B-167298, JUL. 17, 1969

B-167298, JUL. 17, 1969

BIDS - LATE DECISION TO AGENCY FOR INTERNATIONAL DEVELOPMENT RECOMMENDING THAT LATE BID OF KOPPERS-HARDINGE FOR FURNISHING A TURKISH FIRM UNDER AN AID PROJECT A QUANTITY OF GRINDERS. SINCE THE DESIGNATED TIME FOR BID OPENING WAS IGNORED AND SINCE LATE BID WAS TRANSMITTED BY REGISTERED MAIL AND UNTIMELY DELIVERY WAS NOT FAULT A NEGLIGENCE OF SENDER SUCH LATE BID MAY BE CONSIDERED FOR AWARD.

TO MR. HANNAH:

REFERENCE IS MADE TO YOUR LETTER REGARDING THE PROCUREMENT OF A QUANTITY OF AUTOGENOUS GRINDERS BY THE BLACK SEA COPPER COMPANY, A FIRM IN TURKEY, FOR A PROJECT FINANCED UNDER AN AID DEVELOPMENT PROJECT (LOAN 277-H-076).

THE BID OPENING WAS SCHEDULED FOR MARCH 17, 1969, BUT WAS ACTUALLY HELD ON MARCH 18, 1969, AT WHICH TIME ONLY A BID BY ALLIS-CHALMERS HAD BEEN RECEIVED. ON MARCH 21, A BID PACKAGE WAS RECEIVED FROM KOPPERS HARDINGE, WHICH HAD BEEN SENT BY REGISTERED MAIL FROM THE UNITED STATES ON MARCH 8, 1969. THE QUESTION IS WHETHER THIS LATE BID MAY BE OPENED AND CONSIDERED FOR AWARD.

THE INVITATION PROVIDES THAT: "ONLY PROPOSALS SUBMITTED ON OR BEFORE THE CLOSING DATE WILL BE CONSIDERED.' THERE IS NO PROVISION IN THE INVITATION DEALING WITH LATE BIDS. YOUR LEGAL COUNSEL REPORTS THAT THE LATE BID WAS POSTED EARLY ENOUGH TO HAVE ARRIVED BEFORE THE BID OPENING TIME IN THE ORDINARY COURSE OF THE MAILS AND ARRIVED LATE ONLY BECAUSE OF AN APPARENT DELAY IN TURKISH CUSTOMS. HE CONCLUDES THAT THE LATE BID SHOULD BE OPENED AND CONSIDERED FOR THE AWARD.

CERTAIN OTHER FACTS ARE REPORTED. IT APPEARS THAT DURING THE DEVELOPMENTAL PHASE OF THIS PROCUREMENT BOTH ALLIS-CHALMERS AND KOPPERS HARDINGE PARTICIPATED WITH THE BUYER AND THE CONSULTING ENGINEER IN DEVELOPING THE SPECIFICATIONS. THE BID OPENING WAS FINALLY SCHEDULED FOR 1600 HOURS ON MARCH 17, 1969, WITH ALLIS-CHALMERS AND KOPPERS HARDINGS STILL THE ONLY PROSPECTIVE BIDDERS KNOWN TO THE BUYER.

ACTUALLY, TWO BID OPENINGS WERE SCHEDULED AT 1600 HOURS ON MARCH 17, THE SUBJECT INVITATION AND INVITATION 975-9 CALLING FOR RE-GRIND BALL MILLS. ON THE MORNING OF MARCH 17, THE BUYER CONTACTED THE AID REPRESENTATIVES IN ANKARA TO INQUIRE ABOUT THE POSSIBILITY OF EXTENDING THE OPENING ON THE AUTOGENOUS GRINDERS FOR ANOTHER 48 HOURS. THE BUYER ADVISED THAT HE WANTED TO ALLOW THE ADDITIONAL TIME FOR THE ARRIVAL OF ANOTHER BID WHICH, HE HAD BEEN NOTIFIED, WAS MAILED FROM THE UNITED STATES ON OR ABOUT MARCH 8, 1969 (THE ALLIS-CHALMERS BID HAD BEEN HAND CARRIED TO THE BUYER). APPARENTLY NO FURTHER MENTION WAS MADE OF A BID EXTENSION UNTIL THE BID OPENING HAD ARRIVED LATER THAT DAY. AT 1600 HOURS BID OPENING PROCEEDED FOR THE RE-GRIND MILLS. THREE BIDS WERE OPENED, INCLUDING BIDS FROM ALLIS -CHALMERS, KOPPERS-HARDINGE, AND A THIRD FIRM, WHO HAD PREVIOUSLY DECLINED TO PARTICIPATE IN THE SUBJECT PROCUREMENT. AFTER THE OPENING ON IFB 975- 9, THE BUYER ANNOUNCED THAT HE WAS REQUIRED TO LEAVE ON URGENT BUSINESS. AS A RESULT, BID OPENING WAS NOT HELD ON MARCH 17 FOR IFB 975-2 (AUTOGENOUS GRINDERS).

THE BUYER LATER THAT DAY, OR THE NEXT MORNING, REQUESTED AID'S APPROVAL FOR EXTENDING THE BID OPENING ON IFB 975-2 UNTIL MARCH 21, 1969. THE AID OFFICIALS DENIED THIS REQUEST ON THE BASIS THAT THE SCHEDULED TIME OF BID OPENING HAD ALREADY PASSED, AND THEREFORE, IT WAS TOO LATE TO INITIATE SUCH A PROCEDURE. (YOUR REPRESENTATIVES FELT THAT THE CORRECT PROCEDURE REQUIRED THAT THE BUYER NOTIFY ALL POTENTIAL BIDDERS OF SUCH AN EXTENSION PRIOR TO THE TIME OF BID OPENING). CONSEQUENTLY, ON MARCH 18, 1969, THE ALLIS-CHALMERS BID WAS OPENED. ON MARCH 21, 1969, A BID PARCEL FROM KOPPERS-HARDINGE WAS RECEIVED BY THE BUYER, BUT WAS RETURNED BY HIM UNOPENED FOR DELIVERY TO KOPPERS HARDINGE. HOWEVER, YOUR AGENCY OFFICIALS IN WASHINGTON, D.C., AND KOPPERS-HARDINGE, LEARNING OF THIS REJECTION, ARRANGED WITH THE UNITED STATES POST OFFICE DEPARTMENT TO INTERCEPT THE RETURNED PARCEL AND TO HAVE IT DELIVERED TO AID RATHER THAN TO KOPPERS- HARDINGE. IT IS REPORTED THAT THE PARCEL HAS SINCE BEEN RETURNED BY AID TO THE AID MISSION IN ANKARA, AND THAT THE PARCEL HAS NOT BEEN IN THE CUSTODY OF KOPPERS-HARDINGE NOR HAS THAT FIRM HAD ACCESS TO IT SINCE IT WAS DEPOSITED IN THE UNITED STATES POST OFFICE ON MARCH 8, 1969.

IT SEEMS TO US THAT THE BUYER'S REQUEST FOR A POSTPONEMENT IN THE BID OPENING COULD HAVE BEEN APPROVED. ORDINARILY, OF COURSE, A NECESSARY AND IMPORTANT PRINCIPLE OF THE COMPETITIVE BID SYSTEM OF PROCUREMENT IS THE PUBLIC OPENING OF ALL BIDS AT THE TIME AND PLACE STATED IN THE INVITATION. 34 COMP. GEN. 395, 398. THERE ARE CIRCUMSTANCES, HOWEVER, WHICH MAY JUSTIFY POSTPONING A BID OPENING WITHOUT ISSUING A FORMAL AMENDMENT TO THE INVITATION. SEE B-152288, MARCH 19, 1964. AS A GENERAL RULE WE WOULD SAY THAT THE PROPRIETY OF A DELAY IN THE OPENING OF BIDS MUST DEPEND UPON ALL THE FACTS AND CIRCUMSTANCES INVOLVED IN THE PARTICULAR CASE.

IN THE PRESENT CASE, THE DESIGNATED TIME FOR BID OPENING WAS IGNORED. CAN BE ARGUED THAT THIS AMOUNTED TO A WAIVER OF THE REQUIREMENT FOR SUBMISSION BY 1600 HOURS ON MARCH 17. NO TIME WAS EVER FORMALLY SET FOR THE POSTPONED OPENING, WHICH RAISES THE QUESTION WHETHER ANY BID COULD BE CONSIDERED LATE UNTIL THIS WAS DONE.

THE ALLIS-CHALMERS' BID WAS OPENED ON MARCH 18, 1969, AND THE KOPPERS- HARDINGE BID WAS NOT RECEIVED AT THE BID OFFICE UNTIL MARCH 21, 1969. YOUR COUNSEL IS OF THE VIEW THAT THE INVITATION MAY BE READ AS PERMITTING THE CONSIDERATION OF THIS LATE BID, SINCE IT WAS TRANSMITTED BY THE AUTHORIZED MEANS OF REGISTERED MAIL, AND THE UNTIMELY DELIVERY WAS NOT DUE TO THE FAULT OR NEGLIGENCE OF THE SENDER. IN VIEW OF THE FACTS AND CIRCUMSTANCES PRESENT IN THIS CASE, WE ARE INCLINED TO AGREE WITH YOUR COUNSEL'S RECOMMENDATION. WE DO NOT THINK IT IS FAIR TO THE BUYER AND TO THE UNITED STATES GOVERNMENT TO BE DENIED THE BENEFITS OF COMPETITION FOR THIS PROCUREMENT, AND WE DO NOT THINK IT IS UNFAIR TO ALLIS-CHALMERS TO PERMIT CONSIDERATION OF THE LATE BID. AS YOUR COUNSEL STATES IN HIS MEMORANDUM OF JUNE 12, 1969, KOPPERS-HARDINGE, AS WELL AS ALLIS-CHALMERS, HAS INCURRED COST AND DEVOTED EXTENSIVE TIME AND EFFORT IN PREPARATION FOR THIS PROCUREMENT. BOTH FIRMS EXPECTED THE OTHER FIRM TO BID, AND BOTH BIDS WERE PREPARED WITH THIS EXPECTATION.

ACCORDINGLY, WE RECOMMEND THE KOPPERS-HARDINGE BID BE CONSIDERED FOR AWARD.