Amigo-JT Joint Venture, B-292830, December 9, 2003

B-292830 Dec 09, 2003 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights 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. 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. Which was transmitted by facsimile. Was rejected because it was not received by the agency until after bid opening. /1/ We deny the protest. Instructed bidders that bids were due by 2 p.m. 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. View Decision Amigo-JT Joint Venture, B-292830, December 9, 2003 DIGEST Attorneys 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. /1/ 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) Sec. 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 FAR Sec. 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 Sec. 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.