B-132042, JUN. 10, 1957

B-132042, JUN. 10, 1957

TO CAPTAIN D. C. MAC KENZIE, BUREAU OF SUPPLIES AND ACCOUNTS, DEPARTMENT OF THE NAVY:

YOUR LETTER OF MAY 31, 1957, YOUR REFERENCE R11.1 I4-1) I4/NU3-7, REQUESTS OUR DECISION AS TO WHETHER A BID RECEIVED AFTER THE SCHEDULED TIME FOR OPENING MAY BE CONSIDERED FOR AWARD UNDER THE CIRCUMSTANCES STATED BELOW.

INVITATION FOR BIDS IFB-600-1838-57 PROVIDED THAT BIDS RECEIVED THEREUNDER WOULD BE OPENED AT 10:30 A.M., ON APRIL 22, 1957. THE SIMONDS ABRASIVE COMPANY OF PHILADELPHIA, PENNSYLVANIA, SUBMITTED ITS BID BY CERTIFIED MAIL ON APRIL 19, 1957. THE SUPERINTENDENT OF THE BRIDESBURG STATION, AT WHICH THE BID WAS MAILED, STATES IN HIS LETTER OF APRIL 26, 1957, THAT THE ITEM OF MAIL WAS RECEIVED AND SIGNED FOR BY THE APPROPRIATE EMPLOYEE OF THE POST OFFICE AT 4:30 P.M. ON APRIL 19, 1957, AND THAT UNDER ORDINARY CIRCUMSTANCES THE BID WOULD HAVE BEEN RECEIVED BY THE CONTRACTING AGENCY WITHIN THE PRESCRIBED TIME. IT APPEARS THAT THE BID WAS PROPERLY MAILED AND ADDRESSED AND HAD SUFFICIENT POSTAGE APPENDED. FOR SOME UNEXPLAINED REASON, AND COMPLETELY WITHOUT ANY FAULT ON THE PART OF THE BIDDER, THE POST OFFICE RETURNED THE BID TO THE SENDER INSTEAD OF DELIVERING IT TO THE ADDRESSEE. SWORN STATEMENTS ENCLOSED WITH YOUR LETTER INDICATE THAT THE LETTER WAS REDELIVERED TO THE BIDDER'S MAIL DEPARTMENT BY THE MAIL CARRIER AT APPROXIMATELY 8:45 A.M. ON APRIL 22, 1957, WAS FORWARDED TO THE BIDDER'S EMPLOYEE RESPONSIBLE FOR THE BID AT 11:30 A.M., AND RETURNED TO THE MAIL CARRIER AT 12:30 P.M.; AND AT NO TIME WAS THE ENVELOPE CONTAINING THE BID OPENED OR TAMPERED WITH. IT FURTHER APPEARS THAT THE LETTER WAS THEN RETURNED TO THE LOCAL POST OFFICE, TIME- STAMPED WITH THE TIME OF THE NEXT DISPATCH, 3:30 P.M., APRIL 22, AND WAS RECEIVED BY THE CONTRACTING AGENCY AT 4:18 P.M., APRIL 23, 1957.

IN YOUR LETTER YOU ALSO STATE:

"* * * WE ARE OF THE OPINION THAT THERE HAS BEEN SUBMITTED CLEAR AND CONVINCING PROOF AS TO THE MAILING OF THE BID IN SUFFICIENT TIME TO ARRIVE BEFORE OPENING TIME BUT THE FAILURE TO ARRIVE ON TIME IS FOUND TO BE DUE SOLELY TO A DELAY IN THE MAILS FOR WHICH THE BIDDER IS NOT RESPONSIBLE. ALSO, ON THE BASIS OF THE AFFIDAVITS AND LACK OF ANY EVIDENCE TO THE CONTRARY, WE CONCLUDE THAT THE BID WAS NOT OPENED NOR MODIFIED PRIOR TO ITS ARRIVAL AT NAVY PURCHASING OFFICE, WASHINGTON, D.C. * * *"

THE SPECIFIC QUESTION PRESENTED IS WHETHER UNDER THE CIRCUMSTANCES THE BID MAY BE OPENED AND CONSIDERED WITH THE OTHERS OR WHETHER IT SHOULD BE RETURNED UNOPENED TO THE BIDDER.

PARAGRAPH 2-302 OF THE ARMED SERVICES PROCUREMENT REGULATION PROVIDES THAT LATE BIDS MAY BE CONSIDERED ONLY IF RECEIVED BEFORE AWARD AND "IF IT IS DETERMINED THAT THE FAILURE TO ARRIVE ON TIME WAS DUE SOLELY TO DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE.' IT IS CLEAR THAT THE BID QUALIFIES FOR CONSIDERATION UNDER THE ASPR PROVISION.

OUR DECISIONS PERMITTING CONSIDERATION OF LATE BIDS ARE GENERALLY BASED ON THE FACT THAT THE LATE BIDDER COULD NOT POSSIBLY HAVE SECURED AN UNFAIR ADVANTAGE BY OBTAINING INFORMATION WITH RESPECT TO THE TERMS OFFERED BY HIS COMPETITORS. SEE, FOR EXAMPLE, 29 COMP. GEN. 491. IN THIS CASE, NOTWITHSTANDING THAT THE BIDDER MAY HAVE HAD THE OPPORTUNITY TO OBTAIN SUCH AN ADVANTAGE, THERE IS NO INDICATION THAT HE WAS AWARE OF THE RESULTS OF THE BIDDING OR THAT HE OPENED OR TAMPERED WITH THE BID, AND THE FACTS CLEARLY INDICATE THAT THE GOVERNMENT POSTAL AUTHORITIES RATHER THAN THE BIDDER ARE RESPONSIBLE FOR THE UNFORTUNATE SITUATION, WHICH OCCURRED. ADDITION, AS PREVIOUSLY STATED, THE BID IS FOR CONSIDERATION IN ACCORDANCE WITH THE APPLICABLE ASPR PROVISION. UNDER THE CIRCUMSTANCES, THE BID, WHICH IS ENCLOSED, SHOULD BE OPENED AND CONSIDERED FOR AWARD ALONG WITH THE OTHER BIDS SUBMITTED PURSUANT TO THE INVITATION.