B-171322, DEC. 23, 1970

B-171322, DEC. 23, 1970

LATE BID PROCEDURES DECISION THAT CONTROL DATA CORPORATION BID UNDER INVITATION ISSUED BY INTERNAL REVENUE SERVICE SHOULD BE CONSIDERED AS TIMELY RECEIVED, AND LATE BID PROCEDURES ARE THEREFORE INAPPLICABLE. WHERE AN INVITATION PROVIDED THAT OFFERS WOULD BE RECEIVED UNTIL 2 P.M., SEPTEMBER 16, 1970, AT ROOM 1320, INTERNAL REVENUE BUILDING, A DELIVERY TO THE RECEIVING PLATFORM ON SEPTEMBER 9, 1970, AND SUBSEQUENT MISHANDLING WITHIN IRS WITH THE POSSIBILITY THAT THE MISHANDLING OCCURED AFTER IT WAS PROPERLY DELIVERED TO ROOM 1320, THEN THE BID SHOULD BE CONSIDERED AS HAVING BEEN TIMELY RECEIVED AND LATE BID PROCEDURES ARE NOT APPLICABLE.

TO MR. CAMPAGNOLI:

REFERENCE IS MADE TO YOUR LETTER A:FM:N OF NOVEMBER 18, 1970, REQUESTING A DECISION WHETHER THE BID OF THE CONTROL DATA CORPORATION SUBMITTED UNDER INVITATION FOR BIDS 2728 SHOULD BE OPENED UNDER LATE BID PROCEDURES.

THE INVITATION PROVIDED THAT OFFERS WOULD BE RECEIVED UNTIL 2 P.M., SEPTEMBER 16, 1970. THE OFFICE OF THE CHIEF, CONTRACT & PROCUREMENT SECTION, INTERNAL REVENUE BUILDING, ROOM 1320, 1111 CONSTITUTION AVENUE, N.W., WASHINGTON, D.C. 20224, WAS THE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS.

THE CONTROL DATA CORPORATION OFFER WAS SENT BY COMMERCIAL CARRIER AIR EXPRESS. IT WAS DELIVERED TO THE RECEIVING PLATFORM AT THE INTERNAL REVENUE SERVICE (IRS) BUILDING ON SEPTEMBER 9, 1970. AN IRS RECEIVING CLERK SIGNED A DELIVERY RECEIPT FOR THE OFFER AT THAT TIME. ON OCTOBER 28, 1970, THE OFFER OF CONTROL DATA WAS DISCOVERED IN ROOM 1324 OF THE IRS AUDIO VISUAL AID SECTION BY PERSONNEL IN THAT SECTION. SUCH PERSONNEL BROUGHT IT TO THE ATTENTION OF THE CONTRACT & PROCUREMENT SECTION THE NEXT DAY.

THE PACKAGE CONTAINING THE CONTROL DATA CORPORATION OFFER IS ADDRESSED:

"CHIEF, CONTRACT & PROCUREMENT SECTION

INTERNAL REVENUE BLDG. ROOM 1320

1111 CONSTITUTION AVENUE, N. W.

WASHINGTON, D. C. 20224

REF SOLICITATION NO. 2728

2:00 P.M. EDST 9/16/70."

THE IRS OPERATIONS SECTION QUERIED THE IRS RECEIVING CLERK ABOUT THE MATTER. THE RECEIVING CLERK STATED THAT HE DELIVERED THE PACKAGE TO ROOM 1320 ON SEPTEMBER 9, 1970. HOWEVER, THE CHIEF OF THE CONTRACT & PROCUREMENT SECTION HAS INDICATED THAT PERSONNEL IN ROOM 1320 ARE KNOWLEDGEABLE ABOUT BID PROCEDURES AND THAT IT WOULD BE MOST UNLIKELY THAT ANY ONE OF THEM WOULD HAVE RECEIVED THE PACKAGE AND MISDIRECTED IT. IN THE CIRCUMSTANCES, YOU HAVE CONCLUDED THAT THE PACKAGE WAS NOT RECEIVED IN ROOM 1320 BEFORE BID OPENING TIME BECAUSE OF MISHANDLING IN IRS.

THERE IS NO SHOWING THAT THE RECEIVING PLATFORM CLERK DELIVERED THE PACKAGE TO SOME PLACE OTHER THAN ROOM 1320. WHILE THE PACKAGE WAS FOUND IN THE AUDIO VISUAL AID SECTION A FEW DOORS AWAY FROM THE CONTRACT & PROCUREMENT SECTION 7 WEEKS AFTER IT WAS RECEIVED AT THE RECEIVING PLATFORM, IT DOES NOT FOLLOW THAT IT WAS NOT ORIGINALLY DELIVERED TO THE CONTRACT & PROCUREMENT SECTION ON SEPTEMBER 9, 1970. WE THINK IT IS POSSIBLE THAT THE PACKAGE WAS MISHANDLED AFTER IT WAS PROPERLY DELIVERED TO ROOM 1320. THE FACT THAT AN EMPLOYEE IS IN THE CONTRACT & PROCUREMENT SECTION AND MAY BE FAMILIAR WITH PROCUREMENT PROCEDURES WOULD NOT MAKE THAT EMPLOYEE ANY LESS CAPABLE OF ERROR THAN A RECEIVING ROOM EMPLOYEE WHO ALSO HAS A RESPONSIBILITY TO ACCOMPLISH HIS WORK IN A CERTAIN MANNER. SEE 48 COMP. GEN. 271 (1968). MOREOVER, A SHOWING OF WHAT IS THE ORDINARY METHOD AND PROCEDURE FOR HANDLING OFFERS IN THE CONTRACT & PROCUREMENT SECTION IS EVIDENCE OF HABIT AND CUSTOM NOT DEEMED TO OVERCOME OTHER EVIDENCE OF TIMELY DELIVERY. SEE CHARLSON REALTY COMPANY V UNITED STATES, 384 F. 2D 434, 444-445 (1967). IN THE CIRCUMSTANCES, THE RECORD DOES NOT OVERCOME THE RECEIVING EMPLOYEE'S STATEMENT THAT THE BID WAS DELIVERED TO ROOM 1320 ON SEPTEMBER 9, 1970.

IN VIEW OF THE ABOVE, THE CONTROL DATA CORPORATION OFFER SHOULD BE CONSIDERED TO HAVE BEEN TIMELY DELIVERED TO ROOM 1320. SINCE THE BID IS NOT A LATE BID, THERE IS NO REASON TO CONSIDER WHETHER THE LATE BID PROCEDURES HAVE APPLICATION HERE.

ACCORDINGLY, THE CONTROL DATA OFFER SHOULD BE OPENED AND CONSIDERED FOR AWARD IF OTHERWISE PROPER.