B-171452, JUN 15, 1971

B-171452: Jun 15, 1971

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THIS DOES NOT PRECLUDE CONSIDERATION OF A LATE BID WHERE THE PLANT CLEARANCE OFFICER HAS DETERMINED THAT THE BID SHOULD HAVE ARRIVED ON TIME BUT FOR A DELAY CAUSED SOLELY BY THE MAILS. A PRIOR COMMUNICATION TO PROCEED WITH AWARD TO PROTESTANT WHICH WAS NEVER MAILED OR OTHERWISE FURNISHED TO IT. RUTBERG: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 11. WAS AUTHORIZED BY THE PLANT CLEARANCE OFFICER (PCO) TO OFFER BOTH ITEMS FOR SALE ON AN "AS IS. WHERE IS" BASIS. CLOSING TIME FOR RECEIPT OF BIDS WAS NOVEMBER 10. WAS OFFERED BY STANDARD MACHINERY CO. WHICH WAS ACCOMPLISHED ON NOVEMBER 16. AFTER A DETERMINATION BY THE PCO THAT THE BID SHOULD HAVE ARRIVED ON TIME BUT FOR A DELAY CAUSED SOLELY BY THE MAILS.

B-171452, JUN 15, 1971

BID PROTEST - LATE BID DECISION DENYING PROTEST BY SECOND HIGH BIDDER AGAINST AWARD OF A SURPLUS SALES CONTRACT TO LEWIS MACHINERY COMPANY, HIGH BIDDER, FOR A MILLING MACHINE AND LATHE OFFERED BY THE DEFENSE SUPPLY AGENCY, LOS ANGELES, CALIF. ALTHOUGH THE IFB CONTAINED NO PROVISION RELATING TO THE HANDLING CONSIDERATION OR DISPOSITION OF BIDS RECEIVED AFTER THE TIME SET FOR PUBLIC OPENING, THIS DOES NOT PRECLUDE CONSIDERATION OF A LATE BID WHERE THE PLANT CLEARANCE OFFICER HAS DETERMINED THAT THE BID SHOULD HAVE ARRIVED ON TIME BUT FOR A DELAY CAUSED SOLELY BY THE MAILS. FURTHER, A PRIOR COMMUNICATION TO PROCEED WITH AWARD TO PROTESTANT WHICH WAS NEVER MAILED OR OTHERWISE FURNISHED TO IT, CANNOT BE DEEMED TO GIVE RISE TO A BINDING CONTRACT.

TO MR. MICHAEL B. RUTBERG:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 11, 1971, AND PRIOR CORRESPONDENCE, ON BEHALF OF STANDARD MACHINERY CO. PROTESTING AWARD OF A CONTRACT TO ANOTHER FIRM FOR THE SALE OF SURPLUS GOVERNMENT PROPERTY UNDER CASE NO. S0506A-BHHO, DATED OCTOBER 22, 1970, ISSUED BY THE DEFENSE SUPPLY AGENCY, DEFENSE CONTRACT ADMINISTRATION SERVICES REGION, LOS ANGELES, CALIFORNIA.

TISON ENGINEERING, INC., A GOVERNMENT CONTRACTOR IN POSSESSION OF SURPLUS GOVERNMENT PROPERTY, A CINCINNATI MILLING MACHINE (ITEM 1) AND A MONARCH LATHE (ITEM 2), WAS AUTHORIZED BY THE PLANT CLEARANCE OFFICER (PCO) TO OFFER BOTH ITEMS FOR SALE ON AN "AS IS, WHERE IS" BASIS. CLOSING TIME FOR RECEIPT OF BIDS WAS NOVEMBER 10, 1970, AT 2 P.M. AT THAT TIME, THE HIGHEST BID ON ITEM 1, THE SOLE ITEM IN CONTENTION, WAS OFFERED BY STANDARD MACHINERY CO. IN THE AMOUNT OF $3,855.55.

SUBSEQUENTLY, THE PCO MAILED A LETTER TO TISON APPROVING THE SALE TO STANDARD. HOWEVER, AT APPROXIMATELY 3:30 P.M. ON NOVEMBER 10, TISON RECEIVED A SPECIAL DELIVERY SEALED BID FROM LEWIS MACHINERY COMPANY. TISON THEN TRIED TO CONTRACT THE PCO FOR INSTRUCTIONS ON HANDLING THE LEWIS BID, AND WITHHELD ANY FURTHER ACTION, INCLUDING NOTIFICATION OF AWARD TO STANDARD, UNTIL IT COULD CONTACT THE PCO, WHICH WAS ACCOMPLISHED ON NOVEMBER 16.

AN EXAMINATION OF THE ENVELOPE CONTAINING LEWIS' BID REVEALED EVIDENCE OF THREE POSTMARKS: BURBANK, CALIFORNIA, NOVEMBER 9, 1970, POSTAGE METER 599506; LOS ANGELES STATION 27, 12:30 A.M., NOVEMBER 10, 1970; AND LOS ANGELES STATION 33, 3:30 A.M., NOVEMBER 10, 1970. AFTER A DETERMINATION BY THE PCO THAT THE BID SHOULD HAVE ARRIVED ON TIME BUT FOR A DELAY CAUSED SOLELY BY THE MAILS, HE INSTRUCTED TISON TO OPEN THE BID FOR CONSIDERATION. THE BID ON ITEM 1 CONTAINED THEREIN WAS $3,858, OR $2.45 HIGHER THAN STANDARD'S BID. AWARD WAS THEN MADE TO LEWIS WHICH PAID FOR ITEM 1 BY CHECK MADE PAYABLE TO THE TREASURER OF THE UNITED STATES ON NOVEMBER 23, 1970, AND REMOVED THE ARTICLE FROM TISON ON NOVEMBER 30, 1970.

IT IS YOUR CONTENTION THAT SINCE THE LEWIS BID WAS RECEIVED AFTER THE TIME APPOINTED FOR BID OPENING, IT SHOULD NOT HAVE BEEN CONSIDERED FOR AWARD. IT IS NOTED THAT THE INVITATION FOR BIDS CONTAINED NO PROVISION RELATING TO THE HANDLING, CONSIDERATION, OR DISPOSITION OF BIDS RECEIVED AFTER THE TIME SET FOR PUBLIC OPENING. UNDER SIMILAR CIRCUMSTANCES, OUR OFFICE HAS HELD THAT A STATEMENT THAT BIDS WILL BE RECEIVED UNTIL A CERTAIN TIME DOES NOT PRECLUDE CONSIDERATION OF BIDS RECEIVED AFTER THAT TIME. B-107417, MARCH 11, 1952, AND B-167298, AUGUST 5, 1969. HOWEVER, INHERENT IN SUCH A CONCLUSION WAS THE CONSIDERATION OF FAULT OR NEGLIGENCE RESULTING IN THE DELAY OCCASIONING THE LATE ARRIVAL AND THE POSSIBLE PREJUDICIAL EFFECTS UPON OTHER BIDDERS RESULTING FROM INCLUSION OF THE LATE BID. IT IS REPORTED BY THE ASSISTANT SUPERINTENDENT, MAIN (POST) OFFICE, INGLEWOOD, CALIFORNIA, THAT A SPECIAL DELIVERY LETTER BEARING THE POSTMARKS ON THE LEWIS BID SHOULD, UNDER NORMAL CONDITIONS, BE DELIVERED IN THE MORNING HOURS ON NOVEMBER 10, 1970, TO ITS DESTINATION IN WEST LOS ANGELES (TISON). IT IS FURTHER NOTED THAT THE LEWIS BID WAS AT ALL TIMES AFTER NOVEMBER 9, 1970, BEYOND LEWIS' CONTROL. IT WOULD THUS APPEAR THAT THE TARDINESS OF THE BID WAS CAUSED BY A DELAY SOLELY ATTRIBUTABLE TO THE POST OFFICE, FROM WHICH WE CAN PERCEIVE NO PREJUDICIAL EFFECTS ON THE OTHER BIDS. IN VIEW OF THE CIRCUMSTANCES, LEWIS' BID MAY PROPERLY BE CONSIDERED FOR AWARD.

YOU NEXT ALLEGE THAT THE INITIAL ACTION TO PROCEED WITH AWARD TO STANDARD, MAILED FROM THE PCO TO TISON, CONSTITUTED AN AWARD, THEREBY PRECLUDING CONSIDERATION OF LEWIS' BID. IN THIS CONNECTION, IT IS WELL ESTABLISHED THAT AN AWARD IS EFFECTIVE WHEN MAILED OR OTHERWISE FURNISHED TO THE SUCCESSFUL OFFEROR. 45 COMP. GEN. 700 (1966). THUS, THE COMMUNICATION OF NOTICE TO PROCEED WITH AWARD, NEVER BEING MAILED OR OTHERWISE FURNISHED TO STANDARD, CANNOT BE DEEMED TO GIVE RISE TO A BINDING CONTRACT.

THEREFORE, THE PROTEST IS DENIED.