the bid being received late was government mishandling--the failure to timely transmit the bid from the mail room to the bid depository down the hall from the mail room. After the agency determined that the bid envelope had not been opened or tampered with after having been sealed, Poulin's bid was opened. After adjusting the price by the price reduction in the telegram, the agency found that Poulin bid was low. Award was made to Poulin. Performance has been suspended pending resolution of this protest. J.C.N. contends that Poulin's bid should have been rejected because the primary cause of its late receipt was the improper delivery of the hand-carried bid to the mail room (the location designated for the delivery of bid sent by mail) and not to the bid box, which was designated as the location for depositing hand-carried bids. J.C.N. also notes that no documentation was maintained by the installation to show when Poulin's bid was received--the bid envelope was not time/date stamped--and thus under the evidentiary requirements of FAR sec. 14.304-1(c) the requisite proof of when the agency received Poulin's bid does not exist. In any event, J.C.N. notes that the agency has offered no explanation of where Poulin's bid was between August 30 and September 20.