B-149348, AUG. 29, 1962

B-149348: Aug 29, 1962

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SAM KAPLAN: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF JULY 2. IT IS YOUR CONTENTION THAT ON JUNE 26. WHICH WAS RECEIVED PRIOR TO THE TIME OF BID OPENING. REDUCING YOUR ORIGINAL BID WHICH WOULD HAVE ESTABLISHED YOUR BID AT $83. THE TELEGRAPHIC MODIFICATION WAS NOT CONSIDERED. THE AWARD WAS MADE TO THE NEXT LOW BIDDER. YOU FURTHER STATE THAT AN AFFIDAVIT ESTABLISHING THE DATE AND HOUR THAT THE BID WAS DEPOSITED IN THE MAILS WAS SUBMITTED. URGE THAT SUCH EVIDENCE SHOULD HAVE BEEN ACCEPTED BY THE BUREAU OF SHIPS IN QUALIFYING YOUR CORPORATION FOR AWARD. IT IS ADMINISTRATIVELY REPORTED THAT AT THE TIME OF THE BID OPENING ON JUNE 28. NO BID WAS RECEIVED FROM YOUR CORPORATION. DESPITE THE FACT THAT A DILIGENT SEARCH WAS INSTITUTED IN AN EFFORT TO LOCATE THE DOCUMENT.

B-149348, AUG. 29, 1962

TO MR. SAM KAPLAN:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF JULY 2, 1962, AND COPIES OF RELATED CORRESPONDENCE DATED JULY 3, CONCERNING YOUR PROTEST OF AN AWARD ON INVITATION FOR BIDS NO. 600-989-62-S, ISSUED BY THE BUREAU OF SHIPS, DEPARTMENT OF THE NAVY.

IT IS YOUR CONTENTION THAT ON JUNE 26, 1962, YOU DEPOSITED IN THE UNITED STATES MAIL A BID FOR OPENING AT 10:30 A.M. ON JUNE 28, 1962. THEREAFTER, YOU SUBMITTED A TELEGRAPHIC MODIFICATION, WHICH WAS RECEIVED PRIOR TO THE TIME OF BID OPENING, REDUCING YOUR ORIGINAL BID WHICH WOULD HAVE ESTABLISHED YOUR BID AT $83,000 BELOW THE NEXT LOW BIDDER. THE TELEGRAPHIC MODIFICATION WAS NOT CONSIDERED, HOWEVER, DUE TO THE FACT THAT THE ORIGINAL BID HAD NOT BEEN RECEIVED AND, ACCORDINGLY, THE AWARD WAS MADE TO THE NEXT LOW BIDDER. YOU FURTHER STATE THAT AN AFFIDAVIT ESTABLISHING THE DATE AND HOUR THAT THE BID WAS DEPOSITED IN THE MAILS WAS SUBMITTED, AND URGE THAT SUCH EVIDENCE SHOULD HAVE BEEN ACCEPTED BY THE BUREAU OF SHIPS IN QUALIFYING YOUR CORPORATION FOR AWARD.

IT IS ADMINISTRATIVELY REPORTED THAT AT THE TIME OF THE BID OPENING ON JUNE 28, 1962, NO BID WAS RECEIVED FROM YOUR CORPORATION, AND THAT THE BID TO DATE HAS NEVER BEEN FOUND, DESPITE THE FACT THAT A DILIGENT SEARCH WAS INSTITUTED IN AN EFFORT TO LOCATE THE DOCUMENT.

IT CONSISTENTLY HAS BEEN HELD THAT IT IS THE RESPONSIBILITY OF THE BIDDER TO SEE THAT HIS BID IS RECEIVED AT THE PLACE AND AT OR PRIOR TO THE TIME SPECIFIED IN THE INVITATION FOR THE OPENING OF THE BIDS. THE ONLY EXCEPTION WITH RESPECT TO THIS REQUIREMENT RELATES TO BIDS SENT BY MAIL WHICH ARE RECEIVED LATE. LATE BIDS SENT BY MAIL MAY BE CONSIDERED PROVIDED THEY ARE RECEIVED BEFORE THE AWARD HAS BEEN MADE AND PROVIDED THE FAILURE TO ARRIVE ON TIME WAS DUE SOLELY TO A DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE.

IN THE INSTANT CASE, NO BID FROM YOU WAS RECEIVED PRIOR TO THE TIME SET FOR THE OPENING OF THE BIDS NOR WAS A BID RECEIVED LATE SHOWING THAT IT WAS MAILED IN TIME TO HAVE BEEN RECEIVED PRIOR TO THE BID OPENING AND THAT THE DELAY IN THE MAILS WAS DUE TO NO FAULT OF THE BIDDER. WE DO NOT DISPUTE THAT YOU PREPARED AND ACTUALLY MAILED THE BID AND THAT IT WAS LOST IN THE MAILS. HOWEVER, THE FACT REMAINS THAT NO BID FROM YOU WAS RECEIVED.

IN DECISION OF MARCH 26, 1957, B-130889, WE HELD THAT A BID HANDED IN BY A BIDDER'S REPRESENTATIVE AND TIME STAMPED LATE WAS PROPERLY REJECTED. ALTHOUGH THAT CASE INVOLVED A HAND-CARRIED BID, THE FOLLOWING LANGUAGE THEREIN APPEARS TO BE APPLICABLE AND DISPOSITIVE OF THE PRESENT CASE:

"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 THE BIDS. THE PURPOSE OF THE REQUIREMENT IS TO GIVE ALL BIDDERS AN EQUAL OPPORTUNITY, TO PREVENT FRAUD, AND TO PRESERVE THE INTEGRITY OF THE COMPETITIVE BID SYSTEM.

"* * * THERE MUST BE A TIME AFTER WHICH BIDS MAY NOT BE RECEIVED * * *. WHILE THE REQUIREMENT IN CERTAIN INSTANCES MAY OPERATE HARSHLY ANY RELAXATION OF THE RULE WOULD INEVITABLY CREATE CONFUSION AND DISAGREEMENTS AS TO ITS APPLICABILITY IN MANY CASES AND FACILITATE THE PERPETRATION OF FRAUDS.'

UNDER THE CIRCUMSTANCES, THEREFORE, WE MUST CONCLUDE THAT THE ACTION TAKEN IN THE MATTER BY THE DEPARTMENT OF THE NAVY WAS PROPER.