B-159567, OCT. 14, 1966

B-159567, OCT. 14, 1966

TO OPPORTUNITIES UNLIMITED, INC.:

REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 28 AS SUPPLEMENTED BY YOUR LETTER OF JUNE 29, 1966, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS NO. SBSA-IFB-383 1313-66 ISSUED APRIL 25, 1966, BY THE U.S. NAVY AVIATION SUPPLY OFFICE, PHILADELPHIA, PENNSYLVANIA (ASO).

BY THE SUBJECT IFB, WHICH WAS A TOTAL SET-ASIDE FOR SMALL-BUSINESS CONCERNS, ASO SOLICITED BIDS FROM 80 PROSPECTIVE SUPPLIERS FOR THE FURNISHING OF 66 NOSE STEERING BARS. IT PROVIDED THAT BIDS WOULD BE OPENED 10:00 P.M., MAY 19, 1966. PRIOR TO THE OPENING 21 BIDS WERE RECEIVED. AT THE TIME OF BID OPENING OPPORTUNITIES UNLIMITED WAS THE APPARENT LOW BIDDER. IN ADDITION A BID WAS RECEIVED AT 4:00 P.M., MAY 19, 1966, FROM THE J. M. BEACH MANUFACTURING COMPANY OF DAYTON, OHIO. THE ENVELOPE IN WHICH THE BEACH BID WAS RECEIVED INDICATED THAT THE BID WAS POSTMARKED IN DAYTON, OHIO, ON MAY 18, 1966, WAS MAILED AIR MAIL SPECIAL DELIVERY, AND WAS REGISTERED UNDER NUMBER 86448. SUBSEQUENTLY BY LETTER DATED JUNE 16, 1966, BEACH FURNISHED A LETTER DATED JUNE 15, 1966, FROM THE DAYTON, OHIO POST OFFICE WHICH ESTABLISHED THAT THE BEACH BID HAD BEEN MAILED IN TIME TO HAVE DEPARTED DAYTON ON UNITED AIR LINES FLIGHT 847 AT 10:00 P.M., MAY 18, 1966. THE GENERAL POST OFFICE, PHILADELPHIA, CONFIRMED THAT MAIL EMBARKED ON THAT FLIGHT WAS SCHEDULED TO ARRIVE AT THE PHILADELPHIA AIR MAIL FIELD AT 5:35 A.M., MAY 19, 1966, AT GENERAL POST OFFICE AT 6:30 A.M., AND FROM THERE DISPATCHED IN TIME TO ARRIVE AT THE HUNTING PARK STATION AT 8:15 A.M. THE HUNTING PARK STATION CONFIRMED THAT SUCH MAIL WOULD HAVE BEEN DISPATCHED TO ARRIVE AT THE ASO MAIL ROOM NO LATER THAN 9:45 A.M. BECAUSE THE ASO MAIL ROOM IS IN THE SAME BUILDING AS THE BID OPENING UNIT, AND BECAUSE THE BEACH BID WAS SPECIAL DELIVERY MAIL AND CLEARLY IDENTIFIED AS A BID, THE CONTRACTING OFFICER STATES THAT IT IS REASONABLE TO ASSUME THAT IT WOULD HAVE BEEN DELIVERED TO THE BID OPENING UNIT PRIOR TO THE TIME OF OPENING WHICH WAS 10:00 A.M., MAY 19, 1966.

HAVING ESTABLISHED THAT THE BEACH BID HAD BEEN TIMELY MAILED IT WAS OPENED ON JUNE 20, 1966, AT WHICH TIME THE TWO LOWEST BIDS WERE AS FOLLOWS:

CHART

COMPANY QUANTITY BID TOTAL BID TERMS

J. M. BEACH 66 $3,584.46 1/2 PERCENT - 10

OPPORTUNITIES UNLIMITED 66 3,861.00 NET

ON JUNE 23, 1966, OPPORTUNITIES UNLIMITED ORIGINATED A PHONE CALL TO ASO AND WAS ADVISED IN THE CONVERSATION THAT ENSUED THAT IT WAS NO LONGER THE LOW BIDDER. ON JUNE 27, 1966, LETTER NOTICE OF AWARD WAS MAILED TO BEACH.

PARAGRAPH 2-303.2 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) (SEE, ALSO CLAUSE 6 OF THE BIDDING INSTRUCTIONS, TERMS, AND CONDITIONS OF THE INVITATION FOR BIDS) PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"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 IF 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 * * *.'

IN ADDITION, ASPR 2-303.3 (C) PROVIDES AS FOLLOWS:

"/C) DELIVERY TIME. INFORMATION CONCERNING THE NORMAL TIME FOR MAIL DELIVERY SHALL BE OBTAINED BY THE PURCHASING ACTIVITY FROM THE POSTMASTER, SUPERINTENDENT OF MAILS, OR A DULY AUTHORIZED REPRESENTATIVE FOR THAT PURPOSE, OF THE POST OFFICE SERVING THAT ACTIVITY. WHEN TIME PERMITS, SUCH INFORMATION SHALL BE OBTAINED IN WRITING.'

SINCE EVIDENCE OBTAINED FROM SOURCES AUTHORIZED BY THE IFB AND THE ABOVE REGULATION ESTABLISHED THAT DELAY IN RECEIPT OF BEACH'S BID WAS DUE SOLELY TO A DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE, THE ADMINISTRATIVE ACTION IN RECEIVING ITS BID FOR CONSIDERATION FOR AWARD WAS PROPER.

ADDITIONALLY, IT WOULD APPEAR THAT YOUR FIRM WAS NOT ELIGIBLE FOR AN AWARD UNDER THE IFB IN QUESTION IN ANY EVENT, SINCE YOUR FIRM IS A NONPROFIT ORGANIZATION AND IN ORDER TO BE ELIGIBLE FOR AN AWARD UNDER A SMALL BUSINESS CONCERN SET-ASIDE A BIDDER MUST BE A BUSINESS ENTITY ORGANIZED FOR PROFIT. SEE ASPR 1-701.1 (A) (1).