B-144842, FEB. 3, 1961

B-144842, FEB. 3, 1961

TO DRESSER ELECTRONICS:

WE HAVE YOUR LETTER OF JANUARY 18, 1961, WITH ENCLOSURES, PROTESTING AGAINST THE REFUSAL OF THE CONTRACTING OFFICER TO OPEN AND CONSIDER YOUR BID SUBMITTED PURSUANT TO INVITATION FOR BIDS NO. 33-600-61-80 ISSUED BY THE AMC AERONAUTICAL SYSTEMS CENTER, WRIGHT-PATTERSON AIR FORCE BASE, OHIO.

THE INVITATION PROVIDED THAT BIDS WOULD BE RECEIVED UNTIL 10:00 A.M., E.S.T., DECEMBER 1, 1960, AT THE DESIGNATED OFFICE, I.E., THE AMC AERONAUTICAL SYSTEMS CENTER. THE INVITATION ALSO CONTAINED THE FOLLOWING PROVISION: 1HDR XXXXX00001-003 AFLITEDATA68261-000

"LATE BIDS AND MODIFICATIONS OR WITHDRAWALS. BIDS AND MODIFICATIONS OR WITHDRAWALS THEREOF RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS AFTER THE EXACT TIME SET FOR OPENING OF THE BIDS WILL NOT BE CONSIDERED, UNLESS THEY ARE RECEIVED BEFORE AWARD IS MADE AND (I) ARE SUBMITTED BY MAIL (OR BY TELEGRAPH IF AUTHORIZED), AND (II) IT IS DETERMINED BY THE GOVERNMENT THAT LATE RECEIPT WAS DUE SOLELY TO EITHER (A) DELAY IN THE MAILS (OR BY THE TELEGRAPH COMPANY IF TELEGRAPHIC BIDS ARE AUTHORIZED) FOR WHICH THE BIDDER WAS NOT RESPONSIBLE OR (B) MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION. HOWEVER, A MODIFICATION WHICH IS RECEIVED FROM AN OTHERWISE SUCCESSFUL BIDDER AND WHICH MAKES THE TERMS OF THE BID MORE FAVORABLE TO THE GOVERNMENT WILL BE CONSIDERED AT ANY TIME IT IS RECEIVED AND MAY THEREAFTER BE ACCEPTED.'

YOUR BID WAS SEALED IN THE MAILING ENVELOPE SUPPLIED TO BIDDERS BY THE PROCURING OFFICE WITH THE PROPER ADDRESS CLEARLY AND CORRECTLY STAMPED IN BOLD TYPE IN THE NORMAL PLACE ON ITS FACE. YOUR BID WAS SENT TO THE CONTRACTING OFFICER, NOT BY MAIL BUT BY COMMERCIAL AIR FREIGHT, ON NOVEMBER 29, 1960. THE AIR FREIGHT CARRIER DELIVERED THE BID TO THE WRIGHT-PATTERSON AIR FORCE BASE FREIGHT RECEIVING WAREHOUSE AT 8:40 A.M. ON DECEMBER 1, 1960. THE ENVELOPE WAS PROCESSED THROUGH NORMAL FREIGHT CHANNELS AND DELIVERED TO THE OFFICE INDICATED ON THE FACE OF THE BID FORM AT 2:00 P.M. ON DECEMBER 5, 1960, MORE THAN FOUR DAYS AFTER THE DEADLINE.

BECAUSE OF THE LATE DELIVERY, THE CONTRACTING OFFICER REFUSED TO ACCEPT AND OPEN THE BID. YOU HAVE PROTESTED THIS DETERMINATION FOR THE REASONS SET OUT BELOW. BECAUSE OF YOUR PROTEST, THE CONTRACTING OFFICER HAS WITHHELD AWARD PENDING OUR DETERMINATION OF THE MATTER.

WE BELIEVE THAT THE ARGUMENTS YOU HAVE ADVANCED IN SUPPORT OF YOUR PROTEST MAY BE FAIRLY SUMMARIZED AS FOLLOWS: THE BID SHOULD BE CONSIDERED FOR AWARD NOTWITHSTANDING ITS LATE RECEIPT IN THE DESIGNATED OFFICE BECAUSE (1) IT WAS IN THE HANDS OF A REPRESENTATIVE OF THE GOVERNMENT WHO ACCEPTED THE BID ON BEHALF OF THE CONTRACTING OFFICER WELL BEFORE THE TIME SET FOR BID OPENING; (2) IT HAS BEEN COMPLETELY OUT OF THE CONTROL OF THE BIDDER AND ANYONE ELSE OTHER THAN THE GOVERNMENT FROM THE TIME THE BID WAS DELIVERED UNTIL THE PRESENT AND THE BIDDER HAS HAD NO OPPORTUNITY, NOR HAS HE MADE ANY ATTEMPT, TO MODIFY, AMEND OR WITHDRAW THE BID; AND (3) A TELEGRAM AND LETTER SENT BY THE BIDDER AND PRESUMABLY RECEIVED BY THE CONTRACTING OFFICER PRIOR TO BID OPENING ADVISED THE CONTRACTING OFFICER THAT A BID WAS BEING FORWARDED AND ACKNOWLEDGED RECEIPT OF TWO AMENDMENTS, THUS PLACING SUCH OFFICER ON NOTICE THAT YOUR FIRM WAS SUBMITTING A BID.

IT IS ALSO CONTENDED IN YOUR LETTER OF DECEMBER 9, 1960, THAT THE CONTRACTING OFFICER "SHOULD ACCEPT, OPEN AND CONSIDER" YOUR BID "AS PROVIDED IN THE APPLICABLE ARMED SERVICES PROCUREMENT REGULATIONS.' THE PERTINENT PROVISIONS OF THE ARMED SERVICES PROCUREMENT REGULATIONS ARE AS FOLLOWS:

"2-303 LATE BIDS.

2-303.1 GENERAL. BIDS WHICH ARE RECEIVED IN THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS AFTER THE EXACT TIME SET FOR OPENING ARE "LATE BIDS," EVEN THOUGH RECEIVED ONLY ONE OR TWO MINUTES LATE. LATE BIDS SHALL NOT BE CONSIDERED FOR AWARD EXCEPT AS AUTHORIZED IN THIS PARAGRAPH 2-303.

"2-303.2 CONSIDERATION FOR AWARD. THE CONTRACTING OFFICER OR HIS AUTHORIZED REPRESENTATIVE SHALL DETERMINE WHETHER LATE BIDS MAY BE CONSIDERED FOR AWARD, IN ACCORDANCE WITH THIS PARAGRAPH 2-303. A LATE BID SHALL BE CONSIDERED FOR AWARD ONLY IF RECEIVED BEFORE AWARD; AND EITHER---

(I) IT IS DETERMINED THAT ITS LATENESS WAS DUE SOLELY TO---

(A) DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE, OR

(B) DELAY BY THE TELEGRAPH COMPANY FOR WHICH THE BIDDER WAS NOT RESPONSIBLE, WHERE THE INVITATION SPECIFICALLY AUTHORIZES TELEGRAPHIC BIDS; OR

(II) IT IS DETERMINED THAT THE BID, IF SUBMITTED BY MAIL OR TELEGRAM (WHERE AUTHORIZED) WAS RECEIVED AT THE GOVERNMENT INSTALLATION IN SUFFICIENT TIME TO BE RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION BY THE TIME SET FOR OPENING, AND, EXCEPT FOR DELAY DUE TO MISHANDLING ON THE PART OF THE GOVERNMENT AT THE INSTALLATION, WOULD HAVE BEEN RECEIVED ON TIME AT THE OFFICE DESIGNATED.' THE "OFFICE DESIGNATED IN THE INVITATION FOR BIDS" DESCRIBED IN SECTION 2 303.1 IS CLEARLY SOMETHING MORE SPECIFIC THAN THE BASE OR INSTALLATION CONCERNED SINCE OTHERWISE SECTION 2-303.2 (II) (WHICH MAKES AN EXCEPTION ONLY IN THE CASE OF A BID SUBMITTED BY MAIL OR, WHERE AUTHORIZED, BY TELEGRAM) WOULD HAVE NO MEANING. WHERE NO AUTHORITY IS FOUND FOR CONSIDERING A LATE BID IN SECTION 2-303, SUCH BIDS ARE, PURSUANT TO SECTION 2-303.7, TO BE HELD UNOPENED UNTIL AFTER AWARD. THE RECORD INDICATES THAT, CONTRARY TO YOUR CONTENTION, THE CONTRACTING OFFICER FOLLOWED THE PROCEDURE STIPULATED BY THE ASPR FOR THIS TYPE OF SITUATION.

THE GENERAL RULE FOLLOWED BY OUR OFFICE IS THAT THE BIDDER HAS THE RESPONSIBILITY FOR THE DELIVERY OF HIS BID TO THE PROPER PLACE AT THE PROPER TIME, AND THAT EXCEPTIONS TO THE RULE REQUIRING REJECTION OF LATE BIDS MAY BE PERMITTED ONLY IN THE EXACT CIRCUMSTANCES PROVIDED FOR IN THE INVITATION. 37 COMP. GEN. 35. MORE SPECIFICALLY WE HAD OCCASION TO CONSIDER IN B-138148, DECEMBER 24, 1958, A SITUATION IN WHICH A BID, SUBMITTED UNDER AN INVITATION WHICH CONTAINED A SIMILAR LATE BID PROVISION, WAS DIRECTED TO THE CONTRACTING OFFICE BY AIR EXPRESS. THE CARRIER, INSTEAD OF DELIVERING THE ENVELOPE CONTAINING THE BID TO THE CONTRACTING OFFICE, DELIVERED IT TO ANOTHER BUILDING WITHIN THE SAME GOVERNMENT INSTALLATION. THE BID WAS RECEIVED IN THE CONTRACTING OFFICE ONE HOUR AND TEN MINUTES AFTER THE DEADLINE SOLELY BY REASON OF THE MISDELIVERY. WE HELD IN THAT SITUATION THAT THE LATE BID COULD NOT BE CONSIDERED FOR AWARD SINCE THE DELAY WAS NOT DUE TO ANY CAUSE WITHIN THE EXCEPTION STATED IN THE INVITATION. WE REGARD THAT DECISION AS CONTROLLING IN THIS CASE. WE CONCLUDE, THEREFORE, ON THE BASIS OF THE FACTS PRESENTED, THAT THE DECISION OF THE CONTRACTING OFFICER NOT TO CONSIDER YOUR BID FOR AWARD IS PROPER.

WE DO NOT QUESTION THAT YOUR BID WAS SUBMITTED IN GOOD FAITH AND HAS BEEN SINCE THE TIME OF DELIVERY TO THE GOVERNMENT INSTALLATION COMPLETELY OUT OF YOUR CONTROL. NEVERTHELESS, BY ELECTING TO FORWARD THE BID BY AIR FREIGHT YOU ASSUMED ALL THE RISKS OF LATE DELIVERY, INCLUDING THE NORMAL FREIGHT-HANDLING PROCEDURE WHICH APPEARS TO HAVE BEEN FOLLOWED. WHILE ITS APPLICATION IN THIS INSTANCE MAY APPEAR HARSH, ANY RELAXATION OF THE RULE WOULD INEVITABLY CREATE CONFUSION AND DISAGREEMENTS AS TO ITS APPLICABILITY AND FACILITATE THE PERPETRATION OF FRAUDS. B-130889, MARCH 26, 1957.