B-164249, AUGUST 5, 1968, 48 COMP. GEN. 59

B-164249: Aug 5, 1968

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BIDS - LATE - SAMPLES BID SAMPLES FORWARDED BY COMMERCIAL TRUCK WHICH WERE NOT TIMELY DELIVERED DUE TO CONDITIONS OF LOCAL UNREST MAY NOT BE CONSIDERED UNDER AN INVITATION WHICH IN SOLICITING BIDS FOR A REQUIREMENTS CONTRACT PROVIDED FOR CONSIDERATION OF LATE SAMPLES ONLY WHEN SENT BY CERTIFIED OR REGISTERED MAIL AND PRECLUDED THE REAPPLICATION OF PREVIOUSLY SUBMITTED SAMPLES. BIDDERS ON NOTICE THAT SAMPLES WERE AN INTEGRAL PART OF THE BID FOR EVALUATION PURPOSES. THE SUBMISSION OF SAMPLES IS NOT CONSIDERED A MERE TECHNICALITY THAT MAY BE WAIVED. REJECTION OF THE LOW BID IS PROPER UNDER SECTION 1- 2.303-5 OF THE FEDERAL PROCUREMENT REGULATIONS. WAS FOR A REQUIREMENTS CONTRACT. WHICHEVER WAS LATER.

B-164249, AUGUST 5, 1968, 48 COMP. GEN. 59

BIDS - LATE - SAMPLES BID SAMPLES FORWARDED BY COMMERCIAL TRUCK WHICH WERE NOT TIMELY DELIVERED DUE TO CONDITIONS OF LOCAL UNREST MAY NOT BE CONSIDERED UNDER AN INVITATION WHICH IN SOLICITING BIDS FOR A REQUIREMENTS CONTRACT PROVIDED FOR CONSIDERATION OF LATE SAMPLES ONLY WHEN SENT BY CERTIFIED OR REGISTERED MAIL AND PRECLUDED THE REAPPLICATION OF PREVIOUSLY SUBMITTED SAMPLES. BIDDERS ON NOTICE THAT SAMPLES WERE AN INTEGRAL PART OF THE BID FOR EVALUATION PURPOSES, THE SUBMISSION OF SAMPLES IS NOT CONSIDERED A MERE TECHNICALITY THAT MAY BE WAIVED. THEREFORE, THE BIDDER IN USING COMMERCIAL TRUCKING ASSUMED THE RISK OF LATE DELIVERY, AND THE SAMPLES NOT HAVING BEEN FORWARDED AS REQUIRED FOR CONSIDERATION UNDER THE PROVISIONS GOVERNING LATE BIDS, REJECTION OF THE LOW BID IS PROPER UNDER SECTION 1- 2.303-5 OF THE FEDERAL PROCUREMENT REGULATIONS.

TO THE STANLEY WORKS, AUGUST 5, 1968:

WE REFER TO YOUR TELEGRAM OF MAY 7, 1968, AND YOUR LETTER OF JULY 9, 1968, PROTESTING THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. FPNTP-A5-70127-A-4-9-68 ISSUED BY THE GENERAL SERVICES ADMINISTRATION.

THE INVITATION, AS AMENDED, WAS FOR A REQUIREMENTS CONTRACT, WITH GUARANTEED MINIMUM, FOR FS CLASS 5110, PLANES, FOR THE PERIOD AUGUST 1, 1968, OR DATE OF AWARD, WHICHEVER WAS LATER, THROUGH JULY 31, 1969. THE INVITATION WAS ISSUED ON MARCH 7, 1968, AND BIDS WERE OPENED ON APRIL 9, 1968. THREE BIDS WERE RECEIVED. YOUR COMPANY WAS THE LOW BIDDER ON SEVEN OF THE EIGHT ITEMS SET FORTH IN THE INVITATION. HOWEVER, YOUR BID WAS DETERMINED TO BE NONRESPONSIVE BECAUSE BID SAMPLES WERE NOT SUBMITTED WITH THE BID AS REQUIRED BY THE INVITATION.

PERTINENT PROVISIONS OF THE INVITATION (PARAGRAPH 14) RELATING TO THE SUBMISSION OF BID SAMPLES INFORMED BIDDERS THAT SAMPLES MUST BE FURNISHED AS A PART OF THE BID AND MUST BE RECEIVED BEFORE THE TIME SET FOR OPENING BIDS, AND THAT:

* * * FAILURE TO FURNISH SAMPLES BY THE TIME SPECIFIED IN THE INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID, EXCEPT THAT A LATE SAMPLE TRANSMITTED BY MAIL WILL BE CONSIDERED UNDER THE PROVISIONS FOR CONSIDERING LATE BIDS, AS SET FORTH ELSEWHERE IN THIS INVITATION FOR BIDS. IN ADDITION, AMENDMENT NO. 1 TO THE INVITATION FOR BIDS ADVISED BIDDERS THAT:

UNDER THIS PROCUREMENT, NO SAMPLES PREVIOUSLY SUBMITTED TO GSA, MAY BE REAPPLIED. SEE PROVISION IN SOLICITATION ENTITLED "BID SAMPLES.' * * *

THE RECORD INDICATES THAT ALTHOUGH SAMPLES OF THE PLANES UPON WHICH YOU BID WERE SUBMITTED THEY WERE NOT RECEIVED BY GSA UNTIL APRIL 17, 1968, 7 DAYS AFTER THE DATE SPECIFIED FOR BID OPENING. YOUR SAMPLES WERE NOT SENT BY MAIL, BUT BY COMMERCIAL FREIGHT TRUCK.

YOUR PROTEST IS BASED ON THE ALLEGATION THAT THE SAMPLES WERE DELAYED IN ARRIVING AT THE GSA SAMPLE ROOM "BECAUSE OF RACIAL UNREST IN WASHINGTON, APRIL 5 THROUGH APRIL 16.' IN THAT CONNECTION, YOU HAVE SUBMITTED A COPY OF A LETTER DATED MAY 6, 1968, FROM YOUR CARRIER, ELKTON TRUCKING COMPANY, STATING THAT YOUR SHIPMENT ARRIVED IN WASHINGTON, D.C. ON THE WEEKEND OF APRIL 6 AND ORDINARILY WOULD HAVE BEEN DELIVERED ON APRIL 8. HOWEVER, DUE TO THE UNREST, ELKTON TRUCKING COMPANY HELD OFF ALL DELIVERIES TO THE INNER CITY UNTIL THE WEEK STARTING APRIL 15. YOU CONTEND THAT THE REJECTION OF YOUR BID BECAUSE OF THE LATE ARRIVAL OF SAMPLES IS INEQUITABLE AND CONTRARY TO THE SPIRIT OF THE PURCHASING REGULATIONS FOR TWO REASONS: (1) THE REQUIREMENT FOR SAMPLE SUBMISSION IS NOTHING MORE THAN A TECHNICALITY AND IS NOT BASIC TO THE BID BECAUSE THE GENERAL SERVICES ADMINISTRATION ALREADY HAS IN ITS POSSESSION ANY NUMBER OF PLANES IDENTICAL IN EVERY RESPECT WITH THOSE CALLED FOR IN THE INVITATION, AND (2) WHILE THE ONLY SPECIFIC EXCEPTION TO THE REQUIREMENT THAT SAMPLES MUST BE RECEIVED BEFORE THE TIME SET FOR BID OPENING IS WHERE THE SAMPLES HAVE BEEN SENT BY CERTIFIED MAIL, THE EXISTENCE OF THE EXCEPTION IS INDICATIVE OF A REALIZATION ON THE PART OF THE GOVERNMENT THAT WHERE IT IS IN ANY WAY RESPONSIBLE FOR LATE ARRIVAL OF SAMPLES, THE BID, IF OTHERWISE IN ORDER, WILL BE CONSIDERED AS HAVING BEEN SUBMITTED ON TIME. IN THIS LATTER CONNECTION, YOU ASSERT THAT THE GOVERNMENT FAILED OR WAS UNABLE TO MAINTAIN LAW AND ORDER IN THE DISTRICT AND, THUS, WAS AS MUCH RESPONSIBLE FOR THE FAILURE OF THE SAMPLES TO ARRIVE ON TIME AS IF THEY HAD BEEN SENT BY MAIL AND THE MAIL HAD MISCARRIED.

IN REGARD TO YOUR FIRST GROUND OF PROTEST, WE CANNOT CONCLUDE, AS YOU ASSERT, THAT THE SUBMISSION OF SAMPLES IN THIS CASE IS NOTHING MORE THAN A TECHNICALITY. UNDER THE TERMS OF THE INVITATION BIDDERS WERE ADVISED THAT THE FAILURE TO SUBMIT SAMPLES WITH THE BID OR THE FAILURE OF THE SAMPLES TO CONFORM WITH ALL CHARACTERISTICS LISTED FOR EXAMINATION WOULD MAKE THE BID NONRESPONSIVE AND REQUIRE ITS REJECTION. THE SAMPLES WERE TO BE TESTED FOR "WORKMANSHIP" IN ACCORDANCE WITH APPLICABLE FEDERAL SPECIFICATIONS AND BIDDERS WERE NOTIFIED BY AMENDMENT NO. 1 THAT NO SAMPLES PREVIOUSLY SUBMITTED TO GENERAL SERVICES ADMINISTRATION COULD BE REAPPLIED. BY THESE PROVISIONS THE GOVERNMENT CLEARLY PUT BIDDERS ON NOTICE THAT SAMPLES WERE AN INTEGRAL PART OF THE BID AND WOULD BE USED FOR EVALUATION PURPOSES. UNDER THESE CIRCUMSTANCES THE SAMPLE SUBMISSION REQUIREMENT CANNOT BE CONSIDERED A MERE TECHNICALITY.

PARAGRAPH 8 OF THE INSTRUCTIONS AND CONDITIONS (STANDARD FORM 33A, JULY 1966), THE TERMS OF WHICH ARE APPLICABLE TO THE INSTANT CASE, PROVIDES, IN PERTINENT PART, THAT:

(A) OFFERS * * * RECEIVED AT THE OFFICE DESIGNATED IN THE SOLICITATION AFTER THE EXACT HOUR AND DATE SPECIFIED FOR RECEIPT WILL NOT BE CONSIDERED UNLESS: (1) THEY ARE RECEIVED BEFORE AWARD IS MADE; AND EITHER (2) THEY ARE SENT BY REGISTERED MAIL, OR BY CERTIFIED MAIL * * * AND IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO DELAY IN THE MAILS * * * FOR WHICH THE OFFEROR WAS NOT RESPONSIBLE; OR (3) IF SUBMITTED BY MAIL * * * IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION * * *.

WHILE YOU STATE THAT THE ONLY SPECIFIC EXCEPTION TO THE REQUIREMENT THAT SAMPLES SHALL BE RECEIVED BEFORE THE TIME SET FOR OPENING BIDS IS WHERE THE SAMPLES HAVE BEEN SENT BY CERTIFIED OR REGISTERED MAIL, YOU CONTEND, NEVERTHELESS, THAT THE EXISTENCE OF THE EXCEPTION IS INDICATIVE OF A REALIZATION ON THE PART OF THE GOVERNMENT THAT WHERE IT IS IN ANY WAY RESPONSIBLE FOR LATE ARRIVAL OF SAMPLES, THE BID, IF OTHERWISE IN ORDER, WILL BE CONSIDERED AS HAVING BEEN SUBMITTED ON TIME. WE CANNOT AGREE WITH THE CONCLUSION DRAWN BY YOU FROM THE EXISTENCE OF THE EXCEPTION NOTED. TELEGRAPHIC BIDS ASIDE, IT SHOULD BE NOTED THAT UNDER THE TERMS OF PARAGRAPH 8, QUOTED ABOVE, GOVERNMENT CAUSED DELAY WILL CONSTITUTE GROUNDS FOR THE CONSIDERATION OF LATE BID ONLY WHEN THE BID IS MAILED, AND THEN ONLY (WITH RESPECT TO REGISTERED OR CERTIFIED MAIL), WHEN THE LATE RECEIPT IS CAUSED BY A DELAY IN THE MAILS OR WHEN (WITH RESPECT TO MAIL) THE LATE RECEIPT IS DUE SOLELY TO THE MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION. IN OTHER WORDS, UNDER PARAGRAPH 8, AGAIN TELEGRAPHIC BIDS ASIDE, THE ONLY INSTANCE WHEN THE QUESTION OF THE GOVERNMENT'S RESPONSIBILITY FOR CAUSING THE LATE RECEIPT OF A BID IS EVER RELEVANT IS WHEN THE BID IS MAILED. THIS CONCLUSION, MOREOVER, IS REINFORCED BY SECTION 1-2.303-5 OF THE FEDERAL PROCUREMENT REGULATIONS WHICH PROVIDES THAT:

A LATE HAND-CARRIED BID, OR ANY OTHER LATE BID NOT SUBMITTED BY MAIL OR TELEGRAM SHALL NOT BE CONSIDERED FOR AWARD.

IN VIEW OF THE CLEAR PROVISIONS OF PARAGRAPH 8 OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS AND FPR 1-2.303-5, WE MUST CONCLUDE THAT YOU ASSUMED THE RISK OF LATE DELIVERY WHEN YOU CHOSE TO TRANSMIT YOUR SAMPLES BY COMMERCIAL FREIGHT TRUCK. WHILE THESE PROVISIONS OF THE REGULATIONS AND OF THE INVITATION FOR BIDS MAY RESULT IN THE FAILURE OF THE GOVERNMENT TO RECEIVE THE BENEFIT OF LOWER BIDS AND MAY SEEN UNDULY HARSH BY BIDDERS AFFECTED ADVERSELY THEREBY, THE ADOPTION OF THE PRINCIPLES SET FORTH THEREIN HAVE BEEN DETERMINED TO BE NECESSARY NOT ONLY TO THE ORDERLY AND TIMELY PROCUREMENT OF SUPPLIES AND SERVICES BY THE GOVERNMENT, BUT TO THE INTEGRITY OF THE COMPETITIVE BID SYSTEM AS WELL. MOREOVER, OUR CONCLUSION MUST BE BASED STRICTLY UPON LEGAL PRINCIPLES AND WE ARE WITHOUT AUTHORITY TO SUBSTITUTE EQUITABLE CONSIDERATIONS FOR THE LAW IN CASES OF THIS KIND.