B-152610, OCT. 30, 1963

B-152610, OCT. 30, 1963

TO THE SECRETARY OF THE INTERIOR:

REFERENCE IS MADE TO A LETTER DATED OCTOBER 3, 1963, FROM THE NATIONAL PARK SERVICE, REQUESTING OUR ADVICE ON WHETHER OR NOT THE STOP ORDER MAY BE REMOVED FROM CONTRACT NO. 14-10-0333-1119 WITH HOMES AND SON CONSTRUCTION COMPANY, INCORPORATED, WHICH WAS LET UNDER INVITATION FOR BIDS SWR 33-5 DATED JUNE 25, 1963. THE SUBJECT MATTER OF THE CONTRACT IS THE CONSTRUCTION OF A BUILDING, TOWERS, ANTENNAE, R.F. TRANSMISSION LINES AND L.P. GAS SYSTEM IN THE BULLFROG AREA BASIN OF GLEN CANYON NATIONAL RECREATION AREA, UTAH.

BIDS WERE SCHEDULED TO BE OPENED AT 2:00 P.M., MOUNTAIN STANDARD TIME, ON AUGUST 14, 1963, IN THE OFFICE OF THE REGIONAL DIRECTOR, SOUTHWEST REGION, NATIONAL PARK SERVICE, SANTA FE, NEW MEXICO. THE INSTRUCTIONS TO BIDDERS READ AS FOLLOWS, IN PERTINENT PART:

"14. LATE BIDS * * *

"/A) BIDS * * * RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS AFTER THE EXACT TIME SET FOR OPENING OF BIDS WILL NOT BE CONSIDERED UNLESS; (1) THEY ARE RECEIVED BEFORE AWARD IS MADE; AND EITHER (2) THEY ARE SENT BY REGISTERED MAIL OR BY CERTIFIED MAIL * * * OR (3) IF SUBMITTED BY MAIL * * * IT IS DETERMINED THAT THE LATE RECEIPT WAS DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION: PROVIDED, THAT TIMELY RECEIPT AT SUCH INSTALLATION IS ESTABLISHED UPON EXAMINATION OF AN APPROPRIATE DATE OR TIME STAMP (IF ANY) OF EVIDENCE OF RECEIPT (IF READILY AVAILABLE) WITHIN THE CONTROL OF SUCH INSTALLATION OF (OR) THE POST OFFICE SERVING IT. * * *"

AT 2:00 P.M., ON AUGUST 14, 1963, ONLY ONE BID HAD BEEN RECEIVED IN THE OFFICE OF THE REGIONAL DIRECTOR, THAT OF PROTESTANT, THE ARIZONA MINING AND SUPPLY CORPORATION, IN THE AMOUNT OF $11,800. THE BID WAS OPENED AND SHORTLY THEREAFTER MR. FRANK WAITMAN, PRESIDENT OF THAT COMPANY, WAS INFORMED, WHEN HE TELEPHONED, THAT HIS BID WAS THE ONLY ONE RECEIVED. MINUTES LATER A SPECIAL MAIL CARRIER DELIVERED THE BID OF HOMES AND SON CONSTRUCTION COMPANY, INCORPORATED, THE ENVELOPE OF WHICH BORE THE STAMP OF THE SANTA FE POST OFFICE SHOWING THAT IT HAD BEEN RECEIVED THERE AT TWELVE NOON ON AUGUST 14, 1963. THE LOCAL POST OFFICE IS ENTIRELY SEPARATE FROM THE NATIONAL PARK SERVICE INSTALLATION AND IS SIMPLY A CITY POST OFFICE. EVIDENTLY A THIRD BID WAS RECEIVED EVEN LATER, THAT OF THE UNITED CORPORATION IN THE AMOUNT OF $24,750.

THE BID OF HOMES AND SON CONSTRUCTION COMPANY HAD BEEN MAILED VIA AIRMAIL -SPECIAL DELIVERY, APPARENTLY FROM ITS HOME OFFICE IN PHOENIX, ARIZONA. DEEMING THAT THE LETTER SHOULD HAVE ARRIVED IN THE ORDINARY COURSE OF THAT PARTICULAR TYPE OF MAIL SERVICE BEFORE THE TIME SET FOR OPENING, AND WITHOUT CONSULTATION WITH THE POSTAL AUTHORITIES, THE CONTRACTING OFFICER OPENED THE LETTER AND ASCERTAINED THAT HOMES AND SON CONSTRUCTION COMPANY, INCORPORATED, WAS THE LOW BIDDER. BY NOTICE OF AWARD DATED AUGUST 19, 1963, A CONTRACT IN THE AMOUNT OF $8,111 WAS LET TO HOMES AND SON CONSTRUCTION COMPANY, INCORPORATED.

THE APPLICABLE REGULATION TO BE INTERPRETED IS FEDERAL PROCUREMENT REGULATION 1-2.303-2 (C) (FPR CIRC. 28 OCTOBER, 1962) WHICH IS SIMILAR TO THE AFORE-QUOTED INSTRUCTIONS TO BIDDERS. BY F.P.R. 1-2.303-2 A MAILED BID WHICH ARRIVES AT THE SPECIFIED PLACE AFTER THE TIME SET FOROPENING OF BIDS MAY NOT BE CONSIDERED FOR AWARD UNLESS IT ARRIVES BEFORE AWARD, WAS SENT BY EITHER REGISTERED OR CERTIFIED MAIL, AND WAS LATE DUE SOLELY TO A DELAY IN THE MAILS. F.P.R. 1-2.303-2 (C) CONSTITUTES A STATEMENT OF THE GENERAL RULE HAVING RELEVANCE IN THE CASE OF BIDS SENT BY ANY OTHER METHOD. BY THIS GENERAL RULE, A BID MAY NOT BE CONSIDERED FOR AWARD UNLESS IT HAS ACTUALLY ARRIVED AT THE PROCURING INSTALLATION PRIOR TO THE TIME SET FOR OPENING OF BIDS, AND EXCEPT FOR MISHANDLING ON THE PART OF THE GOVERNMENT AT THE INSTALLATION, IT WOULD HAVE REACHED THE STIPULATED PLACE PRIOR TO BID OPENING. THE LAST SENTENCE OF F.P.R. 1-2.303-2 (C) READS AS OLLOWS:

"THE ONLY EVIDENCE ACCEPTABLE TO ESTABLISH TIMELY RECEIPT AT THE GOVERNMENT INSTALLATION IS THAT WHICH CAN BE ESTABLISHED UPON EXAMINATION OF AN APPROPRIATE DATE OR TIME STAMP (IF ANY) OF SUCH INSTALLATION, OR OF OTHER DOCUMENTARY EVIDENCE OF RECEIPT (IF READILY AVAILABLE) WITHIN THE CONTROL OF SUCH INSTALLATION OR THE POST OFFICE SERVING IT.'

THIS SENTENCE MERELY ESTABLISHES A STANDARD OF EVIDENCE BY WHICH THE TIME OF ARRIVAL IS TO BE ESTABLISHED UNDER THE RULE THERETOFORE SET FORTH IN SUBSECTION 1-2.303-2 (C); IT DOES NOT CHANGE THE RULE THAT, IN ORDER TO BE CONSIDERED FOR AWARD, A "LATE" BID MUST BE PROVEN TO HAVE ARRIVED AT THE INSTALLATION BEFORE THE TIME SET FOR OPENING AND IN SUFFICIENT TIME TO BE RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION BY THE TIME SET FOR OPENING. THE ARRIVAL OF A BID AT THE LOCAL POST OFFICE, WHICH IS NOT SITUATED ON, AND IS NOT A PART OF, THE PROCURING INSTALLATION, IN SUFFICIENT TIME TO HAVE BEEN CONVEYED TO THE DESIGNATED OFFICE PRIOR TO OPENING IN THE ORDINARY COURSE OF THE MAILS, DOES NOT SATISFY THE REQUIREMENTS OF F.P.R. 1-2.303-2 (C) FOR THE CONSIDERATION OF LATE BIDS.

THE RECENT REPOSTULATION OF THE RULES CONCERNING THE ELIGIBILITY OF LATE BIDS TO BE CONSIDERED FOR AWARD HAS NOT CHANGED THE RULE THAT THE RESPONSIBILITY FOR SEEING THAT A BID REACHES THE SPECIFIED OFFICE BEFORE THE TIME FIXED FOR OPENING OF BIDS IS UPON THE BIDDER. 34 COMP. GEN. 150. THE RULE'S EXCEPTION THAT WHERE A BIDDER CAN SHOW BY UNIMPEACHABLE EVIDENCE THAT BUT FOR A DELAY IN THE ORDINARY COURSE OF THE MAILS HIS BID WOULD HAVE ARRIVED ON TIME, IS NOW LIMITED BY UNIFORMLY APPLICABLE, GOVERNMENT-WIDE RULES, TO PROPERLY DISPATCHED REGISTERED AND CERTIFIED LETTERS. B-150514 DATED MARCH 22, 1963, 42 COMP. GEN. - .

UNDER THE FACTS EXISTING IN THIS CASE, THE BID OF HOMES AND SON CONSTRUCTION COMPANY, INCORPORATED, SHOULD HAVE BEEN RETURNED TO THE BIDDER UNOPENED SINCE IT WAS A LATE BID WHICH SHOULD NOT HAVE BEEN CONSIDERED FOR AWARD. THE CONTRACTING OFFICER, HOWEVER, DID OPEN THE BID, AND DID DISPATCH A NOTICE OF AWARD TO HOMES AND SON CONSTRUCTION COMPANY, AND, WE UNDERSTAND THAT ON THE BASIS OF THIS NOTICE, THE COMPANY EXPENDED SOME $3,700 IN PREPARATION FOR PERFORMANCE BEFORE RECEIVING A STOP ORDER. ALSO, THE COMPANY HAD NO KNOWLEDGE OF THE IRREGULARITY INVOLVED IN THE ACCEPTANCE OF ITS BID. IN THESE CIRCUMSTANCES, WE BELIEVE THAT IT WOULD NOT BE IN THE BEST INTERESTS OF THE GOVERNMENT TO CANCEL THIS AWARD.