B-147864, MAR. 5, 1962

B-147864, MAR. 5, 1962

TO MR. JOHN M. MURPHY, SALES MANAGER, NATIONAL STEEL AND SHIPBUILDING COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 29, 1961, PROTESTING THE DISREGARD OF THE BID SUBMITTED BY YOUR COMPANY UNDER INVITATION 77-62, COVERING THE OVERHAUL OF THE U.S.S. REAPER AND U.S.S. FIRM.

THE ENVELOPE IN WHICH THE BID OF YOUR COMPANY WAS MAILED SPECIAL DELIVERY IS POSTMARKED "SAN DIEGO, CALIF. DC 21 6PM 1961.' ALTHOUGH A STAMP ON THE BACK OF THE ENVELOPE SHOWS THAT IT WAS IN A LONG BEACH, CALIFORNIA, POST OFFICE AT 6 A.M. ON DECEMBER 22, 1961, INQUIRY INTO THE MATTER HAS DISCLOSED THAT AS A MATTER OF REGULAR PROCEDURE IMMEDIATE DELIVERY OF THE SPECIAL DELIVERY BID WAS NOT MADE TO THE NAVAL SHIPYARD WHERE THE BIDS WERE TO BE OPENED, BUT INSTEAD WAS HELD UNTIL THE MAIL MESSENGER FROM THE SHIPYARD MADE HIS REGULAR PICKUP AT THE POST OFFICE. ACCORDING TO A STATEMENT PREPARED BY THE SHIPYARD MAILROOM SUPERVISOR, THE BID WAS NOT DEPOSITED IN THE MAILROOM UNTIL APPROXIMATELY 1400 ON THE BID-OPENING DAY. THEREAFTER, THE CONTRACTING OFFICER WAS NOTIFIED, MADE ARRANGEMENTS TO CALL FOR THE BID, AND UPON DELIVERY OF IT TO HIM NOTED ON THE FACE OF THE ENVELOPE THAT IT WAS RECEIVED BY HIM AT 1430.

THE INVITATION UNDER WHICH THE BID WAS SUBMITTED EMPLOYED TERMS DIFFERENT FROM THE LATE BID PROVISIONS UTILIZED IN THE STANDARD GOVERNMENT FORMS. PARAGRAPH 3 OF THE INVITATION, IN PERTINENT PART, PROVIDED:

"BIDS WILL BE OPENED AT 1000, 22 DECEMBER 1961, IN ROOM 228, BUILDING 141, LONG BEACH NAVAL SHIPYARD. BIDS, TO BE ACCEPTABLE, MUST REACH THE CONTRACTING OFFICER PRIOR TO THE TIME FIXED FOR OPENING.

PARAGRAPH 16 B. OF THE GENERAL TERMS AND CONDITIONS PROVIDED;

"BIDS SHALL BE SUBMITTED IN SUFFICIENT TIME TO REACH THE CONTRACTING OFFICER PRIOR TO THE TIME FIXED FOR OPENING. IN THE EVENT BIDS ARE MAILED, IT IS THE RESPONSIBILITY OF THE CONTRACTOR TO INSURE THAT THE BID ARRIVES AT THE LONG BEACH NAVAL SHIPYARD MAIL ROOM SUFFICIENTLY IN ADVANCE SO AS TO BE IN THE HANDS OF THE CONTRACTING OFFICER PRIOR TO THE TIME FIXED FOR OPENING.'

ANOTHER BIDDER BROUGHT THE QUOTED TERMS TO THE ATTENTION OF THE CONTRACTING OFFICER AND PROTESTED ANY CONSIDERATION OF YOUR LATE BID FOR AWARD. THE CONTRACTING OFFICER PRESENTED THE MATTER TO THE BUREAU OF SHIPS FOR ITS CONSIDERATION. HE WAS ADVISED THAT THE TERMS AND CONDITIONS IN THE INVITATION WERE INTERPRETED BY THE BUREAU AS PRECLUDING CONSIDERATION OF BIDS WHICH ARE LATE BECAUSE OF DELAY IN THE MAIL AND HE WAS DIRECTED TO REJECT THE LATE BID AND TO MAKE THE AWARD TO THE LOWEST BIDDER CONFORMING TO THE INVITATION FOR BIDS. AWARD WAS MADE ON DECEMBER 28, 1961, AND ALL THE WORK WAS TO BE COMPLETED BY FEBRUARY 23, 1962.

IN OUR OPINION, UNDER A STRICT CONSTRUCTION OF THE QUOTED PROVISIONS, THE CONCLUSION REACHED BY THE CONTRACTING AGENCY WAS NOT IMPROPER. HOWEVER, SINCE THE PROVISIONS ARE NOT IN ACCORDANCE WITH THE SPECIFIC POLICY ESTABLISHED BY ASPR 2-303, THE CONTRACTING AGENCY HAS ADVISED THAT THE CONTRACTING OFFICER HAS BEEN INSTRUCTED TO DISCONTINUE THE USE OF THE MAILED BID CLAUSES EMPLOYED IN THE IMMEDIATE INVITATION AND TO INCLUDE IN FUTURE INVITATIONS TERMS AND CONDITIONS CONSISTENT WITH THE HANDLING OF LATE BIDS AS PRESCRIBED IN ASPR. IT IS THEREFORE ASSUMED THAT SIMILAR SITUATIONS WILL NOT RECUR IN THE FUTURE.

IN VIEW OF THE PRESENT POSTURE OF THE CASE, PARTICULARLY SINCE THE INVITATION CALLED FOR COMPLETION OF THE WORK BY FEBRUARY 23, 1962, THERE IS NO ACTION THAT WE COULD TAKE AT THIS TIME IN ANY EVENT.