B-169013, MAR. 24, 1970

B-169013: Mar 24, 1970

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WAS FAIR AND PROPER SINCE REQUIREMENTS OF INVITATION AND CIRCUMSTANCES OF WORK INVOLVED NECESSITATED IMMEDIATE ACTION. PROVISIONS FOR CONSIDERING LATE BIDS DUE TO CIRCUMSTANCES BEYOND BIDDER'S CONTROL DO NOT RELIEVE BIDDER OF PRIMARY RESPONSIBILITY OF SEEING THAT BIDS ARE RECEIVED BEFORE AWARD IS MADE AND CONTRACTING OFFICER IS ONLY REQUIRED TO ACT IN FAIR AND IMPARTIAL MANNER AS REQUIRED BY FACTS AND CIRCUMSTANCES OF CASE. N62381-70-B-0090 WAS ISSUED BY MSTS ON JANUARY 23. THE BIDS RECEIVED WERE OPENED AT THAT TIME. STARKE WAS ADVISED THAT A BID FROM DETYENS SHIPYARDS. WAS NOT RECEIVED IN THE AFTERNOON MAIL. WAS RECEIVED ON FEBRUARY 7. YOUR PROTEST IS AGAINST THE FAILURE OF THE CONTRACTING OFFICER TO WITHHOLD AWARD UNTIL YOUR BID WAS RECEIVED.

B-169013, MAR. 24, 1970

BIDS--LATE--EXTENSION OF BID OPENING TIME CONTRACTING OFFICER'S ACTION IN AWARDING CONTRACT PENDING RECEIPT OF BID WHICH HAD BEEN SENT AIR MAIL, CERTIFIED, SPECIAL DELIVERY 2 DAYS BEFORE BID OPENING DATE, WAS FAIR AND PROPER SINCE REQUIREMENTS OF INVITATION AND CIRCUMSTANCES OF WORK INVOLVED NECESSITATED IMMEDIATE ACTION. PROVISIONS FOR CONSIDERING LATE BIDS DUE TO CIRCUMSTANCES BEYOND BIDDER'S CONTROL DO NOT RELIEVE BIDDER OF PRIMARY RESPONSIBILITY OF SEEING THAT BIDS ARE RECEIVED BEFORE AWARD IS MADE AND CONTRACTING OFFICER IS ONLY REQUIRED TO ACT IN FAIR AND IMPARTIAL MANNER AS REQUIRED BY FACTS AND CIRCUMSTANCES OF CASE.

TO DETYENS SHIPYARDS, INCORPORATED:

THIS CONCERNS YOUR PROTEST OF FEBRUARY 6, 1970, AGAINST THE CONTRACT AWARDED UNDER INVITATION FOR BIDS NO. N62381-70-B-0090 BY THE MILITARY SEA TRANSPORTATION SERVICE (MSTS), ATLANTIC AREA, DEPARTMENT OF THE NAVY.

INVITATION FOR BIDS NO. N62381-70-B-0090 WAS ISSUED BY MSTS ON JANUARY 23, 1970, FOR BIDS ON THREE BASES: PART I, REGULAR OVERHAUL; PART II, DRYDOCKING, AND PART III, A COMBINATION OF PARTS I AND II. THE INVITATION PROVIDED BIDS WOULD BE OPENED ON FEBRUARY 6, 1970, AT 11:00 A.M; AND THE BIDS RECEIVED WERE OPENED AT THAT TIME. AT APPROXIMATELY 11:30 A.M; MR. STARKE OF DETYENS SHIPYARDS, INCORPORATED, CALLED TO INQUIRE AS TO THE OUTCOME OF BIDDING. MR. STARKE WAS ADVISED THAT A BID FROM DETYENS SHIPYARDS, INCORPORATED, HAD NOT BEEN RECEIVED AND IN RESPONSE MR. STARKE STATED THAT HE COULD NOT UNDERSTAND WHY A BID HAD NOT BEEN RECEIVED SINCE A BID HAD BEEN MAILED ON FEBRUARY 4, 1970, AIR MAIL, CERTIFIED, SPECIAL DELIVERY. IN VIEW OF THAT INFORMATION, THE CONTRACTING OFFICER DELAYED AWARD UNTIL AFTER RECEIPT OF THE AFTERNOON MAIL. WHEN A BID FROM DETYENS SHIPYARDS, INCORPORATED, WAS NOT RECEIVED IN THE AFTERNOON MAIL, THE CONTRACTING OFFICER MADE AWARD TO NORFOLK SHIPBUILDING AND DRYDOCK CORPORATION. THE BID OF DETYENS SHIPYARDS, INCORPORATED, WAS RECEIVED ON FEBRUARY 7, 1970.

ESSENTIALLY, YOUR PROTEST IS AGAINST THE FAILURE OF THE CONTRACTING OFFICER TO WITHHOLD AWARD UNTIL YOUR BID WAS RECEIVED. THIS OFFICE WAS ADVISED THE CONTRACTING OFFICER CONSIDERED THE MAKING OF AWARD ON FEBRUARY 6, 1970, NECESSARY SINCE THE INVITATION FOR BIDS WITH RESPECT TO THE DRYDOCKING PORTION OF THE WORK STATED "IT IS ANTICIPATED THAT THE SHIP WILL DEPART FOR SHIPYARD ON/OR ABOUT 8 FEBRUARY 1970". THE INVITATION FOR BIDS FURTHER PROVIDED THAT ALL WORK SHOULD BE COMPLETED WITHIN FIVE CALENDAR DAYS FROM HOUR AND DATE OF AVAILABILITY, AND THAT THE SHIP WOULD DEPART FOR THE REGULAR OVERHAUL PORTION OF THE WORK ON/OR ABOUT FEBRUARY 13, 1970, A PERIOD OF FIVE DAYS AFTER DEPARTING FOR THE DRYDOCKING PORTION OF THE WORK. BECAUSE OF THIS REQUIREMENT IN THE INVITATION TOGETHER WITH THE FACT THAT THE MSTS OFFICE WAS CLOSED ON SATURDAY, FEBRUARY 7, 1970, THE CONTRACTING OFFICER WAS REQUIRED TO MAKE AWARD ON FRIDAY, FEBRUARY 6, 1970, BEFORE THE SHIP'S DEPARTURE DATE. ARMED SERVICES PROCUREMENT REGULATION 2-303.7 PROVIDES FOR CONSIDERATION OF LATE BIDS ONLY IF THE BID IS RECEIVED PRIOR TO AWARD.

WHILE IN THIS INSTANCE THE PERIOD OF TIME BETWEEN BID OPENING AND AWARD WAS SHORT, THAT PERIOD OF TIME WAS NOT ARTIFICIALLY IMPOSED BUT WAS NECESSARY FOR THE REASONS ENUMERATED. UNDER THESE CIRCUMSTANCES, WE BELIEVE THE CONTRACTING OFFICER ACTED FAIRLY AND PROPERLY IN WITHHOLDING AWARD AS LONG AS POSSIBLE IN ORDER TO CONSIDER YOUR BID IF IT WERE RECEIVED IN TIME. IN ANY EVENT THE PROVISIONS IN THE REGULATIONS FOR CONSIDERING BIDS WHICH ARE LATE DUE TO CIRCUMSTANCES BEYOND A BIDDER'S CONTROL DO NOT RELIEVE BIDDERS OF THE PRIMARY RESPONSIBILITY OF SEEING THAT THEIR BIDS ARE RECEIVED BEFORE AN AWARD IS MADE. EQUALLY, WE DO NOT BELIEVE THIS OFFICE WOULD BE JUSTIFIED IN ESTABLISHING AN ARBITRARY PERIOD OF TIME DURING WHICH AWARD MUST BE WITHHELD PENDING THE POSSIBLE RECEIPT OF A LATE BID, WHICH EVEN WHEN RECEIVED MAY NOT BE ENTITLED TO CONSIDERATION IN ACCORDANCE WITH THE REGULATIONS. RATHER, THE CONTRACTING OFFICER IS REQUIRED ONLY TO ACT IN A FAIR AND IMPARTIAL MANNER AS REQUIRED BY THE FACTS AND CIRCUMSTANCES OF A PARTICULAR CASE AS THE CONTRACTING OFFICER DID IN THIS INSTANCE.