B-126639, JANUARY 26, 1956, 35 COMP. GEN. 432

B-126639, JANUARY 26, 1956, 35 COMP. GEN. 432

BIDS - ACCEPTANCE OR REJECTION - LATE BIDS - BIDDER'S RESPONSIBILITY FOR DELIVERY A BIDDER HAS NO RIGHT TO IMPOSE ANY OBLIGATION ON THE GOVERNMENT FOR THE DELIVERY OF A BID AND, THEREFORE, A BID WHICH WAS SENT FROM OVERSEAS BY AIR FREIGHT AND RECEIVED LATE BECAUSE THE GOVERNMENT WAS REQUIRED TO OBTAIN CUSTOMS CLEARANCE, AND PICK UP THE LETTER FROM THE CARRIER, IS NOT A LATE BID WHICH MAY BE EXCUSED BECAUSE OF DELAY IN THE MAILS.

TO THE SECRETARY OF THE NAVY, JANUARY 26, 1956:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 13, 1956, WITH ENCLOSURES, REQUESTING A DECISION AS TO WHETHER THERE MAY BE CONSIDERED FOR AWARD A BID SUBMITTED BY BOELE AND KERKHOVE N.V., IN RESPONSE TO SALES INVITATION NO. B-59-56, ISSUED BY THE NEW YORK NAVAL SHIPYARD, NAVAL BASE, BROOKLYN 1, NEW YORK.

THE INVITATION REQUESTED BIDS FOR THE SALE BY THE GOVERNMENT OF A NUMBER OF BOATS LOCATED AT BREMERHAVEN, GERMANY, AND PROVIDED THAT BIDS WOULD BE RECEIVED AT BUILDING 77, NEW YORK NAVAL SHIPYARD, BROOKLYN, NEW YORK, AND OPENED AT 10:00 A.M., EST, NOVEMBER 30, 1955. FIVE BIDS WERE RECEIVED AND OPENED AT THE DESIGNATED TIME.

ON DECEMBER 2, 1955, THE NEW YORK NAVAL SHIPYARD RECEIVED A BID FROM BOEL AND KERKHOVE N.V., ROTTERDAM, HOLLAND. THE BID WAS OPENED AND FOUND TO BE SUBSTANTIALLY THE HIGHEST ON ALL OF THE 33 MOTOR TORPEDO BOATS INCLUDED IN THE SALE.

THE FACTS CONCERNING THE TRANSMITTAL AND RECEIPT OF THE BID ARE REPORTED AS FOLLOWS:

THE BID WAS PLACED IN A PROPERLY ADDRESSED ENVELOPE AND WAS SENT FROM AMSTERDAM, HOLLAND, BY AIR FREIGHT UNDER AIR WAYBILL NO. 2293811 ON NOVEMBER 26, 1955; THE ENVELOPE ARRIVED AT IDLEWILD AIRPORT AT 6:48 P.M., ON NOVEMBER 27; K.L.M. ROYAL DUTCH AIRLINES NOTICE OF ARRIVAL FORM WAS RECEIVED IN THE SUPPLY DEPARTMENT, NEW YORK NAVAL SHIPYARD, ON NOVEMBER 28; ON NOVEMBER 29 A TELEPHONE CALL WAS MADE TO K.L.M. ROYAL DUTCH AIRLINES FOR ADDITIONAL CONSIGNEE DATA AND FOR CARRIER'S CERTIFICATE; THE CARRIER'S CERTIFICATE WAS MAILED SPECIAL DELIVERY AND WAS RECEIVED BY THE SHIPYARD ON NOVEMBER 30; ON NOVEMBER 30, A LETTER, TOGETHER WITH THE CARRIER'S CERTIFICATE, WAS TAKEN TO THE U.S. DISPATCH AGENT, REQUESTING U.S. CUSTOMS CLEARANCE, BUT DUE TO THE LATENESS OF THE HOUR CUSTOMS CLEARANCE WAS NOT OBTAINED UNTIL DECEMBER 1; AND THE ENVELOPE CONTAINING THE BID WAS PICKED UP AT IDLEWILD AIRPORT AND DELIVERED TO THE SUPPLY OFFICER ON DECEMBER 2, 1955.

PARAGRAPH 26 OF THE GENERAL SALES TERMS AND CONDITIONS OF THE INVITATION PROVIDES:

ALL BIDS TO BE CONSIDERED MUST BE RECEIVED OR POSTMARKED IN TIME TO BE RECEIVED IN THE NEW YORK NAVAL SHIPYARD BY 10:00 A.M. ( EST) ON WEDNESDAY 30 NOVEMBER 1955. BIDS DELIVERED IN PERSON MUST BE DEPOSITED IN BID BOX BY BID OPENING TIME.

THE ABOVE-QUOTED PROVISION IS SUBSTANTIALLY THE SAME AS THAT GENERALLY INCLUDED IN GOVERNMENT BID INVITATIONS, THAT NO BID RECEIVED AFTER THE TIME SET FOR OPENING WILL BE CONSIDERED EXCEPT IN THE CASE OF A BID ARRIVING BY MAIL AFTER THE TIME SET FOR THE OPENING, AND BEFORE AWARD, AND WHERE IT IS SHOWN TO THE SATISFACTION OF THE GOVERNMENT THAT THE FAILURE TO ARRIVE IN TIME WAS DUE SOLELY TO A DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE. SEE ARMED SERVICES PROCUREMENT REGULATIONS 2.302.

IN THE INSTANT CASE THE LATE BID WAS SENT BY AIR FREIGHT AND THE RECORD SHOWS THAT IT WAS THE RESPONSIBILITY OF THE CONSIGNEE TO OBTAIN CLEARANCE FOR THE ARTICLE FROM U.S. CUSTOM AUTHORITIES AND PICK UP THE ENVELOPE FROM THE CARRIER. A BID SENT BY SUCH MEANS MAY NOT BE CONSIDERED IN THE SAME STATUS AS A BID WHICH IS MAILED AND WOULD BE DELIVERED IN NORMAL COURSE TO THE ADDRESSEE. THE WORDS "MAILED" AND "POSTMARKED" ARE GENERALLY UNDERSTOOD AS REFERRING TO THE POSTAL SERVICE AND THEY HAVE BEEN SO CONSIDERED IN BID CASES.

THE PRIMARY CAUSE OF THE DELAY, IF THERE WAS ANY, WAS THE MEANS BY WHICH THE BID WAS SENT. WHILE IT MAY BE THAT THE ENVELOPE COULD HAVE BEEN PICKED UP BY THE CONSIGNEE ANY TIME AFTER IT ARRIVED AT IDLEWILD AIRPORT, AFTER OBTAINING CLEARANCE FROM THE U.S. CUSTOM AUTHORITIES, THE BIDDER HAD NO RIGHT TO IMPOSE SUCH OBLIGATION UPON THE GOVERNMENT. IT WAS THE BIDDER'S RESPONSIBILITY TO SEE THAT THE BID WAS ACTUALLY DELIVERED AT THE PLACE AND PRIOR TO THE TIME SPECIFIED, OR MAILED WITHIN TIME TO ARRIVE THERE IN THE NORMAL COURSE OF THE MAIL.

ACCORDINGLY, SINCE THE LATE ARRIVAL WAS NOT DUE TO THE ONE EXCUSABLE CAUSE EXPRESSLY PROVIDED FOR BY THE INVITATION AND APPLICABLE ADMINISTRATIVE REGULATION, WE WOULD NOT BE WARRANTED IN AUTHORIZING THE CONSIDERATION OF THE BID OF BOELE AND KERKHOVE N.V.

IN VIEW OF THE FACT THAT BOELE AND KERKHOVE N.V. OFFERED IN EXCESS OF $1,000 EACH FOR THE 33 MOTOR TORPEDO BOATS, AGAINST LESS THAN $300 EACH BY THE HIGH TIMELY BIDDER, CONSIDERATION SHOULD BE GIVEN TO THE ADVISABILITY OF REJECTING ALL BIDS FOR THE MOTOR TORPEDO BOATS AND READVERTISING.