TITLE:  Carroll Gene Brewer, B-285484, August 22, 2000
BNUMBER:  B-285484
DATE:  August 22, 2000
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Carroll Gene Brewer, B-285484, August 22, 2000

Decision

Matter of: Carroll Gene Brewer

File: B-285484

Date: August 22, 2000

M. Keith Blythe, Esq., for the protester.

Lori Polin Jones, Esq., Department of Agriculture, for the agency.

Jeanne W. Isrin, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Agency properly considered timber sale bid as a mishandled late bid where it
was not discovered until after bids were opened due primarily to failure of
procurement officials to check bid receiving official's desk for bids prior
to bid opening.

DECISION

Carroll Gene Brewer protests that the Forest Service, Department of
Agriculture, should have rejected as late the high bid submitted by Travis
Lumber Company under the Little Bigger Timber Sale, Ozark-St. Francis
National Forests, Arkansas.

We deny the protest.

The facts here are undisputed. The timber sale prospectus stated that bids
would be opened on May 18, 2000 at 2 p.m., and provided the following
mailing address: "Ozark-St. Francis National Forests, ATTN: Contracting
Officer, 605 West Main Street, Russellville, AR 72801." Agency Report (AR),
exh. A, Timber Sale Prospectus, at 1. Bids were to be enclosed in a sealed
envelope marked with "Bid for Timber" and the sale name or number and the
date and time of bid opening. AR, exh. A, Timber Sale Prospectus, Bid for
Advertised Timber, Instructions to Bidders, at 7.

At approximately 1:30 p.m. on May 18, an agency staff officer retrieved from
the mailroom all of the mail addressed to the contracting officer and, at
1:40 p.m., since the contracting officer was away from his desk, placed it
on the contracting officer's

chair. The mail included Travis's bid, which was in a Federal Express
envelope that was addressed to the contracting officer, but did not indicate
that it contained a bid.
AR, exh. C, Statement of David Craig Hilburn.

Shortly before 2 p.m., the bid opening official accepted a bid from Brewer,
and then checked the mailroom and the mail clerk's desk for other bids, but
found none. She proceeded to the timber shop, where Travis's bid lay on the
contracting officer's chair. (The contracting officer's desk is in the
timber shop.) At 2 p.m., she opened the only known bid, Brewer's, and
declared it to be the apparent high bid in the amount of $466,304.71. At
approximately 2:10 p.m., the staff officer heard the bid opening official
talking with a representative from Brewer in the hall, and thereby became
aware that bid opening was concluded. The staff officer showed the bid
opening official Travis's bid envelope on the contracting officer's chair;
she hand-delivered the envelope to the contracting officer, who was still
working in another office. At 2:14 p.m., the contracting officer opened the
Federal Express envelope and removed an envelope addressed to "USDA--Forest
Service." Upon opening this envelope, the contracting officer discovered
Travis's bid in the amount of $494,751. After determining that Travis's bid
was responsive, the contracting officer concluded that the bid was late as a
result of mishandling by agency employees, and that it therefore could be
considered. AR, exhs. B and C, Statement of David Craig Hilburn, and exh. E,
Contracting Officer's Statement.

Brewer challenges the agency's determination that the late discovery of
Travis's bid was due to agency mishandling. Brewer maintains that Travis's
failure to label its bid package as containing a bid was the cause of the
lateness of the bid, and that there thus was no basis for considering it.
Carolina Archaeological Servs.,
B-224818, Dec. 9, 1986, 86-2 CPD para. 662 (late offer will not be considered
where it was received at the agency mailroom prior to bid opening but was
not transported to the proper designation specified in the solicitation on
time due to mislabeling).

The Forest Service's "Timber Sale Preparation Handbook," FSH 2409.18 sect.
62.11, (AR, exh. F), which governs the treatment of late bids on timber
sales, provides that a late bid shall not be considered unless receipt
occurs before award and, relevant here, the contracting officer determines
that the late receipt was due to mishandling by the Forest Service after
receipt at the post office by the designated Forest Service installation.
[1] Where the record shows that a bid was not timely received in the bid
opening location due primarily to the agency's failure to establish or
follow reasonable procedures for receiving bids, the agency's actions
constitute mishandling. Timber-Mart Southwest, Inc., B-274677, Jan. 22,
1997, 97-1 CPD para. 38
at 3; Sun Int'l, B-208146, Jan. 24, 1983, 83-1 CPD para. 78 at 3.

We agree with the agency that the lateness of Travis's bid was due
principally to mishandling. The record establishes that Travis's bid was
delivered to the Forest Service mailroom prior to 1:40 p.m. the date of bid
opening, and that then, at 1:40 p.m., 20 minutes before the 2 p.m. bid
opening, it was left at the contracting officer's desk by the staff officer.
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.

We do not think the late receipt of Travis's bid is attributable in any
significant way to the absence of bid markings on the package. The absence
of markings did not prevent the package from being delivered to the desk of
the official designated for receipt of the bids. While it is possible that
the staff officer would have hand-carried the package to the bid opening
official (instead of leaving it at the contracting officer's desk) if the
package were marked as a bid, this at best would have remedied a problem
created in the first instance by the cognizant officials' failure to follow
a reasonable course of action to ensure that all bids were identified prior
to bid opening. [2] We therefore conclude that the late receipt of the bid
was due primarily to mishandling by the agency. [3]

The protest is denied.

Robert P. Murphy

General Counsel

Notes

1. Although Travis's bid was at the contracting officer's desk prior to bid
opening, and his desk is in the timber shop, the room where bids were
opened, we view the bid as a late bid (rather than a timely received,
misplaced bid, see generally Pacific Tank Cleaning Servs., Inc., B-279111.2,
July 1, 1998, 98-2 CPD para. 2 at 3) because it was not delivered to or within
the control of the bid opening official prior to bid opening.

2. There is no reason to conclude that the absence of markings would have
prevented the identification of the package as a bid had the desk been
checked. In this regard, even the staff officer who delivered the package to
the contracting officer's chair "wondered if the envelope contained a bid";
although he decided that there probably was no bid inside due to the absence
of markings, he also "thought that [the contracting officer] would be back
at his desk prior to bid opening." AR, exh. C.

3. We further note that, since Travis's bid was relinquished to the Forest
Service mailroom staff well prior to the bid opening, and it remained in the
Forest Service'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.