B-169468, MAY 27, 1970

B-169468: May 27, 1970

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EVEN IF GAO DETERMINED THAT BID SHOULD NOT HAVE BEEN REJECTED. ARE NOT CONTRACTS OF UNITED STATES. ARE NOT CONTRACTS OF UNITED STATES AND GENERAL RULES GOVERNING DIRECT FEDERAL PROCUREMENTS ARE NOT BINDING UPON AID. EVEN IF GAO DETERMINED THAT BID SHOULD NOT HAVE BEEN REJECTED. WHERE FEDERAL PROCUREMENT STATUTES ARE NOT INVOLVED. EVERS & MARTIN: REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER OF APRIL 1 AND 3. AID HAVE FURNISHED YOU WITH COPIES OF THEIR RESPECTIVE REPORTS OF APRIL 14 AND MAY 7. AID HAS PUBLISHED REGULATIONS PROVIDING THE PROCEDURES TO BE FOLLOWED BY IMPORTERS WHENEVER A COMMODITY PROCUREMENT IS TO BE FINANCED BY AID. 22 CFR 201.22 (A) (2). IT IS PROVIDED: "STATEMENT REGARDING SUBMISSION OF BIDS.

B-169468, MAY 27, 1970

FOREIGN AID PROGRAMS--CONTRACTS--BID RECEIVED LATE REGARDING PROCUREMENT FINANCED BY AID LOAN AGREEMENT, WITH UNSUCCESSFUL BIDDER QUESTIONING REJECTION OF REPORTEDLY LATE BID BY KOREAN COMPANY'S AGENT IN PENNSYLVANIA, UNDER IFB PROVIDING THAT LATE BIDS WOULD BE CONSIDERED ONLY WHERE RECEIVED AT PLACE DESIGNATED PRIOR TO AWARD OR WHERE THEY BECAME LATE BECAUSE OF MISHANDLING BY PURCHASER, EVEN IF GAO DETERMINED THAT BID SHOULD NOT HAVE BEEN REJECTED, REJECTION WOULD NOT BE SUBJECT TO LEGAL OBJECTION BY THIS OFFICE SINCE, AS PREVIOUSLY HELD, CONTRACTS FINANCED BY AID LOAN AGREEMENTS, WHILE SUBJECT TO AID APPROVAL, ARE NOT CONTRACTS OF UNITED STATES. SEE COMP. GEN. DECS. CITED. BIDS-- COMPETITIVE SYSTEM--FEDERAL AID, GRANTS, ETC.- COMPLIANCE WITH REQUIREMENTS CONTRACTS FINANCED BY AID LOAN AGREEMENTS, WHILE SUBJECT TO AID APPROVAL, ARE NOT CONTRACTS OF UNITED STATES AND GENERAL RULES GOVERNING DIRECT FEDERAL PROCUREMENTS ARE NOT BINDING UPON AID. EVEN IF GAO DETERMINED THAT BID SHOULD NOT HAVE BEEN REJECTED, REJECTION WOULD NOT BE SUBJECT TO LEGAL OBJECTION BY THIS OFFICE. WHERE FEDERAL PROCUREMENT STATUTES ARE NOT INVOLVED, THIS OFFICE HAS HELD THAT RECOGNITION MUST BE GIVEN TO PRIMARY AUTHORITY OF FINANCING AGENCY TO DETERMINE COMPLIANCE WITH REGULATIONS PROMULGATED BY IT IN FURTHERANCE OF ITS STATUTORY RESPONSIBILITIES. SEE COMP. GEN. DECS. CITED.

TO MILLER, GROEZINGER, PETTIT, EVERS & MARTIN:

REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER OF APRIL 1 AND 3, 1970, RESPECTIVELY, PROTESTING THE REJECTION OF THE BID SUBMITTED BY NOBLE AGGREGATE CORPORATION UNDER KOREA ELECTRIC COMPANY, REPUBLIC OF KOREA, INVITATION FOR BIDS 1028-R, FINANCED BY AGENCY FOR INTERNATIONAL DEVELOPMENT (AID) LOAN 489-H-033.

GILBERT ASSOCIATES, INC; AGENT FOR KOREA ELECTRIC COMPANY, AND AID HAVE FURNISHED YOU WITH COPIES OF THEIR RESPECTIVE REPORTS OF APRIL 14 AND MAY 7, 1970, TO OUR OFFICE.

AID HAS PUBLISHED REGULATIONS PROVIDING THE PROCEDURES TO BE FOLLOWED BY IMPORTERS WHENEVER A COMMODITY PROCUREMENT IS TO BE FINANCED BY AID. 22 CFR 201.22 (A) (2), INSOFAR AS PERTINENT, IT IS PROVIDED:

"STATEMENT REGARDING SUBMISSION OF BIDS. INVITATIONS FOR BIDS SHALL STATE * * * THE ADDRESS TO WHICH BIDS ARE TO BE SENT, THE CLOSING HOUR AND DATE FOR SUBMISSION AND THE DATE, HOUR, AND PLACE FOR PUBLIC OPENING OF BIDS. * * *" AT 22 CFR 201.22 (A) (4), IN PERTINENT PART, IT IS STATED:

"STATEMENT REGARDING LATE BIDS. THE INVITATION FOR BIDS SHALL STATE THAT NO BID RECEIVED AT THE ADDRESS DESIGNATED IN THE INVITATION AFTER CLOSING HOUR AND DATE FOR SUBMISSION WILL BE CONSIDERED FOR AWARD UNLESS ITS LATE ARRIVAL AT THAT ADDRESS IS ATTRIBUTABLE TO MISHANDLING OF THE BID DOCUMENTS BY THE PURCHASER OR ANY OF HIS AGENTS DIRECTLY ASSOCIATED WITH RECEIVING OR PROCESSING BIDS. * * *"

IN LINE WITH THE FOREGOING, THE INVITATION, AS AMENDED, SPECIFIED THAT BIDS WERE TO BE DELIVERED TO KOREA ELECTRIC COMPANY, C/O GILBERT ASSOCIATES, INC; AGENT, 525 LANCASTER AVENUE, READING, PENNSYLVANIA 19603, ATTENTION: MR. H. F. ULMER, CHIEF PURCHASING AGENT, NO LATER THAN 9 A.M. ON MARCH 11, 1970, AND THAT THE BIDS WOULD BE PUBLICLY OPENED AT THE SAME ADDRESS AT 2 P.M. ON THE SAME DAY. FURTHER, IT WAS PROVIDED:

"THE BIDDERS ARE RESPONSIBLE FOR ASSURING THAT THEIR BIDS ARE ACTUALLY RECEIVED ON TIME AT THE PLACE DESIGNATED IN THE INVITATION. A LATE BID WILL NOT BE CONSIDERED EVEN THOUGH IT BECAME LATE BECAUSE OF FACTORS BEYOND THE BIDDER'S CONTROL, SUCH AS DELAYS IN MAIL HANDLING, TELEGRAPHIC TRANSMISSION OR CUSTOMS CLEARANCE. LATE BIDS MAY BE CONSIDERED ONLY WHERE SUCH BIDS ARE RECEIVED AT THE PLACE DESIGNATED PRIOR TO AWARD AND WHERE THEY BECAME LATE BIDS BECAUSE OF MISHANDLING BY THE PURCHASER, HIS EMPLOYEES OR HIS AGENTS, WHO ARE DIRECTLY ASSOCIATED WITH RECEIVING OR PROCESSING BIDS."

GILBERT ASSOCIATES RETURNED THE NOBLE-AGGREGATE BID TO THAT COMPANY BECAUSE IT WAS A LATE BID. AID HAS CONCURRED IN THE REJECTION. IT IS YOUR POSITION THAT THE BID SHOULD NOT HAVE BEEN REJECTED BECAUSE IT ARRIVED ON TIME AT THE PLACE DESIGNATED IN THE INVITATION OR, IN THE ALTERNATIVE, IT WAS LATE BECAUSE OF MISHANDLING BY GILBERT EMPLOYEES WHO WERE RESPONSIBLE FOR RECEIVING OR PROCESSING BIDS.

YOU HAVE STATED THAT THE NOBLE-AGGREGATE BID WAS MAILED AIRMAIL SPECIAL DELIVERY CERTIFIED AT THE SANTA CLARA, CALIFORNIA, POST OFFICE AT ABOUT 10:30 A.M; MARCH 10, 1970, THE DAY BEFORE THE BID OPENING, AND THAT THE BID SHOULD HAVE ARRIVED PRIOR TO 12:00 NOON ON MARCH 11, 1970. FURTHER, YOU HAVE FURNISHED COPIES OF RETURN RECEIPTS AND POSTAL RECEIPTS SIGNED AND DATED "3-11-70" BY BARRY AIELLO OF GILBERT ASSOCIATES. HOWEVER, BARRY AIELLO AND OTHER GILBERT PERSONNEL HAVE FURNISHED AFFIDAVITS INDICATING THAT THE RECEIPTS WERE ERRONEOUSLY DATED MARCH 11, 1970, SINCE THE BID WAS RECEIVED ABOUT 10 A.M. ON MARCH 12, 1970. THEIR AFFIDAVITS ARE CORROBORATED BY THE MAILMAN WHOSE SIGNATURE ALSO APPEARS ON THE POSTAL RECEIPTS. HE STATED BY AFFIDAVIT THAT HE DELIVERED THE BID ON MARCH 12, 1970, AT APPROXIMATELY 10 A.M. AND THAT HE COULD NOT HAVE DELIVERED IT ON MARCH 11, 1970, BECAUSE ON THAT DAY HE WAS NOT WORKING A SPECIAL DELIVERY ROUTE AND WAS NOT ASSIGNED TO WORK IN THE AREA OF GILBERT ASSOCIATES. IS NOTED ALSO THAT THE POSTAL RECEIPTS BEAR AN OFFICIAL READING, PENNSYLVANIA, POST OFFICE STAMP DATED MARCH 12, 1970. ACCORDINGLY, IT APPEARS THAT THE BID WAS, IN FACT, AN UNACCEPTABLE LATE BID.

WITH RESPECT TO THE CONTENTION THAT THE BID WAS LATE BECAUSE OF MISHANDLING BY GILBERT EMPLOYEES, YOU HAVE STATED THAT NOBLE-AGGREGATE SENT A TELEGRAM TO GILBERT ASSOCIATES AT 11:18 A.M. ON MARCH 10, 1970, STATING THAT A LUMP-SUM BID IN THE AMOUNT OF $586,443 WAS MAILED THAT DAY AIRMAIL SPECIAL DELIVERY CERTIFIED AND THAT DESPITE SUCH NOTICE GILBERT ASSOCIATES MADE NO ARRANGEMENTS TO HAVE AN EMPLOYEE AT THE POST OFFICE AT 12:00 NOON ON MARCH 11, 1970, TO RECEIVE BIDS. HOWEVER, THAT ARGUMENT FAILS TO CONSIDER THE FACT THAT THE INVITATION FOR BIDS PROVIDED THAT THE CLOSING TIME FOR THE RECEIPT OF BIDS WAS 9 A.M. AND NO EVIDENCE WAS ADDUCED TO SHOW THAT THE BID WAS IN THE READING, PENNSYLVANIA, POST OFFICE, PRIOR TO THAT TIME. IN THE ABSENCE OF EVIDENCE THAT SUCH WAS THE CASE, THE QUESTION WHETHER THE FAILURE TO INQUIRE AT THE POST OFFICE REGARDING THE BID AMOUNTED TO MISHANDLING NEED NOT BE CONSIDERED.

FURTHER, EVEN IF A LATE BID MAY BE FOR CONSIDERATION AS A TIMELY BID, OUR OFFICE HAS EXPRESSED SERIOUS RESERVATIONS CONCERNING ITS ACCEPTABILITY WHEN, AS HERE, IT HAS BEEN RETURNED TO THE BIDDER. 41 COMP. GEN. 404 (1961).

MOREOVER, EVEN IF OUR OFFICE DETERMINED THAT THE BID SHOULD NOT HAVE BEEN REJECTED, THE REJECTION WOULD NOT BE SUBJECT TO LEGAL OBJECTION BY OUR OFFICE. IN THAT REGARD, IN B-168809, MARCH 17, 1970, INVOLVING ANOTHER PROCUREMENT FINANCED BY AN AID LOAN AGREEMENT, IT WAS STATED:

"ALTHOUGH OUR OFFICE IS OF THE OPINION THAT THE TRANSAMMONIA BID SHOULD NOT HAVE BEEN CONSIDERED RESPONSIVE, THE AWARD IS NOT SUBJECT TO LEGAL OBJECTION BY OUR OFFICE. THE CONTRACTS INVOLVED WHILE SUBJECT TO AID APPROVAL ARE NOT CONTRACTS OF THE UNITED STATES. THEY ARE FINANCED UNDER LOAN AGREEMENTS PROVIDING FOR REIMBURSEMENT BY THE PURCHASER TO THE UNITED STATES FOR THE VALUE OF THE COMMODITIES FINANCED. FURTHER, OUR OFFICE HAS RECOGNIZED THAT IN THE CASE OF CONTRACTS FINANCED BY AID, THE GENERAL RULES WHICH GOVERN DIRECT FEDERAL PROCUREMENTS ARE NOT BINDING UPON AID. B-165600, SEPTEMBER 12, 1969. ALSO, WHERE FEDERAL PROCUREMENT STATUTES ARE NOT INVOLVED, OUR OFFICE HAS HELD THAT RECOGNITION MUST BE GIVEN TO THE PRIMARY AUTHORITY OF THE FINANCING AGENCY TO DETERMINE COMPLIANCE WITH THE REGULATIONS PROMULGATED BY IT IN FURTHERANCE OF ITS STATUTORY RESPONSIBILITIES. B-163094, JULY 25, 1968, AND DECISIONS CITED THEREIN."

IN VIEW OF THE FOREGOING, THE PROTEST IS DENIED.