B-143642, SEP. 21, 1960

B-143642: Sep 21, 1960

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WHICH MATTER IS THE SUBJECT OF A REPORT DATED AUGUST 18. THE INVITATION WAS ISSUED ON JUNE 17. MODIFICATIONS OR WITHDRAWALS RECEIVED AFTER THE TIME FOR OPENING WOULD NOT BE CONSIDERED FOR AWARD UNLESS IT SHOULD BE DETERMINED BY THE GOVERNMENT THAT THE FAILURE TO ARRIVE ON TIME WAS DUE SOLELY TO DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE. THE RECORD SHOWS THAT BIDS WERE OPENED. THE ABSTRACT OF BIDS INDICATES THAT SEVEN BIDS WERE RECEIVED. OF WHICH THE LOWEST BID AS TO PRICE ON ALL THE ITEMS WAS SUBMITTED BY POWERCON CORPORATION IN THE TOTAL AMOUNT OF $66. A LATE BID WAS RECEIVED IN THE NAVY PURCHASING OFFICE FROM ROYAL SWITCHBOARD COMPANY. IT IS REPORTED THAT THE POST OFFICE DEPARTMENT ADVISED THE PROCURING OFFICE ORALLY THAT THE ROYAL BID.

B-143642, SEP. 21, 1960

TO POWERCON CORPORATION:

WE REFER TO YOUR LETTER OF JULY 27, 1960, PROTESTING AN AWARD OF A CONTRACT TO ANY OTHER FIRM UNDER IFB NO. 600-1765-60-S, WHICH MATTER IS THE SUBJECT OF A REPORT DATED AUGUST 18, 1960, TO THIS OFFICE, FROM THE DEPARTMENT OF THE NAVY.

THE INVITATION WAS ISSUED ON JUNE 17, 1960, BY THE U.S. NAVY PURCHASING OFFICE, WASHINGTON 25, D.C., CALLING FOR A GENERATOR CONTROL UNIT (2500 KW), VARIOUS TYPE DISTRIBUTION UNITS, DRAWINGS AND MANUALS, ALL LISTED UNDER ITEM NOS. 1 THROUGH 13, WITH A PROVISO THAT AWARD WOULD BE MADE TO ONE BIDDER FURNISHING ALL THE REQUIRED UNITS. THE INVITATION ALSO CONTAINS A "LATE BIDS" CLAUSE TO THE EFFECT THAT BIDS, MODIFICATIONS OR WITHDRAWALS RECEIVED AFTER THE TIME FOR OPENING WOULD NOT BE CONSIDERED FOR AWARD UNLESS IT SHOULD BE DETERMINED BY THE GOVERNMENT THAT THE FAILURE TO ARRIVE ON TIME WAS DUE SOLELY TO DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE.

THE RECORD SHOWS THAT BIDS WERE OPENED, AS ANNOUNCED IN THE INVITATION, AT 10:30 A.M., ON JULY 22, 1960. AT THAT TIME, THE ABSTRACT OF BIDS INDICATES THAT SEVEN BIDS WERE RECEIVED, OF WHICH THE LOWEST BID AS TO PRICE ON ALL THE ITEMS WAS SUBMITTED BY POWERCON CORPORATION IN THE TOTAL AMOUNT OF $66,633.32. HOWEVER, AT 1:06 P.M., JULY 22, 1960, A LATE BID WAS RECEIVED IN THE NAVY PURCHASING OFFICE FROM ROYAL SWITCHBOARD COMPANY, POSTMARKED FROM NEW YORK, NEW YORK (GRAND CENTRAL STATION) ON JULY 21, 1960, AT 11:30 A.M., IN THE TOTAL AMOUNT OF $62,800.

IT IS REPORTED THAT THE POST OFFICE DEPARTMENT ADVISED THE PROCURING OFFICE ORALLY THAT THE ROYAL BID, UNDER NORMAL CONDITIONS, SHOULD HAVE ARRIVED AT 7:45 A.M., JULY 22, 1960, IN TIME FOR THE 10:30 A.M., OPENING. SUBSEQUENTLY THE POST OFFICE DEPARTMENT ADVISED THE PROCURING OFFICE, BY LETTER OF AUGUST 4, 1960, THAT A PIECE OF FIRST CLASS MAIL (AS WAS THE ROYAL BID) POSTMARKED AT GRAND CENTRAL STATION, NEW YORK CITY, AT 11:30 A.M., WILL UNDER NORMAL CONDITIONS ARRIVE IN THE WASHINGTON, D.C. POST OFFICE IN TIME TO BE DELIVERED TO THE NAVY PURCHASING OFFICE BY 10:30 A.M., THE FOLLOWING DAY. THE RECORD INDICATES THAT AN AWARD HAS NOT YET BEEN MADE.

POWERCON ALLEGES THAT THE ROYAL SWITCHBOARD COMPANY BID IS DATED JULY 15, 1960, AND THEREFORE, THE BID SHOULD HAVE BEEN MAILED WELL BEFORE BID OPENING ON JULY 22 TO AVOID THE POSSIBILITY OF A DELAY IN THE MAILS, SO THAT THE FAILURE TO ARRIVE ON TIME WAS NOT DUE SOLELY TO A DELAY IN THE MAILS. IN EFFECT, POWERCON IS CONTENDING THAT THE DATE APPEARING ON THE FACE OF THE BID IS THE DATE THAT THE BID SHOULD HAVE BEEN MAILED.

UNDER THE INVITATION, BIDS WERE FOR CONSIDERATION IF RECEIVED AT ANY TIME PRIOR TO OPENING. THE INVITATION ALSO PROVIDED FOR CONSIDERATION OF BIDS RECEIVED BEFORE AWARD, BUT AFTER OPENING, IF IT WAS DETERMINED THAT THE FAILURE TO ARRIVE ON TIME WAS DUE SOLELY TO DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE. UNDER THIS PROVISION, THE QUESTION FOR DETERMINATION IS WHETHER THE BID WOULD HAVE ARRIVED ON TIME BUT FOR A DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE. SINCE THE ROYAL BID WOULD HAVE ARRIVED ON TIME BUT FOR A DELAY IN THE MAILS NOT CAUSED BY THE BIDDER, THE FAILURE OF THE BID TO ARRIVE ON TIME IS, IN OUR OPINION, ATTRIBUTABLE SOLELY TO DELAY IN THE MAILS WITHIN THE MEANING OF THE CLAUSE, IRRESPECTIVE OF WHETHER ROYAL COULD HAVE MAILED ITS BID PRIOR TO THE TIME IT WAS MAILED OR BECAUSE THE BID WAS DATED PRIOR TO THE ACTUAL TIME OF MAILING.

POWERCON INFORMS US OF THEIR UNDERSTANDING THAT THE LATE BID IN QUESTION, AS IS THE PRACTICE, WAS OPENED IN THE CONTRACTING OFFICE WITHOUT THE PUBLIC BEING INVITED TO WITNESS THE OPENING. IT IS CONTENDED THAT SUCH PRACTICE IS IN CONTRAVENTION OF THE INVITATION PROVISION THAT BIDS WILL BE PUBLICLY OPENED. IN THIS RESPECT, 10 U.S.C. 2305 (C) PROVIDES THAT "BIDS SHALL BE OPENED PUBLICLY AT THE TIME AND PLACE STATED IN THE ADVERTISEMENT.' THE PURPOSE OF THE STATUTORY REQUIREMENT IS TO SECURE FAIRNESS AND IMPARTIALITY IN AWARDING GOVERNMENT CONTRACTS. IT IS ESSENTIAL THAT ALL BIDS BE SEALED UNTIL THE ANNOUNCED TIME SO AS TO PRECLUDE ADVANCE DISCLOSURE OF BIDS AND TO PRECLUDE A POSSIBILITY OF COLLUSION BETWEEN BIDDERS AND PROCURING OFFICIALS. THE STATUTE, HOWEVER, MUST BE GIVEN A REASONABLE CONSTRUCTION IN HARMONY WITH ITS EVIDENT OBJECT AND PURPOSES. SEE 21 OP.ATTY.GEN. 546. WHERE THE EVIDENCE ESTABLISHES THAT THE LATE RECEIPT OF A BID IS DUE SOLELY TO A MAIL DELAY (AS DETERMINED, FOR EXAMPLE, FROM THE POSTMARK TIME INDICATED ON THE ENVELOPE CONTAINING THE BID AND THE TIME INDICATED THEREON AS THE TIME OF RECEIPT OF THE BID) THE POSSIBILITY OF COLLUSION IS REMOTE, SINCE NEITHER THE BIDDER NOR THE PROCURING OFFICIALS COULD HAVE EXPECTED OR ARRANGED THAT THE BID WOULD ARRIVE LATE. WE BELIEVE THAT THE INTEGRITY OF THE BIDDING SYSTEM IS FULLY PROTECTED WHEN IT IS ESTABLISHED THAT A LATE BID BEING CONSIDERED FOR AWARD IS LATE DUE TO DELAY IN THE MAIL NOT CAUSED BY THE BIDDER AND THE BID IS MADE AVAILABLE FOR PUBLIC INSPECTION TO THE SAME EXTENT AS THE OTHER BIDS RECEIVED, WITHOUT REQUIRING THAT A SPECIAL TIME BE ANNOUNCED FOR A PUBLIC OPENING OF LATE BIDS.

THE FACTS HERE ESTABLISHED THAT THE ROYAL SWITCHBOARD COMPANY BID WAS MAILED IN SUFFICIENT TIME TO HAVE BEEN RECEIVED AT OPENING AND THAT A DELAY IN THE MAILS, DUE TO NO FAULT OF THE BIDDER, CAUSED THE BID TO ARRIVE LATE. IN VIEW OF THESE CIRCUMSTANCES, WE SEE NO REASON WHY THE BID OF ROYAL SWITCHBOARD COMPANY SHOULD NOT BE CONSIDERED FOR AWARD UNDER THE SUBJECT CONTRACT.