B-166892, MAY 29, 1969, 48 COMP. GEN. 765

B-166892: May 29, 1969

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LATE BID REGULATIONS ARE NOT FOR APPLICATION. NOR DOES THE FAILURE OF THE BIDDER TO USE REGISTERED OR CERTIFIED MAIL DUE TO THE CLOSING OF POST OFFICES IN OFFICIAL MOURNING FOR FORMER PRESIDENT EISENHOWER HAVE ANY SIGNIFICANCE WHERE THE DELIVERY DELAY IS THE FAULT OF THE GOVERNMENT. 1969: REFERENCE IS MADE TO LETTER OF MAY 7. THE BID FROM BAUGHMAN & SON WAS RECEIVED AT 11:18 A.M. THE BID WAS NOT SENT BY REGISTERED OR CERTIFIED MAIL. THE INVITATION FOR BIDS SPECIFIES THAT BIDS "WILL BE RECEIVED * * * AT THE OFFICE OF THE CONTRACTING OFFICER. OREGON 97208 IT IS TO BE NOTED THAT THE LATTER ADDRESS STATES A POST OFFICE BOX AND A DIFFERENT ZIP CODE THAN THAT PROVIDED FOR THE STREET ADDRESS ON THE FACE-SHEET OF THE INVITATION.

B-166892, MAY 29, 1969, 48 COMP. GEN. 765

BIDS--LATE--AGENCY RESPONSIBILITY A BID RECEIVED THE DAY FOLLOWING THE SCHEDULED BID OPENING ADDRESSED WITH BOTH THE STREET ADDRESS AND ZIP CODE SHOWN IN THE INVITATION FOR BIDS AND THE DIFFERENT ZIP CODE AND POST OFFICE BOX NUMBER CONTAINED IN THE BID FORM MAY BE OPENED AND CONSIDERED FOR AWARD, THE DAY LOST IN DELIVERY BEING ATTRIBUTABLE TO THE MISLEADING AND CONFLICTING USE OF THE DUAL ADDRESSES REFLECTED IN THE BID DOCUMENTS PREPARED BY THE GOVERNMENT. THE GOVERNMENT OBLIGATED TO ENSURE THE TRANSMISSION OF BIDS WITHIN A REASONABLE TIME, LATE BID REGULATIONS ARE NOT FOR APPLICATION, NOR DOES THE FAILURE OF THE BIDDER TO USE REGISTERED OR CERTIFIED MAIL DUE TO THE CLOSING OF POST OFFICES IN OFFICIAL MOURNING FOR FORMER PRESIDENT EISENHOWER HAVE ANY SIGNIFICANCE WHERE THE DELIVERY DELAY IS THE FAULT OF THE GOVERNMENT.

TO THE SECRETARY OF AGRICULTURE, MAY 29, 1969:

REFERENCE IS MADE TO LETTER OF MAY 7, 1969, FROM THE DIRECTOR, OFFICE OF PLANT AND OPERATIONS, REGARDING THE LATE BID OF BAUGHMAN & SON, INC; UNDER INVITATION FOR BIDS R6-69-119.

THE INVITATION SCHEDULED THE OPENING OF BIDS FOR 2 P.M. ON APRIL 2, 1969. THE BID FROM BAUGHMAN & SON WAS RECEIVED AT 11:18 A.M. ON APRIL 3, 1969. THE BID WAS NOT SENT BY REGISTERED OR CERTIFIED MAIL.

PARAGRAPH 6 OF THE INSTRUCTIONS TO BIDDERS ADVISES THAT "BIDS MUST BE * * * ADDRESSED AS DIRECTED IN THE INVITATION FOR BIDS"; AND THE INVITATION FOR BIDS SPECIFIES THAT BIDS "WILL BE RECEIVED * * * AT THE OFFICE OF THE CONTRACTING OFFICER, ADMINISTRATIVE SERVICES, ROOM 744, MULTNOMAH BLDG; 319 S.W. PINE STREET, PORTLAND, OREGON 97204." THE BID FORM, STANDARD FORM 21, ON THE OTHER HAND, PROVIDES: DIRECTIONS FOR SUBMITTING BIDS: ENVELOPES CONTAINING BIDS * * * MUST BE * * * ADDRESSED AS FOLLOWS:

ADDRESS:

CONTRACTING OFFICER

P.O. BOX 3623

PORTLAND, OREGON 97208 IT IS TO BE NOTED THAT THE LATTER ADDRESS STATES A POST OFFICE BOX AND A DIFFERENT ZIP CODE THAN THAT PROVIDED FOR THE STREET ADDRESS ON THE FACE-SHEET OF THE INVITATION.

BECAUSE OF THE CONFUSION CREATED BY THE INVITATION FOR BIDS AND THE BID FORM, AND APPARENTLY OUT OF AN ABUNDANCE OF CAUTION, THE BIDDER ADDRESSED ITS BID UTILIZING BOTH THE STREET ADDRESS AND THE POST OFFICE BOX AND THE ZIP CODE FOR THE STREET ADDRESS. THE BIDDER ATTEMPTED TO HAVE ITS BID SENT BY REGISTERED OR CERTIFIED MAIL BUT WAS UNABLE TO DO SO BECAUSE THE POST OFFICE WAS CLOSED ON MARCH 31 IN OFFICIAL MOURNING FOR FORMER PRESIDENT EISENHOWER.

THE POST OFFICE IN PORTLAND, OREGON, ADVISED THE CONTRACTING OFFICER THAT THE BID SHOULD HAVE ARRIVED ON TIME. THE POST OFFICE ESTIMATED THAT THE BID SHOULD HAVE BEEN RECEIVED IN PORTLAND AT 5 A.M. ON APRIL 1; THAT, UPON RECEIPT, IT WOULD HAVE BEEN ROUTED TO THE FEDERAL STATION BECAUSE OF THE STREET ADDRESS AND ZIP CODE; AND THAT, UPON RECEIPT BY THE INDIVIDUAL CARRIER, IT WOULD HAVE BEEN RECOGNIZED THAT THE STREET ADDRESS SHOWN WAS NOT AN ESTABLISHED DELIVERY STOP AND THEREUPON THE STREET WOULD HAVE BEEN PENCILED OUT AND THE ENVELOPE RETURNED TO THE MAIN POST OFFICE FOR SORTING INTO THE LISTED POST OFFICE BOX. THE POST OFFICE INDICATED THAT THE ABOVE SEQUENCE OF EVENTS NORMALLY WOULD HAVE TAKEN A DAY SO THAT THE BID SHOULD HAVE BEEN PROCESSED AND PLACED IN THE POST OFFICE BOX OR PICKUP PRIOR TO THE BID OPENING ON APRIL 2.

IN VIEW OF THE FOREGOING, IT APPEARS THAT 1 DAY WAS LOST IN DELIVERY BECAUSE OF THE DUAL ADDRESSES ON THE BID ENVELOPE. SINCE THE BID ACTUALLY ARRIVED ON APRIL 3, IT MAY BE CONCLUDED THAT THE LATE RECEIPT WAS DUE TO THE USE OF THE DUAL ADDRESSES WHICH WERE CONTAINED IN THE BID DOCUMENTS PREPARED BY THE GOVERNMENT.

THE FEDERAL PROCUREMENT REGULATIONS PROVIDE: SEC. 1-2.303-1 GENERAL.

BIDS RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS AFTER THE EXACT TIME SET FOR OPENING OF BIDS ARE LATE BIDS. LATE BIDS SHALL NOT BE CONSIDERED FOR AWARD EXCEPT AS AUTHORIZED IN THISSEC. 1 2.303. SEC. 1- 2.303-2 CONSIDERATION FOR AWARD.

A LATE BID SHALL BE CONSIDERED FOR AWARD ONLY IF IT IS RECEIVED BEFORE AWARD AND, (A) IF SUBMITTED BY MAIL, THE CIRCUMSTANCES OUTLINED IN SEC. 1- 2.303-3 ARE APPLICABLE * * *. SEC. 1 2.303-3 MAILED BIDS.

(A) CIRCUMSTANCES PERMITTING CONSIDERATION FOR AWARD OF A LATE MAILED BID. A LATE MAILED BID RECEIVED BEFORE AWARD MAY BE CONSIDERED FOR AWARD ONLY IF:

(1) 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, AND IT IS DETERMINED THAT THE LATENESS WAS DUE SOLELY TO A DELAY IN THE MAILS (BASED ON EVIDENCE OBTAINED PURSUANT TO SEC. 1-2.303-3 (B), (C) AND (D)) FOR WHICH THE BIDDER WAS NOT RESPONSIBLE * * *.

OUR OFFICE HAS HELD THAT LATE BIDS NOT SENT BY ONE OF THE PRESCRIBED MAILING SERVICES CANNOT BE CONSIDERED FOR AWARD SINCE THERE IS NO AUTHORITY TO WAIVE THE REQUIREMENTS IN THE ABOVE-QUOTED REGULATIONS. COMP. GEN. 255; ID. 508; AND 46 ID. 42.

HOWEVER, OUR OFFICE HAS INDICATED ON SEVERAL OCCASIONS THAT THE GOVERNMENT HAS A RESPONSIBILITY TO ESTABLISH REASONABLE PROCEDURES CALCULATED TO INSURE THAT THE TRANSMISSION OF BIDS IS ACCOMPLISHED WITHIN A REASONABLE TIME. SEE B-160600, FEBRUARY 16, 1967, AND CASES CITED THEREIN. WHILE THE STATEMENTS IN THOSE CASES WERE MADE WITH RESPECT TO THE HANDLING OF BIDS AFTER RECEIPT AT THE GOVERNMENT INSTALLATION, THE RATIONALE OF SUCH CASES HAS EQUAL APPLICATION TO THE PRESENT MATTER. THE GOVERNMENT HAS AN IMPLIED OBLIGATION TO BIDDERS TO ASSURE THAT INVITATION INSTRUCTIONS FOR THE SUBMISSION OF BIDS ARE CLEAR AND UNAMBIGUOUS SO AS TO MINIMIZE THE MISDIRECTION OF BIDS. WE HAVE CONSIDERED THAT, WHERE GOVERNMENT ACTIONS ARE RESPONSIBLE FOR THE LATE RECEIPT OF A BID, REJECTION OF THE BID WOULD NOT BE FAIR OR EQUITABLE IF ITS ACCEPTANCE WOULD BE OTHERWISE PROPER. SEE B-164570, JUNE 25, 1968.

ALTHOUGH THE LATE BID REGULATIONS MIGHT BROADLY BE CONSIDERED TO COVER THE IMMEDIATE SITUATION, WE BELIEVE THE RESPONSIBILITY OF THE GOVERNMENT NOT TO UNREASONABLY IMPEDE THE TIMELY RECEIPT OF BIDS MUST OVERRIDE THE BROAD IMPLICATIONS OF THE LATE BID REGULATIONS WHERE THE BID WOULD HAVE ARRIVED ON TIME BUT FOR EXCESSIVE HANDLING PRECIPITATED BY THE FAULTY INVITATION INSTRUCTIONS.

IN VIEW OF THE FOREGOING, WE CONCLUDE THAT THE LATE BID REGULATIONS SHOULD NOT BE APPLIED HERE TO PRECLUDE CONSIDERATION OF THE BAUGHMAN BID WHICH, BUT FOR THE MISLEADING AND CONFLICTING INSTRUCTIONS IN THE INVITATION, WOULD HAVE BEEN RECEIVED TIMELY. MOREOVER, THE FACT THAT CERTIFIED OR REGISTERED MAIL WAS NOT UTILIZED IS NOT SIGNIFICANT SINCE THE BID WOULD HAVE BEEN TIMELY RECEIVED BUT FOR THE DELAY CAUSED BY THE DUAL ADDRESSES ON THE ENVELOPE.

IN A SUPPLEMENTAL STATEMENT OF MAY 20, 1969, THE CONTRACTING OFFICER HAS INDICATED THAT MAILING INSTRUCTIONS SIMILAR TO THOSE IN THE INSTANT INVITATION HAVE BEEN USED IN PREVIOUS PROCUREMENTS AND THAT BAUGHMAN & SON HAS BEEN THE SUCCESSFUL CONTRACTOR ON 13 OF SUCH PROCUREMENTS. IN VIEW THEREOF, THE CONTRACTING OFFICER BELIEVES THAT BAUGHMAN & SON SHOULD HAVE KNOWN THAT THE ADDRESS STATED IN THE INVITATION FOR BIDS FORM WAS NOT THE MAILING ADDRESS. FURTHER THE CONTRACTING OFFICER CONTENDS THAT, SINCE PARAGRAPH 6 OF THE INSTRUCTIONS TO BIDDERS, ENTITLED "SUBMISSION OF BIDS," PROVIDED THAT "BIDS MUST BE SEALED, MARKED, AND ADDRESSED AS DIRECTED IN THE INVITATION FOR BIDS" AND, SINCE THE BID FORM PROVIDES THE ONLY CLEAR EXPRESSION FOR BOTH MARKING AND ADDRESSING BIDS FOR MAILING, THE TERM "INVITATION FOR BIDS" AS USED ON PARAGRAPH 6 HAS REFERENCE TO THE WHOLE BID PACKAGE. HENCE, HE CONCLUDES THAT THE DIRECTIONS ON THE BID FORM GOVERN THE ADDRESSING OF BIDS.

HOWEVER, WE DO NOT FEEL THAT THE SUPPLEMENTAL STATEMENT OVERCOMES OUR VIEW THAT THE INVITATION ADDRESSING INSTRUCTIONS ARE MISLEADING AND CONFLICTING. ALTHOUGH THE ABOVE-DETAILED ANALYSIS OF THE INVITATION MAILING INSTRUCTIONS HAS MERIT, WE DO NOT FEEL THAT IT WOULD BE EQUITABLE OR REQUIRED UNDER THE CIRCUMSTANCES TO IMPOSE THE RESULTS OF SUCH REASONING ON THE BIDDER. IN ADDITION TO THE CONFLICT POINTED OUT AT THE OUTSET, IT IS OBSERVED THAT THE INVITATION FOR BIDS FORM SHOWS P.O. BOX 3623 (ZIP CODE 97208) AS THE ADDRESS OF THE ISSUING OFFICE AND ALSO SHOWS THE STREET ADDRESS (ZIP CODE 97204) AS THE RECEIVING OFFICE FOR BIDS AS WELL AS THE OFFICE FROM WHICH INFORMATION REGARDING BIDDING MATERIAL, BONDS, SPECIFICATIONS AND DRAWINGS MAY BE OBTAINED. WE THEREFORE BELIEVE THAT THE BIDDER WAS CONFUSED INTO BELIEVING THAT THE RECEIVING ADDRESS WAS INTENDED TO BE DIFFERENT FROM THE ISSUING ADDRESS AND, AT THE SAME TIME, WAS FURTHER CONFUSED IN VIEW OF THE ADDRESSING INFORMATION IN THE BID FORM, WITH THE RESULT THAT THE SIGNIFICANCE OF ONE MAILING ADDRESS OVER THE OTHER WAS LARGELY DISSIPATED TO THE PREJUDICE OF BAUGHMAN.

THE CONTRACTING OFFICER HAS SUGGESTED IN HIS SUPPLEMENTARY STATEMENT THAT TO DETERMINE THE CASE ON THE BASIS OF AMBIGUITY WILL LEAVE THE BIDDING SYSTEM OPEN TO CHALLENGE ON THE MOST MINUTE TECHNICALITY. INVITATIONS CAN ALWAYS BE CHALLENGED ON THE BASIS OF AMBIGUITY; BUT WHETHER THE CHALLENGE WILL BE SUSTAINED DEPENDS ON THE FACTS AND CIRCUMSTANCES IN EACH CASE. HOWEVER, WE MIGHT OBSERVE THAT THE ADVERTISING STATUTE REQUIRES THAT THERE BE "FULL AND FREE COMPETITION" FOR GOVERNMENT PROCUREMENTS. SEE 41 U.S.C. 253. WHERE CONFLICTING MAILING INFORMATION IN THE INVITATION FOR BIDS CAUSED THE LATE ARRIVAL OF THE BID, WE BELIEVE THAT SOMETHING LESS THAN FULL AND FREE COMPETITION WAS ENGENDERED BY SUCH AN INVITATION. IN THE FUTURE, WE SUGGEST THAT THE INVITATION FOR BIDS FORM SPECIFICALLY STATE THE EXACT MAILING ADDRESS WHICH SHOULD BE USED FOR SUBMITTING MAILED BIDS TO THE EXCLUSION OF ALL OTHER GOVERNMENT ADDRESSES APPEARING ON THE INVITATION.

ACCORDINGLY, IN VIEW OF THE FOREGOING, THE BID FROM BAUGHMAN & SON SHOULD BE OPENED AND CONSIDERED FOR AWARD.