B-156034, MAR. 5, 1965

B-156034: Mar 5, 1965

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WE HAVE BEEN FURNISHED WITH A REPORT ON THE PROTEST FILED BY THE CONVOY OIL CORPORATION UNDER DEFENSE SURPLUS SALES OFFICE INVITATION NO. 11-S-65-53. BIDS WERE SCHEDULED FOR OPENING AT 10:00 A.M. RATHER THAN MAIL BIDS DIRECTLY TO THE SALES CONTRACTING OFFICE BIDDERS WERE DIRECTED TO ADDRESS THEIR BIDS TO A DESIGNATED POST OFFICE BOX LOCATED IN THE MAIN POST OFFICE. THE FACTS HERE SHOW THAT BIDS WERE PICKED UP SOME 20 MINUTES EARLIER THAN NECESSARY. WAS PICKED UP BY SALES OFFICER PERSONNEL ON THE FOLLOWING DAY. A COPY OF WHICH WAS FORWARDED TO YOU WITH OUR LETTER OF FEBRUARY 4. THE PROTESTANT ARGUES THAT SINCE BIDS WERE PICKED UP PRIOR TO THE APPROPRIATE TIME AND THEIR BID WAS MAILED SUFFICIENTLY EARLY AS EVIDENCED BY A "CERTIFICATE OF MAILING" AND A LETTER FROM THE POST OFFICE.

B-156034, MAR. 5, 1965

TO VICE ADMIRAL JOSEPH M. LYLE, DIRECTOR, DEFENSE SUPPLY AGENCY:

IN ANSWER TO OUR LETTER OF FEBRUARY 4, 1965, WE HAVE BEEN FURNISHED WITH A REPORT ON THE PROTEST FILED BY THE CONVOY OIL CORPORATION UNDER DEFENSE SURPLUS SALES OFFICE INVITATION NO. 11-S-65-53, YOUR REFERENCE DSAH-G.

UNDER THE TERMS OF THE ABOVE INVITATION, BIDS WERE SCHEDULED FOR OPENING AT 10:00 A.M., EASTERN STANDARD TIME, JANUARY 19, 1965. RATHER THAN MAIL BIDS DIRECTLY TO THE SALES CONTRACTING OFFICE BIDDERS WERE DIRECTED TO ADDRESS THEIR BIDS TO A DESIGNATED POST OFFICE BOX LOCATED IN THE MAIN POST OFFICE, PHILADELPHIA, PENNSYLVANIA. ALTHOUGH INSTRUCTIONS IN EFFECT AT THE TIME OF THE INVITATION DIRECTED THE VARIOUS SALES OFFICERS TO PICK UP MAIL AS CLOSE TO THE TIME SCHEDULED FOR BID OPENING AS POSSIBLE, THE FACTS HERE SHOW THAT BIDS WERE PICKED UP SOME 20 MINUTES EARLIER THAN NECESSARY. CONVOY'S BID, TOGETHER WITH SEVERAL OTHER BIDS, WAS PICKED UP BY SALES OFFICER PERSONNEL ON THE FOLLOWING DAY, JANUARY 20, 1965.

BY CORRESPONDENCE DATED JANUARY 28, 1965, A COPY OF WHICH WAS FORWARDED TO YOU WITH OUR LETTER OF FEBRUARY 4, 1965, CONVOY OIL CORPORATION PROTESTED DISQUALIFICATION OF THEIR BID. THE PROTESTANT ARGUES THAT SINCE BIDS WERE PICKED UP PRIOR TO THE APPROPRIATE TIME AND THEIR BID WAS MAILED SUFFICIENTLY EARLY AS EVIDENCED BY A "CERTIFICATE OF MAILING" AND A LETTER FROM THE POST OFFICE, THEIR BID IS PROPER FOR CONSIDERATION UNDER ARTICLE AC OF THE SPECIAL CONDITIONS APPEARING ON PAGE 23 OF THE INVITATION. THIS PROVISION READS AS FOLLOWS:

"ARTICLE AC: CONSIDERATION OF LATE BIDS. BIDS MUST BE IN THE POSSESSION OF THE SALES CONTRACTING OFFICER BY THE TIME SET FOR BID OPENING. ANY BID WHICH IS NOT IN THE POSSESSION OF THE SALES CONTRACTING OFFICER BY THE TIME SET FOR BID OPENING WILL BE CONSIDERED ONLY IF IT IS RECEIVED BY THE SALES CONTRACTING OFFICER PRIOR TO AWARD, WAS MAILED AND IN FACT DELIVERED TO THE PLACE SPECIFIED IN THE INVITATION FOR BIDS IN SUFFICIENT TIME TO HAVE BEEN RECEIVED BY THE SALES CONTRACTING OFFICER BY THE TIME SET FOR BID OPENING, AND EXCEPT FOR DELAY ATTRIBUTABLE TO SALES PERSONNEL OR THEIR DESIGNEES, WOULD HAVE BEEN ON TIME. IN NO EVENT WILL HAND-CARRIED BIDS BE CONSIDERED IF DELIVERED TO THE SALES OFFICE AFTER THE EXACT TIME SET FOR BID OPENING.'

PRIOR TO DECEMBER 1, 1964, THE DEFENSE LOGISTICS SERVICES CENTER USED A STANDARD PROVISION WHICH PERMITTED CONSIDERATION OF LATE BIDS IF RECEIVED PRIOR TO AWARD AND THE BID WAS MAILED BY REGISTERED OR CERTIFIED MAIL FOR WHICH AN OFFICIAL POST OFFICE STAMP (POSTMARK) ON THE ORIGINAL REQUEST FOR CERTIFIED OR REGISTERED MAIL HAD BEEN OBTAINED AND IT WAS DETERMINED THAT THE LATENESS WAS DUE SOLELY TO A DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE OR THAT THE BIDS WERE MISHANDLED. HOWEVER, BECAUSE OF THE DELAY IN EVALUATION OCCASIONED BY THE SOMETIMES LENGTHY PERIOD OF TIME REQUIRED FOR A DETERMINATION ON WHETHER A PARTICULAR LATE BID COULD BE CONSIDERED, AND THE RESULTING DELAY IN AWARD AND REMOVAL OF THE SURPLUS PROPERTY, THE DEFENSE LOGISTICS SERVICES CENTER ADOPTED THE ABOVE-QUOTED PROVISION. WHILE IT IS CONCEDED THAT THERE HAVE BEEN SOME OPERATIONAL DIFFICULTIES IN USING THIS NEW PROVISION IT IS BELIEVED THAT THESE PROBLEMS WILL NOT ARISE IN THE FUTURE IN VIEW OF MORE RECENT INSTRUCTIONS APPEARING IN CIRCULAR LETTER DLSC-MS 337, FEBRUARY 2, 1965. IN PERTINENT PART, THIS LETTER PROVIDES AS FOLLOWS:

"ALL DSSOS WILL HAVE A DESIGNEE OF THE SALES CONTRACTING OFFICER, WHO SHALL BE A DSSO EMPLOYEE, AT THE LOCATION SPECIFIED IN THE IFB AT WHICH BIDS ARE TO BE RECEIVED (LOCK BOX OR POST OFFICE STATION OR SUB STATION) AT THE EXACT TIME OF ALL SCHEDULED BID OPENINGS. THE CONTRACTING OFFICER'S DESIGNEE WILL PICK UP ANY MAIL WHICH MAY BE AT THIS LOCATION AT THE TIME FOR SCHEDULED BID OPENING. IF SUCH MAIL CONTAINS BIDS FOR THE SCHEDULED BID OPENING, HE WILL IMMEDIATELY SO NOTIFY THE CONTRACTING OFFICER AND HAND CARRY SUCH BIDS TO THE SALES CONTRACTING OFFICER CONDUCTING THE SALE. THE SALES CONTRACTING OFFICER WILL MAKE AN ANNOUNCEMENT AT BID OPENING TO THE EFFECT THAT THESE BIDS WERE IN THE POSSESSION OF THE SALES CONTRACTING OFFICER WITHIN THE TIME PRESCRIBED AND WILL BE OPENED AND CONSIDERED FOR AWARD. ALL REPEAT ALL INVITATIONS FOR BIDS WILL CLEARLY STATE WHERE TELEGRAPHIC MODIFICATIONS ARE TO BE SENT, I.E., P.O. BOX, STATION COM CENTER, ETC. THE SALES CONTRACTING OFFICER SHALL CHECK SUCH ADDRESSEES IMMEDIATELY REPEAT IMMEDIATELY PRIOR TO BID OPENING FOR ALL SUCH MODIFICATIONS UNLESS THE ADDRESSEE IS THE P.O. BOX. FAILURE TO COMPLY STRICTLY WITH THE FOREGOING WILL RESULT IN DISCIPLINARY ACTION.'

YOU STATE THAT BECAUSE YOU HAVE NO WAY OF LEARNING HOW MANY BIDS WERE DEPOSITED AFTER THE EARLY PICKUP WHICH WOULD HAVE OTHERWISE BEEN ON TIME YOU INTEND TO CONSIDER ALL OF THE BIDS PICKED UP ON JANUARY 20, 1965. WHILE WE ARE INCLINED TO AGREE WITH YOUR SUGGESTION INSOFAR AS CONVOY OIL IS CONCERNED, WE DO NOT BELIEVE THAT THIS CONCLUSION NECESSARILY REQUIRES THAT ALL OF THE "LATE BIDS" BE CONSIDERED. RATHER, WE BELIEVE THAT EACH BID RECEIVED AFTER THE TIME SET FOR OPENING SHOULD BE EXAMINED INDIVIDUALLY AND A DETERMINATION MADE AS TO WHETHER THERE IS A REASONABLE BASIS FOR CONCLUDING THAT THE PARTICULAR BID WOULD HAVE BEEN TIMELY DELIVERED HAD IT NOT BEEN FOR THE ACTION OF THE SALES PERSONNEL. IF AFTER CHECKING THE DATE AND PLACE OF THE POSTMARK IT IS REASONABLE TO CONCLUDE THAT THE PARTICULAR BID WOULD HAVE BEEN TIMELY RECEIVED, WE WOULD, UNDER THE CIRCUMSTANCES HERE PRESENT, INTERPOSE NO OBJECTION IF CONSIDERATION WERE GIVEN TO THAT BID.

IT WOULD APPEAR THAT CONSIDERATION CAN BE GIVEN TO THE WESTERN UNION MESSAGE SENT BY MR. GLENN WHITING WITHDRAWING HIS BID ON ITEM 18 UNDER CLAUSE AD OF THE SPECIAL CONDITIONS.