B-169265, APRIL 15, 1970, 49 COMP. GEN. 697

B-169265, APRIL 15, 1970, 49 COMP. GEN. 697

SALES -- BIDS -- LATE -- AGENCY HANDLING THE FAILURE TO ESTABLISH PROCEDURES TO PICK UP TIMBER SALE BIDS ADDRESSED IN ACCORDANCE WITH THE INVITATION FOR BIDS TO A POST OFFICE BOX AND THE FOREST SUPERVISOR DESIGNATED TO RECEIVE BIDS, WHOSE OFFICE WAS BUT A SHORT DISTANCE FROM THE POST OFFICE, RESULTED IN THE LATE DELIVERY OF A BID THAT HAD BEEN TIMELY RECEIVED AT THE POST OFFICE, AND THE BID CONSTRUCTIVELY DELIVERED TO THE FOREST SERVICE FACILITY WHEN DEPOSITED AT THE POST OFFICE IS FOR CONSIDERATION PURSUANT TO SECTION 1 2.303-2 OF THE FEDERAL PROCUREMENT REGULATIONS ON THE BASIS THE MISHANDLING IS CHARGEABLE TO THE GOVERNMENT. CONSIDERATION OF THE BID MAY NOT BE AVOIDED BY DISCARDING THE BIDS RECEIVED AND READVERTISING THE TIMBER SALE AS NO COGENT OR COMPELLING REASON EXISTS FOR SUCH ACTION.

TO THE SECRETARY OF AGRICULTURE, APRIL 15, 1970:

BY LETTER 2430 OF MARCH 6, 1970, THE DEPUTY CHIEF, FOREST SERVICE, ADVISED THAT THE MERIDIAN PINE COMPANY BROUGHT A SUIT IN THE UNITED STATES DISTRICT COURT IN IDAHO TO ENJOIN AN AWARD TO ANOTHER BIDDER UNDER TIMBER SALE 001 ON THE GROUNDS THAT THE BID OF MERIDIAN PINE COMPANY SHOULD HAVE BEEN CONSIDERED A TIMELY BID. THE ATTORNEY FOR THE MERIDIAN PINE COMPANY AND THE UNITED STATES ATTORNEY HAVE STIPULATED THAT THE SUIT WILL BE HELD IN ABEYANCE UNTIL THE FOREST SERVICE HAS OBTAINED A DECISION OF OUR OFFICE AS TO THE TIMELINESS OF THE MERIDIAN PINE COMPANY BID.

BY LETTER 2450 OF MARCH 13, 1970, FROM THE ACTING DEPUTY CHIEF, FOREST SERVICE, ADDITIONAL INFORMATION RELATIVE TO THE MATTER WAS FURNISHED TO OUR OFFICE.

THE SUBJECT TIMBER SALE WAS ADVERTISED IN THE WEISER SIGNAL-AMERICAN ON DECEMBER 25, 1969. THE ADVERTISEMENT FOR BIDS, INSOFAR AS PERTINENT, PROVIDED:

***SEALED BIDS WILL BE RECEIVED BY THE FOREST SUPERVISOR OR HIS AUTHORIZED REPRESENTATIVE IN THE OFFICE OF THE FOREST SUPERVISOR, MCCALL, IDAHO, AT 2:00 P.M., JANUARY 26, 1970, *** . THE "BID FOR ADVERTISED TIMBER" FORM PREPARED BY THE FOREST SERVICE FOR THE IMMEDIATE SALE STATED NEAR THE TOP OF THE FIRST PAGE: (TITLE AND ADDRESS OF FOREST OFFICER RECEIVING BIDS) FOREST SUPERVISOR BOX 1026 MCCALL, IDAHO 83638. "INSTRUCTIONS TO BIDDERS" ARE PROVIDED BEGINNING AT THE BOTTOM OF THE FIRST PAGE OF THE FORM. PARAGRAPH 4 OF THE INSTRUCTIONS, INSOFAR AS PERTINENT, PROVIDES: SUBMISSION OF SEALED BIDS. SEALED BIDS MUST BE SUBMITTED TO THE FOREST OFFICER, DESIGNATED BY THE ADVERTISEMENT AS THE RECEIVING OFFICER, AT OR PRIOR TO THE TIME ESTABLISHED BY THE ADVERTISEMENT. ***

PARAGRAPH 5 OF THE INSTRUCTIONS STATES: PUBLIC OPENING OF SEALED BIDS. SEALED BIDS WILL BE PUBLICLY OPENED AND POSTED AT THE TIME SET FOR OPENING IN THE ADVERTISEMENT. THE ONLY BID OPENED AT 2 P.M. ON JANUARY 26, 1970, WAS SUBMITTED BY TIMBER PRODUCTS. NO PROVISION WAS MADE IN THE ADVERTISEMENT FOR BIDS OR IN THE INSTRUCTIONS TO BIDDERS FOR THE CONSIDERATION OF LATE BIDS. HOWEVER, PARAGRAPH 6 OF FOREST SERVICE MANUAL TITLE 2431.74 STATES, "IF A BID IS RECEIVED AFTER THE TIME SET FOR THE OPENING OF BIDS, THE RULES IN FPR 1-2.303 WILL GOVERN CONSIDERATION OR RETURN." FPR SEC. 1-2.303 IS THAT PART OF THE FEDERAL PROCUREMENT REGULATIONS WHICH PROVIDES FOR THE CONSIDERATION OF A LATE BID WHEN IT IS RECEIVED BEFORE AWARD AND THE LATENESS IS DUE SOLELY TO A DELAY IN THE MAILS OR MISHANDLING BY THE GOVERNMENT INSTALLATION. THE FOREST SERVICE MANUAL PROVIDES THAT THE LATE BID PROVISIONS IN THE PROCUREMENT REGULATIONS WILL BE APPLIED TO TIMBER SALES.

THE FOREST SERVICE PICKS UP THE MAIL FROM ITS BOX AT THE MCCALL, IDAHO, POST OFFICE TWICE A DAY. THE FIRST PICKUP IS BETWEEN 8:30 AND 8:45 IN THE MORNING. THE SECOND PICKUP IS BETWEEN 2:30 AND 2:45 IN THE AFTERNOON. THE BID FROM MERIDIAN PINE COMPANY WAS IN THE AFTERNOON PICKUP. IT WAS DELIVERED TO THE FOREST SUPERVISOR'S OFFICE AT 2:55 P.M. THE FOREST SERVICE DETERMINED THE BID WAS A LATE BID AND WOULD NOT CONSIDER IT. AT THE REQUEST OF THE BIDDER, THE FOREST SERVICE RECONSIDERED THE MATTER AND SUSTAINED THE DETERMINATION.

THE BIDDER THEREAFTER FILED SUIT. ESSENTIALLY, THE POSITION OF THE BIDDER IN ITS FORMAL COMPLAINT IS THAT THE BID WAS DEPOSITED IN THE FOREST SERVICE POST OFFICE BOX MORE THAN 2-1/2 HOURS BEFORE THE BID OPENING AND THAT SUCH DEPOSIT AMOUNTED TO CONSTRUCTIVE DELIVERY AND THAT THE FAILURE TO PICK UP THE BID AT THE POST OFFICE PRIOR TO THE BID OPENING TIME WAS ATTRIBUTABLE TO MISHANDLING BY THE FOREST SERVICE. IN VIEW THEREOF, THE BIDDER SUGGESTS THAT ITS BID SHOULD BE CONSIDERED OR, IN THE ALTERNATIVE, THAT ALL BIDS SHOULD BE REJECTED AND THE SALE READVERTISED.

AS NOTED ABOVE, THE LATE BID PROVISIONS IN FPR SEC. 1-2.303-2 PROVIDE FOR THE CONSIDERATION OF LATE BIDS WHEN THE DELAY IS DUE TO MISHANDLING BY THE GOVERNMENT INSTALLATION. WHERE BIDS ARE RECEIVED AT ONE PLACE BY THE GOVERNMENT FOR DELIVERY BY IT TO ANOTHER PLACE SPECIFIED IN THE INVITATION, OUR OFFICE HAS HELD THAT THE GOVERNMENT HAS A DUTY TO ESTABLISH PROCEDURES CALCULATED TO INSURE THAT THE PHYSICAL TRANSMISSION OF BIDS IS ACCOMPLISHED WITHIN A REASONABLE TIME AFTER RECEIPT. HENCE, MISHANDLING MAY BE CHARGED TO THE GOVERNMENT WHERE THE DELAY IN THE TRANSMISSION OF BIDS IS DUE TO THE FAILURE OF A FACILITY TO USE A TRANSMITTAL PROCEDURE THAT WOULD HAVE PERMITTED THE BID TO BE DELIVERED TO THE CONTRACTING OFFICER WITHIN A REASONABLE TIME BEFORE BID OPENING. COMP. GEN. 508 (1963); 43 ID. 317 (1963); AND B 152545, OCTOBER 18, 1963.

THE POST OFFICE AT MCCALL, IDAHO, HAS INDICATED THAT THE BID WAS DELIVERED TO THE FOREST SERVICE POST OFFICE BOX NO LATER THAN 11:30 A.M. ON JANUARY 26. FURTHER, IT APPEARS THAT THE POST OFFICE BOX IS ONLY ABOUT 1/4 MILE FROM THE FOREST SERVICE SUPERVISOR'S OFFICE AND THAT IT TAKES ONLY ABOUT 10 MINUTES FOR A BID TO BE PICKED UP AT THE POST OFFICE AND DELIVERED TO THE FOREST SUPERVISOR. IN THE CIRCUMSTANCES, IT APPEARS THAT THE BID OF THE MERIDIAN PINE COMPANY WAS ALLOWED TO REMAIN IN THE FOREST SERVICE POST OFFICE BOX FOR 3 HOURS BEFORE IT WAS PICKED UP BY THE FOREST SERVICE SHORTLY AFTER BID OPENING. IN VIEW OF THE CLOSE PROXIMITY OF THE POST OFFICE TO THE SUPERVISOR'S OFFICE, WE BELIEVE THAT THE FOREST SERVICE HAD A RESPONSIBILITY TO PROVIDE A PROCEDURE WHEREUNDER ITS POST OFFICE BOX WOULD BE CHECKED FOR BID ENVELOPES WHICH HAD BEEN RECEIVED BY THE POST OFFICE SUBSEQUENT TO THE USUAL MORNING MAIL PICKUP. CONSIDERING THAT IT IS THE DUTY OF THE GOVERNMENT CONTRACTING INSTALLATIONS TO USE REASONABLE PROCEDURES DESIGNED TO PERMIT TIMELY RECEIPT OF BIDS, WE CONCLUDE THAT THE BID OF THE MERIDIAN PINE COMPANY WAS MISHANDLED SINCE ITS TIMELY RECEIPT COULD HAVE BEEN ASSURED BY A CHECK OF THE POST OFFICE BOX SOMETIME PRIOR TO 2 P.M. ON JANUARY 26. OF COURSE, THE WHOLE SITUATION COULD HAVE BEEN AVOIDED BY PROVIDING IN THE ADVERTISEMENT FOR BIDS A BID OPENING TIME WITHIN A REASONABLE TIME AFTER THE USUAL 2:30 P.M. MAIL PICKUP.

IN THE CIRCUMSTANCES, IT IS OUR OPINION THAT THE BID OF MERIDIAN PINE COMPANY SHOULD BE CONSIDERED AS HAVING BEEN TIMELY RECEIVED.

THE FOREST SERVICE HAS ADVISED THAT IF OUR OFFICE HOLDS, AS IT DOES, THAT THE BID IN QUESTION SHOULD BE CONSIDERED, IT PROPOSES TO REJECT ALL BIDS AND READVERTISE. OUR OFFICE HAS STATED THAT IT RECOGNIZES THAT ADMINISTRATIVE OFFICES HAVE AUTHORITY TO REJECT ALL BIDS AND READVERTISE AND THAT SUCH AUTHORITY IS EXTREMELY BROAD AND ORDINARILY WILL NOT BE QUESTIONED, 40 COMP. GEN. 671, 674 (1961). HOWEVER, IN MASSMAN CONSTRUCTION COMPANY V UNITED STATES, 102 CT. CL. 699, 719 (1945), IT WAS INDICATED THAT BIDS SHOULD NOT BE REJECTED AND READVERTISED WHERE THERE ARE NO COGENT REASONS FOR DOING SO. IN CIRCUMSTANCES WHERE NO COGENT OR COMPELLING REASONS EXISTED TO REJECT ALL BIDS AND READVERTISE, OUR OFFICE HAS HELD SUCH REJECTION TO BE IMPROPER AND HAS DIRECTED CANCELLATION OF AWARDS MADE AFTER READVERTISING. 40 COMP. GEN. 671 (1961), AND DECISIONS CITED THEREIN.

THE FOREST SERVICE HAS INDICATED THAT IT WOULD ONLY READVERTISE THE SALE IF THE LATE BID IS DETERMINED TO BE ACCEPTABLE FOR CONSIDERATION; OTHERWISE, IT WOULD MAKE AWARD TO THE OTHER BIDDER. HOWEVER, THE BID IN QUESTION HAS CONTINUOUSLY BEEN IN THE POSSESSION OF THE FOREST SERVICE AND IT APPEARS THAT THE REASON FOR REJECTING BIDS AND READVERTISING WOULD BE TO AVOID CONSIDERATION OF THAT BID. THE PROPOSED REJECTION OF BIDS AND READVERTISEMENT UNDER SUCH CIRCUMSTANCES WOULD BE IMPROPER AND CONTRARY TO THE PRINCIPLES STATED ABOVE.