B-155568, JAN. 4, 1965

B-155568: Jan 4, 1965

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TO ACTION FLEX: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER OF NOVEMBER 10. BIDS ON THIS TOTAL SMALL BUSINESS SET-ASIDE INVOLVING THE PROCUREMENT OF 490 HOSE ASSEMBLIES WERE SCHEDULED TO BE OPENED AND WERE IN FACT OPENED AT 11:00 A.M. THE CONTRACTING OFFICER WAS IN POSSESSION OF THREE BIDS AT THE APPOINTED TIME. THE LOWEST OF WHICH WAS TENDERED BY CLARK CABLE CORPORATION IN THE TOTAL AMOUNT OF $16. AN ENVELOPE DISPATCHED BY AIR MAIL SPECIAL DELIVERY AND CONTAINING YOUR COMPANY'S BID WAS RECEIVED AT THE INSTALLATION. PROCUREMENT OFFICIALS OPENED YOUR BID AND TOOK NOTICE OF THE PRICE WHICH WAS $16. YOUR PLANT WAS THE SUBJECT OF A PRE-AWARD SURVEY CONDUCTED WITH REFERENCE TO THIS PROPOSED CONTRACT BY REPRESENTATIVES OF THE DETROIT PROCUREMENT DISTRICT AND YOU WERE THEN INFORMED YOUR BID WAS THE LOWEST SUBMITTED.

B-155568, JAN. 4, 1965

TO ACTION FLEX:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER OF NOVEMBER 10, 1964, PROTESTING AGAINST THE OPENING OF YOUR BID ON INVITATION FOR BIDS NO. AMC/Z/-19-066-65-38 ISSUED FROM WATERTOWN ARSENAL ON AUGUST 31, 1964, BY THE UNITED STATES ARMY MATERIEL COMMAND.

BIDS ON THIS TOTAL SMALL BUSINESS SET-ASIDE INVOLVING THE PROCUREMENT OF 490 HOSE ASSEMBLIES WERE SCHEDULED TO BE OPENED AND WERE IN FACT OPENED AT 11:00 A.M., E.D.S. ON SEPTEMBER 30, 1964. THE CONTRACTING OFFICER WAS IN POSSESSION OF THREE BIDS AT THE APPOINTED TIME, THE LOWEST OF WHICH WAS TENDERED BY CLARK CABLE CORPORATION IN THE TOTAL AMOUNT OF $16,856. 8:20 A.M. ON OCTOBER 1, 1964,AN ENVELOPE DISPATCHED BY AIR MAIL SPECIAL DELIVERY AND CONTAINING YOUR COMPANY'S BID WAS RECEIVED AT THE INSTALLATION.

CONTRARY TO ASPR 2-303.7, WHICH PROVIDES IN GENERAL THAT LATE BIDS SHOULD BE HELD UNOPENED UNTIL AFTER AWARD AND THEN RETURNED TO THE BIDDER, PROCUREMENT OFFICIALS OPENED YOUR BID AND TOOK NOTICE OF THE PRICE WHICH WAS $16,468.90. YOU STATE THAT ON OCTOBER 12, 1964, YOUR PLANT WAS THE SUBJECT OF A PRE-AWARD SURVEY CONDUCTED WITH REFERENCE TO THIS PROPOSED CONTRACT BY REPRESENTATIVES OF THE DETROIT PROCUREMENT DISTRICT AND YOU WERE THEN INFORMED YOUR BID WAS THE LOWEST SUBMITTED. NONETHELESS, WATERTOWN ARSENAL, ON THE ADVICE OF COUNSEL, SUBSEQUENTLY DETERMINED TO DISREGARD YOUR BID AS A LATE BID WITHIN THE MEANING OF ASPR 2-303.1, AND NOW CONTEMPLATES MAKING AN AWARD OF THE CONTRACT TO CLARK CABLE CORPORATION.

YOU CONTEND THE ALLEGED MISHANDLING OF THE PROCUREMENT OFFERS SUFFICIENT BASIS FOR CANCELLATION OF THE AWARD AND READVERTISEMENT OF THE REQUIREMENT.

YOUR BID SHOULD NOT HAVE BEEN OPENED BUT SHOULD HAVE BEEN DISREGARDED AS A LATE BID. SEE ASPR 2-303.2/II) AND THE PARAGRAPH ENTITLED "LATE BIDS AND MODIFICATIONS OR WITHDRAWALS (JAN. 1964) " SET FORTH AT PAGE THREE OF THE TERMS AND CONDITIONS OF THE INVITATION WHICH PERMIT CONSIDERATION OF MAILED BIDS RECEIVED LATE AT THE INSTALLATION ONLY WHEN SENT BY REGISTERED OR CERTIFIED MAIL. SEE 42 COMP. GEN. 255.

THE TIME FOR THE OPENING OF BIDS WAS UNEQUIVOCALLY SET FORTH ON THE FIRST PAGE OF THE INVITATION. EACH BIDDER IS RESPONSIBLE FOR THE SEASONABLE ARRIVAL OF HIS OWN BID AT THE DESIGNATED OFFICE BEFORE THE SCHEDULED OPENING TIME. THE INADVERTENT OPENING OF A LATE BID WILL NOT ALONE JUSTIFY DISREGARD FOR THE INJUNCTION OF ASPR 2-404.1 AGAINST WITHHOLDING AWARD FROM THE LOWEST RESPONSIBLE AND RESPONSIVE BIDDER WITHOUT A COMPELLING REASON TO REJECT ALL BIDS AND CANCEL THE INVITATION. THE RULE IS STATED BY THE COURT IN MASSMAN CONSTRUCTION COMPANY V. UNITED STATES, 102 CT.CL. 699, AT PAGE 719:

"* * * TO HAVE A SET OF BIDS DISCARDED AFTER THEY ARE OPENED AND EACH BIDDER HAS LEARNED HIS COMPETITOR'S PRICE IS A SERIOUS MATTER, AND IT SHOULD NOT BE PERMITTED EXCEPT FOR COGENT REASONS * * *.'

SEE OUR DECISIONS IN 34 COMP. GEN. 535, 537; 36 ID. 62, 65; 39 ID. 396, 399; AND 42 ID. 467, 474. THE CANCELLATION OF THIS INVITATION AND READVERTISEMENT OF THE PROCUREMENT WOULD BE PREJUDICIAL TO THE INTERESTS OF OTHER BIDDERS WHO COMPLIED WITH ALL OF THE TERMS OF THE INVITATION.

YOUR LETTER SPEAKS OF THE UNWARRANTED REVELATION OF THE CONTENTS OF YOUR BID TO YOUR COMPETITORS ON BOTH THIS AND FUTURE PROCUREMENTS. WE REGRET THAT YOUR BID PRICE WAS EXPOSED CONTRARY TO THE PROVISIONS OF ASPR. HAVE BEEN ADVISED THAT ACTION HAS BEEN TAKEN AT THE WATERTOWN ARSENAL TO INSURE THAT THE ASPR PROVISIONS CONCERNING THE HANDLING OF LATE BIDS ARE FOLLOWED IN THE FUTURE. IN ANY CASE, WE FIND NO BASIS TO QUESTION THE VALIDITY OF THE AWARD PROPOSED BY THE CONTRACTING OFFICER.