B-156876, SEP. 23, 1965

B-156876, SEP. 23, 1965

TO DAUGHTRY LUMBER, INC.:

REFERENCE IS MADE TO YOUR TELEGRAM OF MAY 26, 1965, PROTESTING AWARD TO ANOTHER CONCERN UNDER INVITATION FOR BIDS NO. RE-T-667, ISSUED BY THE U.S. ARMY ENGINEER DISTRICT, MOBILE, ALABAMA.

UNDER THE INVITATION IN QUESTION BIDS WERE REQUESTED FOR THE SALE OF 1,440 MBF OF SAWTIMBER AND 430 CDS. OF PULPWOOD, IDENTIFIED AS ITEMS 1 AND 2, RESPECTIVELY, AND THE INVITATION PROVIDED THAT BIDS WOULD BE RECEIVED "UNTIL THE TIME, DATE, AND AT THE PLACE INDICATED BELOW, AND THEN PUBLICLY OPENED.' IT ALSO PROVIDED THAT "BIDS DELIVERED BY HAND MUST BE DELIVERED TO THE ADDRESS WHERE BIDS WILL BE OPENED AS INDICATED BELOW, AND WILL NOT BE ACCEPTED AT ANY OTHER LOCATION.' THE PLACE OF OPENING WAS SHOWN AS ROOM 137, LOYAL AMERICAN LIFE BUILDING, 2460 GOVERNMENT STREET, MOBILE, ALABAMA. NO SPECIFIC DIRECTIONS WERE GIVEN FOR THE ADDRESSING OF MAILED BIDS, ALTHOUGH THE INVITATION SHOWED THAT IT HAD BEEN ISSUED BY THE DISTRICT ENGINEER, U.S. ARMY ENGINEER DISTRICT, P.O. BOX 1169, MOBILE, ALABAMA. A BID DEPOSIT OF 10 PERCENT OF THE TOTAL AMOUNT OF THE BID WAS REQUIRED, AND WAS TO BE FURNISHED IN CASH, BY POSTAL OR EXPRESS MONEY ORDER, CASHIER-S, CERTIFIED, OR TRAVELER'S CHECK, OR A COMBINATION THEREOF.

THE ONLY BID RECEIVED BY THE TIME OF OPENING AT 2 P.M. ON MAY 20, 1965, WAS THAT OF DELONEY LUMBER COMPANY AT UNIT PRICES OF $28.50 AND $4.50 FOR ITEMS 1 AND 2, RESPECTIVELY. THIS BID WAS ACCOMPANIED BY A BID DEPOSIT IN THE FORM OF A PERSONAL CHECK, NOT CERTIFIED, AND WAS THEREFORE NOT RESPONSIVE TO THE REQUIREMENTS OF THE INVITATION. YOUR BID AND THAT OF FLACK LUMBER COMPANY WERE RECEIVED ON MAY 21, 1965, AND IT APPEARS THAT YOU BID $28.61 PER MBF ON ITEM 1, BUT DID NOT BID ON ITEM 2. IT APPEARS FURTHER THAT YOUR BID ENVELOPE WAS NOT MARKED WITH THE INFORMATION REQUIRED BY THE INVITATION AND HAD TO BE OPENED FOR IDENTIFICATION. WAS RETURNED TO YOU AS A LATE BID ON MAY 21, 1965.

IN PROTESTING THE GOVERNMENT'S FAILURE TO CONSIDER YOUR BID, YOU ALLEGE THAT THE TIMBER IN THIS CASE WAS SOLD TO DELONEY LUMBER COMPANY FOR $28.50 PER MBF, WHICH WAS LOWER THAN YOUR BID; THAT AWARD WAS PREVIOUSLY MADE TO DELONEY AS A LATE BIDDER UNDER INVITATION NO. RE-T 649, OPENED MARCH 9, 1965; AND THAT YOU WERE ASSURED BY THE RESIDENT INSPECTOR AT FORT RUCKER THAT YOUR BID WOULD BE ACCEPTABLE IF MAILED IN SUFFICIENT TIME TO BE RECEIVED.

SECTION 2-404.1/A) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) PROVIDES THAT "THE PRESERVATION OF THE INTEGRITY OF THE COMPETITIVE BID SYSTEM DICTATES THAT AFTER BIDS HAVE BEEN OPENED, AWARD MUST BE MADE TO THAT RESPONSIBLE BIDDER WHO SUBMITTED THE LOWEST RESPONSIVE BID, UNLESS THERE IS A COMPELLING REASON TO REJECT ALL BIDS AND CANCEL THE INVITATION. " THIS APPLIES, OF COURSE, TO THE "HIGHEST" RESPONSIVE BID IN THE CASE OF SALE, SUCH AS HERE. SECTION 2 404.1/B) OF ASPR FURTHER PROVIDES THAT INVITATIONS FOR BIDS MAY BE CANCELED AFTER OPENING BUT PRIOR TO AWARD WHERE THE CONTRACTING OFFICER DETERMINES IN WRITING THAT:

"/I) INADEQUATE OR AMBIGUOUS SPECIFICATIONS WERE CITED IN THE INVITATION; * * * OR

"/VIII) FOR OTHER REASONS, CANCELLATION IS CLEARLY IN THE BEST INTEREST OF THE GOVERNMENT.'

FOR THE REASONS HEREINAFTER STATED IT HAS BEEN DETERMINED BY THE CONTRACTING OFFICER THAT THE BEST INTEREST OF THE GOVERNMENT WOULD BE SERVED BY CANCELLATION OF INVITATION NO. RE-T-667 AND READVERTISING OF THE SALE. CONTRARY TO YOUR INFORMATION, NO AWARD HAS BEEN MADE TO DELONEY LUMBER COMPANY UNDER THE SUBJECT INVITATION.

WHILE THE INVITATION IN QUESTION CONTAINED NO PROVISIONS CONCERNING LATE BIDS, SECTION 2-303 OF ASPR PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"2-303 LATE BIDS.

"2-303.1 GENERAL. BIDS WHICH ARE RECEIVED IN THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS AFTER THE EXACT TIME SET FOR OPENING ARE "LATE BIDS," EVEN THOUGH RECEIVED ONLY ONE OR TWO MINUTES LATE. LATE BIDS SHALL NOT BE CONSIDERED FOR AWARD EXCEPT AS AUTHORIZED IN THIS PARAGRAPH 2-303.

"2-303.2 CONSIDERATION FOR AWARD. A LATE BID SHALL BE CONSIDERED FOR AWARD ONLY IF:

"/I) IT IS RECEIVED BEFORE AWARD; AND EITHER

"/II) IT WAS SENT BY REGISTERED MAIL, OR BY CERTIFIED MAIL FOR WHICH AN OFFICIAL DATED POST OFFICE STAMP (POSTMARK) ON THE ORIGINAL RECEIPT FOR CERTIFIED MAIL HAS BEEN OBTAINED, OR BY TELEGRAPH IS AUTHORIZED, AND IT IS DETERMINED THAT THE LATENESS WAS DUE SOLELY TO A DELAY IN THE MAILS (BASED ON EVIDENCE PURSUANT TO 2-303.3), OR TO A DELAY BY THE TELEGRAPH COMPANY FOR WHICH THE BIDDER WAS NOT RESPONSIBLE; OR

"/III) IF SUBMITTED BY MAIL (OR BY TELEGRAM WHERE AUTHORIZED), IT 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. 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 AT SUCH INSTALLATION (IF READILY AVAILABLE) WITHIN THE CONTROL OF SUCH INSTALLATION OR OF THE POST OFFICE SERVING IT.'

SINCE THE RECORD INDICATES THAT YOUR BID WAS NOT SENT BY REGISTERED OR CERTIFIED MAIL, THE ONLY BASIS FOR CONSIDERATION WOULD BE DELAY DUE TO MISHANDLING ON THE PART OF THE GOVERNMENT AFTER TIMELY RECEIPT AT THE GOVERNMENT INSTALLATION. THERE IS NO EVIDENCE OF MISHANDLING AFTER RECEIPT AT THE GOVERNMENT INSTALLATION, BUT IT DOES APPEAR THAT THE FAILURE OF THE INVITATION TO GIVE SPECIFIC DIRECTIONS FOR MAILING BIDS RESULTED IN YOUR BID BEING MAILED TO THE STREET ADDRESS OF THE PLACE OF OPENING, WHICH IS NOT COVERED BY LOCAL MAIL DELIVERY, NECESSITATING THE REROUTING OF SUCH MAIL THROUGH THE APPROPRIATE POST OFFICE BOX NUMBER. THIS DEFICIENCY IN THE INVITATION WAS ONE OF THE BASES FOR THE CONTRACTING OFFICER'S DETERMINATION TO CANCEL THE INVITATION.

THE REPORT FROM THE ARMY CONFIRMS THAT YOU WERE ADVISED BY THE RESIDENT INSPECTOR THAT IT WAS THE POLICY OF HIS OFFICE TO CONSIDER BIDS RECEIVED AFTER THE OPENING TIME, IF DELAYED SOLELY THROUGH THE FAULT OF THE MAILS. HOWEVER, AS INDICATED IN THE PERTINENT PROVISIONS OF ASPR QUOTED ABOVE, SUCH BIDS MAY BE CONSIDERED ONLY IF SENT BY REGISTERED OR CERTIFIED MAIL.

WITH REFERENCE TO THE AWARD TO DELONEY LUMBER COMPANY ON INVITATION NO. RE-T-649, THE ARMY REPORTS THAT THIS BID RECEIVED ON THE DAY AFTER OPENING, BUT THAT IT WAS DETERMINED TO HAVE BEEN MAILED IN SUFFICIENT TIME TO BE RECEIVED BY BID OPENING EXCEPT FOR DELAY IN THE MAILS. WHILE THE REPORT DOES NOT INDICATE THAT THIS BID WAS SENT BY REGISTERED OR CERTIFIED MAIL, IT IS REPORTED THAT THE AWARD TO DELONEY WAS FOR ONLY ONE OF FOUR ITEMS (NO. 3B), THAT THE AMOUNT BID WAS CONSIDERABLY OVER THE APPRAISED VALUE, AND THAT THERE WERE NO OTHER ACCEPTABLE BIDS FOR THIS ITEM. IT WAS THEREFORE DETERMINED THAT READVERTISING ITEM 3B WOULD NOT BE TO THE GOVERNMENT'S ADVANTAGE. WHILE THE AWARD OF THIS ITEM MAY NOT HAVE BEEN IN STRICT ACCORD WITH THE REGULATION, IT WAS NOT PREJUDICIAL TO THE RIGHTS OF ANY OTHER BIDDER AND THEREFORE APPEARS TO PRESENT NO BASIS FOR PROTEST BY YOUR COMPANY.

AS INDICATED ABOVE, THE BID OF DELONEY LUMBER COMPANY UNDER INVITATION NO. RE-T-667 WAS SUPPORTED BY A BID DEPOSIT IN THE FORM OF AN UNCERTIFIED PERSONAL CHECK. THIS WAS NOT LISTED IN THE INVITATION AS AN ACCEPTABLE FORM OF BID DEPOSIT AND THE BID OF DELONEY COULD THEREFORE NOT BE CONSIDERED AS RESPONSIVE. 38 COMP. GEN. 532; B 150206, DECEMBER 12, 1962. SINCE ALL BIDS RECEIVED WERE EITHER LATE OR NONRESPONSIVE, IT APPEARS THAT THE PROPOSED ACTION OF THE CONTRACTING OFFICER IN CANCELLING THE INVITATION WAS NOT ONLY JUSTIFIED BUT REQUIRED.

FOR THE FOREGOING REASONS THERE APPEARS TO BE NO LEGAL BASIS UPON WHICH TO QUESTION THE ACTION OF THE CONTRACTING OFFICER, AND YOUR PROTEST MUST THEREFORE BE DENIED.