B-173143, JUN 25, 1971

B-173143: Jun 25, 1971

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WHICH WAS SENT AIR MAIL SPECIAL DELIVERY. WAS RECEIVED IN THE GOVERNMENT MAIL ROOM AT 8:20 A.M. ON THE DAY BIDS WERE SCHEDULED FOR OPENING AT 3:00 P.M. WHICH WAS RETURNED BY PROTESTANT TO THE PROCURING ACTIVITY UNOPENED. WAS NOT TAMPERED WITH THE BID MAY PROPERLY BE CONSIDERED FOR CONTRACT AWARD. THREE BIDS WERE OPENED AS SCHEDULED AT 3 P.M. WHICH WAS NOT SENT BY EITHER REGISTERED OR CERTIFIED MAIL. WAS RECEIVED BY THE PROCUREMENT OFFICE. SINCE THIS BID WAS NOT TRANSMITTED BY THE MEANS DELINEATED BY PARAGRAPH 2-303.3 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). IT WAS RETURNED TO THE BIDDER UNOPENED. ON MAY 27 PACIFIC ROOFING ADVISED BY TELEPHONE THAT ITS BID WAS TIMELY MAILED AND THAT ITS LATE RECEIPT WAS DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AT THE NAVAL STATION AT KODIAK.

B-173143, JUN 25, 1971

BID PROTEST - LATE OFFER - GOVERNMENT MISHANDLING CONCERNING PROTEST OF PACIFIC ROOFING CO., INC., AGAINST AWARD OF CONTRACT UNDER IFB ISSUED BY NAVAL FACILITIES ENGINEERING COMMAND TO ANY OTHER BIDDER. SINCE THE BID OF PROTESTANT, WHICH WAS SENT AIR MAIL SPECIAL DELIVERY, WAS RECEIVED IN THE GOVERNMENT MAIL ROOM AT 8:20 A.M. ON THE DAY BIDS WERE SCHEDULED FOR OPENING AT 3:00 P.M., BLAME FOR THE FAILURE TO DELIVER THE BID TO THE PROCUREMENT OFFICE UNTIL THE NEXT DAY MUST BE PLACED ON THE GOVERNMENT. THEREFORE, THE PROCURING ACTIVITY WRONGFULLY RETURNED THE BID AS A LATE OFFER TRANSMITTED BY OTHER THAN ASPR PROSCRIBED MEANS. AS AN INVESTIGATION BY THE CRIME LABORATORY OF THE POST OFFICE DEPARTMENT INDICATES THAT THE BID, WHICH WAS RETURNED BY PROTESTANT TO THE PROCURING ACTIVITY UNOPENED, WAS NOT TAMPERED WITH THE BID MAY PROPERLY BE CONSIDERED FOR CONTRACT AWARD.

TO MR. SECRETARY:

WE REFER TO A REPORT DATED JUNE 17, 1971, FROM THE NAVAL FACILITIES ENGINEERING COMMAND, ON THE PROTEST OF THE PACIFIC ROOFING CO., INC., AGAINST AN AWARD UNDER INVITATION FOR BIDS NO. N62474-71-B-3602 TO ANY OTHER BIDDER.

THREE BIDS WERE OPENED AS SCHEDULED AT 3 P.M. ON MAY 25, 1971, AT THE NAVAL STATION, KODIAK, ALASKA. THEREAFTER, ON MAY 26, THE BID OF PACIFIC ROOFING, WHICH WAS NOT SENT BY EITHER REGISTERED OR CERTIFIED MAIL, BUT BY SPECIAL DELIVERY, AIRMAIL, WAS RECEIVED BY THE PROCUREMENT OFFICE. SINCE THIS BID WAS NOT TRANSMITTED BY THE MEANS DELINEATED BY PARAGRAPH 2-303.3 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), IT WAS RETURNED TO THE BIDDER UNOPENED. ON MAY 27 PACIFIC ROOFING ADVISED BY TELEPHONE THAT ITS BID WAS TIMELY MAILED AND THAT ITS LATE RECEIPT WAS DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AT THE NAVAL STATION AT KODIAK, ALASKA. PACIFIC ROOFING THEN RETURNED ITS BID UNOPENED IN A REGISTERED LETTER ENVELOPE TO THE PROCURING ACTIVITY.

WE ARE ADVISED BY THE REPORT THAT THE BID OF PACIFIC ROOFING ARRIVED AT THE POSTAL FACILITIES OF THE NAVAL STATION ON THE MORNING OF MAY 25 AND THAT IT DID NOT REACH THE PROCUREMENT OFFICE UNTIL AFTER THE BID OPENING BECAUSE OF MISHANDLING BY NAVAL POSTAL PERSONNEL. IT APPEARS THAT THE PROCUREMENT ACTIVITY DETERMINED THAT THE BID OF PACIFIC ROOFING ARRIVED AT OR BEFORE 8:20 A.M. ON MAY 25 AT THE GOVERNMENT MAILROOM BUT THAT DUE TO INADVERTENCE IT WAS NOT RECEIVED BY THE ASSISTANT OFFICER IN CHARGE OF CONSTRUCTION UNTIL AFTER 3 P.M. THEREFORE, IT HAS BEEN CONCLUDED BY THE PROCUREMENT ACTIVITY THAT THE BID, WHICH WAS MISHANDLED BY ITS POSTAL PERSONNEL, MAY BE CONSIDERED FOR AWARD UNDER ASPR 2-303.3(A)(II). ON THE BASIS OF THE FACTS OF RECORD AND OTHER INFORMATION OBTAINED INDEPENDENTLY BY OUR OFFICE, WE CONCUR IN THIS DETERMINATION.

ALTHOUGH THE ACTION OF THE PROCUREMENT ACTIVITY IN RETURNING THE LATE BID TO PACIFIC ROOFING WITHOUT ATTEMPTING TO DETERMINE WHETHER IT WAS AN ACCEPTABLE BID WAS IMPROPER, WE BELIEVE THAT THE BID ORIGINALLY SUBMITTED IS THE BID WHICH WAS RESUBMITTED ON OR ABOUT MAY 27. BECAUSE THE OPPORTUNITY FOR TAMPERING WITH A BID EXISTS AFTER IT LEAVES THE CUSTODY OF THE GOVERNMENT, OUR OFFICE SUBMITTED THE SEALED BID ENVELOPE TO THE CRIME LABORATORY OF THE POST OFFICE DEPARTMENT FOR AN EXAMINATION TO DETERMINE WHETHER THE BID ENVELOPE HAD BEEN OPENED AND RESEALED. THE EXAMINATION REPORT FROM THE CRIME LABORATORY DATED JUNE 22, 1971, ADVISED THAT:

"MICROSCOPIC EXAMINATION OF THE REVERSE SIDE OF THE QUESTIONED ENVELOPE WITH VARIOUS LIGHT SOURCES, AS WELL AS USE OF ULTRA-VIOLET ILLUMINATION DID NOT REVEAL ANY IRREGULARITIES (SUCH AS PRYING MARKS, WRINKLING OF PAPER CAUSED BY STEAMING, PRESENCE OF ADDITIONAL MUCILAGE OR FIBER DISTURBANCES) NORMALLY OBSERVED WHEN TAMPERING HAS OCCURRED."

IN VIEW OF THIS INFORMATION, WE ARE SATISFIED THAT THE ENVELOPE CONTAINS THE SAME BID AS ORIGINALLY SUBMITTED BY PACIFIC ROOFING. SEE, IN THIS CONNECTION, OUR DECISION TO YOU, OF 50 COMP. GEN. (B 170836, B-170940, NOVEMBER 2, 1970). ACCORDINGLY, THE BID OF PACIFIC ROOFING, WHICH IS RETURNED HEREWITH, MAY BE REGARDED AS AN ACCEPTABLE LATE BID UNDER ASPR 2- 303.3(A)(II) AND, AS SUCH, MAY BE CONSIDERED FOR AWARD. WE RECOMMEND THAT THE PROCUREMENT PERSONNEL AT THE NAVAL STATION BE ADVISED OF THEIR OBLIGATION TO AFFORD A LATE BIDDER AN OPPORTUNITY TO SUBMIT EVIDENCE CONCERNING THE TRANSMISSION AND RECEIPT OF ITS BID AND OF THEIR OBLIGATION TO FOLLOW THE PROCEDURES PRESCRIBED BY ASPR 2-303.