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B-158257, FEB. 10, 1966

B-158257 Feb 10, 1966
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THE BASIS OF YOUR PROTEST IS THAT IN YOUR OPINION. WHICH WAS DENIED CONSIDERATION BY DSSO AS A LATE BID. AWARD OF THE ITEMS WITH WHICH YOUR PROTEST IS CONCERNED HAS BEEN WITHHELD BY DSA. BID OPENING WAS SCHEDULED AT 10 A.M. 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. 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.'.

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B-158257, FEB. 10, 1966

TO ARKAY PRODUCTS CORPORATION:

YOUR TELEGRAM OF DECEMBER 30, 1965, AS SUPPLEMENTED BY YOUR LETTER OF THE SAME DATE, PROTESTS AWARD BY THE DEFENSE SUPPLY AGENCY (DSA) OF VARIOUS ITEMS OF SURPLUS GOVERNMENT PROPERTY ADVERTISED FOR SALE UNDER SEALED BID SALE INVITATION NO. 11-6070, ISSUED DECEMBER 7, 1965, BY THE DEFENSE SURPLUS SALES OFFICE (DSSO), PHILADELPHIA, PENNSYLVANIA. THE BASIS OF YOUR PROTEST IS THAT IN YOUR OPINION, A BID TIMELY MAILED BY YOU BUT NOT RECEIVED BY THE DSSO UNTIL AFTER BID OPENING, WHICH WAS DENIED CONSIDERATION BY DSSO AS A LATE BID, SHOULD BE CONSIDERED FOR AWARD FOR THE REASONS HEREINAFTER DISCUSSED. PENDING OUR DECISION, AWARD OF THE ITEMS WITH WHICH YOUR PROTEST IS CONCERNED HAS BEEN WITHHELD BY DSA.

THE INVITATION, COVERING 128 ITEMS OF SCRAP METALS AND MATERIALS, SPECIFIED THAT MAILED BIDS SHOULD BE ADDRESSED TO THE SALES CONTRACTING OFFICER, DSSO, P.O. BOX 8019, PHILADELPHIA, BUT BIDS COULD BE DELIVERED TO THE SALES CONTRACTING OFFICER, DSSO, BUILDING 652, U.S. NAVAL BASE, PHILADELPHIA. BID OPENING WAS SCHEDULED AT 10 A.M., EASTERN STANDARD TIME, DECEMBER 27, 1965, AT THE DSSO, BUILDING 652. ARTICLE AC, SPECIAL SEALED BID CONDITIONS, GOVERNING CONSIDERATION OF LATE BIDS, READS AS FOLLOWS:

"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 THE SCHEDULED HOUR OF BID OPENING ON DECEMBER 27, THE SALES CONTRACTING OFFICER ANNOUNCED THAT BIDS WHICH WERE RECEIVED BY 10 A.M. AT BOX 8019 IN THE MAIN POST OFFICE IN PHILADELPHIA WOULD BE CONSIDERED FOR AWARD. ACCORDINGLY, A DSSO REPRESENTATIVE STOOD BY THE POST OFFICE BOX UNTIL 10 A.M., AT WHICH TIME HE COLLECTED ALL OF THE MAIL IN THE BOX AND RETURNED TO THE DSSO. THERE WERE 115 TIMELY RECEIVED BIDS. YOUR BID WAS NOT AMONG THEM.

ON DECEMBER 28, THE DAY AFTER BID OPENING, THERE WERE DELIVERED TO THE CONTRACTING DIVISION AT THE DSSO YOUR BID AND 17 OTHER LATE BIDS, FOUR OF WHICH HAD BEEN FORWARDED IN ERROR BY POSTAL EMPLOYEES TO A PHILADELPHIA BANK, WHICH, IN TURN, HAD ROUTED THEM TO THE DSSO. YOUR BID BORE A NEW YORK, NEW YORK, POSTMARK DATED DECEMBER 23, 1965.

UPON DETERMINATION THAT THE LATE DELIVERY OF THE 18 BIDS TO THE SALES CONTRACTING OFFICER WAS NOT ATTRIBUTABLE TO SALES OFFICE PERSONNEL OR THEIR DESIGNEES, A PREREQUISITE UNDER THE PROVISIONS OF ARTICLE AC OF THE SPECIAL SEALED BID CONDITIONS TO CONSIDERATION OF LATE BIDS RECEIVED BEFORE AWARD, ALL OF SUCH BIDS WERE RETURNED TO THE SENDERS WITH ADVICE THAT THEY HAD BEEN RECEIVED TOO LATE TO BE CONSIDERED FOR AWARD.

YOU CONTEND THAT THE DSSO HAS ACTED IN ERROR AND HURT THE GOVERNMENT AS WELL AS YOU BY RETURNING YOUR BID WITHOUT CONSIDERATION. YOU STATE THAT IT WAS NOT YOUR FAULT THAT YOUR BID, WHICH WAS MAILED AT NEW YORK CITY ON THURSDAY, DECEMBER 23, FAILED TO REACH THE DSSO POST OFFICE BOX IN PHILADELPHIA BY 10 A.M., MONDAY, DECEMBER 27, AND THAT THE BID, WHICH IS UNOPENED IN YOUR SAFE, IS APPROXIMATELY $600 HIGHER ON THREE OF THE SALE ITEMS THAN THE ANNOUNCED HIGH BIDS. FURTHER, YOU QUESTION WHY THE SALE WAS CONDUCTED ON A MONDAY AFTER THE CHRISTMAS HOLIDAY RUSH AND ACTIVITY RATHER THAN ON A TUESDAY OR A THURSDAY, THE USUAL DAYS FOR SUCH SALES. ACCORDINGLY, YOU REQUEST THAT OUR OFFICE INSTRUCT THE DSSO TO HALT THE SALE, AT LEAST ON THE THREE ITEMS ON WHICH YOU CLAIM YOUR BID WAS HIGH.

A REPORT FORWARDED TO OUR OFFICE BY DSA INDICATES THAT WHILE YOUR BID WAS RECEIVED IN THE SALES OFFICE AT 3:43 P.M., EASTERN STANDARD TIME, DECEMBER 27, 1965, OR NEARLY SIX HOURS AFTER THE SCHEDULED TIME OF BID OPENING, THE DELAY IN ITS RECEIPT BY THE SALES CONTRACTING OFFICER WAS NOT ATTRIBUTABLE TO ANY FAULT OF THE DSSO SALES PERSONNEL OR THEIR DESIGNEES. REGARDING THE CONDUCT OF THE SALE ON MONDAY, DECEMBER 27, IT IS STATED THAT NORMALLY SALES ARE NOT SCHEDULED FOR OPENING ON MONDAYS; HOWEVER, BECAUSE OF THE LIMITATION ON THE NUMBER OF SALES CONDUCTED DURING THE WEEK PRECEDING CHRISTMAS, THE SALES OFFICE WORKLOAD REQUIRED THAT THE PARTICULAR SALE BE OPENED ON THE MONDAY AFTER CHRISTMAS. FURTHER, SALES WERE ALSO OPENED AT THE PHILADELPHIA DSSO ON TUESDAY, DECEMBER 28, AND ON WEDNESDAY, DECEMBER 29.

UNDER THE PROVISIONS OF ARTICLE AC OF THE SPECIAL SEALED BID CONDITIONS, A BID RECEIVED BY THE SALES CONTRACTING OFFICER AFTER THE TIME SET FOR BID OPENING BUT BEFORE AWARD COULD BE CONSIDERED FOR AWARD ONLY UPON PROOF THAT IT WAS IN FACT DELIVERED TO THE PLACE SPECIFIED IN THE INVITATION FOR BIDS (IN THIS CASE, P.O. BOX 8019, PHILADELPHIA) IN SUFFICIENT TIME TO HAVE BEEN RECEIVED BY THE SALES CONTRACTING OFFICER BY THE TIME SET FOR BID OPENING AND BUT FOR DELAY ATTRIBUTABLE TO SALES PERSONNEL OR THEIR DESIGNEES WOULD HAVE BEEN ON TIME. NO ALLOWANCE IS MADE FOR OTHER DELAYS BY THE GOVERNMENT, INCLUDING DELAYS BY THE POST OFFICE DEPARTMENT. BY WAY OF EXPLANATION, DSA ADVISES THAT THE LATE BID CLAUSE, AS IT APPEARS IN THE INVITATION IN QUESTION, WAS PUT INTO USE IN SALES INVITATIONS COMMENCING DECEMBER 1, 1964, TO REPLACE AN EARLIER CLAUSE WHICH PERMITTED CONSIDERATION OF LATE BIDS WHICH HAD BEEN MISHANDLED BY THE GOVERNMENT, PROVIDED THE BIDDER HAD USED CERTIFIED OR REGISTERED MAIL. UNDER THE EARLIER CLAUSE, THERE WAS OFTEN A LONG DELAY INCIDENT TO INVESTIGATING MAIL DELAYS TO DETERMINE THE ACCEPTABILITY OF LATE BIDS, A SITUATION WHICH IS NOT DESIRABLE FROM THE GOVERNMENT'S STANDPOINT IN THE DISPOSAL OF PROPERTY, SINCE IT DELAYS REMOVAL OF THE PROPERTY, REFUND OF UNSUCCESSFUL BID DEPOSITS, AND AWARD TO THE SUCCESSFUL BIDDER. UNDER THE NEW CLAUSE, HOWEVER, IT IS REPORTED THAT IN CONTRAST TO THE MANY DIFFICULTIES ENCOUNTERED UNDER THE FORMER PROVISIONS, HUNDREDS OF SALES HAVE BEEN ACCOMPLISHED WITHOUT ANY PARTICULAR PROBLEM.

WHILE THE EXACT TIME AT WHICH YOUR BID REACHED BOX 8019 IN THE MAIN POST OFFICE AT PHILADELPHIA IS NOT OF RECORD, IT IS CLEAR THAT AT THE SCHEDULED TIME OF BID OPENING, YOUR BID HAD NOT REACHED EITHER THE POST OFFICE BOX OR THE SALES OFFICE. THE DELAYED RECEIPT, THEREFORE, CAN IN NO WAY BE ATTRIBUTED TO THE SALES OFFICE PERSONNEL OR THEIR DESIGNEES. ACCORDINGLY, NOTWITHSTANDING THE ABSENCE OF FAULT ON YOUR PART OR THE FACT THAT THE LATE RECEIPT OF YOUR BID APPEARS TO HAVE BEEN ATTRIBUTABLE TO A GOVERNMENT AGENCY, THE POST OFFICE DEPARTMENT, WE MUST CONCUR WITH THE VIEW OF DSA THAT THE REFUSAL OF THE DSSO TO CONSIDER YOUR BID WAS PROPER UNDER THE TERMS OF THE INVITATION FOR BIDS. YOU ARE ADVISED, HOWEVER, THAT THE MATTER OF THE DELAY BY THE POST OFFICE DEPARTMENT HAS BEEN BROUGHT TO THE ATTENTION OF POSTAL OFFICIALS IN THE PHILADELPHIA POST OFFICE, AND THE DSSO HAS BEEN ASSURED THAT THE MISDELIVERY WILL BE INVESTIGATED; THAT POSTAL PERSONNEL WILL BE ALERTED TO PROPERLY HANDLE DSSO MAIL; AND THAT CARE WILL BE TAKEN TO AVOID SUCH ERRORS HEREAFTER.

CONCERNING YOUR SUGGESTION THAT THE ACCEPTANCE OF YOUR BID, WHICH HAS BEEN IN YOUR POSSESSION FOR MORE THAN A MONTH, WOULD BE JUSTIFIED ON THE BASIS THAT IT WOULD RESULT IN A SAVING TO THE GOVERNMENT, IT WOULD APPEAR THAT NEITHER YOU NOR THE SALES OFFICE IS IN A POSITION TO STATE THAT YOUR BID WAS HIGH ON ANY ITEM, SINCE AT LEAST 13 OTHER LATE BIDS WERE RETURNED UNOPENED. UNDER THE CIRCUMSTANCES, THERE IS FOR APPLICATION, IN OUR OPINION, THE PRINCIPLE LONG OBSERVED WITH RESPECT TO COMPETITIVE GOVERNMENT PROCUREMENTS--- THAT IT IS INDEFINITELY MORE IN THE PUBLIC INTEREST TO ABIDE BY THE RULES OF COMPETITIVE BIDDING THAN TO OBTAIN A PECUNIARY ADVANTAGE IN A PARTICULAR CASE BY THE VIOLATION OF SUCH RULES. SINCE 115 OTHER BIDDERS, WHOSE BID PRICES HAVE BEEN PUBLICLY DISCLOSED, HAVE MET THE BID SUBMISSION DEADLINE FIXED IN THE SALES INVITATION, CLEARLY IT WOULD BE UNFAIR TO THOSE BIDDERS TO WAIVE THE DEADLINE TO PERMIT CONSIDERATION OF YOUR LATE BID WHICH DOES NOT QUALIFY FOR CONSIDERATION UNDER THE LATE BID CLAUSE. FURTHER, WE HAVE STATED IN BOTH PROCUREMENT AND SALES CASES, EVEN WHEN THE RETURN OF THE BID WAS, IN OUR VIEW, UNJUSTIFIED, THAT WE HAVE SERIOUS RESERVATIONS ABOUT CONSIDERING A BID ONCE IT HAS BEEN RETURNED TO A BIDDER AND THE OTHER BIDS HAVE BEEN PUBLICLY DISCLOSED. THEREFORE, WE HAVE DECLINED TO AUTHORIZE CONSIDERATION OF SUCH A BID ON THE BASIS THAT SUCH ACTION WOULD NOT BE IN THE BEST INTEREST OF EITHER THE COMPETITIVE BIDDING SYSTEM OR COMPETITIVE SALES PROCEDURES. 41 COMP. GEN. 404; B-122060, DECEMBER 21, 1954; B- 156052, MARCH 22, 1965.

REGARDING THE CONDUCT OF THE SALE ON THE MONDAY FOLLOWING CHRISTMAS, IT IS OUR VIEW THAT THE EXPLANATION FURNISHED BY DSA JUSTIFIED THE DSSO ACTION IN THIS INSTANCE.

FOR THE REASONS STATED, WE MUST CONCUR WITH THE ACTION TAKEN BY THE DSSO IN REJECTING YOUR BID AS A LATE BID. THEREFORE, YOUR PROTEST IS DENIED.

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