B-169719, AUG. 25, 1970

B-169719: Aug 25, 1970

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SINCE TELEGRAPHIC BIDS WERE NOT AUTHORIZED. IT WOULD NOT HAVE BEEN PROPER TO CONSIDER TELEGRAPHIC BID FROM ONE BIDDER. RECORD SHOWS THAT BID PACKAGE WAS NOT MAILED IN TIME TO HAVE BEEN RECEIVED BEFORE OPENING. INC.: REFERENCE IS MADE TO YOUR LETTERS DATED APRIL 29. THE INVITATION IN QUESTION WAS ISSUED ON MARCH 5. THE PROCUREMENT WAS SYNOPSIZED IN THE COMMERCE BUSINESS DAILY AS A REQUIREMENT FOR 15. WHICH WAS PRIOR TO THE DATE SET FOR BID OPENING. A MESSAGE FROM THE ASSISTANT SECRETARY (I AND L) WAS RECEIVED BY THE U. TELEGRAPHIC COMMUNICATIONS MEDIA HAVE BECOME SEVERLY OVERLOADED. THE FOLLOWING IS THEREFORE FURNISHED FOR GUIDANCE OF ALL ARMY PROCUREMENT OFFICES: "A. IF THE REQUIREMENT WILL PERMIT.

B-169719, AUG. 25, 1970

BID PROTEST -- LATE BID -- POSTAL STRIKE DENIAL OF PROTEST OF LOW BIDDER WHO AFTER SUBMITTING BID PRICE BY TELEGRAM BECAUSE OF THE POSTAL STRIKE FORWARDED BY CERTIFIED MAIL THE BID PACKAGE ON THE DATE OF BID OPENING HAD BID PROPERLY REJECTED AS LATE SINCE MAIL STRIKE SHOULD NOT OPERATE TO TAKE AWAY DISCRETION OF CONTRACTING OFFICER TO PERMIT TELEGRAPHIC BIDS. SINCE TELEGRAPHIC BIDS WERE NOT AUTHORIZED, IT WOULD NOT HAVE BEEN PROPER TO CONSIDER TELEGRAPHIC BID FROM ONE BIDDER. ALSO, RECORD SHOWS THAT BID PACKAGE WAS NOT MAILED IN TIME TO HAVE BEEN RECEIVED BEFORE OPENING.

TO M & P METAL PRODUCTS, INC.:

REFERENCE IS MADE TO YOUR LETTERS DATED APRIL 29, 1970, AND JUNE 8, 1970, PROTESTING AN AWARD BEING MADE TO ANY BIDDER OTHER THAN YOURSELF UNDER INVITATION FOR BIDS NO. DAAF01-70-B-0706 ISSUED BY ROCK ISLAND ARSENAL IN ROCK ISLAND, ILLINOIS.

THE INVITATION IN QUESTION WAS ISSUED ON MARCH 5, 1970, TO 19 PROSPECTIVE BIDDERS. IN ADDITION, THE PROCUREMENT WAS SYNOPSIZED IN THE COMMERCE BUSINESS DAILY AS A REQUIREMENT FOR 15,050 EACH OF

"CARRIER, APERTURE: IN ACCORDANCE WITH U. S. ARMY DRAWING C7791014, REVISION F DATED 69 JUN 06 AND ALL DRAWINGS, SPECIFICATIONS AND EXCEPTIONS REFERENCED HEREIN."

HOWEVER, ON OR ABOUT MARCH 18, WHICH WAS PRIOR TO THE DATE SET FOR BID OPENING, CERTAIN EMPLOYEES OF THE POST OFFICE DEPARTMENT WENT ON STRIKE. IN RECOGNITION THEREOF, ON MARCH 23, 1970, A MESSAGE FROM THE ASSISTANT SECRETARY (I AND L) WAS RECEIVED BY THE U. S. ARMY WEAPONS COMMAND, ROCK ISLAND, ILLINOIS, WHICH STATED IN PERTINENT PART AS FOLLOWS:

"AS A DIRECT RESULT OF THE POSTAL STRIKE, TELEGRAPHIC COMMUNICATIONS MEDIA HAVE BECOME SEVERLY OVERLOADED. THE FOLLOWING IS THEREFORE FURNISHED FOR GUIDANCE OF ALL ARMY PROCUREMENT OFFICES:

"A. IF THE REQUIREMENT WILL PERMIT, SCHEDULED BID OR PROPOSAL OPENINGS SHOULD BE DELAYED UNTIL MAIL DELIVERY PROBLEMS HAVE BEEN SUBSTANTIALLY SOLVED. NOTWITHSTANDING ASPR 2-208 AND 3-505, NOTICE OF SUCH DELAY MAY BE LIMITED TO DISPLAY IN THE BID ROOM.

"B. IF THE REQUIREMENT WILL NOT PERMIT DELAY, AVAILABLE BIDS OR PROPOSALS SHOULD BE OPENED AND AWARD MADE THEREON IF IT IS DETERMINED THAT THERE WAS ADEQUATE COMPETITION OR, IN THE CASE OF PROPOSALS, NEGOTIATIONS UNDERTAKEN WHEN REQUIRED. IF IT APPEARS BEFORE BID OPENING THAT AN INSUFFICIENT NUMBER OF BIDS HAS BEEN RECEIVED TO INDICATE ADEQUATE COMPETITION, CONSIDERATION SHOULD BE GIVEN TO CANCELLING THE IFB PRIOR TO OPENING AND CONDUCTING NEGOTIATIONS, INCLUDING BY TELEPHONE IF SUCH ACTION IS NECESSARY."

BY MARCH 25, 1970, THE BID OPENING DATE, TEN BIDS HAD BEEN RECEIVED, INCLUDING A TELEGRAPHIC BID FROM YOUR COMPANY. IN VIEW THEREOF A DETERMINATION WAS MADE THAT A SUFFICIENT NUMBER OF BIDS HAD BEEN RECEIVED TO INDICATE ADEQUATE COMPETITION. IN ADDITION, ON FEBRUARY 24, 1970, AN URGENCY STATEMENT HAD BEEN ISSUED BY THE DIRECTOR, SUPPLY AND MAINTENANCE, REQUESTING EXPEDITIOUS HANDLING OF CERTAIN PROCUREMENTS, ONE OF WHICH WAS PROCUREMENT OF THE EQUIPMENT SET FORTH IN THE IFB. SINCE THE FOREGOING MET THE REQUIREMENTS SET OUT IN PARAGRAPH (B) OF THE MARCH 23 MESSAGE, THE CONTRACTING OFFICER PROCEEDED TO OPEN THE BIDS AT APPROXIMATELY 2:00 P.M. ON MARCH 25, 1970, THE TIME SET FOR THE BID OPENING. THE FIVE LOWEST BIDDERS WERE:

"BIDDER UNIT PRICE

M & P $1.75

PRECISION PRODUCTS, INC. 2.58

MECH-AER-TRONICS 2.68

YANKEE HILL MACHINE CO. 2.73

IMCO PRECISION PRODUCTS, INC. 2.78"

SECTION 5(B) OF THE IFB STATES IN PART AS FOLLOWS:

"(B) TELEGRAPHIC OFFERS WILL NOT BE CONSIDERED UNLESS AUTHORIZED BY THE SOLICITATION *** ."

ACCORDINGLY, THE FOLLOWING NOTATION RELATIVE TO YOUR BID WAS INSERTED ON THE ABSTRACT OF BIDS:

"THIS TELEGRAPHIC BID WAS NOT AUTHORIZED BY ROCK ISLAND ARSENAL PROCUREMENT DIVISION."

ON MARCH 30, 1970, A BID PACKAGE, BEARING THE INSCRIPTION "CERTIFIED MAIL NO. 578228," WAS RECEIVED FROM YOUR COMPANY. ON THAT SAME DAY, A LETTER WAS MAILED TO YOUR COMPANY ADVISING YOU AS FOLLOWS:

"YOUR OFFER TRANSMITTED BY REGISTERED/CERTIFIED MAIL IN RESPONSE TO ABOVE LISTED SOLICITATION WAS RECEIVED AFTER THE TIME FOR OPENING SPECIFIED IN THE SOLICITATION. ACCORDINGLY YOUR OFFER WILL NOT BE CONSIDERED FOR AWARD UNLESS (1) THERE IS RECEIVED FROM YOU BY 8 APRIL 70, CLEAR AND CONVINCING EVIDENCE FROM THE POST OFFICE STATION OF MAILING WHICH ESTABLISHED THE DATE (AND TIME, IF POSSIBLE) THAT THE OFFER WAS DEPOSITED WITH THAT STATION, AND (2) IT IS DETERMINED BY THE GOVERNMENT THAT LATE RECEIPT WAS DUE SOLELY TO A DELAY IN THE MAIL FOR WHICH YOU ARE NOT RESPONSIBLE. THE EVENT YOU FAIL TO COMPLY WITH THE ABOVE, YOUR OFFER WILL BE HELD UNOPENED UNTIL AFTER AWARD HAS BEEN MADE, AND THEN DESTROYED, UNLESS OTHER DISPOSITION IS REQUESTED BY YOU."

BY LETTER DATED APRIL 2, 1970, YOU FORWARDED RECEIPT FOR CERTIFIED MAIL NO. 578228, WHICH BORE A POSTMARK OF MARCH 25, 1970 (THE DAY OF BID OPENING) BUT FAILED TO INDICATE THE HOUR OF MAILING. YOUR LETTER ADVISED AS FOLLOWS:

"DUE TO THE MAIL STRIKE WE SUBMITTED OUR BID PRICE BY TELEGRAM OF WHICH I AM ENCLOSING A COPY.

"THE NEXT DAY THE STRIKE WAS SETTLED AND WE SENT OUR BID PACKAGE. I AM ENCLOSING THE RECEIPT FOR CERTIFIED MAIL."

SINCE YOUR LETTER OF APRIL 2 DID NOT TRANSMIT ANY EVIDENCE AS TO THE CLOSING HOUR OF YOUR RICHMOND HILL POSTAL STATION, AS PROVIDED IN ASPR 2- 306(C) QUOTED ABOVE, THE CONTRACTING OFFICER CONTACTED THE ROCK ISLAND POST OFFICE. UNDER DATE OF APRIL 9 (AND BASED UPON THE PRESUMPTION THAT YOUR BID WAS MAILED AT MIDNIGHT ON MARCH 25), THE ROCK ISLAND POST OFFICE ADVISED THAT:

"THE ITEM DESCRIBED ABOVE WAS MAILED TOO LATE TO ARRIVE AT THE ROCK ISLAND ARSENAL VIA NORMAL MAIL HANDLING, PRIOR TO THE DATE AND HOUR SPECIFIED ABOVE FOR BID OPENING AND THE LATE RECEIPT THEREOF AT YOUR OFFICE WAS NOT DUE TO DELAY IN THE MAILS."

BY LETTER DATED APRIL 10, YOU WERE SO ADVISED, AND YOU WERE FURTHER ADVISED THAT "YOUR OFFER WILL BE HELD UNOPENED UNTIL AFTER AWARD HAS BEEN MADE AND THEN DESTROYED, UNLESS OTHER DISPOSITION IS REQUESTED BY YOU."

UNDER DATE OF APRIL 17, YOU REITERATED YOUR BELIEF THAT LATE SUBMISSION OF YOUR BID WAS ATTRIBUTABLE TO THE MAIL STRIKE AND THAT YOU HAD "MADE EVERY EFFORT TO HAVE MY PRICE SENT INTO ROCK ISLAND BEFORE THE OPENING DATE."

BY LETTER DATED APRIL 23, THE CONTRACTING OFFICER REPLIED TO EACH POINT RAISED IN YOUR PREVIOUS LETTERS, AND CONCLUDED THAT YOUR BID WAS LATE AND THEREFORE COULD NOT BE CONSIDERED FOR AWARD.

YOUR PROTEST TO THIS OFFICE UNDER DATE OF APRIL 29, PRESENTS NO ARGUMENTS OR EVIDENCE IN ADDITION TO THAT PRESENTED TO THE CONTRACTING OFFICER. BASICALLY, YOU CONTEND THAT THE MAIL STRIKE PREVENTED YOU FROM SUBMITTING YOUR BID BY MAIL BEFORE THE TIME SET FOR BID OPENING, AND THAT EITHER YOUR TELEGRAPHIC BID OR YOUR MAILED BID SHOULD THEREFORE BE CONSIDERED FOR AWARD. ADDITIONALLY, YOU POINT OUT THAT ACCEPTANCE OF YOUR BID WOULD SAVE THE GOVERNMENT THOUSANDS OF DOLLARS, AND THAT THE CONTRACT WORK IS NECESSARY TO KEEP YOUR SMALL GROUP OF EMPLOYEES WORKING.

WITH REGARD TO TELEGRAPHIC BIDS WHEN NONE ARE AUTHORIZED, OUR DECISION REPORTED AT 40 COMP. GEN. 279, 280 (1960), STATES IN PART AS FOLLOWS:

" *** IT HAS BEEN UNIFORMLY HELD THAT TELEGRAPHIC BIDS, UNLESS AUTHORIZED, SHOULD BE REJECTED *** WE ARE OF THE OPINION THAT WHERE AN INVITATION PRECLUDES THE CONSIDERATION OF TELEGRAPHIC BIDS, ANY SUCH BIDS SHOULD BE DISREGARDED. WE FEEL THAT THIS RULE, IF UNIFORMLY FOLLOWED, WILL BEST SERVE THE INTERESTS OF THE UNITED STATES, AS WELL AS ALL POTENTIAL SUPPLIERS TO THE GOVERNMENT ***."

SIMILAR CONCLUSIONS WERE REACHED IN OUR DECISIONS B-161595, AUGUST 17, 1967, AND B-162453, OCTOBER 20, 1967.

WHETHER TELEGRAPHIC BIDS ARE TO BE PERMITTED MUST BE LEFT TO THE DISCRETION OF THE CONTRACTING AGENCY, AND WE SEE NO VALID REASON WHY A MAIL STRIKE SHOULD OPERATE TO TAKE AWAY THAT DISCRETION, OR SHOULD OBLIGATE THE AGENCY TO ACCEPT A TELEGRAPHIC BID FROM ONE BIDDER WHEN ALL POTENTIAL BIDDERS WERE NOT SPECIFICALLY ADVISED THAT SUCH BIDS WOULD BE ACCEPTED. SINCE TELEGRAPHIC BIDS CLEARLY WERE NOT AUTHORIZED UNDER THE INSTANT INVITATION FOR BIDS, WE ARE UNABLE TO CONCLUDE THAT IT WOULD HAVE BEEN PROPER TO CONSIDER YOUR TELEGRAPHIC BID.

AS TO WHETHER YOUR LATE MAILED BID MAY BE CONSIDERED FOR AWARD, PARAGRAPH 8(C) OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS STATES IN PART AS FOLLOWS:

"(C) THE TIME OF MAILING OF LATE OFFERS SUBMITTED BY REGISTERED OR CERTIFIED MAIL SHALL BE DEEMED TO BE THE LAST MINUTE OF THE DATE SHOWN IN THE POSTMARK ON THE REGISTERED MAIL RECEIPT OR REGISTERED MAIL WRAPPER OR ON THE RECEIPT FOR CERTIFIED MAIL UNLESS THE OFFEROR FURNISHES EVIDENCE FROM THE POST OFFICE STATION OF MAILING WHICH ESTABLISHES AN EARLIER TIME. IN THE CASE OF CERTIFIED MAIL, THE ONLY ACCEPTABLE EVIDENCE IS AS FOLLOWS: (1) WHERE THE RECEIPT FOR CERTIFIED MAIL IDENTIFIES THE POST OFFICE STATION OF MAILING, EVIDENCE FURNISHED BY THE OFFEROR WHICH ESTABLISHES THAT THE BUSINESS DAY OF THAT STATION ENDED AT AN EARLIER TIME, IN WHICH CASE THE TIME OF MAILING SHALL BE DEEMED TO BE THE LAST MINUTE OF THE BUSINESS DAY OF THAT STATION; OR (2) AN ENTRY IN INK ON THE RECEIPT FOR CERTIFIED MAIL SHOWING THE TIME OF MAILING AND THE INITIALS OF THE POSTAL EMPLOYEE RECEIVING THE ITEM AND MAKING THE ENTRY, WITH APPROPRIATE WRITTEN VERIFICATION OF SUCH ENTRY FROM THE POST OFFICE STATION OF MAILING, IN WHICH CASE THE TIME OF MAILING SHALL BE THE TIME SHOWN IN THE ENTRY. IF THE POSTMARK ON THE ORIGINAL RECEIPT FOR CERTIFIED MAIL DOES NOT SHOW A DATE, THE OFFER SHALL NOT BE CONSIDERED."

WHILE RECEIPT FOR CERTIFIED MAIL NO. 578228 INDICATES THE DATE OF MAILING, THERE IS NO MARKING WHATSOEVER TO INDICATE THE HOUR OF MAILING. IN THIS CONNECTION, HOWEVER, THE CONTRACTING AGENCY HAS FORWARDED A COPY OF A LETTER DATED MAY 15 FROM THE POSTMASTER AT JAMAICA, NEW YORK, WHICH ADVISES THAT THE RICHMOND HILL STATION DID IN FACT CLOSE AT 5 P.M. ON MARCH 25, 1970. CONSEQUENTLY, IT MAY BE PRESUMED THAT YOUR BID WAS MAILED AT THAT TIME, WHICH WAS THREE HOURS AFTER BID OPENING. IT IS THEREFORE APPARENT THAT YOUR BID WAS NOT MAILED IN TIME TO HAVE BEEN RECEIVED BY THE CONTRACTING OFFICER PRIOR TO BID OPENING UNDER NORMAL DELIVERY CONDITIONS, AND IT NECESSARILY FOLLOWS THAT LATE RECEIPT OF YOUR BID CANNOT BE ATTRIBUTED SOLELY TO DELAY IN THE MAILS, AS REQUESTED BY PARAGRAPH 8(A) OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS.

AS TO WHETHER THE MAIL STRIKE SHOULD BE VIEWED AS AN OCCURRENCE WHICH WOULD OPERATE TO SUSPEND THE LATE BID PROVISIONS OF PARAGRAPH 8 OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS, WE ARE ENCLOSING A COPY OF B 169473, APRIL 24, 1970, IN WHICH SUCH PROVISIONS WERE INVOKED AGAINST A BIDDER WHO SUBMITTED HIS BID TO THE POST OFFICE IN AMPLE TIME FOR ITS DELIVERY PRIOR TO TIME OF BID OPENING.

IN YOUR LETTER DATED APRIL 29, 1970, YOU STATE "SINCE M & P METAL PRODUCTS HAD THE LOWEST BID THE SAVINGS TO THE GOVERNMENT RUNS INTO THOUSANDS OF DOLLARS."

ASPR 2-404.1 STATES IN PART AS FOLLOWS:

"(A) THE PRESERVATION OF THE INTEGRITY OF THE COMPETITIVE BID SYSTEM DICTATES THAT AFTER BIDS HAVE BEEN OPENED, AWARD MUST BE MADE TO THAT RESPONSIBLE BIDDER WHO SUBMITTED THE LOWEST RESPONSIVE BID, UNLESS THERE IS A COMPELLING REASON TO REJECT ALL BIDS AND CANCEL THE INVITATION." BASED ON HISTORICAL PRICING DATA FOR THE ITEMS TO BE PROCURED UNDER THE IFB AT ISSUE, THE CONTRACTING OFFICER MADE THE DETERMINATION THAT THE PRICES OF THE NEXT LOW FOUR BIDS WERE NOT UNREASONABLE. DETERMINATIONS OF THIS NATURE ARE PRIMARILY WITHIN THE PROVINCE OF THE CONTRACTING AGENCY, AND IN THE ABSENCE OF EVIDENCE THAT SUCH DETERMINATION ARE ARBITRARY OR FRAUDULENT, THIS OFFICE WILL ACCEPT THEM. WE FIND NO SUCH EVIDENCE WITH RESPECT TO THE INSTANT DETERMINATION.

WE MUST THEREFORE CONCLUDE THAT REJECTION OF YOUR BID WAS PROPER AND THE DECISION OF THE CONTRACTING OFFICER NOT TO CANCEL ALL BIDS AND READVERTISE WAS A PROPER EXERCISE OF ADMINISTRATIVE DISCRETION. ACCORDINGLY, YOUR PROTEST MUST BE DENIED.