BNUMBER:  B-279111.2 
DATE:  July 1, 1998
TITLE: Pacific Tank Cleaning Services, Inc., B-279111.2, July 1,
1998
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Matter of:Pacific Tank Cleaning Services, Inc.

File:     B-279111.2

Date:July 1, 1998

C. Patrick Callahan, Esq., Callahan, Little & Sullivan, for the 
protester.
Vicki E. O'Keefe, Esq., Department of the Navy, for the agency.
Robert Arsenoff, Esq., and Paul I. Lieberman, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Agency improperly considered a late bid under the government 
mishandling exception where the evidence of record does not establish 
that the bid was timely received and remained under the government's 
control until it was first discovered 6 days after bid opening.

DECISION

Pacific Tank Cleaning Services, Inc. (Pac Tank) protests the decision 
of the Department of the Navy to consider a late bid from California 
Marine Cleaning, Inc.
(Cal Marine) under invitation for bids (IFB) No. N63387-96-B-3145, a 
total small business set-aside for hazardous waste pumping and 
transportation services in the San Diego, California area.  The 
protester alleges that the record does not establish that Cal Marine's 
bid was timely received and remained under the government's control 
until it was discovered 6 days after bid opening.

We sustain the protest.

The IFB, which contemplated an indefinite-quantity contract for a base 
year with four 1-year options, was issued on December 9, 1997.  It 
provided that hand-carried bids would be received at the depository 
located in Building 291 of the Naval Station in San Diego until 10 
a.m. on January 8, 1998.

Shortly before 10 a.m. on January 8, bidder representatives convened 
in a reception area in Building 291 in which the bid depository ("bid 
box") is located.  At 10 a.m., a procurement technician and a contract 
specialist entered the reception area; the technician then announced 
that the time for bid opening had arrived and directed bidder 
representatives to an adjacent conference room where bid opening was 
to occur. 

The technician states that she then unlocked the bid box and removed 
all loose bid envelopes--leaving only one package marked "old bids," 
which was bound with a rubber band, in the bid box.  She then sorted 
through the bids for no more than  half a minute and set aside the 
five which were marked for the instant procurement.  She states that, 
after checking to see that none of the remaining envelopes were for 
this bid opening, she then returned at least two, but not more than 
four, envelopes to the bid box, relocked the box and carried the bids 
to the bid opening officer who was in the conference room.  Five bids, 
including Pac Tank's but not Cal Marine's, were opened and read.  The 
protester's bid was low at $2,891,185.

A representative of Cal Marine signed in the Building 291 log at 8:37 
a.m. on January 8 and signed out at 9:40 a.m.  Cal Marine did not send 
a representative to the bid opening.  On the afternoon of January 8, 
Cal Marine's president left a voice mail message with the contract 
specialist designated in the IFB as the agency's point-of-contact, 
which simply inquired whether the bid results had been posted.  The 
call was not returned because the point-of-contact was on emergency 
leave from work. 

Six days later on January 14, a representative of Cal Marine signed 
the Building 291 log at 2:30 p.m. and left at 2:35 p.m.  On January 
14, Cal Marine left another message indicating that the bidder had 
examined the contracts department's "Bid Board" at the Naval Station 
and was surprised that Pac Tank could be listed as the apparent low 
bidder when Cal Marine's price was lower than the posted price.  

Because the point-of-contact was still on leave, on January 14, Cal 
Marine's president spoke to another contracting specialist who had 
been designated as an alternate point-of-contact, between 2:44 p.m. 
and 3 p.m.  He repeated his concern about Pac Tank's bid being higher 
than Cal Marine's, as a result of which the agency states that for the 
first time it learned that Cal Marine claimed to have submitted a bid 
in response to the IFB.  The technician and the designated alternate 
point-of-contact opened the bid box about 3 p.m. and discovered, on 
the bottom of a stack of at least three loose bids, a bid envelope 
from Cal Marine bearing a time/date stamp of 8:38 a.m. on January 8.  
The envelope was opened and the bid price contained in the schedule of 
items was $2,587,250--approximately $300,000 lower than Pac Tank's.

In conjunction with an agency-level protest[1] filed by Pac Tank 
following the agency's decision to accept Cal Marine's late bid, the 
contracting officer conducted an investigation during which Cal 
Marine's president and an employee provided sworn statements.  
According to these statements, the bid was prepared on January 7, 
sealed in an envelope that day and taken to the reception area of 
Building 291 by the employee at about 8:30 a.m. on January 8.  The 
employee states that he personally time/date stamped the envelope and 
placed the bid in the bid box and then left promptly.

Pac Tank maintains that Cal Marine's late bid must be rejected because 
this record does not adequately support the agency's conclusion that 
the bid was timely received and remained under the government's 
control until discovered on January 14.  The agency believes that the 
bid was timely deposited because, in addition to the time/date stamp 
on the bid envelope, it appeared likely that the technician opening 
the bid box on January 8 had overlooked the bid while sorting out 
those not pertaining to this procurement.  Award has not been made 
pending our decision in this matter.

A late misplaced bid may be considered for award only where the record 
shows that: (1) the bid was received at the installation prior to bid 
opening, (2) it remained under the agency's control until it was 
discovered, and (3) it was discovered prior to award.  Pershield, 
Inc., B-256827, July 27, 1994, 94-2 CPD  para.  46 at 3.  The late bid 
regulations provide, at Federal Acquisition Regulation (FAR)  sec.  
14.304-1(c), as follows:

     Acceptable evidence to establish the time of receipt at the 
     Government installation includes the time/date stamp of such 
     installation on the bid wrapper, other documentary evidence of 
     receipt maintained by the installation, or oral testimony or 
     statements of Government personnel.

Records and other evidence under the control of a bidder or its agent 
may not, standing alone, serve to establish the time of delivery to 
the agency since they are not evidence of receipt maintained or 
confirmed by the agency.  J.C.N. Constr. Co., Inc., B-270068, 
B-270068.2, Feb. 6, 1996, 96-1 CPD  para.  42 at 3.  The late bid 
requirements must be strictly enforced since maintaining confidence in 
the integrity of the competitive bidding system outweighs any monetary 
savings that might be obtained by consideration of a late bid.  Arnold 
Rooter, Inc., B-220497, Nov. 20, 1985, 85-2 CPD  para.  574 at 2-3.  

Here, as indicated above, Cal Marine's employee states that he went to 
the reception area before bid opening and that he personally time/date 
stamped the bid and placed it in the bid box.  This testimony does not 
serve to establish the time of delivery since it is outside the 
control of the agency.  J.C.N. Constr. Co., Inc., supra, at 3-4.  As 
for the time/date stamp itself which appears on the envelope 
containing Cal Marine's bid, under the circumstances presented here, 
it does not provide acceptable evidence of the time of receipt at the 
installation.  The agency does not dispute that the time/date stamp is 
in a lobby area relatively open to the public, is  not continuously 
monitored by the agency,[2] and, most significantly, may be operated 
by bidders or their representatives, who may or may not immediately 
place a stamped envelope in the bid box.  In this regard, to 
illustrate the possibility that an offeror could merely stamp an 
envelope and not place it in the bid box, Pac Tank's president states 
in his affidavit that, on January 16, he had a Pac Tank employee 
time/date stamp a blank envelope and return it to the firm.

FAR  sec.  14.304-1(c) recognizes that acceptable evidence to establish the 
time of receipt includes "the time/date stamp of such installation 
[or] other documentary evidence of receipt maintained by the 
installation . . . ."  (Emphasis supplied.)  This language clearly 
contemplates that the time/date stamp be securely under the control of 
the agency.  Here, the record reflects that the stamp was not secure, 
so that bidders could themselves operate the stamp and then place a 
stamped bid in the bid box.  Thus, the stamp placed on Cal Marine's 
bid envelope on January 14 does not establish that the bid was 
received prior to bid opening.  J.C.N. Constr. Co., Inc., supra, at 
3-4. 

The agency asserts that receipt is also established by the statement 
of agency personnel.  However, the statement of the technician who 
opened the bid box at 10 a.m. on January 8, and who removed the loose 
bids returning several to the box, does not establish that Cal 
Marine's was in the bid box prior to opening.  She states that 
"[g]iven the small number of bids in the box . . . I do not see how I 
could have missed the Cal Marine bid," although she adds that "it is 
possible I did." 

The January 14 visit to Building 291 by Cal Marine's representatives 
between 2:30 p.m. and 2:35 p.m., followed 9 minutes later by the first 
contact with an agency representative in which Cal Marine's president 
asserted that the firm had submitted a bid is not inconsistent with 
the protester's theory that, while the bid envelope was time/date 
stamped on January 8, this envelope may have been deposited on the 
afternoon of January 14.  On this record, the scenario posited by the 
protester is no less plausible than the agency's position that the 
technician overlooked a bid while sorting through very few bids in the 
bid box.

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.

We recommend that the agency reject Cal Marine's bid as late and award 
the contract to Pac Tank, if otherwise appropriate.  We also recommend 
that the protester be reimbursed the reasonable costs of filing and 
pursuing its protest, including attorney's fees.  4 C.F.R.  sec.  
21.8(d)(1) (1998).  The protester's certified cost for claims, 
detailing the time spent and the costs incurred, must be submitted to 
the agency within 60 days of receiving this decision.  4 C.F.R.  sec.  
21.8(f)(1).

The protest is sustained.

Comptroller General
of the United States

1. The agency-level protest was subsequently denied.

2. The agency report contains an affidavit of a receptionist assigned 
to the reception area where the bid box is located who states that her 
duties include typing and answering the telephone as well as greeting 
guests to the contracts office.  On the morning of January 8, she 
states that she was on duty from 7 a.m. until 11:30 a.m. "[e]xcept for 
a 10 to 15 minute break some time after 8:00 AM."  Pac Tank's 
president's affidavit states that, on or about March 18, he visited 
the reception area  with his counsel and asked to meet with the 
contracting officer.  The employee left the room to go to an adjacent 
office and did not return for several minutes during which time no 
government personnel were present in the area.