B-152173, OCT. 2, 1963

B-152173, OCT. 2, 1963

TO HOMER ENGINEERING COMPANY, INC.:

IN YOUR LETTER DATED JULY 30, 1963, YOU PROTEST THE CONSIDERATION OF THE LATE BID AND TELEGRAPHIC BID MODIFICATION OF PAUL A. MELDONIA, SUBMITTED TO THE UNITED STATES NAVAL SUBMARINE BASE, NEW LONDON, GROTON, CONNECTICUT, FOR CONTRACT NO. NBY-46347 FOR CERTAIN IMPROVEMENTS TO THE KITCHEN MESS AT THE BASE.

THE RECORD ESTABLISHES THAT AN INVITATION FOR BIDS WAS ISSUED MAY 29, 1963, PROVIDING THAT BIDS FOR THE SUBJECT WORK WOULD BE OPENED AT 2 P.M., E.D.T., ON JUNE 18, 1963. THE INVITATION CONTAINED STANDARD FORM 22, INSTRUCTIONS TO BIDDERS, WITH AN ATTACHED SHEET AMENDING PARAGRAPH 7 TO INCLUDE THE FOLLOWING LANGUAGE AS REQUIRED BY ASPR 2 201 (A) (XXV):

"LATE BIDS AND MODIFICATIONS OR WITHDRAWALS.

BIDS AND MODIFICATIONS OR WITHDRAWALS THEREOF RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS AFTER THE EXACT TIME SET FOR OPENING OF BIDS WILL NOT BE CONSIDERED UNLESS: (A) THEY ARE RECEIVED BEFORE AWARD IS MADE; (B) THEY ARE SENT BY REGISTERED MAIL, OR BY CERTIFIED MAIL FOR WHICH AN OFFICIAL POST OFFICE STAMP (POSTMARK) ON THE ORIGINAL RECEIPT FOR CERTIFIED MAIL HAS BEEN OBTAINED, OR BY TELEGRAPH IF AUTHORIZED; AND (C) IT IS DETERMINED BY THE GOVERNMENT THAT LATE RECEIPT WAS DUE SOLELY TO EITHER (I) DELAY IN THE MAILS, OR DELAY BY THE TELEGRAPH COMPANY IF TELEGRAPHIC BIDS ARE AUTHORIZED, FOR WHICH THE BIDDER WAS NOT RESPONSIBLE OR (II) MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION.'

YOUR BID WAS THE ONLY ONE RECEIVED BY AND OPENED AT BID OPENING TIME AT 2 P.M. AT APPROXIMATELY 3.45 P.M. A TELEGRAPHIC MODIFICATION OF THE MELDONIAN BID FOR THE SUBJECT CONTRACT WAS RECEIVED IN THE BID OPENING OFFICE. THE FOLLOWING MORNING AT APPROXIMATELY 9.45 A.M., JUNE 19, 1963, THE MELDONIAN BID ON THIS CONTRACT WAS ALSO RECEIVED. THE ENVELOPE IN WHICH THE BID WAS ENCLOSED WAS POSTMARKED "JE 17, 9 P.M., " I.E., 9 P.M., JUNE 17, 1963, BY THE UNITED STATES POST OFFICE, PROVIDENCE, RHODE ISLAND. ON ITS FACE IT INDICATED THAT IT CONTAINED A BID FOR THE SUBJECT CONTRACT, AND THAT BIDS WERE TO BE OPENED ON JUNE 18, 1963, AT 2 P.M. THE BID WAS NOT SENT BY REGISTERED OR CERTIFIED MAIL.

THE OFFICER IN CHARGE OF CONTRACTS UNDERTOOK AN INVESTIGATION OF THE CIRCUMSTANCES OF THE LATE BID AND LATE TELEGRAPHIC MODIFICATION. THE SUPERINTENDENT OF MAILS AT THE GROTON CONNECTICUT POST OFFICE ADVISED THAT THE SUBJECT LETTER IN THE NORMAL COURSE OF DISPATCH SHOULD HAVE BEEN RECEIVED IN GROTON IN TIME TO HAVE BEEN SENT TO THE SUBMARINE BASE POST OFFICE VIA STAR ROUTE, DUE AT THE BASE AT 7 A.M., ON JUNE 18. THE ADMINISTRATIVE OFFICER OF THE SUBMARINE BASE IN NEW LONDON ADVISES THAT THE MAIL RECEIVED AT 7 A.M. FROM THE GROTON POST OFFICE IS SORTED AT 8 A.M., AND DELIVERED TO THE BID OPENING OFFICE AT ABOUT 10 A.M. OF THE SAME DAY. IN ADDITION, WHENEVER A BID ENVELOPE IS RECEIVED A CALL IS MADE TO THE BID OPENING OFFICE, WHICH SENDS A REPRESENTATIVE TO THE BASE POST OFFICE TO PICK UP THE BID. FROM THE FOREGOING FACTS IT WAS DETERMINED, WE THINK CORRECTLY, THAT THE LATENESS OF THE BID WAS DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION.

THE COMMUNICATION OFFICER AT THE SUBMARINE BASE ADVISED THAT THE TELEGRAPHIC MESSAGE BID MODIFICATION FROM MELDONIAN WAS RECEIVED AT 11:44 A.M., E.D.T., JUNE 18, 1963, AND THAT SAID MODIFICATION SHOULD HAVE BEEN DELIVERED BY NORMAL PROCEDURES NOT LATER THAN 1:45 P.M. FROM THE FOREGOING FACTS IT WAS DETERMINED THAT THE LATE TELEGRAPHIC BID MODIFICATION WAS ALSO SOLELY DUE TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION. WE BELIEVE THAT THE FACTS SUPPORT THIS DETERMINATION.

THE OFFICER IN CHARGE OF CONSTRUCTION RECOMMENDED TO THE BUREAU OF YARDS AND DOCKS THAT THE BID AND TELEGRAPHIC MODIFICATION OF PAUL A. MELDONIA, MELDONIAN BROTHERS, BE ACCEPTED. AFTER A REVIEW OF THE FACTS AND WITH REFERENCE TO ASPR 2-303.2 (III) (B), THE BUREAU ADVISED THE OFFICER TO ACCEPT THE BID AND TELEGRAPHIC MODIFICATION. SUBSEQUENTLY, ON JULY 24, 1963, AWARD WAS MADE TO PAUL A. MELDONIAN AS LOW CONFORMING BIDDER.

IN YOUR LETTER OF JUNE 25, 1963, TO THE CONTRACTING OFFICER, YOU MENTION THAT THE MELDONIAN BID WAS NOT MAILED BY CERTIFIED OR REGISTERED MAIL. MAY BE THAT YOU HAVE INTERPRETED PARAGRAPH 7 OF THE INSTRUCTIONS TO BIDDERS, QUOTED ABOVE, TO REQUIRE THE REJECTION OF ANY LATE BID NOT MAILED BY CERTIFIED OR REGISTERED MAIL, EVEN WHEN THE LATENESS IS SOLELY DUE TO MISHANDLING BY THE GOVERNMENT AT THE INSTALLATION. THIS ARGUMENT WAS CONSIDERED AND REJECTED IN OUR DECISION B-150514, DATED MARCH 22, 1963, THE RELEVANT PARTS OF WHICH ARE QUOTED BELOW:

"IN YOUR DEPARTMENTAL REPORT, SIGNED BY THE CHIEF, PROCUREMENT OPERATIONS DIVISION, IT IS CONTENDED THAT UNDER THESE TERMS OF THE INVITATION, WHICH WERE SPECIFIED FOR USE BY ASPR 2-201 (A) (XXV) AND (XXVII), REVISION 9, APRIL 15, 1962, NO LATE MAILED BID MAY BE CONSIDERED FOR AWARD UNLESS IT WAS MAILED BY CERTIFIED OR REGISTERED MAIL. THIS WOULD EXCLUDE FROM CONSIDERATION THE LATE BIDS RECEIVED FROM GENTEX, GENERAL TIRE AND RUBBER AND SIERRA ENGINEERING COMPANY, WHICH WERE NOT SENT BY CERTIFIED OR REGISTERED MAIL. HOWEVER, GIVING SUCH EFFECT TO THE CLAUSE IN QUESTION WOULD BRING IT SQUARELY IN CONFLICT WITH ASPR 2-303.2, WHICH IS THE SUBSTANTIVE REGULATION PROMULGATED BY THE SAME ASPR REVISION 9 WHICH PRESCRIBED THE CLAUSE QUOTED ABOVE. SPECIFICALLY, ASPR 2-303.2 PROVIDES THAT:

" "* * * A LATE BID SHALL BE CONSIDERED FOR AWARD ONLY IF:

" "/II) IN THE CASE OF A MAILED BID (OTHER THAN ONE COVERED BY (III) (B) BELOW), IT WAS SENT BY REGISTERED MAIL, OR BY CERTIFIED MAIL FOR WHICH AN OFFICIAL POST OFFICE STAMP (POSTMARK) ON THE ORIGINAL RECEIPT FOR CERTIFIED MAIL HAS BEEN OBTAINED; AND

" "/III) IT IS DETERMINED THAT EITHER:

" "/B) THE BID, IF SUBMITTED BY MAIL (OR BY TELEGRAM WHEN AUTHORIZED), WAS RECEIVED AT THE GOVERNMENT INSTALLATION IN SUFFICIENT TIME TO BE RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION BY THE TIME SET FOR OPENING AND, EXCEPT FOR DELAY DUE TO MISHANDLING ON THE PART OF THE GOVERNMENT AT THE INSTALLATION, WOULD HAVE BEEN RECEIVED ON TIME AT THE OFFICE DESIGNATED.'"

"THUS, UNDER ASPR 2-303.2 (III) (B), LATE MAILED BIDS MAY BE CONSIDERED FOR AWARD IN THE CIRCUMSTANCE DESCRIBED (MISHANDLING BY THE GOVERNMENT AT THE INSTALLATION) WITHOUT REGARD TO WHETHER THE LATE BID WAS SENT BY CERTIFIED, REGISTERED, OR ORDINARY MAIL.

"WE TAKE NOTE OF THE FACT THAT THE CURRENT REGULATIONS ON THE SUBJECT OF LATE BIDS, BOTH ASPR 2-303 AND FPR 1-2.303, WHICH ARE SUBSTANTIALLY IDENTICAL, WERE PROMULGATED FOLLOWING LENGTHY CONSIDERATION BY COGNIZANT OFFICIALS OF THE DEPARTMENT OF DEFENSE AND OF THE GENERAL SERVICES ADMINISTRATION, DURING WHICH THEIR VIEWS AND ACTIONS WERE COORDINATED BY JOINT DISCUSSIONS, SOME OF WHICH WERE PARTICIPATED IN ALSO BY REPRESENTATIVES OF THIS OFFICE AND OF THE POST OFFICE DEPARTMENT, WITH THE OBJECTIVE OF ESTABLISHING UNIFORM RULES WHICH SHOULD BE THE SAME FOR BOTH MILITARY AND CIVILIAN AGENCIES. IN THIS CONTEXT, WE HAVE CONSIDERABLE DIFFICULTY IN ACCEPTING THE VIEW THE LANGUAGE PRESCRIBED BY ASPR 2-201 (A) (XXV), PROMULGATED BY THE SAME REVISION AS CONTAINED IN SECTION 2-303.2, WAS DELIBERATELY DESIGNED AND INTENDED TO STATE A DIFFERENT RULE FROM THAT STATED IN THE LATTER SECTION.

"WE ARE CONCERNED ALSO THAT THE "RESTRICTIVE" LATE BID CLAUSE (ASPR 2-201 (A) (XXV) (, IF READ LITERALLY AND WITHOUT REFERENCE TO ASPR 2 303.2, IS NOT IN AGREEMENT WITH THE COUNTERPART FPR CLAUSE (FPR 1 2.201 (A) (23) ( ISSUED OCTOBER 23, 1962, REGARDING THE CONSIDERATION OF LATE MAILED BIDS. UNDER THE PROVISIONS OF SECTION 206 (B) THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED BY SUBSECTION (K) OF SECTION 1 OF P.L. 822, 82D CONGRESS, 66 STAT. 593, (40 U.S.C. 487) EACH FEDERAL AGENCY IS REQUIRED TO UTILIZE SUCH UNIFORM STANDARDIZED FORMS AND PROCEDURES AS ARE PRESCRIBED BY THE ADMINISTRATOR OF GENERAL SERVICES, EXCEPT AS THE ADMINISTRATOR SHALL OTHERWISE PROVIDE. PURSUANT THERETO THE GENERAL SERVICES ADMINISTRATOR HAS PROVIDED UNDER FPR 1-1.004, THAT THE FEDERAL PROCUREMENT REGULATIONS ARE NOT MANDATORY ON THE DEPARTMENT OF DEFENSE "EXCEPT FOR STANDARD GOVERNMENT FORMS AND CLAUSES, FEDERAL SPECIFICATIONS AND STANDARDS, AND EXCEPT AS DIRECTED BY THE PRESIDENT, CONGRESS, OR OTHER AUTHORITY.' IN THE ANALYSIS OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED, PREPARED AT THE REQUEST OF THE COMMITTEE ON GOVERNMENT OPERATIONS, UNITED STATES SENATE, BY THE GENERAL SERVICES ADMINISTRATION, 85TH CONGRESS, 2D SESSION, 1959, P. 47, IT IS STATED THAT:

" "THE AUTHORITY TO STANDARDIZE GOVERNMENT PURCHASE AND CONTRACT FORMS, PROCEDURES, AND SPECIFICATIONS HAS BEEN IN EFFECT AND IN USE FOR MANY YEARS AND IS DEMANDED BY INDUSTRY TO MAKE ITS RELATIONS WITH GOVERNMENT EASIER. IT IS CONFUSING AND COSTLY, FOR EXAMPLE, TO HAVE A CONTRACT WITH TERMS, FORMS, AND CONDITIONS FOR A SUPPLY ITEM WITH ONE AGENCY DIFFERING IN MEANING AND EFFECT FROM ONE FOR THE SAME KIND OF ITEM WITH ANOTHER AGENCY. * * *" "

"IT SEEMS TO US THAT AN INVITATION CLAUSE GOVERNING THE CONSIDERATION OF LATE BIDS IS A STANDARD CLAUSE WHICH BY LAW AND REGULATION IS PRESCRIBED FOR USE BY ALL FEDERAL AGENCIES, INCLUDING THE DEPARTMENT OF DEFENSE, BY THE FEDERAL PROCUREMENT REGULATIONS, AND THAT THE ONLY PERMISSIBLE ALTERNATIVE TO THE USE OF STANDARD FORMS 30 AND 33 (1957 EDITION) AND 22 (1961 EDITION), INCLUDING THE LATE BID CLAUSES INCORPORATED THEREIN, IS TO USE THE CLAUSE PRESCRIBED BY FPR 1 2.201 (A) (23), ALTHOUGH USE OF THAT CLAUSE WAS NOT COMPULSORY UNTIL JANUARY 2, 1963.

"THERE IS ALSO FOR CONSIDERATION THE FACT THAT ASPR 2-303.2 IS A POLICY PROVISION, WHILE SECTION 2-201 (A (XXV) IS MERELY A PROCEDURAL IMPLEMENTATION THEREOF. AS A GENERAL MATTER, WE BELIEVE THAT CONFLICTS BETWEEN SUCH PROVISIONS SHOULD BE RESOLVED IN FAVOR OF THE POLICY PROVISION.

"WE RECOGNIZE THAT BIDDERS NORMALLY COMPUTE THEIR BIDS ON THE BASIS OF THE TERMS AND CONDITIONS STATED IN AN INVITATION, AND WILL OTHERWISE RELY ON THESE PROVISIONS, AND THAT GENERALLY IT IS A SERIOUS MATTER TO VARY OR DISREGARD ANY OF THE STATED TERMS AND CONDITIONS OF THE SOLICITATION AFTER THE BIDS HAVE BEEN OPENED. IN THIS INSTANCE, HOWEVER, WE FAIL TO SEE HOW ANY BIDDER WOULD BE PREJUDICED IN ANY MATERIAL SENSE BY READING INTO THE LATE BID CLAUSE OF THE INVITATION THE EXCEPTION CONTAINED IN ASPR 2-303.2, OR BY APPLYING THAT SECTION TO CONSIDERATION OF THE BIDS. THE PURPOSE OF THE RULES GOVERNING CONSIDERATION OF LATE BIDS IS TO INSURE FOR THE GOVERNMENT THE BENEFITS OF THE MAXIMUM OF LEGITIMATE COMPETITION, NOT TO GIVE ONE BIDDER A WHOLLY UNMERITED ADVANTAGE OVER ANOTHER BY OVER- TECHNICAL APPLICATION OF THE RULES.'

FOR THE FOREGOING REASONS, WE FIND NO LEGAL BASIS FOR OBJECTION TO AWARD OF THE SUBJECT CONTRACT TO PAUL A. MELDONIAN.