The protester challenged the agency’s acceptance of another company’s bid. The protester alleged this other bid was late. The bid arrived at the agency’s mail facility before the deadline, but it didn’t reach the location where bids were opened until after the deadline. While a late bid is acceptable if it arrives at a government installation before a deadline, the protester argued the agency’s mail facility was not a government installation. GAO disagreed. Due to COVID protocols, mail was only picked up at the mail facility sporadically. COVID had interrupted normal delivery of mail, GAO reasoned, so the mail facility qualified as a government installation. While the bid sat at the mail facility for two weeks, it was nonetheless timely.
Superior Waste Management, LLC, GAO B-421022, B-4211022.2
Background
The Army posted an invitation for bids for refuse and recycling services. The Army had three bids in hand by the bid deadline. The Army opened the bids and announced that Superior Waste Management was the apparent lowest bidder.
But after further review, the Army requested price clarification from another bidder, Nisou Enterprises. After reviewing the clarification, the Army found that Nisou was in fact the lowest bidder. Superior filed an agency protest arguing that the evaluation of Nisou’s price was flawed.
The Army denied the protest, concluding that Superior was no longer an interested party. The Army had found that there was actually a fourth bidder, Cal Vet Integrated Services (CVICS). CVICS had a lower price than Superior and thus would be next in line for award. Superior then filed a protest with GAO.
Analysis
Superior argued that the Army should not have considered CVICS bid because the bid was late. The bid deadline had been 12:00 pm on April 27. The solicitation required that bids be delivered, by mail or by hand, to the Mission Command building on Fort Riley. The record showed CVICS's bid had been delivered to the mail facility at Fort Riley at 8:15 am on April 27. Due to COVID protocols, the mail facility was not delivering packages to the Mission Command building. Instead, someone from Mission Command would come by and pick up mail. Because most people at Fort Riley were teleworking during the pandemic, mail pickup was sporadic. Indeed, CVICS's proposal was not picked up until May 12, more than two weeks after the deadline.
Under FAR 14.304(b)(1), an agency may consider a late bid if (1) it is received before award, (2) acceptance won’t delay the acquisition, and (3) the bid was received at a government installation and under the government’s control prior to the time set for receipt of bids. Superior argued that the third prong had not been satisfied. Superior cited a previous GAO decision, Brian X. Scott, B-410195, in which GAO had found that receipt of a bid at government mailroom does not constitute receipt at a “government installation” if the agency has an established procedure to ensure that mailed bids are routed from the mailroom to the location designated for receipt. Here, Superior essentially argued, the Army had procedures to ensure the timely delivery of bids to Mission Control, so CVICS bid was not actually not at a “government installation” while it was sitting in the mail facility for two weeks.
GAO rejected Superior’s argument, finding the Army didn't actually have adequate procedures for ensuring that bids got from a mailroom to an agency. Rather, the Army’s COVID protocols had disrupted the normal mail delivery. In fact, it was the agency’s lack of procedures while the COVID protocols were in place that led to the CVICS's bid arriving at Mission Command after the deadline. Given the lack of adequate procedures, CVICS's bid had, in fact, been in the government possession while sitting at the mailroom. The Army had not erred in finding the bid timely. Superior was not an interested party to challenge the award.
Superior is represented by Douglas P. Hibsham and Nicholas Solosky of Fox Rothschild LLP. The agency is represented by Benjamin Hogan, Andrew J. Smith, and Abraham Young of the Army. GAO attorneys Michael P. Price and John Sorrenti participated in the preparation of the decision
--Case summary by Craig LaChance, Senior Editor