B-166973, JUN. 26, 1969

B-166973: Jun 26, 1969

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TO MAGNATECH - THE DSD COMPANY: REFERENCE IS MADE TO YOUR LETTERS OF MAY 14 AND JUNE 5. THE TOTAL QUANTITY WAS INCREASED TO 12. THE BID OPENING TIME WAS EXTENDED FROM 10 A.M. THAT AFTER THE BID OPENING THE BUYER EXAMINED THE FILE COVERING THE SUBJECT PROCUREMENT AND NOTED THAT NO BID FROM YOUR COMPANY WAS RECORDED ON THE ABSTRACT OF BIDS OR WAS IN THE FILE. IT IS REPORTED THAT BY LETTER DATED APRIL 9. THAT A RECEIPT COVERING THIS PIECE OF MAIL WAS SIGNED BY AN EMPLOYEE OF THE CENTER'S MAIL ROOM. THAT AN ADDITIONAL RECEIPT COVERING THIS SAME PIECE OF MAIL WAS SIGNED BY AN EMPLOYEE OF THE CENTER'S BID ROOM. THAT AN ADDITIONAL RECEIPT COVERING VARIOUS PIECES OF MAIL WAS SIGNED BY THE BID ROOM EMPLOYEE WITHOUT CHECKING THE INDIVIDUAL PIECES OF MAIL ACTUALLY RECEIVED AGAINST THOSE LISTED ON THE RECEIPT.

B-166973, JUN. 26, 1969

TO MAGNATECH - THE DSD COMPANY:

REFERENCE IS MADE TO YOUR LETTERS OF MAY 14 AND JUNE 5, 1969, PROTESTING AGAINST THE AWARD OF A CONTRACT TO A BIDDER OTHER THAN YOUR FIRM UNDER DEFENSE SUPPLY AGENCY INVITATION FOR BIDS NO. DSA500-69-B 5132, AS AMENDED, ISSUED BY THE DEFENSE INDUSTRIAL SUPPLY CENTER, PHILADELPHIA, PENNSYLVANIA.

THE INVITATION, ISSUED ON MARCH 11, 1969, REQUESTED BIDS FOR FURNISHING 4,500 GASKETS, FSN 5330-087-5168, FOR DELIVERY F.O.B. VARIOUS DESTINATIONS. BY AMENDMENT NO. P001, ISSUED MARCH 17, 1969, THE TOTAL QUANTITY WAS INCREASED TO 12,100 UNITS. ALSO, THE BID OPENING TIME WAS EXTENDED FROM 10 A.M., E.S.T., MARCH 26, 1969, TO 10 A.M., E.S.T., APRIL 4, 1969.

THE ABSTRACT OF BIDS REFLECTS THE RECEIPT OF FOUR BIDS SUMMARIZED AS FOLLOWS:

OFFEROR UNIT PRICE TOTAL QUANTITY BID UNITED AIRCRAFT PRODUCTS, INC. $0.80 9,500 THE ADVANCED PRODUCTS CO. 0.96 12,100 METAL FORMS INDUSTRIES, INC. 0.9683 12,100 AIRCO SUPPLY CO., INC.

1.92 8,500

THE RECORD INDICATES THAT PRIOR TO THE TIME OF THE BID OPENING THE GOVERNMENT BUYER RECEIVED EXECUTED AMENDMENT NO. P001 FROM YOUR FIRM; THAT THE BUYER FORWARDED YOUR EXECUTED AMENDMENT TO THE BID ROOM; AND THAT AFTER THE BID OPENING THE BUYER EXAMINED THE FILE COVERING THE SUBJECT PROCUREMENT AND NOTED THAT NO BID FROM YOUR COMPANY WAS RECORDED ON THE ABSTRACT OF BIDS OR WAS IN THE FILE. THE BUYER THEN TELEPHONED MR. MORRIS OF YOUR FIRM AND INFORMED HIM THAT WHILE THE PROCUREMENT FILE DID CONTAIN YOUR EXECUTED AMENDMENT NO. P001, IT DID NOT CONTAIN YOUR BID. MR. MORRIS INFORMED THE BUYER THAT YOUR FIRM'S BID HAD BEEN FORWARDED TO THE PROCURING ACTIVITY BY CERTIFIED MAIL.

IT IS REPORTED THAT BY LETTER DATED APRIL 9, 1969, YOU SUBMITTED TO THE GOVERNMENT BUYER THE FOLLOWING:

(A) THE ORIGINAL RECEIPT FOR CERTIFIED MAIL NO. 356267, POSTMARKED EAST GRANBY, CONNECTICUT, MARCH 25, 1969.

(B) CERTAIN PAPERS WHICH YOUR COMPANY REPRESENTED AS PHOTOCOPIES OF PAGES 1, 2, AND 7 OF THE THIRD CARBON FILE COPY OF YOUR BID "WITH PAGE 1 AGAIN SIGNED AS AN ORIGINAL.' THE PAPERS REFLECT A BID PRICE OF $0.79 PER UNIT FOR THE TOTAL PROCUREMENT QUANTITY OF 12,100 UNITS.

THE CERTIFIED MAIL RECEIPT DOES NOT, OF COURSE, SPECIFY THE CONTENTS OF THE ENVELOPE COVERED THEREBY NOR DOES IT SHOW THE TIME OF MAILING.

IN HIS REPORT OF MAY 26, 1969, THE CONTRACTING OFFICER STATES THAT AN INVESTIGATION REVEALED THAT ON MARCH 27, 1969, THE DEFENSE INDUSTRIAL SUPPLY CENTER DID RECEIVE A PIECE OF CERTIFIED MAIL NO. 356267 FROM EAST GRANBY, CONNECTICUT; THAT A RECEIPT COVERING THIS PIECE OF MAIL WAS SIGNED BY AN EMPLOYEE OF THE CENTER'S MAIL ROOM; THAT AN ADDITIONAL RECEIPT COVERING THIS SAME PIECE OF MAIL WAS SIGNED BY AN EMPLOYEE OF THE CENTER'S BID ROOM; AND THAT AN ADDITIONAL RECEIPT COVERING VARIOUS PIECES OF MAIL WAS SIGNED BY THE BID ROOM EMPLOYEE WITHOUT CHECKING THE INDIVIDUAL PIECES OF MAIL ACTUALLY RECEIVED AGAINST THOSE LISTED ON THE RECEIPT. THE CONTRACTING OFFICER ALSO STATES THAT UNFORTUNATELY CERTIFIED MAIL NO. 356267 WAS LOST AT THE CENTER PRIOR TO THE TIME OF THE BID OPENING ON APRIL 4, 1969, AND THAT SUCH PIECE OF MAIL HAS NOT BEEN LOCATED DESPITE AN EXTENSIVE SEARCH THEREFOR. IT IS REPORTED THAT BECAUSE OF THE URGENT NEED FOR THE GASKETS, CONTRACT NO. DSA500-69-C-C262 FOR FURNISHING 9,500 UNITS AT A UNIT PRICE OF $0.80 WAS AWARDED TO UNITED AIRCRAFT PRODUCTS, INC., ON MAY 7, 1969; THAT NO CONTRACT FOR THE REMAINING BALANCE OF 2,600 UNITS WAS AWARDED TO ANY OF THE OTHER BIDDERS UNDER THE SUBJECT INVITATION BECAUSE THEIR BID PRICES WERE CONSIDERED UNREASONABLE; AND THAT THE REMAINING 2,600 UNITS WERE RESOLICITED UNDER SMALL PURCHASES PROCEDURES AND THAT ON MAY 22, 1969, A CONTRACT FOR FURNISHING 2,600 UNITS WAS AWARDED TO YOUR FIRM ON THE BASIS OF YOUR QUOTATION OF $0.77 PER GASKET.

IN YOUR LETTER OF JUNE 5, 1969, YOU STATE THAT YOU HAVE RECEIVED CERTAIN INFORMATION FROM YOUR BID REPORTING SERVICE WHICH HAS PROMPTED YOU TO QUESTION THE AWARD MADE TO UNITED AIRCRAFT. YOU STATE THAT IN YOUR LETTER OF MAY 14, 1969, YOU INDICATED THAT YOU WERE AWARE OF THE FACT THAT THE NEXT LOWEST BIDDER (UNITED AIRCRAFT) QUOTED A UNIT PRICE OF $0.80 AND THAT AT THAT TIME YOU ASSUMED THAT THE AWARD WAS MADE "FOR THE ORIGINAL QUANTITY OF 12,100 PIECES.' YOU ALLEGE THAT YOU HAVE BEEN INFORMED BY YOUR BID REPORTING SERVICE THAT UNITED AIRCRAFT HAD ORGINALLY BID AT $1.04 EACH FOR 12,100 PIECES; THAT UNITED AIRCRAFT SUBSEQUENTLY FILED AN AMENDMENT TO ITS ORIGINAL BID, QUOTING 9,500 PIECES AT $0.80 EACH; AND THAT THE AWARD WAS MADE TO UNITED AIRCRAFT AT THIS LOWER QUANTITY AND PRICE. YOU ALSO ALLEGE THAT "SOMEONE -FORGOT TO MAKE A COPY OF UAP'S AMENDMENT- AND IT WAS NOT POSTED IN THE BID ROOM AT THE TIME OF BID OPENING.' YOU STATE THAT IT IS STANDARD PRACTICE TO PRICE SMALL QUANTITIES OF GOODS AT HIGHER UNIT PRICES AND THAT THE OPPOSITE WAS DONE IN THIS CASE.

FROM THE RECORD BEFORE US, IT APPEARS THAT YOUR BID REPORTING SERVICE WAS MISINFORMED AS TO THE QUANTITY UPON WHICH UNITED AIRCRAFT'S BID PRICE OF $1.04 WAS BASED. WE HAVE EXAMINED A COPY OF UNITED AIRCRAFT'S BASIC BID AND IT SHOWS THAT IT QUOTED A UNIT PRICE OF $1.04 FOR A QUANTITY OF 4,500 UNITS -- THE QUANTITY CALLED FOR IN THE BASIC INVITATION WHICH WAS LATER INCREASED TO 12,100 UNITS BY AMENDMENT NO. P001. ALSO, ON AMENDMENT NO. P001, UNITED AIRCRAFT INDICATED THAT IT WAS REDUCING ITS ORIGINAL UNIT BID PRICE TO $0.80 AND THAT IT WAS QUOTING ON ONLY 9,500 OF THE 12,100 UNITS CALLED FOR BY THE AMENDMENT.

YOU CONTEND THAT SINCE YOUR TIMELY MAILED BID WAS LOST BY THE PROCUREMENT ACTIVITY, THAT ACTIVITY SHOULD HAVE PERMITTED YOUR FIRM TO RESUBMIT ITS BID. ALTHOUGH YOU MAINTAIN THAT CERTIFIED MAIL NO. 356267 CONTAINED YOUR TIMELY MAILED BID, THERE IS NOTHING OF RECORD WHICH WOULD ESTABLISH THAT THE ENVELOPE BEARING CERTIFIED RECEIPT NO. 356267 CONTAINED YOUR BID OR THAT SUCH PURPORTED BID WOULD HAVE BEEN OTHERWISE ELIGIBLE FOR AWARD UNDER THE INVITATION AS AMENDED.

IN A DECISION OF OCTOBER 25, 1962, B-149981, WE HELD THAT A BIDDER WHO ALLEGED THAT THE FAILURE OF BOTH HIS BID AND ADDENDUM TO REACH THE CONTRACTING OFFICER PRIOR TO THE BID OPENING ON SEPTEMBER 19, 1962 WAS DUE TO THEIR LOSS IN THE MAILS MAY NOT RESUBMIT HIS BID, NOTWITHSTANDING THAT A RECEIPT FOR CERTIFIED MAIL EVIDENCED THAT A LETTER WAS MAILED TO THE PROCUREMENT AGENCY ON SEPTEMBER 12, 1962, SINCE THE RECEIPT DID NOT SHOW THE CONTENTS OF THE ENVELOPE OR THE MAILING TIME. ALTHOUGH THAT CASE INVOLVED A BID WHICH APPARENTLY WAS LOST BY THE POST OFFICE, THE FOLLOWING LANGUAGE THEREFROM APPEARS TO BE APPLICABLE AND DISPOSITIVE OF YOUR PROTEST:

"NINETEEN FIRMS SUBMITTED PRICES UNDER THIS INVITATION WHICH, OF COURSE, HAVE BEEN MADE PUBLIC. UNDER THESE CIRCUMSTANCES IT WOULD NOT BE REASONABLE, NOR PERMISSIBLE, TO ALLOW YOU TO RESUBMIT YOUR BID. ALTHOUGH THERE IS NO REASON TO QUESTION YOUR GOOD FAITH, AWARD ON THE BASIS OF SELF -SERVING STATEMENTS WOULD NOT BE CONSISTENT WITH THE MAINTENANCE OF THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM WHICH REQUIRES AWARD TO BE MADE TO THE LOW RESPONSIVE AND RESPONSIBLE BIDDER OF RECORD AT THE TIME OF THE OPENING, EXCEPT IN CERTAIN RECOGNIZED AREAS WHERE DETAILED PROCEDURES HAVE BEEN ESTABLISHED, AS IN LATE BID CASES.'

WHILE THE LOSS OF YOUR BID AT THE GOVERNMENT INSTALLATION IS UNFORTUNATE, THERE APPEARS NO PROPER BASIS FOR OBJECTION BY OUR OFFICE TO THE ADMINISTRATIVE ACTION TAKEN IN THE MATTER. ACCORDINGLY, YOUR PROTEST MUST BE DENIED.