B-149583, AUG. 20, 1962

B-149583: Aug 20, 1962

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THE INVITATION ALSO CONTAINS A "LATE BIDS" CLAUSE TO THE EFFECT THAT MAILED BIDS RECEIVED AFTER THE TIME SET FOR OPENING OF BIDS WILL BE CONSIDERED IF RECEIVED PRIOR TO AWARD AND IT IS DETERMINED BY THE GOVERNMENT THAT LATE RECEIPT WAS DUE SOLELY TO EITHER (1) DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE OR (2) MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION. IT IS ADMINISTRATIVELY REPORTED THAT OF THE SEVEN BIDS RECEIVED BY THE SCHEDULED TIME OF BID OPENING THE LOWEST WAS SUBMITTED BY SARBO. IT IS FURTHER REPORTED THAT. THAT UNDER NORMAL MAILING CONDITIONS BOTH BIDS SHOULD HAVE ARRIVED IN AMPLE TIME FOR THE BID OPENING. THE CONTRACTING OFFICER DETERMINED THE DELAY IN DELIVERY OF THE BIDS WAS NOT ATTRIBUTABLE TO THE BIDDERS AND.

B-149583, AUG. 20, 1962

TO THE SECRETARY OF THE ARMY:

BY LETTER DATED JULY 27, 1962, WITH ENCLOSURES, THE ACTING CHIEF, CONTRACTS DIVISION, OFFICE OF THE DEPUTY CHIEF OF STAFF FOR LOGISTICS, REQUESTED OUR DECISION AS TO THE ACTION TO BE TAKEN WITH RESPECT TO A PROTEST BY SARBO, INC., AGAINST THE CONSIDERATION OF A LATE BID SUBMITTED BY THE LAM BUILDING CORPORATION UNDER INVITATION FOR BIDS NO. AI-28-013-62 -56, DATED MAY 10, 1962.

THE INVITATION, AS AMENDED, FIXED THE TIME OF OPENING OF BIDS AS 3:00 P.M., JUNE 12, 1962, IN THE POST PURCHASING AND CONTRACTING OFFICE, BUILDING NO. 5418, ROOM 3-E, FORT DIX, NEW JERSEY. THE INVITATION ALSO CONTAINS A "LATE BIDS" CLAUSE TO THE EFFECT THAT MAILED BIDS RECEIVED AFTER THE TIME SET FOR OPENING OF BIDS WILL BE CONSIDERED IF RECEIVED PRIOR TO AWARD AND IT IS DETERMINED BY THE GOVERNMENT THAT LATE RECEIPT WAS DUE SOLELY TO EITHER (1) DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE OR (2) MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION.

IT IS ADMINISTRATIVELY REPORTED THAT OF THE SEVEN BIDS RECEIVED BY THE SCHEDULED TIME OF BID OPENING THE LOWEST WAS SUBMITTED BY SARBO, INC. ON JUNE 13, 1962, AT 8:36 A.M., AFTER THE BID OPENING BUT PRIOR TO AWARD, THE POST PURCHASING AND CONTRACTING OFFICE RECEIVED TWO ADDITIONAL BIDS, THE BID OF ARDSLEY CONSTRUCTION COMPANY, INC., AND A. C. KAESTNER, INC., POSTMARKED JUNE 11, 1962, NEW YORK, NEW YORK, AND THE BID OF LAM BUILDING CORPORATION, POSTMARKED JUNE 11, 1962, PHILADELPHIA, PENNSYLVANIA. IT IS FURTHER REPORTED THAT, BASED ON INFORMATION ORALLY OBTAINED FROM A RESPONSIBLE OFFICIAL OF THE FORTH DIX BRANCH POST OFFICE, AND SUBSEQUENTLY CONFIRMED IN WRITING, THAT UNDER NORMAL MAILING CONDITIONS BOTH BIDS SHOULD HAVE ARRIVED IN AMPLE TIME FOR THE BID OPENING, THE CONTRACTING OFFICER DETERMINED THE DELAY IN DELIVERY OF THE BIDS WAS NOT ATTRIBUTABLE TO THE BIDDERS AND, THEREFORE, UNDER THE TERMS OF THE INVITATION THE BIDS WERE PROPERLY FOR CONSIDERATION AS LATE ACCEPTABLE BIDS. UPON OPENING THE BIDS IT WAS FOUND THAT THE BID OF LAM BUILDING CORPORATION WAS THE LOWEST OF ANY OF THE BIDS RECEIVED IN RESPONSE TO THE INVITATION. IN FURTHER SUPPORT OF THE ADMINISTRATIVE DETERMINATION THAT, BASED ON THE DATE OF MAILING, THE BID OF THE LAM BUILDING CORPORATION WOULD NORMALLY HAVE ARRIVED IN THE PROCUREMENT OFFICE PRIOR TO THE TIME SET FOR BID OPENING, THE FILE FORWARDED TO THIS OFFICE INCLUDES LETTER OF JUNE 25, 1962, FROM THE POSTMASTER, PHILADELPHIA, PENNSYLVANIA, ADVISING THAT, EVEN ASSUMING THE BID WAS MAILED ON JUNE 11 AT 11:59 P.M. (THE TIME PRESCRIBED BY APPLICABLE REGULATIONS WHERE, AS HERE, THE DATE BUT NOT THE HOUR OF MAILING IS SHOWN IN THE POSTMARK), THE BID WOULD NORMALLY HAVE BEEN RECEIVED IN TRENTON, NEW JERSEY, NO LATER THAN 6:27 A.M., JUNE 12, 1962. BASED THEREON AND THE REGULAR SCHEDULED TIME FOR PICK UP, SORTING AND DISTRIBUTION OF MAIL, IT IS ADMINISTRATIVELY DETERMINED THAT THE BID WOULD NORMALLY HAVE BEEN DELIVERED TO THE FORT DIX BRANCH POST OFFICE NO LATER THAN 10:00 A.M., JUNE 12, 1962, AND, IN TURN, DELIVERED TO THE PROCUREMENT OFFICE SHORTLY THEREAFTER.

IN PROTESTING THE PROPOSED AWARD TO THE LAM BUILDING CORPORATION, THE ATTORNEYS FOR SARBO, NC., CONTEND THAT ASPR REVISION NO. 9, DATED APRIL 15, 1962, WHICH PRECLUDES THE CONSIDERATION OF LATE MAILED BIDS UNLESS SENT BY REGISTERED OR CERTIFIED MAIL, IS APPLICABLE TO THIS CASE. IT IS FURTHER CONTENDED THAT, EVEN UNDER THE PRIOR REGULATIONS, CONSIDERATION OF THE BID OF LAM BUILDING CORPORATION IS NOT AUTHORIZED SINCE IT CANNOT BE DETERMINED THAT THE LATE RECEIPT THEREOF IS DUE TO EITHER MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT FORT DIX OR TO A DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE.

ASPR REVISION NO. 9 PROVIDES WITH RESPECT TO ITS EFFECTIVE DATE THAT---

"THIS REVISION SHALL BE EFFECTIVE AT ALL APPLICABLE ECHELONS 90 DAYS AFTER THE DATE OF ISSUANCE, BUT COMPLIANCE WITH CHANGED PARAGRAPHS IS AUTHORIZED UPON RECEIPT HEREOF * * *.'

BASED ON THE ISSUANCE DATE OF APRIL 15, 1962, THE REQUIRED EFFECTIVE DATE OF ASPR REVISION NO. 9 WAS JULY 14, 1962, AND, UNTIL THAT DATE, THE INCLUSION IN INVITATIONS FOR BIDS OF PROVISIONS PRESCRIBED THEREBY WAS OPTIONAL WITH THE PROCUREMENT AGENCIES.

THE RIGHTS OF BIDDERS AND THE PROPRIETY OF THE GOVERNMENT'S CONSIDERATION OF LATE MAILED BIDS MUST BE DETERMINED ON THE BASIS OF THE TERMS OF THE INVITATION. SINCE THE INVITATION HERE INVOLVED, ISSUED MAY 10, 1962, AS AUTHORIZED BY ASPR REGULATIONS, DID NOT REQUIRE THAT CONSIDERATION OF LATE MAILED BIDS BE CONFINED TO THOSE SENT BY REGISTERED OR CERTIFIED MAIL, REFUSAL TO CONSIDER THE BID OF LAM BUILDING CORPORATION, IF OTHERWISE CORRECT AND PROPER, ON THE GROUND AS URGED ON BEHALF OF SARBO, INC., THAT THE BID WAS SENT BY REGULAR MAIL, WOULD BE UNAUTHORIZED AND IMPROPER.

THE DECISIVE QUESTION, IN THE DETERMINATION OF THE PROPRIETY OF CONSIDERING THE LATE MAILED BID OF LAM BUILDING CORPORATION, IS WHETHER THE EVIDENCE REASONABLY ESTABLISHES THAT UNDER NORMAL CIRCUMSTANCES, BASED ON THE DATE AND HOUR OF MAILING, THE BID SHOULD HAVE ARRIVED PRIOR TO THE TIME SET FOR BID OPENING. THE CONTRACTING OFFICER HAS SO FOUND AND, IN OUR OPINION, NEITHER THE INABILITY TO DETERMINE DEFINITELY WHETHER THE LATE RECEIPT OF THE BID WAS DUE TO DELAY IN THE MAILS OR TO MISHANDLING BY THE GOVERNMENT, SO LONG AS IT IS DETERMINED TO BE DUE TO ONE OR THE OTHER OF THESE CAUSES, NOR THE FACT THAT, OF TWO LETTERS ALLEGED TO HAVE BEEN MAILED BY THE PROTESTING BIDDER FROM PHILADELPHIA TO THE PURCHASING OFFICE, ONE OF THE LETTERS WAS NEVER RECEIVED, AFFORDS ANY PROPER BASIS FOR QUESTIONING THE CORRECTNESS OR REASONABLENESS OF SUCH FINDING.

UPON THE BASIS OF THE FACTS PRESENTED, WE MUST CONCUR IN THE FINDINGS AND CONCLUSIONS OF THE CONTRACTING OFFICER. ACCORDINGLY, SINCE WE FIND NO LEGAL OBJECTION TO THE PROPOSED AWARD UNDER THIS INVITATION TO LAM BUILDING CORPORATION, THE PROTEST OF SARBO, INC., IS DENIED.

THE ENCLOSURES FORWARDED WITH THE LETTER OF JULY 27, 1962, WITH THE EXCEPTION OF THE CONTRACTING OFFICER'S REPORT, ARE RETURNED.