B-168729, AUG 3, 1970, 50 COMP GEN 71

B-168729: Aug 3, 1970

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BIDS - LATE - MISHANDLING DETERMINATION - BIDS RECEIVED AT ONE PLACE FOR DELIVERY TO ANOTHER PLACE A BID SENT BY CERTIFIED MAIL THAT WAS NOT DIRECTED TO THE BID OPENING ROOM OR DID NOT LIST THE INFORMATION REQUIRED BY THE INVITATION. WAS NOT IDENTIFIED UNTIL AFTER BIDS WERE OPENED. DELIVERY OF THE BID WAS UNREASONABLE FOR CERTIFIED MAIL. THE FACT THAT A PRICE ALTERATION WAS UNINITIALED DOES NOT REQUIRE REJECTION OF THE LOW BID WHERE THE INTENDED BID PRICE IS NOT IN DOUBT AND REMAINED LOW. THERE IS NO INDICATION THE BIDDER HAD AN OPPORTUNITY TO RECLAIM AND ALTER THE BID. ON THE GROUNDS THAT THE EMCO BID WAS INEXCUSABLY LATE. WAS OPENED PRIOR TO BEING RECEIVED IN THE BID ROOM. WAS FOR THE PROCUREMENT OF 3.

B-168729, AUG 3, 1970, 50 COMP GEN 71

BIDS - LATE - MISHANDLING DETERMINATION - BIDS RECEIVED AT ONE PLACE FOR DELIVERY TO ANOTHER PLACE A BID SENT BY CERTIFIED MAIL THAT WAS NOT DIRECTED TO THE BID OPENING ROOM OR DID NOT LIST THE INFORMATION REQUIRED BY THE INVITATION, AND WHICH ALTHOUGH TIMELY DELIVERED TO THE MAILROOM, AS SHOWN BY A POST OFFICE DEPARTMENT FORM CONSIDERED ACCEPTABLE DOCUMENTARY EVIDENCE, WAS NOT IDENTIFIED UNTIL AFTER BIDS WERE OPENED, MAY BE CONSIDERED ON THE BASIS THAT FAILURE TO RECOGNIZE FROM THE CORPORATE NAME AND SIZE OF THE ENVELOPE THAT THE ENVELOPE CONTAINED A BID CONSTITUTES GOVERNMENT MISHANDLING, AND THAT THE LAPSE OF TIME BETWEEN RECEIPT, OPENING, AND DELIVERY OF THE BID WAS UNREASONABLE FOR CERTIFIED MAIL, AND THE FACT THAT A PRICE ALTERATION WAS UNINITIALED DOES NOT REQUIRE REJECTION OF THE LOW BID WHERE THE INTENDED BID PRICE IS NOT IN DOUBT AND REMAINED LOW, AND THERE IS NO INDICATION THE BIDDER HAD AN OPPORTUNITY TO RECLAIM AND ALTER THE BID.

TO THE KAISER STEEL CORPORATION, AUGUST 3, 1970:

BY TELEGRAM DATED JANUARY 29, 1970, AND LATER CORRESPONDENCE, YOU PROTESTED THE AWARD OF A CONTRACT TO EMCO PORCELAIN ENAMEL COMPANY, INC. (EMCO), UNDER INVITATION FOR BIDS NO. DAAA25-70-B-0171, ISSUED BY THE UNITED STATES ARMY, FRANKFORD ARSENAL, PHILADELPHIA, PENNSYLVANIA, ON THE GROUNDS THAT THE EMCO BID WAS INEXCUSABLY LATE, WAS OPENED PRIOR TO BEING RECEIVED IN THE BID ROOM, AND CONTAINED UNINITIALED PRICE ALTERATIONS.

THE SUBJECT INVITATION, AS AMENDED, WAS FOR THE PROCUREMENT OF 3,800,000 M2A1 AMMUNITION BOXES AND THE TIME SET FOR THE OPENING OF BIDS WAS NOVEMBER 12, 1969, AT 11:00 A.M. BY THAT TIME, BIDS HAD BEEN RECEIVED FROM 6 BIDDERS INCLUDING KAISER BUT NOT INCLUDING EMCO. THE EMCO BID, SENT BY CERTIFIED MAIL AS REQUIRED BY THE INVITATION AND BY ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-303.2, WAS OPENED BY ARMY PERSONNEL IN THE FRANKFORD ARSENAL MAILROOM AT 1:30 P.M. ON NOVEMBER 12, 1969, 2-1/2 HOURS AFTER BID OPENING, AND UPON ITS IDENTIFICATION AS A BID, WAS IMMEDIATELY FORWARDED TO THE BID RECEIVING ROOM, ARRIVING THERE AT 2:09 P.M. PURSUANT TO ASPR 2-303.6, EMCO WAS PROVIDED AN OPPORTUNITY TO PROVE THAT ITS BID HAD BEEN SUBMITTED IN A TIMELY MANNER AND WAS THEREFORE ELIGIBLE TO BE CONSIDERED FOR AWARD. ON THE BASIS OF THE INFORMATION PROVIDED, PRIMARILY IN THE FORM OF A LETTER FROM THE POSTMASTER OF THE PORT CHESTER, NEW YORK POST OFFICE, THE MAILING PLACE OF THE EMCO BID, TO THE EFFECT THAT THE EMCO BID HAD BEEN MAILED WITHIN SUFFICIENT TIME TO ASSURE TIMELY ARRIVAL, THE CONTRACTING OFFICER CONCLUDED THAT THE EMCO BID WAS DELAYED BECAUSE OF GOVERNMENT MISHANDLING AND WAS THEREFORE FOR CONSIDERATION IN ACCORDANCE WITH ASPR 2-303.2(III).

ALTHOUGH THE KAISER BID WAS INITIALLY EVALUATED AS LOW ON ITEM 002 OF THE 3-ITEM INVITATION AND AWARD WAS ACTUALLY MADE TO KAISER FOR THAT ITEM, IT WAS LATER DETERMINED THAT AN ERROR HAD BEEN MADE IN THE EVALUATION OF FREIGHT CHARGES WITH RESPECT TO THE EMCO AND KAISER BIDS WITH THE RESULT THAT THE EMCO BID WAS ACTUALLY THE LOWEST RECEIVED ON ITEM 002. THEREAFTER, THE AWARD MADE TO KAISER WAS OFFICIALLY CANCELED AND ON JANUARY 13, 1970, CONTRACT NO. DAAA25-70-C-0385 WAS AWARDED TO EMCO AT A TOTAL CONTRACT PRICE OF $2,214,675, WITH PERFORMANCE BY EMCO CONTINUING TO DATE.

IN VIEW OF YOUR CONTENTION THAT THE EMCO BID CONTAINED INCURABLE DEFECTS, YOU REQUEST THAT THE EMCO CONTRACT BE CANCELED AND THAT THE CONTRACT INITIALLY AWARDED TO KAISER BE REINSTATED.

THE UNDISPUTED FACTS CONCERNING THE LATENESS ISSUE ARE THAT THE EMCO BID, ADDRESSED TO "U.S. ARMY, FRANKFORD ARSENAL, TACONY AND BRIDGE STREETS, PHILADELPHIA, PA. 19137," WAS MAILED ON NOVEMBER 10, 1969, BY CERTIFIED MAIL, RECEIPT NUMBER 45358, AND WAS ACTUALLY DELIVERED TO THE FRANKFORD ARSENAL MAILROOM AT 7:15 A.M., NOVEMBER 12, 1969, 3-3/4 HOURS BEFORE THE 11:00 A.M. BID OPENING TIME AND 6-1/4 HOURS BEFORE THE ENVELOPE CONTAINING THE BID WAS OPENED AT 1:30 P.M. IN THE MAILROOM. IN REACHING THE CONCLUSION THAT THE LATENESS OF THE EMCO BID SHOULD BE EXCUSED ON THE GROUND OF GOVERNMENT MISHANDLING, THE CONTRACTING OFFICER AND THE BUYER, IN A "DETERMINATION OF LATE BID" DATED NOVEMBER 20, 1969, STATED AS FOLLOWS:

ENVELOPE WAS RECEIVED AT FRANKFORD ARSENAL 0730 ON 12 NOV 69 AND EVEN THOUGH NOT IDENTIFIED AS A BID, THE CORPORATE NAME AND THE SIZE OF THE ENVELOPE SHOULD HAVE APPRISED SOMEONE IN THE MAIL ROOM THAT ENVELOPE COULD CONTAIN A BID.

ENVELOPE WAS NOT OPENED FOR IDENTITY UNTIL 1340 ON 12 NOV 69, WHICH APPEARS TO BE AN UNREASONABLE LAPSE OF TIME FOR OPENING CERTIFIED MAIL. IF ENVELOPE HAD BEEN OPENED WITHIN 2 HOURS AFTER RECEIPT, IDENTIFIED BID COULD HAVE BEEN HAND CARRIED TO BID OPENING ROOM IN SUFFICIENT TIME FOR 11:00 AM OPENING.

WE HAVE BEEN ADVISED BY THE DEPARTMENT OF THE ARMY THAT THE NORMAL PROCEDURE FOR HANDLING INCOMING BID MAIL AT FRANKFORD ARSENAL IS THAT UPON RECEIPT OF INCOMING MAIL AT APPROXIMATELY 7:45 A.M., REGISTERED, CERTIFIED, AND INSURED MAIL - "ACCOUNTABLE MAIL" - IS SEPARATED FROM OTHER MAIL AND HELD IN A RESTRICTED AREA. THEREAFTER, ENVELOPES PROPERLY IDENTIFIED AS CONTAINING BIDS ARE PROCESSED AND FORWARDED TO THE FRANKFORD ARSENAL PROCUREMENT DIRECTORATE. NEXT, THE REMAINING REGISTERED, CERTIFIED, INSURED, AND OTHER MAIL IS IMMEDIATELY PROCESSED IN THAT ORDER. IT IS REPORTED THAT THE VOLUME ON NOVEMBER 12, 1969, WAS HEAVY BECAUSE THE PRECEDING DAY WAS A HOLIDAY. HOWEVER, ALTHOUGH OVERALL VOLUME WAS APPARENTLY HEAVY, WE ARE ADVISED THAT ONLY 19 PIECES OF REGISTERED MAIL WERE RECEIVED ON THE DAY IN QUESTION. ADDITIONALLY, ACCORDING TO DD FORM 434, RECORD OF ACCOUNTABLE MAIL, FOR NOVEMBER 12, 18 PIECES CATEGORIZED AS "INSURED AND CERTIFIED" WERE RECEIVED, 9 OF WHICH, INCLUDING THE EMCO ENVELOPE, WERE ULTIMATELY DETERMINED TO CONTAIN BIDS. THEREFORE, THE TOTAL OF ALL "ACCOUNTABLE" MAIL RECEIVED ON NOVEMBER 12, INCLUDING BIDS, DID NOT EXCEED 37 PIECES. WE ARE FURTHER ADVISED THAT 2 EMPLOYEES WERE DETAILED ON NOVEMBER 12 TO PROCESS ACCOUNTABLE MAIL AND THAT NO OTHER DUTIES CUSTOMARILY INTERRUPT THE PROCESSING OF INCOMING MAIL.

IT IS YOUR CONTENTION GENERALLY THAT ANY MISHANDLING OF THE EMCO BID BY GOVERNMENT PERSONNEL WAS NOT THE "SOLE" CAUSE OF LATENESS AS CONTEMPLATED BY ASPR 2-303.3 INASMUCH AS THE EMCO BID ENVELOPE WAS NOT ADDRESSED TO THE ATTENTION OF THE BID OPENING ROOM NOR DID IT LIST THE INVITATION NUMBER AND THE DATE AND TIME OF OPENING AS REQUIRED BY THE INVITATION. YOU MAINTAIN THAT HAD THE EMCO BID BEEN PROPERLY ADDRESSED, IT WOULD HAVE RECEIVED PRIORITY TREATMENT AND BEEN TIMELY DELIVERED TO THE BID OPENING ROOM. YOU THEREFORE CONCLUDE THAT THE INCOMPLETE ADDRESS CAUSED, OR AT LEAST CONTRIBUTED TO, THE LATENESS OF THE BID AND THAT THE EMCO BID SHOULD HAVE BEEN REJECTED AS INEXCUSABLY LATE.

ADDITIONALLY, YOU CONTEND THAT THE EMCO BID ENVELOPE WAS ACTUALLY NOT RECEIVED AT THE FRANKFORD ARSENAL MAILROOM UNTIL 1:30 P.M. BECAUSE IT WAS NOT TIME-STAMPED UNTIL THAT TIME. ALTHOUGH APPARENTLY CONCEDING THAT THE BID ENVELOPE WAS ACTUALLY RECEIVED AT 7:15 A.M., AS EVIDENCED BY POST OFFICE DEPARTMENT FORM 3883, IT IS YOUR POSITION THAT THAT FORM CANNOT BE USED TO EVIDENCE THE ACTUAL TIME OF RECEIPT BECAUSE ASPR 2 303 AND PARAGRAPH 8 OF STANDARD FORM (SF) 33A, ATTACHED TO THE INVITATION, REQUIRE THAT THE INSTALLATION TIME STAMP OR OTHER DOCUMENTARY EVIDENCE BE USED AS EVIDENCE OF THE TIME OF RECEIPT. YOU CONTEND THAT THE OTHER DOCUMENTARY EVIDENCE REFERRED TO BY THE REGULATION AND SF 33A "MAY BE CONSIDERED ONLY WHERE THE BEST AND PRIMARY EVIDENCE STIPULATED BY THE REGULATION - THE INSTALLATION'S TIME STAMP - IS NOT AVAILABLE FOR EXAMINATION UNDER THE CIRCUMSTANCES." YOU ALSO CONTEND THAT IN ANY EVENT THE POST OFFICE DEPARTMENT FORM IS "TESTIMONIAL" RATHER THAN "DOCUMENTARY" EVIDENCE.

TO ACCEPT THIS ADDITIONAL RATIONALE WOULD BE TO ALLOW SO-CALLED "RULES OF EVIDENCE" - THE PURPOSE OF WHICH ULTIMATELY IS MERELY TO PERMIT THE ACHIEVEMENT OF REASONABLE CERTITUDE CONCERNING THE OCCURRENCE OF PAST EVENTS - TO PROVE AS A FACT THAT WHICH IS NOT A FACT. POST OFFICE DEPARTMENT FORM 3883, A PHOTOCOPY OF WHICH IS A PART OF THE ADMINISTRATIVE FILE, LISTS 7:15 A.M., NOVEMBER 12, 1969, AS THE HOUR AND DATE OF DELIVERY OF THE MAIL LISTED THEREON AND IS SIGNED BY A POST OFFICE DEPARTMENT EMPLOYEE AND BY AN INDIVIDUAL IDENTIFIED BY THE FORM AS THE AGENT OF THE ADDRESSEE, FRANKFORD ARSENAL. NEITHER ASPR 2 303.2(III), DEALING WITH THE CONSIDERATION OF LATE MAILED BIDS FOR AWARD, NOR PARAGRAPH 8 OF SF 33A ESTABLISHES ANY GRADE OR LEVEL OF "BEST EVIDENCE" AS BETWEEN THE INSTALLATION'S TIME STAMP AND ANY APPROPRIATE POST OFFICE DEPARTMENT FORMS. RATHER, BOTH STATE ONLY THAT TIMELY RECEIPT SHOULD BE DETERMINED BY "EXAMINATION OF AN APPROPRIATE DATE OR TIME STAMP (IF ANY) OF SUCH INSTALLATION, OR OF OTHER DOCUMENTARY EVIDENCE OF RECEIPT (IF READILY AVAILABLE) WITHIN THE CONTROL OF SUCH INSTALLATION OR OF THE POST OFFICE SERVING IT." FINALLY, THE TERM "DOCUMENTARY EVIDENCE" IS DEFINED BY BLACK'S LAW DICTIONARY, FOURTH EDITION, AS "EVIDENCE SUPPLIED BY WRITINGS AND DOCUMENTS OF EVERY KIND IN THE WIDEST SENSE OF THE TERM; EVIDENCE DERIVED FROM CONVENTIONAL SYMBOLS (SUCH AS LETTERS) BY WHICH IDEAS ARE REPRESENTED ON MATERIAL SUBSTANCES" - A DEFINITION WHICH APPLIES EQUALLY TO THE FRANKFORD ARSENAL TIME STAMP AS TO THE POST OFFICE DEPARTMENT FORM.

WE MUST DISAGREE WITH YOUR POSITION THAT THE EMCO BID SHOULD HAVE BEEN REJECTED AS INEXCUSABLY LATE. IT IS TRUE THAT ASPR 2-303(III) REQUIRES THAT ANY LATENESS IN DELIVERY TO THE BID OPENING ROOM AFTER TIMELY DELIVERY TO THE GOVERNMENT INSTALLATION MUST BE CAUSED "SOLELY" BY GOVERNMENT MISHANDLING AND THAT HAD EMCO PROPERLY ADDRESSED ITS BID ENVELOPE, IT WOULD IN ALL PROBABILITY HAVE REACHED THE BID OPENING ROOM IN TIME. HOWEVER, NOTWITHSTANDING THESE FACTS, IT IS OUR CONCLUSION THAT BUT FOR GOVERNMENT MISHANDLING AFTER RECEIPT AT THE FRANKFORD ARSENAL MAILROOM, THE EMCO BID AS WELL AS ALL OTHER "ACCOUNTABLE" MAIL DELIVERED ON NOVEMBER 12 WOULD HAVE BEEN OPENED SUFFICIENTLY BEFORE 11:00 A.M. TO PERMIT ROUTING TO THE BID OPENING ROOM BEFORE THAT TIME.

IN THIS REGARD, AS INDICATED ABOVE, NOT MORE THAN 37 PIECES OF ACCOUNTABLE MAIL WERE RECEIVED FOR PROCESSING BY TWO CLERKS AT 7:30 A.M. ON NOVEMBER 12. CONSIDERING THE FACT THAT APPROXIMATELY 3-1/2 HOURS REMAINED AFTER RECEIPT OF INCOMING MAIL IN THE MAILROOM BEFORE BID OPENING AT 11:00 A.M., ALL THAT WOULD HAVE BEEN REQUIRED OF THE TWO CLERKS ASSIGNED TO THE PROCESSING OF INCOMING MAIL TO HAVE PROCESSED ALL OF THE "ACCOUNTABLE" MAIL BEFORE 11:00 A.M. WOULD HAVE BEEN FOR EACH CLERK TO HAVE HANDLED ROUGHLY 5 PIECES OF MAIL EACH HOUR. INASMUCH AS PROCESSING APPARENTLY ENTAILS MERELY THE OPENING OF ENVELOPES FOR PURPOSES OF ASCERTAINING THEIR ULTIMATE DESTINATIONS THERE WOULD APPEAR TO BE LITTLE QUESTION BUT THAT THE EMCO BID SHOULD HAVE BEEN IDENTIFIED AS A BID SUFFICIENTLY BEFORE 11:00 A.M. TO ALLOW ITS TIMELY DELIVERY TO THE BID OPENING ROOM NOTWITHSTANDING THE FACT THAT IT WAS NOT IDENTIFIED AS A BID, AND THAT ITS LATE RECEIPT WAS THEREFORE DUE SOLELY TO GOVERNMENT MISHANDLING.

SUPPORT FOR THIS POSITION IS FOUND IN A SIMILAR CASE, B-162390, NOVEMBER 20, 1967, WHEREIN THE FAILURE TO LIST THE DATE AND TIME OF OPENING ON A BID ENVELOPE RESULTED IN THE ENVELOPE NOT RECEIVING EXPEDITED HANDLING WHICH WOULD HAVE ASSURED TIMELY RECEIPT BUT WHERE THE LATE RECEIPT WAS ACTUALLY CAUSED NOT BY THE OMITTED INFORMATION BUT BY A MISSED PICKUP BY THE BASE MAIL DELIVERY SERVICE. IN THAT DECISION, OUR OFFICE CONCLUDED THAT THE LATE DELIVERY WAS CAUSED BY THE MISSED PICKUP RATHER THAN THE FAILURE TO SET OUT THE REQUIRED INFORMATION ON THE BID ENVELOPE. THAT DECISION STATED:

*** WHILE IT MAY BE INFERRED THAT THE WYLE LABORATORIES BID WOULD HAVE RECEIVED EXPEDITED DELIVERY IF THE DATE AND TIME OF THE SCHEDULED OPENING HAD BEEN PLACED ON THE BID ENVELOPE IN ACCORDANCE WITH PARAGRAPH 5(A) OF THE SOLICITATION INSTRUCTION, WE CANNOT AGREE, AS YOU CONTEND, THAT THE FAILURE TO SUPPLY THIS INFORMATION IS, IN THE INSTANT SITUATION, RELEVANT TO THE DETERMINATION THAT THE BID WAS MISHANDLED UNDER THE ESTABLISHED DELIVERY PROCEDURES. CLEARLY, THE LACK OF SUCH INFORMATION DID NOT CONTRIBUTE TO THE FAILURE OF THE DELIVERY TRUCK PERSONNEL TO EFFECT TIMELY DELIVERY OF THE WYLE LABORATORIES BID.

IT IS EQUALLY AS CLEAR, IN OUR OPINION, THAT THE LACK OF THE REQUIRED BID INFORMATION IN THE INSTANT CASE DID NOT CONTRIBUTE TO THE FAILURE OF THE MAILROOM PERSONNEL TO HANDLE THE INCOMING MAIL WITH NORMAL EXPEDITION.

ON THE QUESTION OF THE UNINITIALED PRICE ALTERATION, A VISUAL INSPECTION OF THE ORIGINAL EMCO BID REVEALS THAT ITEM PRICES OF $1.75 AND $1.74 WERE INITIALLY QUOTED FOR SUBITEMS (A) AND (B) OF INVITATION ITEM 002. THESE ITEM PRICES WERE CHANGED TO $1.747 AND $1.737 BY THE APPLICATION OF A WHITE CORRECTIVE SUBSTANCE TO THE ORIGINAL PRICES AND THE TYPING OVER OF THE NEW REDUCED PRICES. THE CHANGES WERE NOT INITIALED. VISUAL INSPECTION OF THE EMCO BID ALSO REVEALS, BECAUSE OF INCOMPLETE COVERAGE OF THE ORIGINAL PRICES BY THE CORRECTIVE SUBSTANCE, THAT ONLY THE ONE CHANGE WAS MADE. ADDITIONALLY, THE REDUCED PRICES ARE OBVIOUSLY TYPED BY TYPEWRITER USING THE SAME TYPE FACE AS WAS USED FOR THE ORIGINAL PRICES.

IT IS YOUR POSITION THAT THE EMCO BID WAS NONRESPONSIVE BECAUSE THE INVITATION ALTERATIONS WERE NOT INITIALED BY THE PERSON SIGNING THE BID AND BECAUSE IT IS NOT CLEAR, IN YOUR ESTIMATION, WHETHER THE ALTERATIONS WERE IN FACT MADE BEFORE THE BID OPENING TIME OF 11:00 A.M. WITH REGARD TO YOUR FIRST CONTENTION, OUR OFFICE HAS HELD ON MANY OCCASIONS THAT THE FAILURE TO INITIAL BID CHANGES IS A MINOR INFORMALITY SO LONG AS THERE IS NO QUESTION AS TO THE AMOUNT INTENDED. IN THIS REGARD THE FOLLOWING STATEMENT WAS MADE IN 49 COMP. GEN. 541, MARCH 5, 1970:

*** WE HAVE CONSISTENTLY HELD THAT IF A BIDDER FAILS TO INITIAL AN ERASURE IN THE BID PRICE, BUT THE ERASURE AND CORRECTION LEAVE NO DOUBT AS TO WHAT THE INTENDED BID PRICE IS, SUCH A BIDDER HAS MADE A LEGALLY BINDING OFFER, ACCEPTANCE OF WHICH WOULD CONSUMMATE A VALID CONTRACT WHICH THE BIDDER WOULD BE OBLIGED TO PERFORM AT THE OFFERED PRICE. UNDER SUCH CIRCUMSTANCES WE HAVE CONCLUDED THAT THE REQUIREMENT FOR INITIALING CHANGES IS A MATTER OF FORM WHICH MAY BE CONSIDERED AN INFORMALITY AND WAIVED IN THE INTEREST OF THE GOVERNMENT. SEE B149134, SEPTEMBER 20, 1962; B-147106(2), SEPTEMBER 25, 1961; B-148081, MARCH 5, 1962; B-148560, APRIL 10, 1962; AND B-159376, AUGUST 2, 1966. YOU MAINTAIN, HOWEVER, THAT BECAUSE THE EMCO BID WAS NOT RECEIVED IN THE BID OPENING ROOM UNTIL 2-1/2 HOURS AFTER BID OPENING, IT CANNOT BE SAID WITH CERTAINTY THAT THE PRICE CHANGES WERE MADE BEFORE BID OPENING. IN SUBSTANTIATION OF THIS CONTENTION YOU POINT OUT THAT THE EMCO BID WAS OPENED BEFORE BEING DELIVERED TO THE BID OPENING ROOM AT 1:30 P.M. BUT THAT NEITHER THE SIGNATURE AND POSITION OF THE PERSON OPENING THE BID NOR AN EXPLANATION BY THE OFFICIAL DESIGNATED FOR THE PURPOSE OF OPENING BIDS OF THE FACTS SURROUNDING THE OPENING WAS WRITTEN ON THE ENVELOPE, AS REQUIRED BY ASPR 2 -401(B). THIS GIVES RISE, IN YOUR OPINION, TO THE POSSIBILITY THAT THE BID CAME BACK INTO EMCO'S HANDS AFTER BID OPENING BUT BEFORE DELIVERY TO THE BID OPENING ROOM WITH THE CONCURRENT POSSIBILITY THAT THE CHANGED PRICES COULD HAVE BEEN INSERTED AT THAT TIME TO THE DETRIMENT OF THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM AND THE PREJUDICE OF OTHER BIDDERS.

THE CASES QUOTED AND CITED ABOVE REQUIRE THAT ANY ALTERATIONS IN BID PRICES BE MADE BEFORE BID OPENING IN ORDER TO BE ACCEPTABLE. HOWEVER, WE DO NOT SHARE YOUR FEAR THAT THE CHANGES IN THIS INSTANCE COULD HAVE BEEN MADE AFTER BID OPENING. IN OUR OPINION, THE FACTS OF RECORD REASONABLY ESTABLISH THAT THE EMCO BID REMAINED UNOPENED UNTIL 1:30 P.M. WHEN IT WAS TIME-STAMPED BY THE FRANKFORD ARSENAL MAILROOM. IN THIS REGARD, WHILE THE ENVELOPE WAS NOT ANNOTATED IN PRECISELY THE MANNER CONTEMPLATED BY ASPR 2- 401(B) IT CONTAINED, IN ADDITION TO THE 1:30 P.M. TIME STAMP, THE FOLLOWING NOTATION: "OPENED IN MR FOR ROUTING PURPOSE. T.J.L. DAAA25-70-B -0171." THE REASONABLE IMPORT OF THIS NOTATION, IN OUR OPINION, IS THAT THE ENVELOPE WAS NOT OPENED BEFORE BEING STAMPED AT 1:30 P.M. THE ENVELOPE ALSO WAS TIME-STAMPED IN THE CONTRACTING OFFICE AT 2:09 P.M. HOWEVER, THERE IS NO INDICATION THAT THERE WAS TIME OR OPPORTUNITY FOR EMCO TO RECLAIM AND ALTER ITS BID IN THE 39 MINUTES DURING WHICH THE ENVELOPE WAS OPENED, IDENTIFIED AS A BID, AND FORWARDED TO THE CONTRACTING OFFICE.

FINALLY, HAD THE QUESTIONED CHANGES NOT BEEN MADE IN THE EMCO BID, IT STILL WOULD HAVE BEEN EVALUATED AS LOW ACCORDING TO THE CONTRACTING OFFICER. SINCE THERE IS NO PROHIBITION AGAINST A REDUCTION IN PRICE BY THE LOW QUALIFIED OFFEROR EVEN AFTER BID OPENING (BECAUSE THERE IS NO PREJUDICE TO OTHER BIDDERS) THERE IS NO NECESSITY TO CONCLUSIVELY ESTABLISH THAT THE INITIALED CHANGES WERE IN FACT MADE BEFORE BID OPENING. SEE 37 COMP. GEN. 251, 254 (1957).

IN ACCORDANCE WITH THE ABOVE CONSIDERATION, THEREFORE, WE MUST CONCLUDE THAT THE EMCO BID WAS AN ACCEPTABLE LATE BID AND THAT NEITHER THE FACT THAT IT WAS OPENED OUT OF THE PRESENCE OF THE PROPER OFFICIAL NOR THE FACT THAT PRICE CHANGES WERE UNINITIALED SERVED TO RENDER IT UNACCEPTABLE. ACCORDINGLY, WE CONCLUDE THAT AWARD WAS PROPERLY MADE TO EMCO AS THE LOW RESPONSIBLE AND RESPONSIVE BIDDER.