B-141156, NOV. 12, 1959

B-141156, NOV. 12, 1959

TO THE SECRETARY OF THE INTERIOR:

REFERENCE IS MADE TO A LETTER DATED NOVEMBER 2, 1959, FROM THE ACTING DIRECTOR, UNITED STATES DEPARTMENT OF THE INTERIOR, NATIONAL PARK SERVICE, FILE D30-DCE, REQUESTING A DECISION AS TO WHETHER THE BID OF READY-MIX CONCRETE COMPANY SUBMITTED IN RESPONSE TO AN INVITATION TO BID ISSUED BY THE NATIONAL PARK SERVICE, MAY BE CONSIDERED, IN VIEW OF THE FACT THAT THE BID--- THE LOWEST RECEIVED--- WAS NOT DELIVERED UNTIL AFTER THE TIME SET FOR OPENING OF THE BIDS.

IT IS STATED THAT BIDS FOR THE CONSTRUCTION OF ROADS AND PARKING AREAS IN DEATH VALLEY NATIONAL MONUMENT, CALIFORNIA, WERE OPENED AT 2 P.M. ON OCTOBER 6, 1959. AT ABOUT 10 A.M. ON THAT DATE A TELEPHONE CALL WAS RECEIVED IN THE OFFICE OF THE CONTRACTING OFFICER FROM THE READY-MIX CONCRETE COMPANY TO THE EFFECT THAT THEY HAD OVERLOOKED PUTTING THE BID OPENING TIME AND DATE ON THE OUTSIDE OF THEIR ENVELOPE AND ASKED THAT THEIR BID NOT BE OVERLOOKED. NO BID HAS BEEN RECEIVED FROM THE COMPANY BY THAT TIME. DURING THE TELEPHONE CONVERSATION THE CALLER STATED "THAT THE POST OFFICE IN RENO HAD ASSURED THEM THAT IT WOULD BE DELIVERED BY 1:00 P.M. OCTOBER 6.'

THE BID OF READY-MIX CONCRETE COMPANY WAS RECEIVED ON OCTOBER 7, 1959, ABOUT 7:45 A.M., THE DAY AFTER THE OPENING OF BIDS. THE PRESIDENT OF THE READY-MIX CONCRETE COMPANY ASSERTS IN HIS LETTERS OF OCTOBER 10 AND 17, 1959, THAT THE CONSTRUCTION MANAGER OF THE COMPANY WAS INFORMED BY TELEPHONE BY AN EMPLOYEE OF THE RENO POST OFFICE THAT "IF OUR BID WAS POSTMARKED BEFORE 6:35 P.M., MONDAY, OCTOBER 5TH AND SENT AIRMAIL VIA LAS VEGAS IT WOULD REACH DEATH VALLEY BY 1:00 P.M., TUESDAY, THE 6TH.' ALSO, THE PRESIDENT OF THE COMPANY STATED THAT THE BID WAS DELIVERED TO THE RENO MAIN POST OFFICE AT APPROXIMATELY 4:30 P.M.

THE ENVELOPE CONTAINING THE BID WAS POSTMARKED 6:00 P.M., OCTOBER 5, 1959. THE SUPERINTENDENT OF MAILS, UNITED STATES POST OFFICE, RENO, NEVADA, IN LETTER DATED OCTOBER 9, 1959, TO THE SUPERINTENDENT, DEATH VALLEY NATIONAL MONUMENT, DEATH VALLEY, CALIFORNIA, STATED THAT BY THE MOST DIRECT DISPATCH A LETTER POSTMARKED 6:00 P.M., OCTOBER 5, 1959, WOULD ARRIVE IN DEATH VALLEY AT :25 A.M., OCTOBER 7, 1959.

ALSO, IN LETTER DATED OCTOBER 16, 1959, THE SUPERINTENDENT, COMMENTING ON THE ALLEGATION REGARDING ADVICE ALLEGEDLY GIVEN TO READY MIX BY AN EMPLOYEE OF THE RENO MAIN POST OFFICE STATED:

"WHILE NO EMPLOYEE AT THIS OFFICE WILL ADMIT GIVING THIS IMPROPER INFORMATION, IT IS POSSIBLE THAT MR. RILEYS' CONVERSATION WAS WITH SOME EMPLOYEE WHO WAS NOT THOROUGHLY CONVERSANT WITH THE SCHEDULE OF MAILS.'

PARAGRAPH 7 OF THE INVITATION TO BIDDERS PROVIDES THAT BIDS RECEIVED AFTER THE TIME FIXED FOR OPENING WILL BE CONSIDERED, PROVIDED THEY ARE RECEIVED BEFORE AWARD AND PROVIDED THAT FAILURE TO ARRIVE ON TIME WAS DUE SOLELY TO A DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE; OTHERWISE LATE BIDS WILL NOT BE CONSIDERED.

IT HAS BEEN CONSISTENTLY HELD THAT IT IS THE RESPONSIBILITY OF BIDDERS TO SEE THAT THEIR BIDS REACH THE DESIGNATED OFFICE BEFORE THE TIME FIXED FOR THE OPENING OF BIDS. THE PURPOSE OF THAT REQUIREMENT IS TO GIVE ALL BIDDERS AN EQUAL OPPORTUNITY, TO PREVENT FRAUD, AND TO PRESERVE THE INTEGRITY OF THE COMPETITIVE BID SYSTEM.

UNDER THE EXPRESS TERMS OF THE INVITATION, BIDS WERE REQUIRED TO BE SUBMITTED BY 2 P.M ON OCTOBER 6, 1959. THE BID OF READY-MIX WAS NOT SUBMITTED BY THE TIME SPECIFIED. THE COMPANY ALLEGES THAT IT WAS GIVEN MISINFORMATION AS TO THE TIME REQUIRED FOR DELIVERY AND THAT IT RELIED UPON THIS INFORMATION IN MAILING ITS BID. WE DO NOT FEEL THAT THIS EXCUSE FOR LATE DELIVERY CAN BE ACCEPTED UNDER THE TERMS OF THE CONTRACT. OBVIOUSLY, THERE MUST BE A TIME AFTER WHICH BIDS MAY NOT BE RECEIVED, AND TO PERMIT CONSIDERATION OF DELAYS IN TRAFFIC, AND THE LIKE TO ALTER OR AFFECT THE FIXED AND EXACT TIME CLEARLY STATED IN THE INVITATION WOULD, IN OUR OPINION, TEND TO WEAKEN THE COMPETITIVE BID SYSTEM. WHILE A FIXED REQUIREMENT FOR BID OPENING MAY OPERATE HARSHLY IN CERTAIN INSTANCES, ANY RELAXATION OF THE RULE WOULD INEVITABLY CREATE CONFUSION AND DISAGREEMENT AS TO ITS APPLICABILITY IN MANY CASES AND FACILITATE THE PERPETRATION OF FRAUDS.

THEREFORE, WE WOULD NOT FEEL JUSTIFIED IN AUTHORIZING CONSIDERATION OF THE LATE BID OF READY-MIX CONCRETE COMPANY.