J. L. Malone & Associates

B-290282 Jul 02, 2002 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights A firm protested a National Aeronautics and Space Administration decision to accept an apparent low bid for the construction of an electrical substation at the Marshall Space Flight Center in Huntsville, Alabama, contending that the awardee's 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. GAO held that 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. Accordingly, the protest was denied. View Decision J. L. Malone & Associates, B-290282, July 2, 2002 DIGEST Attorneys 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) Sec. 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 Sec. 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 Sec. 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.