B-159955, SEP. 15, 1966

B-159955, SEP. 15, 1966

TO THE SECRETARY OF COMMERCE:

REFERENCE IS MADE TO A LETTER DATED AUGUST 25, 1966, FROM MR. G. A. WILKINS, REGIONAL ENGINEER, REGION FIFTEEN, BUREAU OF PUBLIC ROADS, ARLINGTON, VIRGINIA, REQUESTING A DECISION WHETHER THE BUREAU MAY CONSIDER A LATE BID RECEIVED FOR THE CONSTRUCTION OF OHIO FOREST HIGHWAY PROJECT 2- 1 (2).

THE BID IN QUESTION WAS SUBMITTED BY SARGENTS CONSTRUCTION, INCORPORATED OF WAVERLY, OHIO, AND WAS RECEIVED AT YOUR DISTRICT OFFICE IN GATLINBURG, TENNESSEE, AT 9:58 A.M., ON JULY 22, 1966. THE INVITATION REQUIRED THE SUBMISSION OF ALL BIDS TO THE GATLINBURG OFFICE BY 11:00 A.M., EST, JULY 21, 1966. ON THE MORNING OF JULY 20, 1966, THE BID IN QUESTION WAS MAILED AS A FIRST CLASS, CERTIFIED, SPECIAL DELIVERY LETTER AT THE WAVERLY, OHIO, POST OFFICE BY SERGEANTS' AGENT. A LETTER FROM THE WAVERLY POSTMASTER ESTABLISHES THAT SERGEANTS' AGENT WAS ADVISED BY THE POSTMASTER AT ABOUT 9:00 A.M., ON JULY 20 THAT IT WAS REASONABLE TO EXPECT THE BID WOULD ARRIVE BEFORE THE TIME FOR BID OPENING IF IT WERE MAILED AT THAT TIME AND IN THE MANNER SPECIFIED ABOVE, AND IT IS SERGEANTS' POSITION THAT ITS DECISION TO MAIL THE BID INSTEAD OF HAND CARRYING IT TO THE CONTRACTING OFFICER WAS BASED UPON THE POSTMASTER'S ADVICE.

IT IS REPORTED THAT THE ONLY OTHER BID RECEIVED FOR THIS PROJECT IS 88 PERCENT ABOVE THE ENGINEERS' ESTIMATE, AND IS THEREFORE CONSIDERED TO BE TOO HIGH TO JUSTIFY AN AWARD. ACCORDINGLY YOUR LETTER PROPOSES TO CONSIDER SARGENTS' BID FOR AWARD, SINCE SUCH CONSIDERATION WOULD NOT BE PREJUDICIAL TO ANY OTHER BIDDER.

THE GENERAL RULE ALLOWING THE CONSIDERATION OF LATE BIDS IS STATED IN FPR 1-2.303-2 (AND ESSENTIALLY REPEATED IN THE INSTANT INVITATION) AS FOLLOWS:

"A LATE BID SHALL BE CONSIDERED FOR AWARD ONLY IF:

"/A) IT IS RECEIVED BEFORE AWARD; AND EITHER

"/B) 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 SEC. 1-2.303-3) * * *.' ADDITIONALLY, FPR 1-2.303 -3 (C) SETS FORTH THE FOLLOWING REQUIREMENT:

"/C) DELIVERY TIME. INFORMATION CONCERNING THE NORMAL TIME FOR MAIL DELIVERY SHALL BE OBTAINED BY THE PROCURING 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.'

IN PURSUANCE OF THE ABOVE REGULATIONS THE FOLLOWING STATEMENT WAS SUBMITTED BY THE GATLINBURG POSTMASTER:

"* * * IN MY OPINION A PIECE OF FIRST CLASS MAIL DISPATCHED FROM WAVERLY, OHIO JULY 20, 1966 A.M. WITH PROPER HANDLING WOULD NOT HAVE REACHED GATLINBURG, TENN. BY 11:00 A.M. JULY 21, 1966.' ADDITIONALLY, THE POST OFFICE DEPARTMENT'S ACTING DIRECTOR OF TRANSPORTATION DIVISION FOR THE CINCINNATI, OHIO, REGIONAL OFFICE SUBMITTED THE FOLLOWING PERTINENT INFORMATION:

"CONFIRMING OUR TELEPHONE CONVERSATION THIS DATE, A FIRST CLASS CERTIFIED SPECIAL DELIVERY LETTER POSTMARKED AT 9:00 AM IN WAVERLY, OHIO, NORMALLY WOULD BE DISPATCHED FROM THAT POST OFFICE AT 1600 HOURS BY STAR ROUTE TO SUBSEQUENT STAR ROUTE AND TRAIN CONNECTIONS WITH ARRIVAL IN GATLINBURG, TENNESSEE, ON THE FOLLOWING DATE AT 1435 HOURS.

"INFORMATION IN THE MEMPHIS REGION SCHEDULE OF MAIL ROUTESSHOWS THAT THE LAST SPECIAL DELIVERY SERVICE IN GATLINBURG, TENNESSEE, IS AT 1630 HOURS.'

FROM THE EVIDENCE PRESENTED ABOVE WE MUST CONCLUDE THAT SERGEANTS' BID COULD NOT HAVE REACHED YOUR GATLINBURG OFFICE IN TIME FOR BID OPENING IF THE BID HAD BEEN ACCORDED NORMAL POSTAL TREATMENT.

BOTH THE PRESENT INVITATION AND THE APPLICABLE REGULATION IMPOSE UPON BIDDERS A DUTY TO PLACE BIDS IN THE MAILS IN SUFFICIENT TIME TO PERMIT A TIMELY ARRIVAL IN THE NORMAL COURSE OF MAIL HANDLING. IN ORDER TO PRESERVE THE INTEGRITY OF THE FORMAL ADVERTISING SYSTEM AND TO INSURE FAIRNESS TO ALL BIDDERS, OUR OFFICE HAS CONSISTENTLY APPLIED THE RULE THAT BIDS MAY NOT BE CONSIDERED FOR AWARD IF THEY ARRIVED AT THE GOVERNMENT INSTALLATION AFTER THE TIME FOR BID OPENING EXCEPT WHERE MAILED AS REQUIRED BY THE APPLICABLE REGULATIONS, THEIR LATENESS IS DUE SOLELY TO A DELAY IN THE MAILS FOR WHICH THE BIDDER IS NOT RESPONSIBLE AND THE BID IS ACTUALLY RECEIVED BEFORE AWARD. HOWEVER, IN THE INSTANT CASE THE RECORD CLEARLY ESTABLISHES THAT THE BIDDER'S DECISION TO MAIL THE BID, RATHER THAN DELIVER IT PERSONALLY, WAS BASED ON ERRONEOUS INFORMATION OBTAINED FROM A UNITED STATES POSTMASTER WHO MIGHT REASONABLY HAVE BEEN EXPECTED TO POSSESS SUCH SPECIALIZED KNOWLEDGE. IN VIEW THEREOF, AND SINCE YOU ADVISE THAT THE ONLY OTHER BID PRICE IS SO EXCESSIVE AS TO PRECLUDE ITS ACCEPTANCE, WE MUST AGREE WITH YOUR CONCLUSION THAT CONSIDERATION OF SERGEANTS' LATE BID WOULD NOT BE PREJUDICIAL TO ANY RIGHT THE OTHER BIDDER MIGHT OTHERWISE HAVE TO AN AWARD.

ACCORDINGLY, THE BID MAY BE OPENED AND, IF OTHERWISE ACCEPTABLE, MAY BE CONSIDERED FOR AWARD.