B-169728, JUL. 17, 1970

B-169728: Jul 17, 1970

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BY NEWARK AIR STATION WAS IMPROPER BECAUSE PROTESTANT'S LATE LOW BID SHOULD HAVE BEEN CONSIDERED SINCE WORK HAS BEEN PERFORMED NO REMEDIAL ACTION MAY BE TAKEN. WHERE A LOW BIDDER WAS ADVISED BY TELEPHONE THAT HE HAD BEEN AWARDED A CONTRACT BUT THE NOTICE WAS NOT SENT UNTIL A DAY AFETER ANOTHER PROSPECTIVE BIDDER HAD ADVISED BY TELEPHONE THAT HE HAD SENT BY REGISTERED MAIL A BID WHICH SHOULD HAVE ARRIVED BEFORE BID OPENING BUT FOR THE MAIL DELAY. THE AWARD WAS NOT PROPER. SINCE A CONTRACT AWARD IS NOT EFFECTIVE UNTIL CONTRACTING OFFICER WORK HAS BEEN PERFORMED. NO REMEDIAL ACTION IS PROPER. TO HIGH VOLTAGE MAINTENANCE CORPORATION: REFERENCE IS MADE TO YOUR TELEGRAM OF MAY 6. F33659-70-B 0066 WHICH WAS ISSUED BY THE NEWARK AIR FORCE STATION.

B-169728, JUL. 17, 1970

BID PROTEST -- AWARD AFTER NOTICE OF MAIL DELAYED BID DECISION TO HIGH VOLTAGE MAINTENANCE CORP. HOLDING THAT ALTHOUGH AWARD TO MARYLAND ELECTRIC TESTING CO. BY NEWARK AIR STATION WAS IMPROPER BECAUSE PROTESTANT'S LATE LOW BID SHOULD HAVE BEEN CONSIDERED SINCE WORK HAS BEEN PERFORMED NO REMEDIAL ACTION MAY BE TAKEN. WHERE A LOW BIDDER WAS ADVISED BY TELEPHONE THAT HE HAD BEEN AWARDED A CONTRACT BUT THE NOTICE WAS NOT SENT UNTIL A DAY AFETER ANOTHER PROSPECTIVE BIDDER HAD ADVISED BY TELEPHONE THAT HE HAD SENT BY REGISTERED MAIL A BID WHICH SHOULD HAVE ARRIVED BEFORE BID OPENING BUT FOR THE MAIL DELAY, THE AWARD WAS NOT PROPER. HOWEVER, SINCE A CONTRACT AWARD IS NOT EFFECTIVE UNTIL CONTRACTING OFFICER WORK HAS BEEN PERFORMED, NO REMEDIAL ACTION IS PROPER.

TO HIGH VOLTAGE MAINTENANCE CORPORATION:

REFERENCE IS MADE TO YOUR TELEGRAM OF MAY 6, 1970, PROTESTING AGAINST THE AWARD OF A CONTRACT TO MARYLAND ELECTRICAL TESTING COMPANY (METCO), BALTIMORE, MARYLAND, UNDER INVITATION FOR BIDS (IFB) NO. F33659-70-B 0066 WHICH WAS ISSUED BY THE NEWARK AIR FORCE STATION, NEWARK, OHIO.

THE SUBJECT IFB WAS ISSUED ON APRIL 21, 1970, CALLING FOR BIDS TO BE OPENED MAY 4 AT 11:00 A.M., FOR PREVENTATIVE MAINTENANCE OF A 4160-2400 480 VOLT, 60 CYCLE POWER SYSTEM, WITHIN BUILDINGS 4 AND 5 AT NEWARK AIR FORCE STATION, NEWARK, OHIO, THE WORK TO BE ACCOMPLISHED DURING A PLANT SHUT DOWN ON THE WEEKEND OF JUNE 6-7, 1970. SINCE THE MINIMUM WAGE RATES INCLUDED IN THE SPECIFICATIONS EXPIRED ON MAY 6, 1970, AWARD BY THAT DATE WAS REQUIRED.

IT IS ADMINISTRATIVELY REPORTED THAT BIDS WERE OPENED AS SCHEDULED WITH TWO BIDS RECEIVED. METCO WAS THE LOW BIDDER WITH A BID OF $9,900. DETERMINATION OF RESPONSIBILITY WAS THEN MADE ON METCO. THE CONTRACTING OFFICER STATES THAT HE CALLED METCO AT 12:45 P.M. ON MAY 4, 1970, AND "STATED THEY ARE AWARDED CONTRACT F33659-70-B-0066 AS THE RESULT OF THEIR LOW BID *** ." HE ALSO REQUESTED METCO TO OBTAIN A PERFORMANCE BOND AND A PAYMENT BOND AND TO INDICATE ON THOSE BONDS THE DATE OF AWARD AS MAY 4, 1970. AT 2:20 P.M. OF THE SAME DAY, THE PROCUREMENT CLERK AT NEWARK, OHIO, RECEIVED A CALL FROM MR. HEFNER OF YOUR COMPANY REQUESTING THE BID ABSTRACT INFORMATION, AND SHE READ HIM THE BIDS RECEIVED. MR. HEFNER REQUESTED TO SPEAK WITH THE CONTRACTING OFFICER, BUT HE WAS NOT AVAILABLE, AND THE CALL WAS TURNED OVER TO THE BASE PROCUREMENT OFFICER. MR. HEFNER EXPRESSED HIS CONCERN OVER THE FACT THAT HIS BID HAD NOT BEEN ENTERED AS THE BID HAD BEEN MAILED FROM DAYTON, OHIO, ON APRIL 30, 1970, VIA REGISTERED MAIL, AND HIS BID WAS MORE ADVANTAGEOUS TO THE GOVERNMENT. THE BASE PROCUREMENT OFFICER INFORMED MR. HEFNER THAT DUE TO THE EXPIRATION OF LABOR RATES ON MAY 6, 1970, AND THE NECESSITY OF HAVING THE WORK DONE ON JUNE 6-7, 1970, THE ACTIVITY WAS GOING TO TAKE EXPEDITIOUS ACTION TO MAKE THE AWARD AND THAT ANY LATE BIDS MUST BE RECEIVED BEFORE AWARD IN ORDER TO BE CONSIDERED.

ON MAY 5, 1970, AT 10:20 A.M., MR. HEFNER AGAIN CALLED THE BASE PROCUREMENT OFFICER TO ASK IF HIS BID HAD BEEN RECEIVED, AND HE WAS INFORMED THAT THE BID HAD BEEN PICKED UP FROM THE MAIL ROOM AT 10:00 A.M., BUT THAT THE BID WAS BEING TREATED AS HAVING ARRIVED AFTER AWARD AND THEREFORE COULD NOT BE CONSIDERED. MR. HEFNER STATED THAT HE WAS GOING TO ENTER A FORMAL PROTEST. IT WAS DETERMINED FROM THE POSTMARK ON THE BID ENVELOPE THAT THE BID WAS RECEIVED LATE BECAUSE THE POST OFFICE HAD MISROUTED IT THROUGH JERSEY CITY, NEW JERSEY, INSTEAD OF SENDING IT STRAIGHT TO NEWARK, OHIO. ON MAY 6, 1970, A REPRESENTATIVE OF METCO PERSONALLY DELIVERED THE REQUESTED BONDS AND SIGNED THE CONTRACT.

THE ESSENTIAL QUESTION PRESENTED IS WHETHER AWARD HAD BEEN MADE PRIOR TO RECEIPT OF YOUR BID. WHILE YOUR TELEPHONIC NOTICE MIGHT HAVE JUSTIFIED THE CONTRACTING OFFICER IN WAITING FOR RECEIPT OF YOUR BID, WE DO NOT FEEL THAT IN THE LIGHT OF THE NEED FOR AWARD BY MAY 6 THAT HE WAS REQUIRED TO DO SO.

PARAGRAPH 2-303.2 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) (SEE ALSO PROVISION 7 OF "ADDITIONAL INSTRUCTIONS TO BIDDER" WHICH IS PART OF THE INVITATION) PROVIDES IN PERTINENT PART, AS FOLLOWS:

"2-303.2 CONSIDERATION FOR AWARD.

"A LATE BID SHALL BE CONSIDERED FOR AWARD ONLY IF:

'(I) IT IS RECEIVED BEFORE AWARD; AND EITHER

'(II) IT WAS SENT BY REGISTERED MAIL OR BY CERTIFIED MAIL FOR WHICH AN OFFICIAL DATED POST OFFICE STAMP (POSTMARK) ON THE ORIGINAL RECEIPT OF CERTIFIED MAIL HAS BEEN OBTAINED *** , AND IT IS DETERMINED THAT THE LATENESS WAS DUE SOLELY TO A DELAY IN THE MAILS *** FOR WHICH THE BIDDER WAS NOT RESPONSIBLE.'" SINCE YOUR BID APPEARS TO HAVE BEEN CORRECTLY ADDRESSED, SENT BY REGISTERED MAIL, AND IT IS NOT QUESTIONED THAT IT WAS DELAYED IN THE MAILS, IT WAS FOR CONSIDERATION IF RECEIVED BEFORE AWARD.

IT IS THE POSITION OF THE AIR FORCE THAT THE CONTRACT WAS EFFECTIVELY AWARDED AT 12:45 P.M. ON MAY 4, 1970, WHEN THE CONTRACTING OFFICER ADVISED METCO BY TELEPHONE THAT AWARD WAS MADE TO IT AS THE LOW BIDDER, AND DIRECTED THAT BONDS BE OBTAINED SHOWING DATE OF AWARD AS MAY 4. APPEARS THAT THIS ADVICE WAS CONFIRMED BY A LETTER WHICH BORE THE DATE OF MAY 4, BUT THE RECORD FAILS TO SHOW THE ACTUAL TIME OR DATE OF MAILING. SINCE NEITHER THE CONTRACTING OFFICER NOR THE STAFF JUDGE ADVOCATE RELY UPON THAT LETTER AS THE CONTRACT AWARD FOR PURPOSES OF APPLICATION OF ASPR 2-303.2, WE MUST ASSUME THAT IT AT LEAST HAD NOT BEEN MAILED PRIOR TO RECEIPT OF MR. HEFNER'S TELEPHONE CALL, AND POSSIBLY NOT BEFORE RECEIPT OF YOUR BID.

ASSUMING THAT THE MAY 4 LETTER HAD NOT BEEN MAILED BEFORE RECEIPT OF THE BID, WE CONCLUDE THAT YOUR BID SHOULD HAVE BEEN CONSIDERED. THE COURT OF CLAIMS HAS HELD THAT A CONTRACT AWARD IS NOT MADE UNTIL THE CONTRACTING OFFICER HAS SIGNED AND MAILED THE NOTICE OF AWARD, EVEN THOUGH THE NOTICE HAD BEEN TYPED AND DATED ON AN EARLIER DATE AT HIS DIRECTION. STEBEL V UNITED STATES, 108 CT. CL. 35 (1947).

HOWEVER, WHILE IT THUS APPEARS THAT THE CONTRACTING OFFICER MADE AN IMPROPER AWARD, IT ALSO APPEARS THAT THE WORK CALLED FOR HAS BEEN PERFORMED, AND THIS OFFICE IS THEREFORE UNABLE TO TAKE ANY REMEDIAL ACTION OTHER THAN TO POINT OUT THE ERROR COMMITTED, WHICH WE ARE DOING BY LETTER OF TODAY TO THE SECRETARY OF THE AIR FORCE.