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B-152031, AUG. 1, 1963

B-152031 Aug 01, 1963
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GENERAL MANAGER: REFERENCE IS MADE TO THE COPY YOU FURNISHED OF THE TELEGRAM YOU SENT TO THE ARMY ELECTRONICS MATERIEL AGENCY ON JUNE 28. A SINGLE NONRESPONSIVE BID WHICH HAD BEEN SUBMITTED BY ANOTHER BIDDER WAS OPENED. A CERTIFIED MAIL BID AND A TELEGRAPHIC BID WERE RECEIVED SIMULTANEOUSLY FROM YOUR ORGANIZATION. THE ENVELOPE BEARING THE MAILED BID WAS POSTMARKED SILVER SPRING. THE TIME OF MAILING WAS CORROBORATED BY THE CERTIFIED MAIL RECEIPT YOUR ORGANIZATION SUBSEQUENTLY FURNISHED TO THE AGENCY. THE TELEGRAPHIC BID INDICATED IT WAS DISPATCHED AT 2:49 P.M. IT WAS IMPOSSIBLE FOR IT TO ARRIVE AT THE SCHEDULED OPENING TIME. ONE OF THE CONDITIONS FOR THE CONSIDERATION OF A LATE BID IS THAT THE FAILURE TO ARRIVE ON TIME BE DUE SOLELY TO A DELAY FOR WHICH THE BIDDER WAS NOT RESPONSIBLE.

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B-152031, AUG. 1, 1963

TO MR. IRVING ADLER, GENERAL MANAGER:

REFERENCE IS MADE TO THE COPY YOU FURNISHED OF THE TELEGRAM YOU SENT TO THE ARMY ELECTRONICS MATERIEL AGENCY ON JUNE 28, 1963, AND TO YOUR TELEGRAM TO OUR OFFICE ON JULY 14, 1963, PROTESTING THE REJECTION OF THE BIDS SUBMITTED BY YOUR ORGANIZATION UNDER INVITATIONS FOR BIDS AMC/E/-36- 039-63-1972-C2, -2690-A1, -2695-A1 AND -2699-A1.

ON JUNE 12, 1963, AT 2:30 P.M., THE TIME FIXED FOR OPENING BIDS RECEIVED UNDER INVITATION -1972-C2 AT THE ARMY ELECTRONICS MATERIEL AGENCY, PHILADELPHIA, PENNSYLVANIA, A SINGLE NONRESPONSIVE BID WHICH HAD BEEN SUBMITTED BY ANOTHER BIDDER WAS OPENED. AT 10 A.M. ON JUNE 13, 1963, A CERTIFIED MAIL BID AND A TELEGRAPHIC BID WERE RECEIVED SIMULTANEOUSLY FROM YOUR ORGANIZATION. THE ENVELOPE BEARING THE MAILED BID WAS POSTMARKED SILVER SPRING, MARYLAND, 2:30 P.M., JUNE 12, 1963, AND THE TIME OF MAILING WAS CORROBORATED BY THE CERTIFIED MAIL RECEIPT YOUR ORGANIZATION SUBSEQUENTLY FURNISHED TO THE AGENCY. THE TELEGRAPHIC BID INDICATED IT WAS DISPATCHED AT 2:49 P.M. ON JUNE 12, 1963. THE CONTRACTING OFFICER REJECTED THE BID WHICH YOUR ORGANIZATION SUBMITTED UNDER THE SUBJECT INVITATION SINCE, IN VIEW OF THE TIME OF DISPATCH, IT WAS IMPOSSIBLE FOR IT TO ARRIVE AT THE SCHEDULED OPENING TIME.

ONE OF THE CONDITIONS FOR THE CONSIDERATION OF A LATE BID IS THAT THE FAILURE TO ARRIVE ON TIME BE DUE SOLELY TO A DELAY FOR WHICH THE BIDDER WAS NOT RESPONSIBLE. WHERE A BID ARRIVES LATE BECAUSE IT WAS MAILED OR FILED FOR TELEGRAPHIC SUBMISSION WHERE TELEGRAPHIC BIDS ARE AUTHORIZED--- IN THE IMMEDIATE INVITATION TELEGRAPHIC BIDS WERE NOT AUTHORIZED--- AT OR AFTER THE TIME PROVIDED FOR THE OPENING OF BIDS IN THE INVITATION FOR BIDS, THE LATENESS AND DELAY IN THE RECEIPT OF THE BID IS CLEARLY THE FAULT OF THE BIDDER REGARDLESS OF WHATEVER DELAYS, IF ANY, MAY THEREAFTER OCCUR IN THE DELIVERY PROCESS.

THEREFORE, THE BID SUBMITTED BY YOUR ORGANIZATION UNDER INVITATION 1972- C2 PROPERLY WAS NOT FOR CONSIDERATION FOR AWARD. HOWEVER, THE CONTRACTING OFFICER HAS ADVISED THAT THE PROCUREMENT WILL BE PLACED OUT FOR OFFERS AGAIN AND THAT YOUR ORGANIZATION WILL BE CONTACTED AT THAT TIME.

THIRTEEN BIDS WERE OPENED ON JUNE 14, 1963, AT 1 P.M., THE TIME FIXED FOR OPENING BIDS RECEIVED UNDER INVITATION -2690-A1 AT THE SAME FACILITY AS ABOVE. THE BID FROM YOUR ORGANIZATION DID NOT ARRIVE UNTIL 1:20 P.M. THE ENVELOPE BEARING THE BID WAS MARKED FIRST CLASS, SPECIAL DELIVERY, CERTIFIED MAIL NO. 939509, RETURN RECEIPT REQUESTED, AND WAS POSTMARKED WASHINGTON, D.C., 7 A.M., JUNE 14, 1963. SUBSEQUENTLY, YOUR ORGANIZATION SHOWED THAT THE ORIGINAL CERTIFIED MAIL RECEIPT INDICATED THE ACTUAL TIME OF MAILING WAS 7:26 A.M. ON JUNE 14, 1963, AND IN ADDITION IT FURNISHED A PHOTOSTATIC COPY OF A LETTER FROM THE WASHINGTON, D.C., POST OFFICE WHICH ADVISED AS FOLLOWS:

"CERTIFIED SPECIAL DELIVERY LETTER NO. 939509, DISPATCHED AT 7:26 A.M. AS INDICATED BY RECEIPT, VIA PENN. TRAIN 104, WOULD IN NORMAL COURSE BE DUE TO ARRIVE IN PHILADELPHIA, PA., AT 1102 EDST.'

THEREAFTER, THE PROCUREMENT OFFICE CHECKED WITH THE PHILADELPHIA, PENNSYLVANIA, POST OFFICE AND ASCERTAINED THAT THE TRAIN INVOLVED ACTUALLY IS SCHEDULED TO ARRIVE AND DID ARRIVE ON THE DAY IN QUESTION AT 10:59 A.M. AND THAT AFTER THE TRAIN ARRIVES AT THE RAILROAD STATION, AN ADDITIONAL 35 TO 40 MINUTES IS REQUIRED FOR DELIVERY TO THE POST OFFICE AND THEN APPROXIMATELY ANOTHER TWO HOURS IS REQUIRED BEFORE THE CLASS OF MAIL INVOLVED IS PROCESSED AND DELIVERY IS MADE TO THE AGENCY. THEREFORE, UNDER NORMAL ESTABLISHED PROCEDURES, A BID MAILED AT THE TIME THE BID FROM YOUR ORGANIZATION WAS MAILED WOULD NOT ARRIVE AT DESTINATION UNTIL WELL AFTER THE 1 P.M. OPENING TIME. ACCORDINGLY, THE LAST BID UNDER INVITATION -2690-A1 WAS RULED AN UNACCEPTABLE LATE BID BY THE CONTRACTING OFFICER.

IN VIEW OF THE FOREGOING, THE FAILURE OF THE BID TO ARRIVE ON TIME WAS NOT DUE TO A DELAY IN THE MAIL--- IF ANYTHING THE SERVICE WAS EXCEPTIONALLY GOOD SINCE THE BID ARRIVED BEFORE THE TIME IT WOULD ORDINARILY ARRIVE--- AND THEREFORE THE LATE ARRIVAL OF THE BID IS ATTRIBUTABLE TO THE LATE HOUR THAT YOUR ORGANIZATION CHOSE TO MAIL THE BID. IN THE CIRCUMSTANCES, THE RULING OF THE CONTRACTING OFFICER WAS PROPER.

INVITATION -2695-A1 PROVIDED THAT BIDS RECEIVED THEREUNDER WOULD BE OPENED AT 1 P.M. ON JUNE 17, 1963, AT THE SAME FACILITY AS ABOVE. AS A RESULT OF A POWER FAILURE IN THE AGENCY'S BUILDING ON THAT DATE, THE OPENING WAS POSTPONED UNTIL 1 P.M. ON JUNE 18, 1963, AT WHICH TIME 35 BIDS, INCLUDING ONE FROM YOUR ORGANIZATION, WERE OPENED. THE BID RECEIVED FROM YOUR ORGANIZATION WAS INCOMPLETE IN THAT AMENDMENT 2 TO THE INVITATION COVERING A MATERIAL CHANGE IN SPECIFICATIONS HAD NOT BEEN RECEIVED AT THAT TIME. THEREAFTER, AT 1:55 P.M., THERE WAS RECEIVED FROM YOUR ORGANIZATION A TELEGRAM ACKNOWLEDGING ACCEPTANCE OF ALL AMENDMENTS TO THE INVITATION AND REDUCING THE ORIGINAL BID PRICE. UPON INQUIRY TO WESTERN UNION, THE AGENCY WAS ADVISED:

"INVESTIGATION DEVELOPS THIS TELEGRAM WAS FILED AT NEW YORK AT 12:35 P.M., EDT. THE TELEGRAM WAS RECEIVED IN THE PHILADELPHIA OFFICE AT APPROXIMATELY 1:10 P.M. AND SENT TO YOU VIA TIELINE AT 1:50 P.M. THIS FORTY MINUTE DELAY WAS DUE TO A VERY HEAVY FILE ON YOUR TELEPRINTER. YOU ALSO ASKED IF IT WERE POSSIBLE FOR YOU TO RECEIVE THIS MESSAGE BY 1 P.M. AS WAS STATED OVER THE TELEPHONE, IT WOULD BE IMPROBABLE FOR THIS MESSAGE TO REACH YOU IN THE TWENTY FIVE MINUTES THE SENDER ALLOWED.'

SINCE YOUR ORIGINAL BID DID NOT ACKNOWLEDGE ALL THE MATERIAL ADDENDA TO THE INVITATION, IT WAS A NONRESPONSIVE BID. WHILE AN ATTEMPT WAS MADE TO CURE THIS PHASE OF THE NONRESPONSIVENESS BY TELEGRAPHIC ACKNOWLEDGMENT OF THE ADDENDA, THE FACT REMAINS THAT SUCH TELEGRAPHIC MODIFICATION WAS NOT TIMELY RECEIVED AND IN VIEW OF THE STATEMENT FROM THE TELEGRAPH COMPANY THAT "IT WOULD BE IMPROBABLE FOR THIS MESSAGE TO REACH YOU IN THE TWENTY FIVE MINUTES THE SENDER ALLOWED," THE FAILURE TO ARRIVE ON TIME CANNOT BE CONSIDERED TO HAVE BEEN DUE TO ANYTHING OTHER THAN THE LATE HOUR AT WHICH YOUR ORGANIZATION DECIDED TO FILE THE TELEGRAM WITH THE TELEGRAPH COMPANY.

ASIDE FROM THAT, EVEN IF THE LATE TELEGRAM COULD BE CONSIDERED TO FALL WITHIN THE EXCEPTIONS THAT PERMIT CONSIDERATION OF CERTAIN LATE RECEIVED MATTER, THE F.O.B. ORIGIN BID SUBMITTED IS FURTHER UNACCEPTABLE BECAUSE IT WAS NOT AN UNQUALIFIED BID IN THAT IT RESERVED TO THE BIDDER AN OPTION TO SHIP FROM ANY ONE OR ALL OF THREE DIFFERENT PLANTS "AND/OR SUCH OTHER MEMBER'S PLANTS AS OUR BOARD MAY DESIGNATE.' AS THE INVITATION FOR BIDS PROVIDED THAT THE EVALUATION OF BIDS WOULD INCLUDE TRANSPORTATION COSTS, THE BIDDER RESERVED A RIGHT TO MAKE AN ELECTION AFTER THE OPENING OF BIDS WHICH COULD CONCEIVABLY AFFECT ITS STANDING IN THE ORDER OF BIDS. IN 34 COMP. GEN. 82, 84, WE SAID "CONDITIONS OR RESERVATIONS WHICH GIVE A BIDDER A CHANCE TO SECOND-GUESS HIS COMPETITORS AFTER BID-OPENING MUST BE REGARDED AS FATAL TO THE BID.'

IN THE CIRCUMSTANCES, THE REJECTION OF THE BID FROM YOUR ORGANIZATION WAS PROPER.

THREE BIDS WERE OPENED ON JUNE 14, 1963, AT 10 A.M., THE TIME FIXED FOR OPENING BIDS RECEIVED UNDER INVITATION -2699-A1 AT THE SAME FACILITY AS ABOVE. AGAIN THE BID FROM YOUR ORGANIZATION ARRIVED LATE. THIS BID HAD BEEN SENT SPECIAL DELIVERY UNDER CERTIFIED MAIL NO. 943115. YOUR ORGANIZATION SHOWED THE AGENCY THAT THE ORIGINAL CERTIFIED MAIL RECEIPT INDICATED THE ACTUAL TIME OF MAILING WAS 5:50 A.M. ON JUNE 14, 1963, AND IN ADDITION IT FURNISHED A STATEMENT FROM THE WASHINGTON, D.C., POST OFFICE AS FOLLOWS:

"THIS IS TO ADVISE THAT A CERTIFIED SPECIAL DELIVERY LETTER DISPATCHED BY THE WASHINGTON, D.C., POST OFFICE AT 5:50 A.M. VIA PENN. TRAIN 170, AS INDICATED BY CERTIFIED RECEIPT NO. 943115, WOULD IN NORMAL COURSE BE DUE TO ARRIVE IN PHILADELPHIA, PA., AT 0915 EDST.'

THE AGENCY FURNISHED THIS INFORMATION TO THE PHILADELPHIA, PENNSYLVANIA, POST OFFICE AND REQUESTED IT TO ADVISE WHETHER THE BID COULD HAVE BEEN RECEIVED AT THE AGENCY ON TIME FOR THE SCHEDULED OPENING. THE PHILADELPHIA POST OFFICE ADVISED:

"MAIL FROM N.Y. AND WASHINGTON TRAIN 170, WHICH IN ACCORDANCE WITH THE POSTMASTER, WASHINGTON, D.C.'S STATEMENT INCLUDED THE SPECIAL DELIVERY ENVELOPE IN QUESTION, DUE 30TH STREET RAILROAD STATION 9:15 A.M. (DAYLIGHT TIME) ON FRIDAY, JUNE 14TH WOULD NOT BE PROCESSED IN TIME TO CONNECT TRIP VIA SPECIAL DELIVERY MESSENGER PROVIDING ARRIVAL AT YOUR AGENCY IN TIME FOR THE SCHEDULED OPENING OF THE BIDS.

"THE PREVIOUS SPECIAL DELIVERY TRIP WOULD HAVE LEFT THE MAIN POST OFFICE AT 8:30 A.M., AND THE NEXT TRIP IS SCHEDULED TO LEAVE AT 12:00 M. (NOON).'

SINCE ACCORDING TO THE TIME OF MAILING, THE PARTICULAR BID WOULD NOT HAVE ARRIVED BY THE 10 A.M. BID OPENING TIME, IT WAS LIKEWISE REJECTED.

AGAIN THE DELAY APPEARS TO HAVE BEEN THE FAILURE OF THE BIDDER TO MAIL THE BID IN SUFFICIENT TIME TO PERMIT IT TO ARRIVE PROMPTLY AT ITS ULTIMATE DESTINATION. THE DELAY, THEREFORE, IS CLEARLY ATTRIBUTABLE TO THE BIDDER AND IT MUST BEAR THE RESPONSIBILITY FOR THE DELAY.

IN VIEW OF THE FOREGOING, NONE OF THE BIDS APPEARS TO HAVE BEEN REJECTED IMPROPERLY, AND WE MUST CONCLUDE THAT YOUR PROTEST IS WITHOUT MERIT.

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