B-133692, OCT. 4, 1957

B-133692: Oct 4, 1957

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

TO GENERAL DYNAMICS CORPORATION: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF SEPTEMBER 5. BY THE REFERRED-TO INVITATION BIDS WERE REQUESTED. THE BID AS TO THIS ITEM WAS ACCEPTED AND AWARD WAS MADE TO THAT COMPANY RESULTING IN CONTRACT NO. IN REGISTERING YOUR PROTEST YOU CONTEND THAT THE ASSOCIATED BID SHOULD NOT HAVE BEEN ACCEPTED BECAUSE IT WAS RECEIVED BY THE DISPOSAL AGENCY AFTER THE TIME OF THE OPENING OF THE BIDS. WE HAVE BEEN ADVISED THAT YOU ALSO QUESTION THE PROPRIETY OF ACCEPTING THE BID SINCE THE SUCCESSFUL BIDDER FAILED TO FURNISH A SUFFICIENT BID DEPOSIT. IT IS STATED THAT NAVY REGULATIONS REQUIRE THAT A PERIOD OF 24 HOURS FOLLOWING THE OPENING OF BIDS WILL BE ALLOWED FOR THE RECEIPT OF ANY LEGITIMATELY DELAYED BIDS.

B-133692, OCT. 4, 1957

TO GENERAL DYNAMICS CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF SEPTEMBER 5, 1957, PROTESTING THE ACTION OF THE NAVAL SUPPLY CENTER, NORFOLK, VIRGINIA, IN MAKING AWARD OF A CONTRACT TO ANOTHER BIDDER FOR THE SALE OF STEEL MODULAR BARGES UNITS PURSUANT TO SALES INVITATION NO. B-28-58-189.

BY THE REFERRED-TO INVITATION BIDS WERE REQUESTED--- TO BE OPENED AT 10:30 A.M., SEPTEMBER 4, 1957--- FOR THE SALE OF VARIOUS ITEMS OF EQUIPMENT. IN RESPONSE THERETO, ASSOCIATED NAVAL ARCHITECTS, INC., SUBMITTED A BID OFFERING TO PURCHASE THE STEEL MODULAR BARGES, ITEM NO. 2374 FOR $10,355. THE BID AS TO THIS ITEM WAS ACCEPTED AND AWARD WAS MADE TO THAT COMPANY RESULTING IN CONTRACT NO. N189S-26591A (S) ON SEPTEMBER 11, 1957.

IN REGISTERING YOUR PROTEST YOU CONTEND THAT THE ASSOCIATED BID SHOULD NOT HAVE BEEN ACCEPTED BECAUSE IT WAS RECEIVED BY THE DISPOSAL AGENCY AFTER THE TIME OF THE OPENING OF THE BIDS. IN ADDITION, WE HAVE BEEN ADVISED THAT YOU ALSO QUESTION THE PROPRIETY OF ACCEPTING THE BID SINCE THE SUCCESSFUL BIDDER FAILED TO FURNISH A SUFFICIENT BID DEPOSIT.

IN A REPORT FURNISHED US BY THE CHIEF, BUREAU OF SUPPLIES AND ACCOUNTS, DEPARTMENT OF THE NAVY, IT IS STATED THAT NAVY REGULATIONS REQUIRE THAT A PERIOD OF 24 HOURS FOLLOWING THE OPENING OF BIDS WILL BE ALLOWED FOR THE RECEIPT OF ANY LEGITIMATELY DELAYED BIDS. THOSE DETERMINED TO BE LEGITIMATELY DELAYED ARE BIDS RECEIVED AFTER THE BID OPENING, BUT PRIOR TO THE MAKING OF AN AWARD, WHICH BEAR A POSTMARK INDICATING THAT THE BID WAS MAILED IN TIME TO HAVE ARRIVED BEFORE THE HOUR SET FOR BID OPENING. REGARDING THE INSTANT CASE, IT IS REPORTED THAT---

"THE BID IN QUESTION WAS POSTMARKED "PORTSMOUTH, VA., SEPT 3, 1957, 2:00 P.M.' PRIOR TO MAKING THE AWARD, THE NAVAL SUPPLY CENTER REQUESTED INFORMATION FROM MR. AUBREY G. GRAHAM, POSTMASTER AT NORFOLK, VIRGINIA AS TO THE TIME THE QUESTIONABLE BID WOULD NORMALLY HAVE BEEN RECEIVED. MR. GRAHAM ADVISED THAT THE BID BEARING THE ABOVE POSTMARK WOULD HAVE BEEN DISPATCHED FROM NORFOLK, VA. TO THE HAMPTON ROADS BRANCH AT 6:20 A.M. ON SEPTEMBER 4, 1957 AND WOULD HAVE BEEN READY FOR PICK UP AT 9:00 A.M., SEPTEMBER 4, 1957 AND, THEREFORE, WAS MAILED IN TIME TO HAVE BEEN RECEIVED PRIOR TO THE TIME SET FOR BID OPENING, WHICH IN THIS INSTANCE, WAS 10:30 A.M. SEPTEMBER 4, 1957.'

ALSO, AS HAVING A DIRECT BEARING ON THE MATTER, ARTICLE 24 OF THE GENERAL SALE TERMS AND CONDITIONS OF THE INVITATION PROVIDES:

"24. CONSIDERATION OF LATE BIDS: NO BID OR MODIFICATION THEREOF RECEIVED AFTER THE TIME SET FOR OPENING WILL BE CONSIDERED EXCEPT THAT WHEN A BID OR MODIFICATION ARRIVES BY MAIL AFTER THE TIME SET FOR OPENING, BUT BEFORE AWARD IS MADE, AND IT IS DETERMINED BY THE GOVERNMENT THAT NONARRIVAL ON TIME WAS DUE SOLELY TO DELAY IN THE MAILS FOR WHICH BIDDER WAS NOT RESPONSIBLE, SUCH BID OR MODIFICATION THEREOF WILL BE CONSIDERED.',

IN 34 COMP. GEN. 650, WHICH ALSO INVOLVED A SALE BY THE DEPARTMENT OF THE NAVY, WE HELD THAT A SURPLUS PROPERTY BID WHICH ARRIVES AT THE ADMINISTRATIVE OFFICE AFTER THE TIME FIXED FOR OPENING BIDS DUE TO AN UNANTICIPATED MAIL DELAY, BUT BEFORE THE CONTRACT AWARD, IS A LEGITIMATELY DELAYED BID WHICH MAY BE CONSIDERED. ACCORDINGLY, IT MUST BE CONCLUDED IN THE PRESENT CASE THAT THE BID OF ASSOCIATED NAVAL ARCHITECTS, INC., WHICH WAS MAILED IN TIME TO HAVE REACHED THE DISPOSAL OFFICE BY THE TIME FIXED FOR OPENING UNDER NORMAL CIRCUMSTANCES, WAS A "LEGITIMATELY DELAYED BID" WITHIN THE MEANING OF THAT TERM AS USED IN THE REGULATIONS AND THE PROVISION OF THE INVITATION REFERRED TO ABOVE, AND THAT THE CONTRACTING OFFICER ACTED IN ACCORDANCE WITH THE GOVERNING REGULATIONS IN OPENING AND CONSIDERING THE BID.

REGARDING THE BID DEPOSIT FURNISHED BY ASSOCIATED NAVAL ARCHITECTS, INC., IT IS REPORTED THAT IT TOTALED $3,000 AND WAS SHORT IN THE AMOUNT OF $17.20. THIS SHORTAGE, HOWEVER, PROPERLY WAS TREATED ADMINISTRATIVELY AS A MINOR INFORMALITY AND WAIVED BY THE CONTRACTING OFFICER. IN A NUMBER OF DECISIONS OF THE ACCOUNTING OFFICERS IT HAS BEEN HELD THAT THE FAILURE OF A BIDDER TO SUBMIT A BID BOND WITH ITS BID, AS REQUIRED BY THE INVITATION TO BID, IS NOT NECESSARILY A MATERIAL DEFICIENCY IN THE BID BUT RATHER IS A MATTER WHICH MAY BE WAIVED BY A CONTRACTING OFFICER AS AN INFORMALITY WHEN SUCH ACTION IS IN THE PUBLIC INTEREST. SEE 26 COMP. GEN. 49; 31 ID. 20; 36 ID. 601.

IN THE CIRCUMSTANCES, IT MUST BE CONCLUDED THAT YOUR PROTEST FURNISHES NO PROPER BASIS ON WHICH WE WOULD BE JUSTIFIED IN HOLDING THAT THE ADMINISTRATIVE ACTION WAS ILLEGAL OR IMPROPER.