B-158448, MAR. 10, 1966

B-158448: Mar 10, 1966

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TO MERIT MACHINERY COMPANY: REFERENCE IS MADE TO YOUR PROTEST BY TELEGRAM DATED FEBRUARY 2. BIDS WERE REQUIRED TO BE ADDRESSED TO THE PURCHASE DEPARTMENT BID ROOM. PAGES 1 AND 11 OF THE IFB ADVISED BIDDERS THAT ALL BIDS WERE SUBJECT TO BIDDING INSTRUCTIONS. WHICH WERE INCORPORATED BY REFERENCE IN THE IFB AND MADE PART OF THE GENERAL PROVISIONS OF THE CONTRACT. GATE NO. 1" THE RECORD INDICATES THAT BIDS WERE OPENED ON JANUARY 31. YOUR BID WAS NOT AMONG THE TIMELY RECEIVED BIDS. THE FOLLOWING SIGNED STATEMENT APPEARED ON THE OUTSIDE OF TE ENVELOPE: "TO WHOM IT MAY CONCERN: "THE ENCLOSED BID INVITATION NO. 66B1151 WAS FOUND STUCK IN THE BID DEPOSIT CHUTE OF THE DSSO BID BOX. "THE BID WAS WORKED OUT OF THE BID BOX CHUTE WITH A 12 INCH RULER WHICH COULD HAVE CAUSED THE END OF THE ENVELOPE TO BE TORN. "/S) R E RIETSCHLIN R E RIETSCHLIN CONTRACT SPECIALIST DSSO-SO BLDG.

B-158448, MAR. 10, 1966

TO MERIT MACHINERY COMPANY:

REFERENCE IS MADE TO YOUR PROTEST BY TELEGRAM DATED FEBRUARY 2, 1966, AND SUPPLEMENTARY CORRESPONDENCE, AGAINST THE REJECTION OF A BID SUBMITTED BY YOU UNDER INVITATION FOR BIDS (IFB) NO. N0022866B1151, ISSUED DECEMBER 30, 1965, BY THE NAVAL SUPPLY CENTER, OAKLAND, CALIFORNIA.

THE IFB SOLICITED BIDS, ON A TOTAL SMALL BUSINESS SET-ASIDE BASIS, TO FURNISH CERTAIN QUALITY PURCHASE REQUIREMENT ITEMS TO BE MANUFACTURED IN ACCORDANCE WITH SPECIFIED REVISIONS OF BUSHIPS DRAWING NO. 810-1385943. BIDS WERE REQUIRED TO BE ADDRESSED TO THE PURCHASE DEPARTMENT BID ROOM, BUILDING 311-1, AT THE CENTER, THE PLACE DESIGNATED FOR OPENING OF BIDS, AT 10:00 A.M., PACIFIC STANDARD TIME, ON JANUARY 31, 1966. PAGES 1 AND 11 OF THE IFB ADVISED BIDDERS THAT ALL BIDS WERE SUBJECT TO BIDDING INSTRUCTIONS, TERMS, AND CONDITIONS, STANDARD FORM 33-A, WHICH WERE INCORPORATED BY REFERENCE IN THE IFB AND MADE PART OF THE GENERAL PROVISIONS OF THE CONTRACT. IN ADDITION, PAGE 1 OF THE IFB BORE THE FOLLOWING PERTINENT NOTATION:

"HAND CARRIED BIDS MUST BE DEPOSITED BY BIDDER OR HIS REPRESENTATIVE IN THE PURCHASE DEPARTMENT BID BOX LOCATED AS FOLLOWS: 7:30 A.M. TO 4:00 P.M. IN BLDG. 311 1ST FLOOR EAST END 4:00 P.M. TO :30 A.M. IN SENTRY BOX, GATE NO. 1"

THE RECORD INDICATES THAT BIDS WERE OPENED ON JANUARY 31, AS SCHEDULED, AND YOUR BID WAS NOT AMONG THE TIMELY RECEIVED BIDS. THE RECORD FURTHER INDICATES THAT ON FEBRUARY 1, YOU PRESENTED AT THE OFFICE OF COUNSEL AT THE PROCURING ACTIVITY A SEALED ENVELOPE, WHICH, YOU STATED, CONTAINED A BID SUBMITTED BY YOU. THE FOLLOWING SIGNED STATEMENT APPEARED ON THE OUTSIDE OF TE ENVELOPE:

"TO WHOM IT MAY CONCERN:

"THE ENCLOSED BID INVITATION NO. 66B1151 WAS FOUND STUCK IN THE BID DEPOSIT CHUTE OF THE DSSO BID BOX, BLDG. 502 NSCO., AT APPROXIMATELY 1305 HOURS ON 1 FEBRUARY 1966.

"THE BID WAS WORKED OUT OF THE BID BOX CHUTE WITH A 12 INCH RULER WHICH COULD HAVE CAUSED THE END OF THE ENVELOPE TO BE TORN.

"/S) R E RIETSCHLIN

R E RIETSCHLIN

CONTRACT SPECIALIST

DSSO-SO

BLDG. NO. 502"

PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-305.5, THE BID ROOM OFFICER ADVISED YOU THAT CONSIDERATION OF YOUR LATER HAND CARRIED BID WAS PRECLUDED. HOWEVER, THE PROCURING ACTIVITY CONSENTED TO TAKE CUSTODY OF THE BID PENDING ACTION ON YOUR PROTEST TO OUR OFFICE.

YOU STATE THAT ON JANUARY 29, TWO DAYS BEFORE THE SCHEDULED DATE OF BID OPENING, ONE OF YOUR EMPLOYEES CARRIED YOUR SEALED BID TO THE SUPPLY CENTER AND DEPOSITED IT AT APPROXIMATELY 6:45 P.M. IN A BOX NEAR GATE NO. 1 LABLED "24 HOUR BID BOX SERVICE; " THAT SUBSEQUENT TO BID OPENING ON JANUARY 31, YOU LEARNED THAT YOUR BID HAD NOT BEEN RECEIVED BY THE PROCURING ACTIVITY; AND THAT INVESTIGATION REVEALED THAT YOUR BID HAD BEEN DEPOSITED IN THE WRONG BOX AND WAS NOT LOCATED UNTIL FEBRUARY 1, WHEN IT WAS FOUND TO BE WEDGED IN THE CHUTE INSIDE THE BOX. IN SUPPORT OF YOUR STATEMENTS, YOU HAVE FURNISHED A LETTER DATED FEBRUARY 7, ADDRESSED TO YOU BY THE CHIEF, CONTRACTING DIVISION, DEFENSE SURPLUS SALES OFFICE (DSSO), DEFENSE SUPPLY AGENCY, BUILDING 502, NAVAL SUPPLY CENTER, OAKLAND, READING AS FOLLOWS:

"SUBMITTED HEREWITH ARE THE FACTS RELATIVE TO INVITATION FOR BID NO. NOO- 228-66B-1151 WHICH WAS DEPOSITED IN THE SALES BID BOX IN ERROR BY ONE OF YOUR EMPLOYEES.

"THE BID BOX IN THE DEFENSE SURPLUS SALES OFFICE, BUILDING 502, NAVAL SUPPLY CENTER, HAS AN OUTSIDE DROP WHICH ENABLES BIDDERS TO DEPOSIT THEIR BIDS WHEN THE OFFICE IS CLOSED. THERE IS A BLACK AND WHITE SIGN IDENTIFYING THE DROP AS A BID BOX FOR THE DSSO.

"ON OR ABOUT 2:30 P.M., 31 JANUARY 1966, MARIA GALVAN, AN EMPLOYEE OF THIS OFFICE, RECEIVED A CALL FROM THE PURCHASE DEPARTMENT, NAVAL SUPPLY CENTER, OAKLAND, INQUIRING IF ONE OF THEIR BIDS HAD BEEN DROPPED IN OUR BID BOX. A SEARCH OF THE BID BOX WAS MADE, HOWEVER, NO BID WAS LOCATED AT THIS TIME.

"ON RESPONSE TO A CALL ON 1 FEBRUARY 1966 FROM MRS. WORKINGER, PURCHASE DEPARTMENT, NAVAL SUPPLY CENTER, A SEARCH WAS AGAIN MADE WITH EACH AND EVERY BID IN THE BOX BEING CHECKED. THE SEARCH FAILED TO LOCATE THE BID OF MERIT MACHINERY CO.

"MRS. WORKINGER INFORMED THIS OFFICE THAT MR. HUNT, AND AN EMPLOYEE OF YOUR FIRM, WHO DROPPED THE BID IN THE BOX, WOULD VISIT THE OFFICE AT 1:00 P.M., 1 FEBRUARY 1966.

"IN THE PRESENCE OF MR. HUNT, THE BID BOX WAS AGAIN INSPECTED. DURING THIS INVESTIGATION, WITH THE AID OF A RULER, THE BID WAS LOCATED IN THE SHUTE BETWEEN THE OUTSIDE OPENING AND THE BID BOX. THE BID WAS SO THICK THAT IT WOULD NOT FALL FREE INTO THE BID BOX.'

IN VIEW OF THE FOREGOING AND ON THE BASIS OF YOUR ALLEGED UNDERSTANDING THAT IN THE PAST OTHER BIDDERS HAVE MISTAKENLY DEPOSITED BIDS IN THE DSSO BOX, YOU REQUEST THAT CONSIDERATION OF YOUR BID BE AUTHORIZED.

A REPORT DATED FEBRUARY 8 FROM THE PROCURING ACTIVITY INCLUDES THE FOLLOWING PERTINENT STATEMENTS:

"THE NAVAL SUPPLY CENTER, AS EXPRESSLY STATED IN EACH INVITATION,MAINTAINS A PORTABLE BID BOX AT SENTRY GATE 1, FOR THE PURPOSE OF ALLOWING BIDDERS TO DEPOSIT BIDS AFTER THE CLOSE OF BUSINESS (4:00 P.M. TO 7:30 A.M.). THIS BID BOX IS GUARDED BY THE NAVAL SUPPLY CENTER GUARD FORCE, AND EACH MORNING PRIOR TO 10:00 A.M. IS DELIVERED TO THE BID ROOM OFFICER FOR OPENING. BIDS REMOVED FROM THIS BOX ARE THEN PLACED IN THE REGULATION BID BOX MAINTAINED BY THE PURCHASE DEPARTMENT IN BUILDING 311.

"MR. HUNT OF SUBJECT COMPANY HAS PERSONALLY UTILIZED THIS BID BOX IN THE PAST. ACCORDING TO MR. HUNT'S STATEMENTS TO THIS OFFICE, A WEEK AGO SATURDAY (29 JANUARY) HE SENT AN UNINITIATED EMPLOYEE TO DEPOSIT THE BID DUE FOR OPENING ON 31 JANUARY 1966. APPARENTLY IT WAS DARK AND THE EMPLOYEE WENT TO A BUILDING APPROXIMATELY 150 FEET TO THE EAST OF THE SENTRY GATE, NOTICED A BOX WITH A MAIL TYPE SLOT INDICATING IT WAS A BID DEPOSITORY AND DROPPED THE BID INTO THIS BOX. THIS ,24 HOUR BID BOX" IS MAINTAINED FOR SURPLUS SALES OFFICE, OAKLAND, WHICH IS LOCATED JUST OUTSIDE THE NAVAL SUPPLY CENTER. THE BID WAS NOT DISCOVERED IN THE BOX ON MONDAY, WHEN MR. HUNT FIRST ASKED THAT A SEARCH BE MADE.

"ON TUESDAY AFTERNOON AT ABOUT 1:30 P.M. MR. HUNT SHOWED UP IN COUNSEL'S OFFICE WITH AN 8 INCH BY 10 INCH BROWN SEALED ENVELOPE, WHICH HE SAID CONTAINED HIS BID INSIDE A SMALLER TORN ENVELOPE. HE ADDED THAT HIS BID HAD BEEN FOUND STUCK IN THE DEPOSIT CHUTE OF THE DSSO BID BOX AROUND 1:00 P.M. THAT DAY; THAT A DSSO OFFICIAL, AT HIS REQUEST, PLACED THE BID INSIDE AN 8 INCH BY 10 INCH ENVELOPE, SEALING IT. MR. HUNT THEN CALLED THE NAVAL SUPPLY CENTER, OAKLAND, BID ROOM OFFICER, MRS. WORKINGER, AND SHE INSTRUCTED HIM TO BRING THE BID IMMEDIATELY TO THE OFFICE OF COUNSEL, WERE A MEETING WOULD BE HELD.

"IT IS TRUE THAT IN THE DISTANT PAST ONE OR TWO OTHER PERSONS HAVE DROPPED PURCHASE DEPARTMENT BIDS BY MISTAKE INTO THE DSSO BID BOX. PREVENT SUCH A MISTAKE THE MAIL CHUTE LEADING TO THE BOX WAS LABELED AS "DSSO BID BOX" SEVERAL YEARS AGO.'

IT IS THE POSITION OF THE PROCURING ACTIVITY THAT SINCE THE LATE RECEIPT OF YOUR BID WAS OCCASIONED BY THE NEGLIGENCE OF YOUR EMPLOYEE, AN ACTION FOR WHICH THE GOVERNMENT WAS IN NO WAY RESPONSIBLE, CONSIDERATION OF YOUR BID WOULD BE PREJUDICIAL TO OTHER BIDDERS AND CONTRARY TO THE PROVISIONS OF ASPR 2-303.5.

ASPR 2-303, THE REGULATION WHICH GOVERNS CONSIDERATION OF LATE BIDS, DEFINES A LATE BID AS ONE WHICH IS RECEIVED AFTER THE EXACT TIME FIXED FOR BID OPENING. BY THE TERMS OF ASPR 2-303 AND THE INVITATION PROVISION BASED THEREON (ARTICLE 6, BIDDING INSTRUCTIONS, TERMS, AND CONDITIONS, STANDARD FORM 33-A), THE ONLY LATE BIDS WHICH ARE AUTHORIZED TO BE CONSIDERED FOR AWARD ARE CERTAIN TIMELY DISPATCHED MAILED OR TELEGRAPHIC BIDS WHICH ARE RECEIVED BEFORE AWARD, PROVIDED CERTAIN EVIDENTIARY REQUIREMENTS ARE MET. ASPR 2-303.5 READS AS FOLLOWS:

"HAND-CARRIED BIDS. A LATE HAND-CARRIED BID, OR ANY OTHER LATE BID NOT SUBMITTED BY MAIL OR TELEGRAM, SHALL NOT BE CONSIDERED FOR AWARD.'

IN ADDITION TO THE ASPR AND NAVY PROCUREMENT DIRECTIVES, PURCHASES BY CONTRACTING OFFICERS OF THE BUREAU OF SUPPLIES AND ACCOUNTS ARE SUBJECT TO REGULATIONS PUBLISHED IN VOLUME VI, BUREAU OF SUPPLIES AND ACCOUNTS MANUAL (BUSANDA MANUAL). UNDER BUSANDA MANUAL, PARAGRAPH 64022, INVITATIONS FOR BIDS MUST SPECIFY THE EXACT LOCATION OF A BID BOX,INCLUDING THE ROOM AND BUILDING NUMBERS, TO PRECLUDE ANY MISUNDERSTANDING AS TO WHERE HAND- CARRIED BIDS ARE TO BE DELIVERED BY THE BIDDER OR HIS REPRESENTATIVE. BUSANDA MANUAL, PARAGRAPH 64044, REQUIRES THAT THE BID BOX FOR DEPOSIT OF HAND-CARRIED BIDS BE MAINTAINED IN OR ADJACENT TO THE BID ROOM. BUSANDA MANUAL, PARAGRAPH 64036, PROVIDES THAT IT IS THE RESPONSIBILITY OF THE BIDDER TO SEE THAT A BID HAND CARRIED BY EITHER THE BIDDER OR HIS REPRESENTATIVE REACHES THE DESIGNATED OFFICE AND IS PERSONALLY DEPOSITED BY THE BIDDER OR HIS REPRESENTATIVE IN THE BID BOX, AND THAT NO GOVERNMENT EMPLOYEE MAY ACCEPT BIDS FOR DEPOSIT IN THE BID BOX.

INASMUCH AS YOUR BID WAS HAND CARRIED, IT CLEARLY DOES NOT COME WITHIN THE PURVIEW OF THE PROVISIONS IN THE REGULATIONS AND THE IFB PERTAINING TO LATE BIDS SUBMITTED BY MAIL OR TELEGRAPH. 38 COMP. GEN. 234. THEREFORE, SINCE IT IS A LATE HAND-CARRIED BID, THERE IS FOR DETERMINATION WHETHER THE CIRCUMSTANCES INVOLVED JUSTIFY EXCEPTION TO THE PROVISION IN ASPR 2- 303.5 THAT SUCH A BID SHALL NOT BE CONSIDERED FOR AWARD.

THE FACTS SET FORTH SHOW THAT THE IFB CLEARLY STATED THAT THE PROCURING ACTIVITY AND BID OPENING ROOM WERE LOCATED IN BUILDING 311 AND THAT THE BOX IN WHICH BIDS WERE TO BE DEPOSITED DURING NON BUSINESS HOURS (4:00 P.M. TO 7:30 A.M.) WAS LOCATED IN THE SENTRY BOX, GATE NO. 1. IT IS ALSO SHOWN THAT YOUR BID WAS DEPOSITED IN A BOX LABELED "DSSO" AT BUILDING 502, WHICH HOUSES THE DEFENSE SURPLUS SALES OFFICE (DSSO), A DEFENSE SUPPLY AGENCY ACTIVITY, AND WHICH IS APPROXIMATELY 150 FEET DISTANT FROM THE SENTRY BOX AT GATE NO. 1. IT IS OBVIOUS, THEREFORE, THAT THE DEPOSIT OF YOUR BID IN THE WRONG BOX WAS ATTRIBUTABLE TO THE NEGLIGENCE OF YOUR REPRESENTATIVE AND NOT TO ANY FAULT OF THE GOVERNMENT. IN THIS CONNECTION, YOU ARE ADVISED THAT THE FACT THAT OTHER BIDDERS MAY HAVE BEEN SIMILARLY NEGLIGENT IN THE PAST DOES NOT RELIEVE YOU OF THE OBLIGATION IMPOSED ON BIDDERS BY THE REGULATIONS AND THE IFB TO SEE THAT YOUR BID REACHED THE DESIGNATED PLACE FOR OPENING OF BIDS BY THE TIME FIXED FOR BID OPENING.

IN THE CIRCUMSTANCES, EVEN IF YOU WERE TO FURNISH EVIDENCE TO SUBSTANTIATE THE UNSUPPORTED STATEMENTS OF YOUR EMPLOYEES THAT YOUR BID HAD, IN FACT, BEEN DEPOSITED IN THE WRONG BID BOX TWO DAYS PRIOR TO BID OPENING, THE FACT REMAINS THAT YOUR HAND-CARRIED BID DID NOT REACH THE DESIGNATED PLACE OF BID OPENING UNTIL THE DAY AFTER BID OPENING. THEREFORE, ASPR 2-303.5 REQUIRES THAT IT BE REJECTED. FURTHER, THE FACT THAT YOUR BID MAY BE LOW DOES NOT WARRANT EXCEPTION TO THE REGULATIONS, IT BEING MORE IN THE PUBLIC INTEREST TO ABIDE BY THE RULES OF COMPETITIVE BIDDING THAN TO GAIN A PECUNIARY ADVANTAGE IN A PARTICULAR CASE BY VIOLATION OF SUCH RULES. 17 COMP. GEN. 554, 558.

FOR THE REASONS STATED, WE MUST CONCUR WITH THE POSITION OF THE PROCURING ACTIVITY THAT YOUR BID MAY NOT BE CONSIDERED FOR AWARD. ACCORDINGLY, YOUR PROTEST IS DENIED.