B-158006, DEC. 28, 1965

B-158006: Dec 28, 1965

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THIS INVITATION WAS ISSUED ON OCTOBER 13. BIDS WERE OPENED AS SCHEDULED ON OCTOBER 22. THREE BIDS WERE RECEIVED AND THE BID FROM THE PHILLIPS MACHINERY AND TRACTOR COMPANY WAS LOW. A CONTRACT WAS AWARDED TO PHILLIPS. THIS ENVELOPE BEARS THE NOTATION THAT IT WAS RECEIVED BY THE PROCURING ACTIVITY AT 9:00 A.M. YOUR BID WAS SENT TO THE PROCURING ACTIVITY BY FIRST CLASS. YOUR RECEIPT FOR CERTIFIED MAIL INDICATES YOUR BID WAS MAILED FROM PEORIA. THE DEPARTMENT OF THE INTERIOR ADVISES THAT YOUR BID WAS RETURNED TO YOU UNOPENED AND THAT YOU LATER RESUBMITTED YOUR BID IN THE ORIGINAL ENVELOPE. YOU CONTEND THAT YOUR BID SHOULD HAVE BEEN CONSIDERED. - LATE BIDS AND MODIFICATIONS OR WITHDRAWALS" PROVIDED IN PERTINENT PART AS FOLLOWS: "/A) BIDS AND MODIFICATIONS OR WITHDRAWALS THEREOF 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 * * *.'.

B-158006, DEC. 28, 1965

TO CATERPILLAR TRACTOR COMPANY:

WE REFER TO YOUR TELEGRAM OF NOVEMBER 9, 1965, AND LETTER OF NOVEMBER 10, 1965, PROTESTING THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. 47 ISSUED BY THE NATIONAL CAPITAL REGION, NATIONAL PARK SERVICE, DEPARTMENT OF THE INTERIOR.

THIS INVITATION WAS ISSUED ON OCTOBER 13, 1965, FOR THE PROCUREMENT OF A CRAWLER TYPE TRACTOR IN ACCORDANCE WITH THE ATTACHED SPECIFICATIONS. THE INVITATION PROVIDED THAT BIDS SHOULD BE SENT TO 515 NEW YORK AVENUE, N.E., WASHINGTON, D.C. AND THAT BID OPENING WOULD BE AT 2:00 P.M., E.D.S.T., ON OCTOBER 22, 1965.

BIDS WERE OPENED AS SCHEDULED ON OCTOBER 22, 1965. THREE BIDS WERE RECEIVED AND THE BID FROM THE PHILLIPS MACHINERY AND TRACTOR COMPANY WAS LOW. ON OCTOBER 25, 1965, A CONTRACT WAS AWARDED TO PHILLIPS.

AFTER AWARD THE PROCURING ACTIVITY RECEIVED AN ENVELOPE INDICATING THAT IT CONTAINED YOUR BID UNDER THE INVITATION INVOLVED. THIS ENVELOPE BEARS THE NOTATION THAT IT WAS RECEIVED BY THE PROCURING ACTIVITY AT 9:00 A.M., ON OCTOBER 29, 1965. YOUR BID WAS SENT TO THE PROCURING ACTIVITY BY FIRST CLASS, CERTIFIED MAIL, AND YOUR RECEIPT FOR CERTIFIED MAIL INDICATES YOUR BID WAS MAILED FROM PEORIA, ILLINOIS, ON OCTOBER 20, 1965.

THE DEPARTMENT OF THE INTERIOR ADVISES THAT YOUR BID WAS RETURNED TO YOU UNOPENED AND THAT YOU LATER RESUBMITTED YOUR BID IN THE ORIGINAL ENVELOPE. YOU CONTEND THAT YOUR BID SHOULD HAVE BEEN CONSIDERED.

PARAGRAPH 4 OF THE TERMS AND CONDITIONS OF THE INSTANT INVITATION ENTITLED "LATE BIDS--- LATE BIDS AND MODIFICATIONS OR WITHDRAWALS" PROVIDED IN PERTINENT PART AS FOLLOWS:

"/A) BIDS AND MODIFICATIONS OR WITHDRAWALS THEREOF 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 * * *.'

THIS PROVISION IS SUBSTANTIALLY THE SAME AS SECTION 1-2.303-2 OF THE FEDERAL PROCUREMENT REGULATIONS.

THE FACTS SHOW THAT YOUR BID WAS NOT RECEIVED BY THE PROCURING ACTIVITY UNTIL AFTER AN AWARD HAD BEEN MADE. THE INVITATION SPECIFICALLY PROVIDED THAT A BID WHICH WAS RECEIVED AFTER AN AWARD HAD BEEN MADE, WOULD NOT BE CONSIDERED. WHILE THIS RULE MAY SEEM HARSH, PARTICULARLY IN SITUATIONS WHERE THE OTHER REQUIREMENTS FOR THE CONSIDERATION OF A LATE BID COULD HAVE BEEN MET, IT HAS BEEN ADOPTED IN REGULATIONS HAVING THE FORCE AND EFFECT OF LAW. FURTHERMORE, THE RULE SEEMS NECESSARY FOR THE ORDERLY AND TIMELY PROCUREMENT OF SUPPLIES OR SERVICES BY THE GOVERNMENT. IN VIEW OF THE RECORD PRESENTED WE FIND NO BASIS TO QUESTION THE LEGALITY OF THE AWARD TO PHILLIPS AND YOUR PROTEST IS THEREFORE DENIED.