B-170422, SEP. 23, 1970

B-170422: Sep 23, 1970

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RATHER THAN BECAUSE IT WAS NOT ADDRESSED IN SPECIFIED MANNER. THE MATTER WAS FORWARDED HERE BY SENATOR MONDALE FOR OUR INVESTIGATION AND DECISION. INVITATION FOR BIDS NO. 37-0172 OFFERING SURPLUS MACHINE TOOLS FOR SALE WAS ISSUED BY THE DEFENSE SURPLUS SALES OFFICE WITH BID OPENING SET FOR JUNE 30. WHICH WAS INCORPORATED BY REFERENCE IN THE IFB. WAS MAILED AND IN FACT DELIVERED TO THE ADDRESS SPECIFIED IN THE IFB IN SUFFICIENT TIME TO HAVE BEEN RECEIVED BY THE SALES CONTRACTING OFFICER BY THE TIME AND DATE SET FORTH THEREIN. WOULD HAVE BEEN RECEIVED IN TIME. YOUR BID WAS MAILED IN A SEALED ENVELOPE POSTMARKED JUNE 23. WAS ADDRESSED TO THE HAND-DELIVERY ADDRESS "DEFENSE SURPLUS SALES OFFICE.

B-170422, SEP. 23, 1970

BID PROTEST - LATE BID DENIAL OF PROTEST OF MIDWESTERN MACHINERY COMPANY, AGAINST THE REJECTION OF BID AND THE AWARD OF CONTRACT FOR SURPLUS PROPERTY OFFERED FOR SALE UNDER IFB BY THE DEFENSE SURPLUS SALES OFFICE, FORT WORTH, TEX. BIDDER WHO MAILED HIS BID BUT DID NOT FOLLOW THE EXPLICIT INSTRUCTION UNDER THE IFB FOR MARKING THE BID ENVELOPE TO INSURE PROPER RECEIPT AT OPENING RESULTED IN ITS RECEIPT A DAY AFTER BID OPENING, HAD BID PROPERLY REJECTED AS LATE, RATHER THAN BECAUSE IT WAS NOT ADDRESSED IN SPECIFIED MANNER.

TO MIDWESTERN MACHINERY COMPANY: WALTER F. MONDALE, UNITED STATES SENATE, PROTESTING THE REJECTION OF YOUR BID FOR CERTAIN SURPLUS PROPERTY OFFERED FOR SALE BY THE DEFENSE SURPLUS SALES OFFICE, FORT WORTH, TEXAS. THE MATTER WAS FORWARDED HERE BY SENATOR MONDALE FOR OUR INVESTIGATION AND DECISION.

INVITATION FOR BIDS NO. 37-0172 OFFERING SURPLUS MACHINE TOOLS FOR SALE WAS ISSUED BY THE DEFENSE SURPLUS SALES OFFICE WITH BID OPENING SET FOR JUNE 30, 1970, AT 9:00 A.M. CLAUSE 16, PREPARATION OF ENVELOPE, OF THE ADDITIONAL GENERAL INFORMATION AND INSTRUCTIONS APPEARING ON PAGE 22 OF THE IFB PROVIDED, IN PART, THAT ENVELOPES CONTAINING BIDS MUST BE SEALED AND SHOULD BE MARKED IN THE LOWER LEFT CORNER WITH THE "IDENTIFICATION OF THE INVITATION FOR BIDS AND THE DATE AND HOUR OF OPENING." CLAUSE 17 PROVIDED THAT BIDS SHOULD BE "MAILED TO: SALES CONTRACTING OFFICER, DEFENSE SURPLUS SALES OFFICE, P. O. BOX 6297, FORT WORTH, TEXAS 76115 OR DELIVERED TO: SALES CONTRACTING OFFICER, DEFENSE SURPLUS SALES OFFICE, BUILDING 23, SECOND FLOOR, FORT WORTH FEDERAL CENTER (LOCATED ON FELIX AT HEMPHILL STREET), FORT WORTH, TEXAS."

ARTICLE AC OF PART 3, SPECIAL SEALED BID CONDITIONS, OF THE SALE BY REFERENCE PAMPHLET ISSUED MARCH 1969, WHICH WAS INCORPORATED BY REFERENCE IN THE IFB, PROVIDED THAT BIDS MUST BE IN THE POSSESSION OF THE SALES CONTRACTING OFFICER BY THE TIME SET FOR BID OPENING. ARTICLE AC ALSO PROVIDED THAT ANY BID RECEIVED AFTER THE TIME SET FOR BID OPENING WOULD NOT BE CONSIDERED UNLESS RECEIVED BY THE SALES CONTRACTING OFFICER PRIOR TO AWARD; WAS MAILED AND IN FACT DELIVERED TO THE ADDRESS SPECIFIED IN THE IFB IN SUFFICIENT TIME TO HAVE BEEN RECEIVED BY THE SALES CONTRACTING OFFICER BY THE TIME AND DATE SET FORTH THEREIN; AND, EXCEPT FOR DELAY ATTRIBUTABLE TO PERSONNEL OF THE SALES OFFICE OR THEIR DESIGNEES, WOULD HAVE BEEN RECEIVED IN TIME.

YOUR BID WAS MAILED IN A SEALED ENVELOPE POSTMARKED JUNE 23, 1970. WAS ADDRESSED TO THE HAND-DELIVERY ADDRESS "DEFENSE SURPLUS SALES OFFICE, BUILDING 23, FORT WORTH FEDERAL CENTER, FORT WORTH, TEXAS," RATHER THAN TO THE DESIGNATED MAILING ADDRESS. ALSO, THE ENVELOPE WAS NOT MARKED IN THE LOWER LEFT CORNER WITH ANY IDENTIFICATION OF THE IFB TO WHICH IT APPLIED OTHER THAN THE DATE OF OPENING AND THE TIME THEREOF.

YOUR BID WAS RECORDED AS BEING RECEIVED BY THE SALES OFFICE AT 8:20 A.M., JULY 1, 1970, THE DAY AFTER BID OPENING, AND SINCE THE ENVELOPE DID NOT SPECIFY THE IFB NUMBER IT IS REPORTED THAT THE BID WAS OPENED FOR PURPOSES OF IDENTIFICATION INASMUCH AS THE SALES OFFICE HAD THREE BID OPENINGS ON JUNE 30, 1970. THE BID WAS THEREAFTER RESEALED AND RETURNED TO YOU AS A LATE BID. IT APPEARS THAT SINCE THE ENVELOPE WAS NOT ADDRESSED AS SPECIFIED, YOUR BID WAS DELIVERED TO THE GENERAL SERVICES ADMINISTRATION MAIL ROOM AT THE FEDERAL BUILDING WHERE IT WAS STAMPED AS BEING RECEIVED AT 12:31 P.M. ON JUNE 30, 1970. THEREFORE, YOUR BID WAS NOT RECEIVED BY THE SALES CONTRACTING OFFICER OR DELIVERED TO EITHER ADDRESS SPECIFIED IN THE INVITATION AT THE TIME OF BID OPENING, AS REQUIRED BY ARTICLE AC OF THE IFB FOR CONSIDERATION FOR AWARD. IT IS ALSO EVIDENT THAT THE UNTIMELY RECEIPT OF YOUR BID BY THE SALES OFFICE WAS NOT ATTRIBUTABLE IN ANY WAY TO THE PERSONNEL OF THAT OFFICE.

AT THE OPENING OF THOSE BIDS WHICH HAD BEEN TIMELY RECEIVED, THE BID OF R. D. & D CORPORATION IN THE AMOUNT OF $41,177 WAS FOUND TO BE HIGH ON ITEM 125, WHICH IS THE SUBJECT OF YOUR PROTEST, AND AWARD WAS MADE TO THAT FIRM ON JULY 7, 1970. THE PURCHASER PAID FOR ITEM 125 IN FULL ON JULY 27, 1970, AND REMOVED THE ITEM ON AUGUST 5, 1970. YOUR LATE BID ON ITEM 125 WAS $46,251.

YOUR PROTEST IS BASED ON THE CONTENTIONS (1) THAT THE BID WAS MAILED IN AMPLE TIME FOR CONSIDERATION AND THAT IF IT WAS DELIVERED LATE IT WAS THE GOVERNMENT'S FAULT; (2) THAT THE ENVELOPE WAS ADDRESSED TO THE SALE SITE SHOWN ON THE FRONT PAGE OF THE IFB, AND YOU HAVE ADDRESSED PREVIOUS BIDS SIMILARLY WITH NO DIFFICULTY; AND (3) THAT SINCE YOUR BID WAS MORE THAN $5,000 ABOVE THE NEXT HIGHEST BID, THE GOVERNMENT SHOULD HAVE REJECTED ALL BIDS AND READVERTISED IF IT COULD NOT CONSIDER YOUR BID.

IT SHOULD BE NOTED THAT YOUR BID WAS REJECTED BECAUSE IT WAS NOT RECEIVED IN THE SALES OFFICE BY THE TIME SPECIFIED, AND NOT BECAUSE OF THE MANNER IN WHICH IT WAS ADDRESSED. ALTHOUGH YOUR BID MAY HAVE BEEN MAILED IN AMPLE TIME, AS YOU CONTEND, FOR TIMELY DELIVERY UNDER ORDINARY CONDITIONS TO THE SALES CONTRACTING OFFICER IN THE MANNER ADDRESSED, DELAY WHILE THE BID WAS IN THE CUSTODY OF THE POST OFFICE DEPARTMENT AFFORDS NO BASIS FOR RELIEF. ARTICLE AC EXEMPTS ONLY THAT DELAY ATTRIBUTABLE TO PERSONNEL OF THE SALES OFFICE, AND NO PROVISION WAS MADE ELSEWHERE IN THE IFB, FOR CONSIDERATION OF DELAYS OCCURRING IN THE MAILS. SEE B-156034, MARCH 5, 1965, AND B-158257, FEBRUARY 10, 1966.

REGARDING YOUR CONTENTION THAT ALL BIDS SHOULD BE REJECTED AND THE SALE READVERTISED, THE RECORD SHOWS THAT THE AWARD TO R. D. & D. OF ITEM 125 FOR $41,177 WAS AT 67 PERCENT OF THE GOVERNMENT'S ACQUISITION COST AND THAT CURRENT MARKET APPRAISAL ESTABLISHED FOR THE ITEM BY THE SALES OFFICE PRIOR TO BID OPENING WAS $16,000. THERE WERE 27 TIMELY BIDS RECEIVED ON ITEM 125. SINCE THE BID OF R. D. & D. WAS THE HIGHEST BID AND SUBSTANTIALLY EXCEEDED THE MARKET APPRAISAL, THE CONTRACTING OFFICER CONCLUDED THAT THE R. D. & D. BID OFFERED A FAIR RETURN TO THE GOVERNMENT, AND THAT REJECTION OF THE BID WOULD NOT BE JUSTIFIED. WE CONCUR IN THAT DECISION. WHILE A READVERTISEMENT MAY HAVE RESULTED IN A HIGHER PRICE FOR THE ITEM, WE HAVE OFTEN OBSERVED IN SUCH MATTERS THAT MAINTENANCE OF THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM IS INFINITELY MORE IN THE PUBLIC INTEREST THAN TO OBTAIN A PECUNIARY ADVANTAGE IN A PARTICULAR CASE.

ACCORDINGLY, IN VIEW OF THE FOREGOING, YOUR PROTEST IS DENIED.