B-163369, APR. 17, 1968

B-163369: Apr 17, 1968

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TO LAW OFFICES OF SHERMAN AND STURMAN: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 30. THE SOLICITATION WAS ISSUED ON DECEMBER 8. THE BIDS WERE OPENED ON JANUARY 4. YOUR CLIENT'S WAS THE APPARENT LOW BID ON A MAJORITY OF THE ITEMS. A BID WAS RECEIVED FROM THE WESTRIC BATTERY COMPANY (WESTRIC). AFTER INVESTIGATION THIS BID WAS OPENED AND WAS FOUND TO DISPLACE YOUR CLIENT'S LOW BIDS ON 504 ITEMS. IT IS YOUR CONTENTION THAT WESTRIC'S BID WAS A LATE BID WHICH SHOULD NOT HAVE BEEN CONSIDERED. IT ALSO APPEARS TO BE YOUR CONTENTION THAT WESTRIC MIGHT HAVE SOMEHOW OBTAINED INFORMATION CONCERNING YOUR CLIENT'S BID PRICES. THE ENVELOPE IN WHICH WESTRIC'S BID WAS RECEIVED INDICATED THAT THE BID WAS SENT BY CERTIFIED MAIL AND POSTMARKED AT DENVER.

B-163369, APR. 17, 1968

TO LAW OFFICES OF SHERMAN AND STURMAN:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 30, 1968, IN BEHALF OF SUN BATTERY COMPANY, INC., AND TWO TELEGRAMS DATED JANUARY 19 AND 23, 1968, FROM YOUR CLIENT, PROTESTING AGAINST THE AWARDS UNDER SOLICITATION NO. CH- 12820, ISSUED BY THE CHICAGO, ILLINOIS, REGIONAL OFFICE OF THE GENERAL SERVICES ADMINISTRATION (GSA).

THE SOLICITATION WAS ISSUED ON DECEMBER 8, 1967, AND CALLED FOR BIDS FOR FURNISHING 1,300 ITEMS OF SIX AND TWELVE VOLT BATTERIES. THE BIDS WERE OPENED ON JANUARY 4, 1968, AT 11 A.M. OF THE TEN BIDS RECEIVED BEFORE THE OPENING TIME, YOUR CLIENT'S WAS THE APPARENT LOW BID ON A MAJORITY OF THE ITEMS. HOWEVER, SUBSEQUENT TO THE BID OPENING, AT 12:38 P.M., JANUARY 4, A BID WAS RECEIVED FROM THE WESTRIC BATTERY COMPANY (WESTRIC). AFTER INVESTIGATION THIS BID WAS OPENED AND WAS FOUND TO DISPLACE YOUR CLIENT'S LOW BIDS ON 504 ITEMS.

IT IS YOUR CONTENTION THAT WESTRIC'S BID WAS A LATE BID WHICH SHOULD NOT HAVE BEEN CONSIDERED. IT ALSO APPEARS TO BE YOUR CONTENTION THAT WESTRIC MIGHT HAVE SOMEHOW OBTAINED INFORMATION CONCERNING YOUR CLIENT'S BID PRICES, THUS ENABLING WESTRIC TO UNDERBID YOUR CLIENT BY A VERY SMALL MARGIN ON MANY OF THE ITEMS.

ACCORDING TO THE RECORD, THE ENVELOPE IN WHICH WESTRIC'S BID WAS RECEIVED INDICATED THAT THE BID WAS SENT BY CERTIFIED MAIL AND POSTMARKED AT DENVER, COLORADO, ON JANUARY 2, 1968. THE RECEIPT FOR THE CERTIFIED MAILING INDICATED THAT IT WAS MAILED AT 11:50 P.M. ON JANUARY 2, 1968. HOWEVER, SINCE NO VERIFICATION OF THE NOTATION OF THE TIME OF MAILING WAS OBTAINED AS REQUIRED BY FEDERAL PROCUREMENT REGULATIONS (FPR) 1-2.303-3, IT WAS TREATED AS HAVING BEEN MAILED AT MIDNIGHT ON JANUARY 2. ACCORDING TO THE POSTMASTER AT DENVER, COLORADO, WESTRIC'S BID SHOULD HAVE BEEN COLLECTED AND PROCESSED IN THE DENVER POST OFFICE COMMENCING AT 2:15 A.M., JANUARY 3, 1968, AND SHOULD HAVE ARRIVED IN CHICAGO AT 12:25 P.M. ON THE SAME DAY AND HAVE BEEN DELIVERED ON THE FIRST TRIP OF ACCOUNTABLE MAIL ON JANUARY 4, 1968. THE CHICAGO POST OFFICE STATED THAT CERTIFIED MAIL REACHING CHICAGO AT 12:25 P.M. ON JANUARY 3 WOULD NORMALLY HAVE BEEN DELIVERED TO THE GSA CHICAGO REGIONAL OFFICE AT 8:30 A.M. ON JANUARY 4, 1968, WHICH WOULD HAVE BEEN PRIOR TO THE TIME SET FOR BID OPENING. HAVING BEEN DETERMINED THAT WESTRI-C BID HAD BEEN TIMELY MAILED, IT WAS RECEIVED AND OPENED AS A LATE ACCEPTABLE BID UNDER THE PROVISIONS OF FPR 1 -2.303-2 (SEE ALSO CLAUSE 8 OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS OF THE SOLICITATION) WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS: "SEC. 1-2.303-2 CONSIDERATION FOR AWARD. "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), OR TO A DELAY BY THE TELEGRAPH COMPANY, FOR WHICH THE BIDDER WAS NOT RESPONSIBLE.' IN ADDITION, FPR 1- 2.303-3 (C) PROVIDES AS FOLLOWS: "/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.'

SINCE EVIDENCE OBTAINED FROM SOURCES AUTHORIZED BY THE SOLICITATION AND THE ABOVE REGULATIONS ESTABLISHED THAT THE DELAY IN RECEIPT OF WESTRIC'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.

REGARDING YOUR CONTENTION THAT WESTRIC MIGHT HAVE OBTAINED PRIOR INFORMATION CONCERNING YOUR CLIENT'S BID, THE FACTS OF RECORD SEEM TO ESTABLISH THE IMPOSSIBILITY OF THE WESTRIC BID HAVING BEEN FILLED IN AFTER THE OPENING OF YOUR BID. IN THE ABSENCE OF ANY SUGGESTION OR INDICATION THAT YOUR BID WAS OPENED PRIOR TO THE ESTABLISHED BID OPENING TIME, IT WOULD APPEAR THAT ANY PRIOR INFORMATION WHICH WESTRIC COULD HAVE HAD CONCERNING IT MUST HAVE COME FROM OTHER THAN GOVERNMENT SOURCES, AND WOULD FURNISH NO BASIS FOR DISTURBING THE AWARDS MADE TO WESTRIC.