B-152913, FEB. 6, 1964

B-152913, FEB. 6, 1964

TO DIE AND TOOL PRODUCTS COMPANY:

WE REFER TO YOUR LETTER OF NOVEMBER 14, 1963, PROTESTING AGAINST AN AWARD TO ANY OTHER FIRM UNDER IFB NO. AMC/A/36/038-64-92/SP) ISSUED BY THE DEPARTMENT OF THE ARMY, FRANKFORD ARSENAL, PHILADELPHIA, PENNSYLVANIA.

THE INVITATION WAS ISSUED ON AUGUST 9, 1963, AND REQUESTED BIDS ON A QUANTITY OF 382 CARRYING CASES (METAL). BIDS WERE OPENED AT 11:00 A.M., ON SEPTEMBER 9, 1963, AND AT THAT TIME 11 BIDS WERE RECORDED AS HAVING BEEN RECEIVED. THESE BIDS RANGED IN UNIT PRICE FROM A LOW OF $58.30 (ZERO MFG. CO.) TO A HIGH OF $295.40. THE NEXT DAY, SEPTEMBER 10, 1963, AT 8:30 A.M., THE BUYER, MRS. ROSEMARY CALL AN, DISCOVERED IN THE BUNDLE OF PAPERS WHICH CONTAINED ALL THE BIDS, A BID FROM YOUR FIRM WHICH WAS NOTED TO BE IN THE AMOUNT OF $58.00. ONLY ONE COPY OF THIS BID, INSTEAD OF THE NORMAL THREE COPIES, WAS FOUND. THERE WAS NO TIME OR DATE STAMP ON THE BID AND NO ENVELOPE IN WHICH THE BID MIGHT HAVE BEEN SENT. IN SHORT, THERE WAS NO EVIDENCE AS TO WHEN THE BID WAS FIRST RECEIVED AT THE INSTALLATION.

THE FILE INCLUDES A STATEMENT FROM MRS. CALL AN ON THE EVENTS SURROUNDING THE DISCOVERY OF YOUR BID. SHE REPORTS THAT ON SEPTEMBER 9, THE DAY OF THE BID OPENING, BUT PRIOR TO THE BID OPENING TIME, SHE RECEIVED A BUNDLE OF ENVELOPES AND OTHER PAPERS FROM THE ADMINISTRATIVE OFFICE, THE OFFICE RESPONSIBLE FOR RECEIVING AND SAFEGUARDING BIDS AND RELATED PAPERS UNTIL BID OPENING TIME; THAT SHE UNDID THE BUNDLE AND ARRANGED THE BID ENVELOPES IN ALPHABETICAL ORDER AND STARTED TO FILL IN THE ABSTRACT OF BIDS WITH THE DESCRIPTION OF THE SUPPLIES AND THE BIDDERS' NAMES AND ADDRESSES, WHILE PUTTING TO ONE SIDE THE OTHER PAPERS IN THE BUNDLE WHICH CONSISTED OF NO- BID RESPONSE LETTERS, INFORMATION REQUESTS, NO BIDS, ETC. SHE STATES THAT, AFTER BID OPENING, THE OPENED BIDS AND ENVELOPES AND THE NO-BID PAPERS WERE THEN COMBINED AND SECURED BY A RUBBER BAND AND LEFT ON HER DESK; THAT DURING THE REST OF THE DAY (SEPTEMBER 9) SHE CHECKED THE MAIL BOX FROM TIME TO TIME TO SEE IF ANY ADDITIONAL BIDS OR BID PAPERS HAD COME IN; AND THAT ANY MAIL RECEIVED WAS INSERTED IN THE BUNDLE PREVIOUSLY PUT ASIDE. SHE THEN STATES THAT ON THE NEXT DAY, SEPTEMBER 10, 1963, AT 8:30 A.M., SHE PICKED UP THE BUNDLE FROM THE DESK TOP AND FOUND IT UNDISTURBED AND IN THE SAME CONDITION IN WHICH IT WAS LEFT THE NIGHT BEFORE; THAT SHE OPENED THE BUNDLE TO SORT ALL THE RESPONSES TO THE IFB AND THAT WHILE SHE WAS DOING THIS, SHE FIRST CAME ACROSS THE SINGLE COPY OF THE DIE AND TOOL MANUFACTURING COMPANY BID. SHE REPORTS THAT SHE DID NOT FIND ANY OTHER COPIES OF THIS BID OR A BID ENVELOPE FROM THIS BIDDER. MRS. CALL AN CONCLUDES THAT, SINCE THE BID BUNDLE APPEARED TO BE UNDISTURBED ON THE MORNING OF SEPTEMBER 10, THE DIE AND TOOL BID WAS RECEIVED ON SEPTEMBER 9, 1963, BUT IT COULD HAVE BEEN RECEIVED EITHER BEFORE OR AFTER THE 11:00 A.M., BID OPENING ON THAT DAY.

YOU STATE THAT YOUR BID WAS POSTED BY AIR-MAIL AT 5:00 P.M., ON FRIDAY, SEPTEMBER 6, 1963, IN ONE OF YOUR BUSINESS ENVELOPES, WHICH CONTAINED A NOTATION OF THE INVITATION NUMBER AND THE OPENING DATE. YOU ALSO HAVE SUBMITTED A STATEMENT FROM THE POSTMASTER IN YOUR AREA, TO THE EFFECT THAT A BID ENVELOPE AIR-MAILED AT 6:00 P.M., SEPTEMBER 6, 1963, WOULD NORMALLY ARRIVE IN TIME FOR THE SCHEDULED BID OPENING IN PHILADELPHIA.

THE ARMY REQUESTED THE INSPECTOR GENERAL OF THE U.S. ARMY MUNITIONS COMMAND, DOVER, NEW JERSEY, TO INVESTIGATE ALL THE CIRCUMSTANCES SURROUNDING THE APPEARANCE OF YOUR BID. HOWEVER, ARMY REPORTS THAT IT HAS NOT BEEN ABLE TO DETERMINE WHETHER YOUR BID WAS RECEIVED BEFORE OR AFTER THE OPENING OF THE BIDS.

YOU MAINTAIN THAT SINCE YOUR BID WAS APPARENTLY MISHANDLED BY THE INSTALLATION THROUGH NO FAULT OF YOUR OWN, IT SHOULD BE CONSIDERED FOR AWARD.

A LATE BID IS DEFINED AS ONE WHICH IS RECEIVED IN THE BID OPENING ROOM AFTER THE EXACT TIME SET FOR THE BID OPENING. ASPR 2-303.1. A LATE BID MAY NOT BE CONSIDERED FOR AWARD UNLESS IT IS ESTABLISHED THAT THE LATENESS WAS DUE SOLELY TO EITHER A DELAY IN THE MAILS, OR TO MISHANDLING BY THE GOVERNMENT AT THE INSTALLATION. ASPR 2-303.2. IN THIS CASE INVESTIGATION HAS FAILED TO REVEAL HOW AND WHEN YOUR BID WAS PLACED WITH THE OTHER BIDS. THE LATENESS COULD HAVE BEEN CAUSED BY A DELAY IN THE MAILS (YOU REPORT THAT YOUR BID WAS TIMELY AIR-MAILED); IT COULD HAVE BEEN CAUSED BY A DELAY AT THE INSTALLATION; ALSO, THE LATENESS COULD HAVE BEEN CAUSED BY YOU: A MISTAKE IN ADDRESS, FOR EXAMPLE.

IN ANY EVENT, IF YOUR BID BE VIEWED AS LATE, IT CANNOT BE CONSIDERED FOR THE AWARD. YOUR BID WAS NOT SENT BY CERTIFIED OR REGISTERED MAIL (A PRECONDITION TO THE ESTABLISHMENT OF A DELAY IN THE MAILS), AND THERE WAS NO INSTALLATION STAMP OR OTHER DOCUMENTARY EVIDENCE TO ESTABLISH A TIMELY RECEIPT AT THE INSTALLATION. ASPR 2-303.2. B 151093, APRIL 29, 1963.

ON THE OTHER HAND, THE CIRCUMSTANCES SURROUNDING THE APPEARANCE OF YOUR BID ON SEPTEMBER 10, 1963, POINT UP THE POSSIBILITY THAT YOUR BID WAS NOT LATE; THAT IT WAS RECEIVED AT THE INSTALLATION PRIOR TO THE BID OPENING ON SEPTEMBER 9, BUT WAS MISPLACED OR MISFILED. EVEN SO, THE RULES GOVERNING THE CONSIDERATION OF LATE BIDS WOULD STILL PRECLUDE CONSIDERATION OF YOUR BID BECAUSE OF THE ABSENCE OF ACCEPTABLE EVIDENCE AS TO THE TIME OF ITS RECEIPT AT THE INSTALLATION.

THE ARMY RECOMMENDS THAT ALL BIDS BE REJECTED AND THE ITEM READVERTISED. IN VIEW OF THE BROAD DISCRETION VESTED IN THE PROCURING AGENCY TO REJECT ALL BIDS AND READVERTISE AND THE ABSENCE OF EVIDENCE ESTABLISHING THE TIME YOUR BID WAS RECEIVED, WE FIND NO LEGAL OBJECTION TO THE DISPOSITION PROPOSED BY THE DEPARTMENT OF THE ARMY. CF. 39 COMP. GEN. 396, 399.

WE HAVE BY OUR LETTER OF TODAY ADVISED THE SECRETARY OF THE ARMY OF OUR VIEWS ON THE MATTER.