B-161018, JUNE 14, 1967, 46 COMP. GEN. 859

B-161018: Jun 14, 1967

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WHICH CONTAINED IN AN ENVELOPE IDENTIFIED AS SUBMITTING A BID UNDER ANOTHER INVITATION WAS NOT OPENED UNTIL AFTER THE TIME SCHEDULED FOR THE OPENING OF BIDS. IS ELIGIBLE FOR AWARD. THE CONTRACTING OFFICER PROPERLY HAVING DISREGARDED THE POSSIBILITY THAT THE BID MIGHT HAVE BEEN DELIBERATELY MISLABELED IN AN ATTEMPT TO GAIN SOME ADVANTAGE. THERE IS NO REASONABLE BASIS FOR TERMINATING THE CONTRACT. 1967: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM RECEIVED HERE ON MARCH 15. FOR THE PROCUREMENT OF 42 ITEMS OF LIFE PRESERVERS AND VESTS WHICH WAS ISSUED ON JANUARY 23. YOU ALLEGE THAT YOU WERE THE ONLY RESPONSIBLE BIDDER OF THE TWO WHOSE RESPONSIVE BIDS WERE OPENED AT THE SPECIFIED TIME AND DATE.

B-161018, JUNE 14, 1967, 46 COMP. GEN. 859

BIDS - LATE - IDENTIFICATION OF BID ERRONEOUS A LOW BID TIMELY RECEIVED IN THE APPROPRIATE GOVERNMENT OFFICE, WHICH CONTAINED IN AN ENVELOPE IDENTIFIED AS SUBMITTING A BID UNDER ANOTHER INVITATION WAS NOT OPENED UNTIL AFTER THE TIME SCHEDULED FOR THE OPENING OF BIDS, NEVERTHELESS, IS ELIGIBLE FOR AWARD, A BONA FIDE ERROR HAVING BEEN MADE BY THE BIDDER, AND THE CONTRACTING OFFICER PROPERLY HAVING DISREGARDED THE POSSIBILITY THAT THE BID MIGHT HAVE BEEN DELIBERATELY MISLABELED IN AN ATTEMPT TO GAIN SOME ADVANTAGE, AND THE ACCEPTANCE OF THE BID CONSUMMATING A VALID AND BINDING CONTRACT, THERE IS NO REASONABLE BASIS FOR TERMINATING THE CONTRACT.

TO AIRFLOTE, INC., JUNE 14, 1967:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM RECEIVED HERE ON MARCH 15, 1967, AS SUPPLEMENTED BY LATER CORRESPONDENCE PROTESTING AGAINST AN AWARD TO ANY OTHER BIDDER UNDER IFB NO. N00104-67-B-1261 (HEREINAFTER REFERRED TO AS IFB NO. 1261), FOR THE PROCUREMENT OF 42 ITEMS OF LIFE PRESERVERS AND VESTS WHICH WAS ISSUED ON JANUARY 23,1967, BY THE UNITED STATES NAVY PARTS CONTROL CENTER, MECHANICSBURG, PENNSYLVANIA, WITH OPENING SET FOR 2:00 P.M., FEBRUARY 13, 1967. YOU ALLEGE THAT YOU WERE THE ONLY RESPONSIBLE BIDDER OF THE TWO WHOSE RESPONSIVE BIDS WERE OPENED AT THE SPECIFIED TIME AND DATE, AND THAT THE CONSIDERATION FOR AWARD OF A THIRD AND LOWER BID WHICH WAS SUBSEQUENTLY OPENED IS IMPROPER UNDER THE FORMAL ADVERTISED BIDDING PROCEDURES AS ESTABLISHED IN THE ARMED SERVICES PROCUREMENT REGULATION (ASPR).

IT APPEARS THAT OF THE TWO RESPONSIVE BIDS WHICH WERE OPENED AND TABULATED AT THE TIME SET FOR OPENING OF BIDS, THAT OF RUBBER FABRICATORS COMPANY, GRANTSVILLE, WEST VIRGINIA, WAS IN THE AMOUNT OF $800,328 AND THAT OF AIRFLOTE, INC., WAS IN THE AMOUNT OF $1,076,005. BY LETTER DATED FEBRUARY 14, 1967, WHICH DATE WAS 1 DAY AFTER THE SCHEDULED OPENING DATE, THE SWITLIK PARACHUTE COMPANY, INC., TRENTON, NEW JERSEY, REFERRING TO IFB NO. 1261, FORWARDED ITS RECEIPT FOR CERTIFIED MAIL NO. 980538 NOTING THAT ITS BID HAD BEEN MAILED AT 5:03 P.M., ON FEBRUARY 10, 1967, FROM TRENTON, NEW JERSEY. A SEARCH OF THE UNOPENED BIDS IN THE ACTIVITY'S CUSTODY RESULTED IN THE LOCATION OF A BID ENVELOPE STAMPED WITH THE REFERENCED CERTIFIED MAIL NUMBER.

THAT ENVELOPE, WITH THE IFB NUMBER AND DATE OF OPENING ALREADY INSERTED ON ITS FACE, HAD BEEN SENT BY THE PARTS CONTROL CENTER TO SWITLIK WITH IFB NO. N00104-67-B-1262 (HEREINAFTER REFERRED TO AS IFB NO. 1262), WHICH WAS ISSUED JANUARY 20, 1967, FOR OPENING FEBRUARY 10, AND COVERED 15 MAN INFLATABLE LIFEBOATS (A QUALIFIED PRODUCTS ITEM FOR WHICH SWITLIK IS NOT A QUALIFIED MANUFACTURER). BY LETTER DATED JANUARY 24, 1967, SWITLIK HAD DECLINED TO BID ON THAT PROCUREMENT, SAYING THAT THEIR PLANT FACILITIES AT THAT TIME DID NOT LEND THEMSELVES FOR THAT TYPE OF PRODUCTION.

THE ENVELOPE IN QUESTION WAS RECEIVED AT THE PROCURING ACTIVITY AT 11:32 A.M., ON FEBRUARY 13, 1967, THE DATE SET FOR THE OPENING OF BIDS UNDER IFB NO. 1261, BUT WAS PUT WITH OTHER BIDS ON IFB NO. 1262, THE OPENING OF WHICH HAD BEEN DEFERRED TO FEBRUARY 21, 1967. THE CUSTODIAN OF BIDS MARKED OUT THE DATE OF OPENING STAMPED ON THE ENVELOPE, FEBRUARY 10, 1967, AND WROTE IN THE AMENDED DATE.

WHEN THE ENVELOPE WAS OPENED IT WAS FOUND TO CONTAIN SWITLIK'S BID UNDER IFB NO. 1261 IN THE AMOUNT OF $750,227.32. THUS THE BID, WHILE MAILED IN AN ENVELOPE WHICH IDENTIFIED IT AS CONTAINING A BID UNDER A DIFFERENT INVITATION, HAD IN FACT BEEN IN THE GOVERNMENT'S CUSTODY AT THE DESIGNATED PLACE AND AT THE TIME DESIGNATED FOR ITS OPENING. ON THESE FACTS THE ACTIVITY'S LEGAL COUNSEL ADVISED THAT THE BID SHOULD BE ABSTRACTED AND CONSIDERED ELIGIBLE FOR AWARD. ON FEBRUARY 23, 1967, A PREAWARD SURVEY WAS REQUESTED ON THE SWITLIK PARACHUTE COMPANY, INC.

BY LETTER DATED MARCH 2, 1967, ADDRESSED TO THE NAVY SHIPS PARTS CONTRACT CENTER, MECHANICSBURG, PENNSYLVANIA, WITH A COPY ADDRESSED TO OUR OFFICE, YOUR ATTORNEY, MR. SAMUEL F. SCHWAG, FORMALLY PROTESTED AGAINST ANY AWARD TO SWITLIK UNDER IFB NO. 1261. BY LETTER DATED MARCH 9, 1967, SIGNED ON YOUR BEHALF BY S. DAVIS AND ADDRESSED TO THE CONTROL CENTER, A COPY OF WHICH WAS ALSO SENT TO THIS OFFICE, YOUR PROTEST WAS WITHDRAWN. SUBSEQUENTLY, BY THE PREVIOUSLY MENTIONED TELEGRAM RECEIVED HERE MARCH 15, 1967, AND LETTER OF MARCH 21, 1967, YOU UNDERTOOK TO REINSTATE THE PROTEST. IN THE PERIOD INTERVENING, HOWEVER, BETWEEN WITHDRAWAL AND RENEWAL OF THE PROTEST, SPECIFICALLY ON MARCH 9, 1967, TELEGRAPHIC AWARD UNDER IFB NO. 1261 HAD BEEN MADE TO SWITLIK.

INVITATION FOR BIDS NO. 1261 INSTRUCTED BIDDERS TO ADDRESS THEIR BIDS TO NAVY DEPARTMENT, U.S. NAVY SHIP PARTS CONTROL CENTER, PURCHASE DIVISION, MECHANICSBURG, PENNSYLVANIA, AND THE ENVELOPE WAS IN FACT SO ADDRESSED. THAT IFB, HOWEVER, PROVIDED THAT ALL BIDS ARE SUBJECT TO THE BIDDING INSTRUCTIONS, TERMS AND CONDITIONS OF STANDARD FORM 33-A, CLAUSE 5 (A) OF WHICH PROVIDES THAT OFFERS AND MODIFICATIONS THEREOF SHALL BE ENCLOSED IN SEALED ENVELOPES AND ADDRESSED TO THE OFFICE SPECIFIED IN THE SOLICITATION AND THAT THE OFFEROR SHALL SHOW THE HOUR AND DATE SPECIFIED IN THE SOLICITATION FOR RECEIPT,"THE SOLICITATION NUMBER," AND THE NAME AND ADDRESS OF THE OFFEROR ON THE FACE OF THE ENVELOPE.

PARAGRAPH 2-301 (A) OF THE ASPR PROVIDES THAT TO BE CONSIDERED FOR AWARD, A BID MUST COMPLY IN ALL MATERIAL RESPECTS WITH THE INVITATION FOR BIDS, SO THAT, BOTH AS TO THE METHOD AND TIMELINESS OF SUBMISSION AND AS TO THE SUBSTANCE OF ANY RESULTING CONTRACT, ALL BIDDERS MAY STAND ON AN EQUAL FOOTING AND THE INTEGRITY OF THE FORMAL ADVERTISING SYSTEM MAY BE MAINTAINED. ASPR 2-302 PROVIDES THAT BIDS SHALL BE SUBMITTED SO AS TO BE RECEIVED IN THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS NOT LATER THAN THE EXACT TIME SET FOR OPENING OF BIDS. ASPR 2-303.1 STATES THAT BIDS WHICH ARE RECEIVED IN THE OFFICE DESIGNATED IN THE INVITATION AFTER THE EXACT TIME SET FOR OPENING ARE "LATE BIDS.' ASPR 2-407.1 PROVIDES THAT AWARD SHALL BE MADE TO THAT RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE IFB, WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED.

WE ARE OF THE VIEW THAT IN THE CIRCUMSTANCES ABOVE RECITED THE ACCEPTANCE OF THE SWITLIK BID CONSUMMATED A VALID AND BINDING CONTRACT AND WE FIND NO REASONABLE BASIS FOR RECOMMENDING TERMINATION THEREOF.

THE SWITLIK BID WAS IN FACT RECEIVED AT THE PROPER OFFICE PRIOR TO THE BID OPENING TIME, AND AT ALL TIMES AFTER ITS RECEIPT WAS WITHIN THE POSSESSION AND CONTROL OF THE GOVERNMENT. WE RECOGNIZE THAT SWITLIK COULD IN ALL PROBABILITY HAVE PREVENTED OPENING OR CONSIDERATION OF ITS BID BY REMAINING SILENT OR REQUESTING WITHDRAWAL OF THE BID BY REFERRING TO IT AS A BID ON IFB NO. 1262. ON THE OTHER HAND, IT COULD NOT HAVE BEEN CERTAIN THAT IT WOULD BE SUCCESSFUL IN OBTAINING CONSIDERATION OF THE BID BY CALLING ATTENTION TO IT AFTER OPENING OF OTHER BIDS, AND THERE WAS ALSO SOME POSSIBILITY OF THE BID BEING EXAMINED BEFORE THE OPENING TIME OF IFB NO. 1261. IN ADDITION THERE WAS THE RISK THAT AWARD MIGHT HAVE BEEN MADE ON ANOTHER BID BEFORE IT COULD HAVE SUCCEEDED IN GETTING ITS BID TO THE ATTENTION OF THE CONTRACTING OFFICER, IN WHICH CASE SWITLIK WOULD NOT HAVE BEEN IN A POSITION TO MAKE A SUPPORTABLE PROTEST. 20 COMP. GEN. 530.

CONSIDERING THESE RISKS WE ARE CONVINCED THAT THIS IS A CASE OF BONA FIDE ERROR, AND WE ARE NOT DISPOSED TO QUESTION THE FAILURE OR REFUSAL OF THE CONTRACTING OFFICER TO DISREGARD THE SWITLIK BID BECAUSE OF THE SUGGESTED POSSIBILITY THAT IT MIGHT HAVE BEEN DELIBERATELY MISLABELED IN AN ATTEMPT TO GAIN SOME ADVANTAGE. THERE APPEARS TO HAVE BEEN NO OTHER VALID OBJECTION, AND WHEN YOU VOLUNTARILY WITHDREW YOUR INITIAL OBJECTION TO CONSIDERATION OF THE SWITLIK BID, THE CONTRACTING OFFICER WAS IN OUR OPINION FULLY JUSTIFIED IN TAKING THE ACTION WHICH HE DID, PARTICULARLY IN VIEW OF THE REPORTED URGENCY OF THE PROCUREMENT.

FOR THE REASONS STATED, WE MUST CONCLUDE THAT THE AWARD TO SWITLIK RESULTED IN A VALID AND ENFORCEABLE CONTRACT, AND YOUR PROTEST IS THEREFORE DENIED.