B-159842, OCTOBER 13, 1966, 46 COMP. GEN. 307

B-159842: Oct 13, 1966

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THE RESOLUTION OF A WRITTEN PROTEST PRESENTED PRIOR TO AWARD BY AN UNSUCCESSFUL BIDDER TO THE CONTRACTING AGENCY THAT IS REQUIRED BY PARAGRAPH 2-407.9/B) (3) OF THE ARMED SERVICES PROCUREMENT REGULATION HAS BEEN SATISFIED WHEN THE CONTRACTING OFFICER. THE REGULATION NOT SPECIFYING THE PARTICULAR LEVEL AT WHICH A BID PROTEST IS TO BE RESOLVED. THAT THE DESIRED 90 DAYS FOR SUBMISSION OF THE MANUALS WILL CONTROL UNLESS AN ALTERNATE TIME IS SPECIFIED. A BID OFFERING DELIVERY IN 180 DAYS IN THE ALTERNATE TIME SPACE IS A NONRESPONSIVE BID. THE CONTRACTING OFFICER IS REQUIRED TO CONSTRUE THE ALTERNATE TIME OF 180 DAYS SPECIFIED BY THE BIDDER FOR DELIVERY OF THE MANUALS AS A DEFINITE OFFER THAT IS INCOMPATIBLE WITH THE MAXIMUM DELIVERY DATE FOR THE FINAL MANUALS.

B-159842, OCTOBER 13, 1966, 46 COMP. GEN. 307

CONTRACTS - PROTESTS - RESOLUTION - ADMINISTRATIVE LEVEL OF AUTHORITY. THE RESOLUTION OF A WRITTEN PROTEST PRESENTED PRIOR TO AWARD BY AN UNSUCCESSFUL BIDDER TO THE CONTRACTING AGENCY THAT IS REQUIRED BY PARAGRAPH 2-407.9/B) (3) OF THE ARMED SERVICES PROCUREMENT REGULATION HAS BEEN SATISFIED WHEN THE CONTRACTING OFFICER, LEGAL COUNSEL, THE SUPERVISORY CONTRACT NEGOTIATOR, AND THE CONTRACT NEGOTIATOR MEET BEFORE THE AWARD OF THE CONTRACT AND CONFIRM THE NONRESPONSIVENESS OF THE BID OF THE PROTESTANT, THE LOW BIDDER, THE REGULATION NOT SPECIFYING THE PARTICULAR LEVEL AT WHICH A BID PROTEST IS TO BE RESOLVED. UNDER PARAGRAPH 2-407.9/B) (2), WHEN A PROTEST HAS NOT BEEN LODGED DIRECTLY WITH THE COMPTROLLER GENERAL PRIOR TO CONTRACT AWARD, HIS VIEWS NEED BE OBTAINED ONLY IF CONSIDERED DESIRABLE. BIDS - EVALUATION - DELIVERY PROVISIONS - TIME LIMITATION. UNDER AN INVITATION PROVIDING A MAXIMUM PERIOD OF 210 DAYS FOR DELIVERY OF FINAL INSTRUCTION MANUALS, SUBMISSION OF PRELIMINARY MANUALS "EARLY ENOUGH TO ASSURE COMPLIANCE WITH THE CONTRACT DELIVERY SCHEDULE", 30 DAYS FOR REVIEW, AND THAT THE DESIRED 90 DAYS FOR SUBMISSION OF THE MANUALS WILL CONTROL UNLESS AN ALTERNATE TIME IS SPECIFIED, A BID OFFERING DELIVERY IN 180 DAYS IN THE ALTERNATE TIME SPACE IS A NONRESPONSIVE BID, FOR IT WOULD BE IMPOSSIBLE TO SUBMIT PRELIMINARY MANUALS ON THE MAXIMUM 180TH DAY, ALLOW 30 DAYS FOR REVIEW, MAKE CORRECTIONS, AND DELIVER THE FINAL MANUALS WITHIN THE MAXIMUM DELIVERY TIME OF 210 DAYS. THEREFORE, NOTWITHSTANDING, THE GENERAL STATEMENT THAT PRELIMINARY MANUALS SHOULD BE SUBMITTED EARLY, THE CONTRACTING OFFICER IS REQUIRED TO CONSTRUE THE ALTERNATE TIME OF 180 DAYS SPECIFIED BY THE BIDDER FOR DELIVERY OF THE MANUALS AS A DEFINITE OFFER THAT IS INCOMPATIBLE WITH THE MAXIMUM DELIVERY DATE FOR THE FINAL MANUALS. BIDS - LATE - PUBLIC OPENING. WHEN A BIDDER IS NOT RESPONSIBLE FOR THE LATE ARRIVAL OF HIS BID, AND THE BID IS MADE AVAILABLE FOR PUBLIC INSPECTION TO THE SAME EXTENT AS OTHER BIDS RECEIVED, A PUBLIC OPENING OF THE LATE BID IS NOT REQUIRED UNDER 10 U.S.C. 2305/C), AS THE INTEGRITY OF THE BIDDING SYSTEM IS FULLY PROTECTED UPON ESTABLISHING THE LATE ARRIVAL OF THE BID WAS DUE TO NO FAULT OF THE BIDDER, AND BY MAKING THE BID AVAILABLE FOR PUBLIC INSPECTION. BIDS - LATE - MAIL DELAY EVIDENCE - BIDDER NOT RESPONSIBLE. FAILURE TO FULLY COMPLY WITH PARAGRAPH 2-303 OF THE ARMED SERVICES PROCUREMENT REGULATION PROVIDING FOR OBTAINING EVIDENCE OF TIMELY MAILING PRIOR TO THE CONSIDERATION OF A LATE BID DOES NOT REQUIRE CANCELLATION OF THE AWARD, A SUBSEQUENT INVESTIGATION PRODUCING SUFFICIENT EVIDENCE TO SHOW THAT THE LATE RECEIPT OF THE BID WAS OCCASIONED BY THE POST OFFICE USING FIRST-CLASS MAIL WHEN THE BIDDER PAID FOR AND REQUESTED AIRMAIL TRANSPORTATION, AND THE ERROR BEYOND THE CONTROL OF THE BIDDER, THE FACT THAT THE BID ENVELOPE WAS NOT MARKED AIRMAIL SHOULD NOT BE GIVEN UNDUE WEIGHT.

TO THE BATH IRON WORKS CORPORATION, OCTOBER 13, 1966:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF AUGUST 5, 1966, AND TO SUBSEQUENT CORRESPONDENCE FROM YOUR FIRM AND YOUR COUNSEL WHEREIN YOU PROTEST THE AWARD OF A CONTRACT FOR THREE ANCHOR WINDLASSES AND ASSOCIATED ITEMS TO WESTERN GEAR CORPORATION UNDER INVITATION FOR BIDS (IFB) 151-490- 6, ISSUED BY THE SUPPLY DEPARTMENT, PURCHASE DIVISION, PHILADELPHIA NAVAL SHIPYARD, PHILADELPHIA, PENNSYLVANIA.

AN ANALYSIS OF ALL THE CORRESPONDENCE SUBMITTED INDICATES THAT YOUR PROTEST REQUIRES CONSIDERATION OF ESSENTIALLY THREE CONTENTIONS. FIRST, YOU ALLEGE THAT YOUR PROTEST TO NAVY WAS TIMELY MADE BEFORE AWARD AND THE SUBSEQUENT ACTION BY NAVY IN MAKING AN AWARD VIOLATED ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-407.9. THIS REGULATION REQUIRES A MILITARY DEPARTMENT TO FOLLOW DEFINITE PROCEDURES IF A CONTRACT IS TO BE AWARDED AFTER A PROTEST HAS BEEN LODGED BY A BIDDER WITH EITHER THE DEPARTMENT OR THE COMPTROLLER GENERAL OF THE UNITED STATES. SECOND, YOU ALLEGE THAT THE DETERMINATION BY THE CONTRACTING OFFICER, FINDING YOUR BID NONRESPONSIVE TO THE IFB REQUIREMENT FOR DELIVERY OF THE FINAL MANUALS, WITHIN THE MAXIMUM TIME PERMITTED, IS ERRONEOUS. THIRD, YOU QUESTION THE AWARD MADE TO WESTERN GEAR BECAUSE THE BID SUBMITTED BY THAT CORPORATION ON AMENDMENT 6 OF THE IFB ARRIVED AFTER THE TIME SET FOR BID OPENING AND NAVY FAILED TO COMPLY WITH THE MANDATORY PROCEDURAL PREREQUISITES IN ASPR 2-303.2. ADDITIONALLY YOU ALLEGE THAT IF THE APPROPRIATE PROCEDURES HAD BEEN FOLLOWED, NAVY WOULD HAVE DETERMINED THAT THE FAILURE OF WESTERN GEAR'S BID TO ARRIVE BEFORE BID OPENING WAS NOT DUE SOLELY TO A DELAY IN THE MAILS AND THEREFORE SHOULD NOT HAVE BEEN CONSIDERED FOR AWARD.

THE SUBJECT IFB CALLED FOR THE FURNISHING OF ONE ANCHOR WINDLASS FOR EACH OF THREE VESSELS BEING BUILT BY THE SHIPYARD, TOGETHER WITH VARIOUS SUPPORTING HARDWARE AND DATA ITEMS FOR EACH WINDLASS. THE CONTRACTING OFFICER, WITH THE AID OF LEGAL COUNSEL, DETERMINED THAT YOUR BID WAS NONRESPONSIVE TO THE IFB REQUIREMENT FOR DELIVERY OF THE FINAL MANUALS WITHIN THE MAXIMUM TIME PERMITTED. ACCORDINGLY, YOUR BID (WITHOUT REPAIR PARTS) IN THE AMOUNT OF $177,425 WAS NOT ACCEPTED AND THE AWARD WAS MADE TO WESTERN GEAR CORPORATION WHOSE BID OF $180,165 WAS THE SECOND LOWEST BID SUBMITTED. THE RECORD INDICATES THAT YOUR FIRM WAS NOTIFIED ON JULY 29 THAT ITS BID WAS DETERMINED TO BE NONRESPONSIVE AND ON THE SAME DATE YOU REPLIED TO NAVY WITH A FORMAL PROTEST BY TELEGRAM.

PARAGRAPH 2-407.9/B) OF ASPR PROVIDES IN PERTINENT PART AS FOLLOWS:

(2) WHERE A PROTEST HAS BEEN RECEIVED BEFORE AWARD, THE VIEWS OF THE OFFICE OF THE COMPTROLLER GENERAL REGARDING THE PROTEST SHOULD BE OBTAINED BEFORE AWARD WHENEVER SUCH ACTION IS CONSIDERED TO BE DESIRABLE. WHERE IT IS KNOWN THAT A PROTEST AGAINST THE MAKING OF AN AWARD HAS BEEN LODGED DIRECTLY WITH THE COMPTROLLER GENERAL, A DETERMINATION TO MAKE AWARD UNDER (3) BELOW MUST BE APPROVED AT AN APPROPRIATE LEVEL ABOVE THAT OF THE CONTRACTING OFFICER, IN ACCORDANCE WITH DEPARTMENTAL PROCEDURES. WHILE AWARD NEED NOT BE WITHHELD PENDING FINAL DISPOSITION BY THE COMPTROLLER GENERAL OF A PROTEST, A NOTICE OF INTENT TO MAKE AWARD IN SUCH CIRCUMSTANCES SHALL BE FURNISHED THE COMPTROLLER GENERAL, AND FORMAL OR INFORMAL ADVICE SHOULD BE OBTAINED CONCERNING THE CURRENT STATUS OF THE CASE PRIOR TO MAKING THE AWARD.

(3) WHERE A WRITTEN PROTEST AGAINST THE MAKING OF AN AWARD IS RECEIVED, AWARD SHALL NOT BE MADE UNTIL THE MATTER IS RECEIVED, UNLESS THE CONTRACTING OFFICER DETERMINES THAT:

(I) THE ITEMS TO BE PROCURED ARE URGENTLY REQUIRED; OR

(II) DELIVERY OR PERFORMANCE WILL BE UNDULY DELAYED BY FAILURE TO MAKE AWARD PROMPTLY; OR

(III) A PROMPT AWARD WILL OTHERWISE BE ADVANTAGEOUS TO THE GOVERNMENT.

IT IS REPORTED THAT THE AWARD NOTICE TO WESTERN GEAR WAS NOT MAILED UNTIL AUGUST 3. THEREFORE WE AGREE WITH YOUR CONCLUSION THAT ASPR 2 407.9 IS FOR APPLICATION SINCE YOUR PROTEST OF JULY 29 TO NAVY WAS MADE PRIOR TO AWARD. HOWEVER, WE DO NOT AGREE WITH YOUR STATEMENT THAT AN EFFECTIVE AWARD COULD NOT HAVE BEEN MADE TO ANYONE UNTIL THE COMPTROLLER GENERAL RESOLVED THE PROTEST. WHEN A PROTEST HAS NOT BEEN LODGED DIRECTLY WITH THE COMPTROLLER GENERAL, SUBPARAGRAPH (B) (2) ONLY REQUIRES THAT HIS VIEWS BE OBTAINED BEFORE AWARD "WHENEVER SUCH ACTION IS CONSIDERED TO BE DESIRABLE;,

YOUR PROTEST ALSO CITES ASPR 2-407.9/B) (3), TO SUPPORT YOUR ARGUMENT THAT AN AWARD SHOULD NOT HAVE BEEN MADE ONCE YOU HAD LODGED YOUR PROTEST. ALTHOUGH THE SUBPARAGRAPH PROVIDES THAT WHERE A WRITTEN PROTEST AGAINST THE MAKING OF AN AWARD IS RECEIVED BY A DEPARTMENT, AWARD SHALL NOT BE MADE "UNTIL THE MATTER IS RESOLVED" (WITH EXCEPTIONS), THAT PROVISION DOES NOT SPECIFY A PARTICULAR LEVEL AT WHICH SUCH DETERMINATION IS TO BE MADE. THE RECORD SHOWS THAT THE BASIS OF YOUR PROTEST WAS CONSIDERED BEFORE AWARD AT A MEETING HELD ON AUGUST 3, 1965, AND ATTENDED BY THE CONTRACTING OFFICER, LEGAL COUNSEL, THE SUPERVISORY CONTRACT NEGOTIATOR AND THE CONTRACT NEGOTIATOR. UPON CONSIDERING YOUR OBJECTION, THOSE PRESENT REAFFIRMED THE CONCLUSION THAT YOUR BID WAS NONRESPONSIVE. CONSEQUENTLY, WE MUST CONCLUDE THAT THE MATTER WAS "RESOLVED" PRIOR TO AWARD, WITHIN THE CONTEMPLATION OF ASPR 2-407.9/B) (3), AND THAT THE CONTRACT WAS AWARDED WITHOUT FINDING OF "EXIGENCY" WHICH YOU CLAIM WAS USED IN MAKING THE AWARD. SEE 45 COMP. GEN. 436.

YOUR PROTEST ALSO QUESTIONS THE CORRECTNESS OF THE CONTRACTING OFFICER'S DETERMINATION THAT YOUR BID WAS NONRESPONSIVE TO THE DELIVERY REQUIREMENTS FOR MANUALS. IN THIS CONNECTION, THE IFB REQUIRES THE CONTRACTOR TO FURNISH BOTH PRELIMINARY MANUALS AND FINAL MANUALS CONTAINING INSTRUCTIONS FOR THE OPERATION AND MAINTENANCE OF EACH UNIT IN THE EQUIPMENT AND THE COMPLETE ASSEMBLY. THE IFB ALSO REQUIRES FINAL MANUALS TO "INCLUDE CORRECTIONS, IF ANY, IN APPROVAL COMMENTS FOR PRELIMINARY MANUALS;, A DESIRED DELIVERY TIME OF 180 DAYS AFTER DATE OF CONTRACT AND A MAXIMUM TIME OF 210 DAYS WERE STIPULATED FOR FINAL MANUALS. YOU EFFECTIVELY OFFERED TO DELIVER THE FINAL MANUALS WITHIN 180 DAYS AFTER DATE OF CONTRACT SINCE YOU DID NOT OFFER AN ALTERNATE FOR THE DESIRED DELIVERY TIME, IN WHICH CASE THE IFB PROVIDES IN CLAUSE 4.5 THAT THE GOVERNMENT'S DESIRED DELIVERY SCHEDULE APPLIES. CONCERNING THE DELIVERY OF PRELIMINARY MANUALS, BIDDERS WERE REFERRED TO THE FOLLOWING IFB CLAUSE:

4.20 DELIVERY TIME FOR PRELIMINARY MANUALS

THE CONTRACTOR SHALL SUBMIT PRELIMINARY MANUALS FOR APPROVAL. SUBMISSION SHALL BE EARLY ENOUGH TO ASSURE COMPLIANCE WITH THE CONTRACT DELIVERY SCHEDULE. THE GOVERNMENT WILL REQUIRE 30 DAYS TO REVIEW THE MANUALS.

GOVERNMENT DESIRES THAT PRELIMINARY MANUALS BE SUBMITTED WITHIN 90 DAYS AFTER DATE OF CONTRACT, BUT THE BIDDER OR OFFEROR MAY OFFER AN ALTERNATE TIME FOR SUBMISSION IN THE SPACE INDICATED BELOW. IN THE ABSENCE OF SUCH ALTERNATE FILL-IN THE GOVERNMENT'S DESIRED TIME WILL HOLD.

IF WITHIN 30 DAYS AFTER SUBMISSION OF PRELIMINARY MANUALS THE CONTRACTOR HAS NOT BEEN NOTIFIED OF APPROVAL, HE SHALL PROMPTLY SO NOTIFY THE CONTRACTING OFFICER IN WRITING.

ALTERNATE MANUALS SUBMISSION TIME--------------------------.

YOU INSERTED "180 DAYS" IN THE BLANK SPACE FOLLOWING THE WORDS "ALTERNATE MANUAL SUBMISSION TIME" IN THE ABOVE CLAUSE.

ACORDINGLY, IN VIEW OF THE FACT THAT THE GOVERNMENT REQUIRED 30 DAYS TO REVIEW THE PRELIMINARY MANUALS, AND ALL CORRECTIONS WERE REQUIRED TO BE INCORPORATED INTO THE FINAL MANUALS, YOUR BID WAS DETERMINED TO BE NONRESPONSIVE AS TO DELIVERY OF THE FINAL MANUALS SINCE IT WOULD BE IMPOSSIBLE TO SUBMIT PRELIMINARY MANUALS ON THE MAXIMUM 180TH DAY, ALLOW 30 DAYS FOR REVIEW, MAKE CORRECTIONS, AND THEN DELIVER THE FINAL MANUALS WITHIN THE SPECIFIED MAXIMUM DELIVERY TIME OF 210 DAYS. YOU HAVE TAKEN THE POSITION THAT SINCE IFB CLAUSE 4.20 PROVIDES THAT THE SUBMISSION OF PRELIMINARY MANUALS SHALL BE EARLY ENOUGH TO ASSURE COMPLIANCE WITH THE CONTRACT DELIVERY SCHEDULE SUCH REQUIREMENT SUPERSEDES YOUR SPECIFIED TIME FOR SUBMISSION OF PRELIMINARY MANUALS. ADDITIONALLY, YOU CITE OUR DECISION OF JULY 18, 1966, B-159280, TO SUPPORT YOUR POSITION.

WE DO NOT AGREE THAT THE GENERAL STATEMENT IN CLAUSE 4.20, WHICH MERELY CAUTIONS BIDDERS AS TO THE NEED FOR AN EARLY SUBMISSION OF MANUALS, COMPLETELY COVERS AND UNEQUIVOCALLY CONTROLS DELIVERY TIME FOR THE PRELIMINARY MANUALS AS YOU ALLEGE. SUCH AN INTERPRETATION WOULD REQUIRE SUBORDINATION OF THE EXPRESS PROVISION FOR THE GOVERNMENT'S DESIRED DELIVERY TIME WHICH APPEARS IN THE SAME CLAUSE AND IS EXPRESSLY MADE EFFECTIVE IN THE EVENT THE BIDDER DOES NOT SUBMIT AN ALTERNATE TIME. THE INTERPRETATION YOU SEEK TO APPLY WOULD REQUIRE THE ILLOGICAL RESULT THAT UPON AWARD THE CONTRACTOR WOULD BE GOVERNED BY A GENERAL STATEMENT REGARDING DELIVERY NEEDS RATHER THAN BY AN EXPRESS DELIVERY SCHEDULE WHICH WAS MADE A SPECIFIC PART OF THE CONTRACT. IN OUR OPINION THE CONTRACTING OFFICER WAS REQUIRED TO CONSTRUE YOUR ALTERNATE SPECIFIED TIME OF 180 DAYS FOR DELIVERY OF PRELIMINARY MANUALS AS A DEFINITE OFFER, AND CONSEQUENTLY FIND SUCH OFFER INCOMPATIBLE WITH THE MAXIMUM DELIVERY REQUIREMENT FOR FINAL MANUALS.

CONTRARY TO YOUR CONTENTION, WE BELIEVE THE DECISION OF OUR OFFICE B- 159280, JULY 18, 1966, IS NOT FOR APPLICATION IN THE INSTANT CASE. IN THE REFERENCED CASE WE HELD THAT A BIDDER'S FAILURE TO SPECIFICALLY CITE F. O. B. DESTINATION IN HIS BID, EVEN THOUGH SUCH A CITATION WAS REQUIRED BY THE IFB, WAS IMMATERIAL SINCE THE BIDDER SIGNED HIS BID AND THEREBY AGREED TO PERFORM IN ACCORDANCE WITH THE UNALTERABLE REQUIREMENT APPEARING IN THE IFB FOR DELIVERY F. O. B. DESTINATION. IN THE INSTANT CASE, HOWEVER, THE SITUATION IS DISTINGUISHABLE SINCE A VARIATION IN DELIVERY TIME IS PERMITTED. IN B-147968, MARCH 19, 1962, WE STATED:

* * * WE CANNOT AGREE THAT THE CONTRACTING OFFICER'S DECISION TO REJECT YOUR BID WAS UNWARRANTED WHEN CONSIDERATION IS GIVEN TO THE FACT THAT YOU PROPOSED TO TAKE AS LONG AS 70 DAYS TO DELIVER YOUR PREPRODUCTION SAMPLE AND THE GOVERNMENT WAS ENTITLED TO 20 DAYS FOR APPROVAL OF THE SAMPLE. SUCH CIRCUMSTANCES, IT WOULD BE ENTIRELY PROPER TO ASSUME THAT YOU COULD NOT DELIVER WITHIN 90 DAYS TO DESTINATION (NORFOLK, VIRGINIA, OR OAKLAND, CALIFORNIA) WHEN YOUR PLACE OF MANUFACTURE IS BECKLEY, WEST VIRGINIA. AND THIS WOULD BE TRUE, EVEN THOUGH YOU ASSUMED THE RISK OF HAVING TO MAKE CHANGES UPON INSPECTION OF THE PREPRODUCTION SAMPLE, BY MANUFACTURING THE 780 UNITS DUE AT DESTINATION BY THE 90TH DAY AFTER AWARD OF CONTRACT AND PRIOR TO APPROVAL OF THE PREPRODUCTION SAMPLE.

THAT DECISION, IN OUR OPINION, HAS APPLICATION TO THE SITUATION AT HAND EVEN THOUGH, AS YOU POINT OUT IN YOUR BRIEF, THE IFB INVOLVED IN SUCH DECISION RESTRICTED COMMENCEMENT OF PRODUCTION UNTIL THE PREPRODUCTION SAMPLES WERE APPROVED. IN BOTH CASES THE FAILURE TO PROVIDE ANY TIME FOR CORRECTIONS COULD PRECLUDE DELIVERY AS REQUIRED, AND PRESENTED A CONTROLLING REASON FOR REJECTION OF THE BIDS AS NONRESPONSIVE.

YOUR PORTEST ALSO RAISES THE FOLLOWING OBJECTION:

YET IN EVALUATING HYDE DIVISION'S BID, THE CONTRACTING OFFICER INJECTED A WHOLLY NEW FACTOR, NOT SET FORTH IN THE IFB---"X TIME FOR CORRECTIONS;, IN SHORT, THE CONTRACTING OFFICER HAS TAKEN THE POSITION THAT THE GOVERNMENT IS NOT ONLY ENTITLED TO "30 DAYS TO REVIEW THE MANUALS", BUT THAT IT IS ALSO ENTITLED TO "X TIME FOR CORRECTIONS;, THIS POSITION IS UNSUPPORTABLE. THE IFB CONTAINS NO SUCH PROVISION.

ALSO, HOW LONG IS "X TIME?" THE CONTRACTING OFFICER DID NOT SAY.

THE INJECTION OF THIS NEW AND EVANESCENT EVALUATION FACTOR IS IN SPECIFIC CONTRAVENTION OF 10 U.S.C. 2305 AND THE DECISIONS OF THE COMPTROLLER GENERAL.

THUS, THE CONTRACTING OFFICER'S DECISION CANNOT STAND IN ANY EVENT. IS IN CONTRAVENTION OF THE DECISIONS OF THE COMPTROLLER GENERAL WHICH REQUIRE THAT ALL EVALUATION FACTORS BE STATED PRECISELY AND WITH MATHEMATICAL EXACTITUDE IN THE IFB. SEE DECISION B-152934, FEBRUARY 10, 1964; 36 COMP. GEN. 380, 385.

THE DECISION IN 36 COMP. GEN. 380 STATES IN PERTINENT PART:

THE "BASIS" OF EVALUATION WHICH MUST BE MADE KNOWN IN ADVANCE TO THE BIDDERS SHOULD BE AS CLEAR, PRECISE AND EXACT AS POSSIBLE. IDEALLY, IT SHOULD BE CAPABLE OF BEING STATED AS A MATHEMATICAL EQUATION. IN MANY CASES, HOWEVER, THAT IS NOT POSSIBLE.

AT THE MINIMUM, THE "BASIS" MUST BE STATED WITH SUFFICIENT CLARITY AND EXACTNESS TO INFORM EACH BIDDER PRIOR TO BID OPENING, NO MATTER HOW VARIED THE ACCEPTABLE RESPONSES, OF OBJECTIVELY DETERMINABLE FACTORS FROM WHICH THE BIDDER MAY ESTIMATE WITHIN REASONABLE LIMITS THE EFFECT OF THE APPLICATION OF SUCH EVALUATION FACTOR ON HIS BID IN RELATION TO OTHER POSSIBLE BIDS.

IT IS OBJECTIVELY DETERMINABLE FROM THE IFB THAT SOME PROVISION WAS REQUIRED OF BIDDERS TO ALLOW FOR CORRECTIONS TO THE FINAL MANUALS AND THAT THERE EXISTS A SUFFICIENT BASIS FOR EVALUATION WHEN ALL PROVISIONS RELATING TO MANUAL REQUIREMENTS ARE VIEWED AS A WHOLE. SUCH A READING IS ORDINARILY TO BE EXPECTED FROM RESPONSIBLE BIDDERS. IN THE PRESENT SITUATION THE IFB DOES NOT STATE ANY SPECIFIC AMOUNT OF TIME FOR MAKING CORRECTIONS. WHAT THE IFB EFFECTIVELY DOES IS TO LEAVE THE DETERMINATION AS TO THE EXTENT OF TIME NECESSARY FOR CORRECTIONS IN CONTROL OF THE BIDDER WHO, WE SUBMIT, IS MORE CAPABLE OF MAKING A REALISTIC ESTIMATE. ALL THE GOVERNMENT FINDS NECESSARY TO REQUIRE IN SUCH RESPECT IS THAT A BIDDER ALLOW SOME TIME WHICH, IN HIS OWN JUDGMENT, IS SUFFICIENT FOR MAKING ANY CORRECTIONS THAT MIGHT BE REQUIRED. SINCE YOUR BID HAS NOT PROVIDED THIS MATERIAL REQUIREMENT WE BELIEVE IT MUST BE CONSIDERED NONRESPONSIVE. IN THE ALTERNATIVE YOU SUBMIT THAT IT IS POSSIBLE TO ADD ALL CORRECTIONS TO THE FINAL MANUAL BEFORE MIDNIGHT OF THE 210TH DAY EVEN IF THE GOVERNMENT DELIVERS THE CORRECTED PRELIMINARY MANUALS AT THE VERY END OF ITS WORK DAY ON THE 210TH DAY AFTER AWARD. IN OUR OPINION THIS ARGUMENT IS INVALID SINCE THE END OF THE 210TH DAY MUST BE THE SAME FOR BOTH PARTIES, AND FOR THE PURPOSE OF BID EVALUATION.

THE ARGUMENT IS PRESENTED IN YOUR BRIEF THAT THE CONTRACTING OFFICER'S DETERMINATION ATTEMPTS TO TAKE AWAY ONE OF THE RIGHTS FOR WHICH THE BIDDERS BARGAINED UNDER THE IFB, THAT IS, THE RIGHT TO PRODUCE COPIES OF FINAL MANUALS CONCURRENTLY WITH THE PRELIMINARY MANUAL. WE AGREE THAT YOU COULD "PARALLEL" PRODUCTION OF THE FINAL AND PRELIMINARY MANUALS. HOWEVER, SUCH A PROCEDURE DOES NOT REQUIRE THE GOVERNMENT TO ACCEPT SUCH FINAL MANUALS SINCE AFTER REVIEW OF THE PRELIMINARY IT MAY BE NECESSARY TO ADD CORRECTIONS.

WITH REGARD TO YOUR ALLEGATION THAT THERE WAS NO PUBLIC OPENING OF WESTERN GEAR'S LATE BID AS REQUIRED BY 10 U.S.C. 2305/C), WE BELIEVE OUR DECISION OF SEPTEMBER 21, 1960, B-143642, WHICH YOU ALSO CITE IN YOUR PROTEST, SUFFICIENTLY EXPLAINS OUR POSITION:

* * * WE BELIEVE THAT THE INTEGRITY OF THE BIDDING SYSTEM IS FULLY PROTECTED WHEN IT IS ESTABLISHED THAT A LATE BID BEING CONSIDERED FOR AWARD IS LATE DUE TO DELAY IN THE MAIL NOT CAUSED BY THE BIDDER AND THE BID IS MADE AVAILABLE FOR PUBLIC INSPECTION TO THE SAME EXTENT AS THE OTHER BIDS RECEIVED, WITHOUT REQUIRING THAT A SPECIAL TIME BE ANNOUNCED FOR A PUBLIC OPENING OF LATE BIDS.

CONCERNING YOUR ALLEGATIONS THAT THE CONTRACTING OFFICER'S CONSIDERATION OF WESTERN GEAR'S BID, WITHOUT FIRST OBTAINING EVIDENCE OF ITS TIMELINESS, VIOLATED A CONDITION PRECEDENT FOR CONSIDERATION OF LATE BIDS WHICH IS REQUIRED BY ASPR 2-303.1, AND THAT THE AWARD TO WESTERN GEAR IS VOID BECAUSE THAT FIRM'S BID DOES NOT COME WITHIN THE EXCEPTION ALLOWING CONSIDERATION OF A BID IF ITS LATENESS IS DUE SOLELY TO A DELAY IN THE MAILS SINCE WESTERN GEAR FAILED TO MARK ITS BID ENVELOPE AS "AIRMAIL", THE CONTRACTING OFFICER HAS REPORTED:

12. AMENDMENT NO. 6 TO THE IFB SIGNED ON BEHALF OF WESTERN WAS RECEIVED AT THE CONTRACTING OFFICE ON 20 JUNE 1966, WHICH WAS SUBSEQUENT TO THE BID OPENING AT 2:00 PM EDST ON 17 JUNE 1966. AMENDMENT NO. 6 MADE SUBSTANTIAL AND MATERIAL CHANGES IN THE IFB. AMENDMENT NO. 6 WAS RECEIVED FROM WESTERN BY REGISTERED MAIL. THE ENVELOPE CONTAINING SAID AMENDMENT NO. 6 HAD POSTAGE STAMPS AGGREGATING $1.01 AND THERE APPEARED ON SUCH ENVELOPE A POST OFFICE STAMP READING "EVERETT, WASH. JUN 15, 1966" PLUS THE STAMP "REGISTERED NO. 5085 RECEIPT REQUESTED;, THE ENVELOPE ALSO CONTAINED POST OFFICE STAMPS READING "PHILADELPHIA, PA., REGISTRY, JUNE 19, 1966" AND "PHILADELPHIA, PA. NAVAL BASE STA., JUNE 20, 1966;, THE INDIVIDUAL IN THE CONTRACTING OFFICE WHO WAS CHARGED WITH THE RESPONSIBILITY FOR MAKING DETERMINATIONS CONCERNING THE TIMELY MAILING OF LATE BIDS REACHED THE CONCLUSION THAT SAID AMENDMENT 6 SHOULD HAVE BEEN SENT BY THE POST OFFICE IN EVERETT, WASHINGTON, BY AIR MAIL AND THAT EXCEPT FOR A DELAY IN THE MAIL, THE AMENDMENT SHOULD HAVE REACHED THE CONTRACTING OFFICE PRIOR TO THE TIME SET FOR BID OPENING. SUCH INDIVIDUAL MARKED THE SAID AMENDMENT AS "LATE-ACCEPTABLE", AND IN ACCORDANCE WITH EXISTING PRACTICES AT THE ACTIVITY, THE INDIVIDUALS AT THE ACTIVITY RESPONSIBLE FOR AWARD OF CONTRACT AND OTHER PHASES OF THE PROCUREMENT RELIED ON SUCH DETERMINATION AND TREATED AMENDMENT 6 AS A VALID AND TIMELY PART OF THE WESTERN BID.

13. UPON RECEIPT BY THE CONTRACTING OFFICER OF THE COPY OF THE HYDE TELEGRAM OF 18 AUGUST 1966 TO THE GENERAL ACCOUNTING OFFICE WHICH STATED THAT HYDE HAD RECEIVED ADVICE FROM A BID REPORTING SERVICE THAT AMENDMENT NO. 6 WAS NOT ATTACHED BY THE WESTERN BID AT THE TIME OF BID OPENING, THE CONTRACTING OFFICER IMMEDIATELY INITIATED A REVIEW TO VERIFY THE FACT THAT THE DELAY IN RECEIPT OF AMENDMENT NO. 6 FROM WESTERN WAS DUE TO A DELAY IN THE MAILS. THE POSTAL OFFICIALS AT EVERETT, WASHINGTON, WERE REQUESTED TO REVIEW AND REPORT TO THE CONTRACTING OFFICE AS TO THE INFORMATION SHOWN BY THEIR REGISTRY RECORDS FOR REGISTERED ARTICLE NO. 5085, WHICH AS POINTED OUT ABOVE, WAS THE POST OFFICE REGISTRY NUMBER STAMPED ON THE ENVELOPE IN WHICH AMENDMENT NO. 6 WAS RECEIVED FROM WESTERN. BY LETTER DATED 18 AUGUST 1966, A COPY OF WHICH IS ATTACHED AS AN EXHIBIT HERETO, THE SUPERINTENDENT OF MAILS, U. S. POST OFFICE, EVERETT, WASHINGTON, ADVISED THE CONTRACTING OFFICER AS FOLLOWS:

REGISTERED ARTICLE NO. 5085 WAS RECEIVED AT THIS OFFICE AT APPROXIMATELY 5:00 PM, JUNE 15, 1966.

POSTAGE PAID; FEE ?75, RETURN RECEIPT ?10, AIR MAIL ?16.

DISPATCHED TO AMF SEATTLE, WASHINGTON, AT 8:30 PM, JUNE 15, 1966, ON BILL NO. 29, ENCLOSED IN ROTARY LOCKED POUCH A32236-145, IN BULK. NOT LISTED BY NUMBER ON THE BILL.

14. THE CONTRACTING OFFICER THEN ASKED THE U. S. POST OFFICE, PHILADELPHIA, WHICH IS THE POST OFFICE SERVING THE CONTRACTING ACTIVITY, FOR CONFIRMING INFORMATION REGARDING THE NORMAL TIME FOR MAIL DELIVERY TO THE CONTRACTING OFFICE OF THE REGISTERED ITEM DESCRIBED IN PARAGRAPH 13. ABOVE. BY LETTER OF AUGUST 19, 1966, A COPY OF WHICH IS ATTACHED AS AN EXHIBIT HERETO, THE POSTMASTER, U. S. POST OFFICE, PHILADELPHIA, PA., HAS ADVISED THAT THE REGISTERED ARTICLE MAILED AS ABOVE DESCRIBED SHOULD HAVE REACHED THE CONTRACTING OFFICE IN THE REGULAR COURSE OF THE MAILS PRIOR TO THE SCHEDULED TIME FOR BID OPENING.

PARAGRAPH 2-303 OF THE ARMED SERVICES PROCUREMENT REGULATIONS PROVIDES IN PERTINENT PART:

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 IF AUTHORIZED, AND IT IS DETERMINED THAT THE LATENESS WAS DUE SOLELY TO A DELAY IN THE MAILS (BASED ON EVIDENCE PURSUANT TO 3-303.3), OR TO A DELAY BY THE TELEGRAPH COMPANY FOR WHICH THE BIDDER WAS NOT RESPONSIBLE; OR

2-303.3 MAILED BIDS.

(A) REGISTERED MAIL. THE TIME OF MAILING OF A LATE BID MAILED BY REGISTERED MAIL MAY BE DETERMINED BY THE DATE IN THE POSTMARK ON THE REGISTERED MAIL RECEIPT OR REGISTERED MAIL WRAPPER. THE TIME OF MAILING SHALL BE DEEMED TO BE THE LAST MINUTE OF THE DATE SHOWN IN SUCH POSTMARK UNLESS THE BIDDER FURNISHES EVIDENCE FROM THE POST OFFICE STATION OF MAILING WHICH ESTABLISHES AN EARLIER TIME. SUCH EVIDENCE, IF APPROPRIATELY VERIFIED IN WRITING BY THE POST OFFICE STATION OF MAILING, MAY CONSIST OF AN ENTRY IN INK ON THE REGISTERED MAIL RECEIPT SHOWING THE TIME OF MAILING AND THE INITIALS OF THE POSTAL EMPLOYEE RECEIVING THE ITEM AND MAKING THE ENTRY. IF THE POSTMARK DOES NOT SHOW A DATE, THE BID SHALL BE DEEMED TO HAVE BEEN MAILED TOO LATE UNLESS THE BIDDER FURNISHES EVIDENCE FROM THE POST

(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.

EVEN THOUGH THERE MAY NOT HAVE BEEN FULL COMPLIANCE WITH THE PROVISION REQUIRING THE OBTAINING OF EVIDENCE PRIOR TO THE CONSIDERATION OF A LATE BID, THE AWARD MADE TO WESTERN GEAR SHOULD NOT BE VOIDED SINCE A SUBSEQUENT INVESTIGATION PRODUCED SUFFICIENT EVIDENCE TO SHOW THAT THE LATENESS OF WESTERN GEAR'S BID WAS DUE SOLELY TO A DELAY IN THE MAILS.

WE BASE OUR CONCLUSION ON THE STATEMENT OF THE POSTMASTER, PHILADELPHIA POST OFFICE, THAT A REGISTERED LETTER SENT AIRMAIL FROM EVERETT, WASHINGTON, ON JUNE 15, 1966, IN THE REGULAR COURSE OF HANDLING SHOULD HAVE ARRIVED AT THE PROCURING ORGANIZATION PRIOR TO THE SCHEDULED BID OPENING TIME, AND ON THE INFORMATION SUPPLIED BY THE SUPERINTENDENT OF MAILS AT EVERETT. WE FEEL THAT THE RECORD SHOWS THAT WESTERN GEAR PRESENTED ITS BID AMENDMENT NO. 6 TO AN APPROPRIATE POST OFFICE EMPLOYEE WITH INSTRUCTIONS TO TRANSMIT IT BY AIRMAIL AND PAID HIM A SUFFICIENT AMOUNT OF POSTAGE TO SEND THE LETTER BY THAT MEANS. THIS BEING THE CASE, OUR CONCLUSION IS IN ACCORDANCE WITH THE PRIOR DECISION OF OUR OFFICE, B- 154240, JUNE 1, 1964, WHICH STATES:

* * * ACCORDINGLY, IT APPEARS THAT THE BIDDER INTENDED TO USE AIRMAIL AND GIVE THE POST OFFICE INSTRUCTIONS TO THAT EFFECT AND THAT USE OF ONLY FIRST-CLASS MAIL WAS OCCASIONED BY AN ERROR ON THE PART OF THE POST OFFICE WHICH WAS BEYOND THE CONTROL OF THE BIDDER.

IN VIEW OF THE FOREGOING, THE FAILURE OF THE ALAMOGORDO POST OFFICE TO TRANSMIT THE BID BY AIRMAIL, WHICH WOULD HAVE EFFECTED DELIVERY OF THE BID AT THE BID OPENING OFFICE PRIOR TO THE TIME SET FOR BID OPENING, MUST BE REGARDED AS A DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE, THEREFORE, THE BID, WHICH WAS SENT BY REGISTERED MAIL, IS PROPERLY FOR CONSIDERATION FOR AWARD UNDER THE TERMS OF THE INVITATION AND THE REGULATIONS AS A TIMELY MAILED LATE BID.

SIMILARLY, AN EARLY DECISION OF OUR OFFICE STATES THAT "THE SINGLE FACT THAT THE BIDDER DID NOT MARK THE ENVELOPES FOR AIRMAIL TRANSPORTATION SHOULD NOT BE GIVEN UNDUE WEIGHT OVER THE OTHER MAILING FACTS;, IN THAT CASE THE BID WAS PLACED IN AN AIRMAIL CHUTE AT THE POST OFFICE. SEE A- 42645, JUNE 9, 1932.

IN SUPPORT OF YOUR POSITION THAT WESTERN GEAR WAS RESPONSIBLE FOR THE DELAY, YOU CITE SEVERAL PROVISIONS OF THE POSTAL MANUAL CONTAINING REGULATIONS OF THE POST OFFICE DEPARTMENT WHICH ARE INTENDED TO ASSIST THE USERS OF ITS DOMESTIC SERVICES IN OBTAINING THE MAXIMUM BENEFITS FROM ITS PERSONNEL AND FACILITIES. WE AGREE THAT, HAD A SPECIAL AIRMAIL ENVELOPE BEEN USED OR HAD THE BID ENVELOPE BEEN PROPERLY DESIGNATED FOR AIRMAIL BY WESTERN GEAR, THE BID WOULD PROBABLY HAVE BEEN RECEIVED BY THE PROCURING ACTIVITY PRIOR TO THE TIME SET FOR BID OPENING. WE FEEL, HOWEVER, THAT FOR THE PURPOSES OF ASPR 2-303, WESTERN GEAR WAS ENTITLED TO RELY ON THE POSTAL CLERK TO FOLLOW ITS INSTRUCTIONS, AND THAT SUCH CLERK SHOULD HAVE MARKED THE ENVELOPE AIRMAIL IN ACCORDANCE WITH THE POSTAGE PAID TO HIM FOR SUCH MAILING.

FURTHERMORE, YOU STATE THAT YOU RELY ON OUR DECISION OF JUNE 28, 1963, B- 151607, AS SUPPORT FOR YOUR POSITION IN THIS MATTER. THE BIDDER IN THAT DECISION BY NOT REQUESTING THAT HIS BID ENVELOPE (TO WHICH POSTAGE HAD BEEN AFFIXED PREVIOUSLY) BE ENDORSED AS "CERTIFIED" AND "AIR MAIL" WAS HELD TO BE RESPONSIBLE FOR THE ENSUING LATENESS ALTHOUGH AN ATTEMPTED RECOVERY OF THE ENVELOPE FAILED DUE TO THE LACK OF DILIGENT EFFORTS BY POSTAL EMPLOYEES. UNDER THOSE CIRCUMSTANCES, WE DID NOT CONSIDER THAT THE LATE ARRIVAL WAS DUE TO A "MISHANDLING" AT THE POST OFFICE. WHILE YOU SAY THAT SUCH DECISION SUPPORTS YOUR CONTENTION, WE BELIEVE THAT THE CONTRARY IS INDICATED BY THE FOLLOWING VIEW WHICH IS SET FORTH IN THE PENULTIMATE PARAGRAPH THEREOF:

ONE OF THE PURPOSES OF THE STRICTNESS OF THIS RULE IS TO PLACE UPON THE BIDDER PRIMARY RESPONSIBILITY FOR TIMELY RECEIPT OF BIDS BY THE PROCURING ACTIVITY. IT SHOULD BE NOTED THAT YOU COULD AND WOULD HAVE DISCHARGED THIS RESPONSIBILITY IF YOUR COMPANY HAD NOT IN THE FIRST INSTANCE NEGLECTED TO REQUEST THE POSTAL EMPLOYEE TO PROPERLY ENDORSE THE ENVELOPE CONTAINING YOUR BID AS ,AIRMAIL" AND "CERTIFIED MAIL;,

FOR THE REASONS STATED, WE FIND NO VALID BASIS ON WHICH TO QUESTION THE ACTION OF THE PROCURING AGENCY IN THIS MATTER, AND YOUR PROTEST MUST THEREFORE BE DENIED.