B-136473, JUL. 7, 1958

B-136473, JUL. 7, 1958

TO IRWIN, DENEKE AND PENNER:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 12, 1958, WITH ENCLOSURES, RELATIVE TO THE REFUSAL OF THE UNITED STATES PROPERTY AND FISCAL OFFICER FOR ILLINOIS TO OPEN AND CONSIDER A BID WHICH WAS RECEIVED LATE FROM ALDRIDGE ELECTRIC, INC., LAKE FOREST, ILLINOIS, SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. NG-11-115-58-8, COVERING A PROPOSED MODIFICATION OF THE ELECTRICAL SYSTEM IN THE AIR NATIONAL GUARD HANGAR AT GREATER PEORIA AIRPORT, PEORIA, ILLINOIS.

IT APPEARS FROM THE CORRESPONDENCE AND COPY OF BID FORWARDED WITH YOUR LETTER THAT THE MAILING ADDRESS OF THE UNITED STATES PROPERTY AND FISCAL OFFICER FOR ILLINOIS IS: 111 NG GENERAL DEPOT, P.O. BOX 549, SPRINGFIELD, ILLINOIS, AND THAT INVITATION FOR BIDS NO. NG-11-115-58-8 PROVIDED THAT BIDS WOULD BE RECEIVED UNTIL 1:30 P.M., CENTRAL DAYLIGHT SAVING TIME, MAY 28, 1958. THE MAIL SO ADDRESSED IS PICKED UP AT REGULAR INTERVALS, BUT A SPECIAL MAIL RUN WAS MADE AT APPROXIMATELY 12:30 P.M., CDST, ON THAT DATE TO INSURE RECEIPT OF ALL BIDS PLACED IN THE POST OFFICE BOX BEFORE THAT TIME. THE BID OF ALDRIDGE ELECTRIC, INC., WAS NOT RECEIVED UNTIL 8 A.M., CDST, MAY 29, 1958, WITH THE FIRST PICKUP OF MAIL ON THAT DATE.

UPON INSPECTION OF THE ENVELOPE CONTAINING THE BID OF ALDRIGE ELECTRIC, INC., IT WAS FOUND THAT THE DATE OF MAILING ON THE POST OFFICE CANCELLATION STAMP WAS NOT LEGIBLE. THEREFORE, AN INVESTIGATION WAS NOT MADE AS TO WHETHER THE FAILURE OF THE BID TO ARRIVE ON TIME WAS DUE TO A DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE, AND THE ENVELOPE CONTAINING THE BID WAS NOT OPENED. IT WAS RETURNED TO ALDRIDGE ELECTRIC, INC., BY LETTER DATED JUNE 3, 1958, WHICH MADE REFERENCE TO SECTION 2.302.1 OF THE ARMED SERVICES PROCUREMENT REGULATION AND STATED THAT "A CONTRACT IS BEING EXECUTED THIS DATE WITH OBERLANDER ELECTRIC, 725 W. MAIN STREET, PEORIA, ILLINOIS--- THE LOW BIDDER.

IT IS ALLEGED THAT THE UNOPENED BID WAS IN THE SUM OF $13,521 AND THAT THE BID OF OBERLANDER ELECTRIC STIPULATED A PRICE OF $16,000. THE PRIMARY EVIDENCE SUBMITTED IN SUPPORT OF YOUR PROTEST IN THE MATTER CONSISTS OF A COMMUNICATION DATED JUNE 11, 1958, FROM LEROY M. MOORE, POSTMASTER, LAKE FOREST, ILLINOIS, CERTIFYING THAT THE POSTMARK ON THE ENVELOPE MAILED BY ALDRIDGE ELECTRIC, INC., IS SUFFICIENTLY LEGIBLE TO INDICATE THAT THE TIME OF MAILING WAS MAY 27, 1958, 6:00 P.M., AND THAT UNDER NORMAL HANDLING THE ENVELOPE SHOULD HAVE BEEN DELIVERED IN SPRINGFIELD BEFORE 1:30 P.M. ON MAY 28, 1958.

IT IS FUNDAMENTAL THAT IN ORDER TO RECEIVE CONSIDERATION BIDS MUST BE SUBMITTED PRIOR TO THE TIME SET FOR OPENING. HOWEVER, THE ARMED SERVICES PROCUREMENT REGULATIONS--- IN CONFORMITY WITH DECISIONS OF OUR OFFICE--- PROVIDE THAT LATE BIDS SHALL BE CONSIDERED "/I) IF RECEIVED BEFORE AWARD, AND (II) IF IT IS DETERMINED THAT THE FAILURE TO ARRIVE ON TIME WAS DUE SOLELY TO DELAYS IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE.' (ASPR 2-302). WITH RESPECT TO A LATE BID FORWARDED BY NON-REGISTERED OR NON-CERTIFIED MAIL, WHEN THE DATE OF MAILING CANNOT BE DETERMINED BY INSPECTION OF THE POSTMARK ON THE ENVELOPE, THE REGULATIONS REQUIRE THAT THE BID SHALL NOT BE CONSIDERED FOR AWARD. (ASPR 2-302.1).

IT IS THE PRIMARY RESPONSIBILITY OF A BIDDER TO SEE THAT HIS BID IS DELIVERED PRIOR TO THE TIME SET FOR OPENING OF BIDS AND, IN INSTANCES WHERE THE FAILURE TO ARRIVE ON TIME MAY BE EXCUSABLE, A DETERMINATION MUST OF NECESSITY BE MADE BY THE CONTRACTING OFFICER. IN SUCH CASES, IF THE DETERMINATION THAT A LATE BID SHOULD NOT BE CONSIDERED IS MADE IN GOOD FAITH AND IS REASONABLE ON THE BASIS OF THE RECORD BEFORE THE CONTRACTING OFFICER, AN AWARD MADE TO THE LOWEST BIDDER WHOSE BID WAS RECEIVED PRIOR TO THE SCHEDULED TIME OF OPENING WILL NOT BE DISTURBED.

IF YOU FEEL THAT INSPECTION OF THE ORIGINAL ENVELOPE WILL ESTABLISH THAT THE CONTRACTING OFFICER'S DETERMINATION WAS ARBITRARY OR UNREASONABLE, WE SHALL BE GLAD TO CONSIDER YOUR COMPLAINT FURTHER UPON RECEIPT OF THAT PAPER.