B-180462, MAR 12, 1974

B-180462: Mar 12, 1974

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

WAS PROPERLY REJECTED. INASMUCH AS ONLY EXCUSABLE DELAY IN SUBMITTING BID ON SURPLUS SALE IS DELAY ATTRIBUTABLE TO PERSONNEL IN SALES OFFICE. SINCE MAINTENANCE OF INTEGRITY OF COMPETITIVE BIDDING SYSTEM IS MORE IN GOVERNMENT'S BEST INTERESTS THAN PECUNIARY ADVANTAGE TO BE GAINED IN PARTICULAR CASE. FRED SCHWARTZ: BIDS WERE SOLICITED FOR VARIOUS SURPLUS ITEMS UNDER SALE INVITATION FOR BIDS (SIFB) NO. 41-4167. WHEN THE BIDS WERE OPENED. NONE OF THESE BIDS WAS HIGH HOWEVER. THE BID WAS RETURNED UNOPENED TO MR. WHICH WAS INCORPORATED INTO THE SIFB. OR WITHDRAWAL RECEIVED AFTER THE TIME SET FOR BID OPENING WILL NOT BE CONSIDERED UNLESS RECEIVED BY THE CONTRACTING OFFICER PRIOR TO AWARD. WAS MAILED (OR TELEGRAPHED WHERE AUTHORIZED) AND IN FACT DELIVERED TO THE ADDRESS SPECIFIED IN THE INVITATION FOR BIDS IN SUFFICIENT TIME TO HAVE BEEN RECEIVED BY THE CONTRACTING OFFICER BY THE TIME AND DATE SET FORTH IN THE INVITATION FOR BID OPENING.

B-180462, MAR 12, 1974

BID IN RESPONSE TO SURPLUS SALE, WHICH ARRIVED AT BID OPENING SITE TOO LATE FOR BID OPENING DUE TO MISHANDLING BY POST OFFICE, WAS PROPERLY REJECTED, INASMUCH AS ONLY EXCUSABLE DELAY IN SUBMITTING BID ON SURPLUS SALE IS DELAY ATTRIBUTABLE TO PERSONNEL IN SALES OFFICE. ALSO, FACT BID OFFERS HIGHEST PRICE DOES NOT CHANGE THIS RESULT, SINCE MAINTENANCE OF INTEGRITY OF COMPETITIVE BIDDING SYSTEM IS MORE IN GOVERNMENT'S BEST INTERESTS THAN PECUNIARY ADVANTAGE TO BE GAINED IN PARTICULAR CASE. SEE COMP. GEN. DECISIONS CITED.

TO MR. FRED SCHWARTZ:

BIDS WERE SOLICITED FOR VARIOUS SURPLUS ITEMS UNDER SALE INVITATION FOR BIDS (SIFB) NO. 41-4167, ISSUED BY THE DEFENSE PROPERTY DISPOSAL SERVICE, DEFENSE SUPPLY AGENCY, OGDEN, UTAH, WITH THE BID OPENING SET FOR 10 A.M., JANUARY 15, 1974. WHEN THE BIDS WERE OPENED, THE SALES OFFICE FOUND THAT MR. FRED SCHWARTZ HAD SUBMITTED TIMELY BIDS ON SEVEN ITEMS. NONE OF THESE BIDS WAS HIGH HOWEVER.

ON JANUARY 16, 1974, THE SALES OFFICE RECEIVED A SEALED BID ENVELOPE MARKED IN RESPONSE TO THE SIFB FROM MR. SCHWARTZ. THE BID WAS RETURNED UNOPENED TO MR. SCHWARTZ PURSUANT TO CONDITION C IN PART 3 OF THE PAMPHLET ENTITLED SALE BY REFERENCE, AUGUST 1973 (DPDS FORM 81), WHICH WAS INCORPORATED INTO THE SIFB. CONDITION C STATES:

"C. CONSIDERATION OF LATE BIDS, MODIFICATIONS, OR WITHDRAWALS.

"BIDS AND MODIFICATIONS OR WITHDRAWALS THEREOF, MUST BE IN THE POSSESSION OF THE CONTRACTING OFFICER BY THE TIME SET FOR BID OPENING. ANY BID, MODIFICATION, OR WITHDRAWAL RECEIVED AFTER THE TIME SET FOR BID OPENING WILL NOT BE CONSIDERED UNLESS RECEIVED BY THE CONTRACTING OFFICER PRIOR TO AWARD, WAS MAILED (OR TELEGRAPHED WHERE AUTHORIZED) AND IN FACT DELIVERED TO THE ADDRESS SPECIFIED IN THE INVITATION FOR BIDS IN SUFFICIENT TIME TO HAVE BEEN RECEIVED BY THE CONTRACTING OFFICER BY THE TIME AND DATE SET FORTH IN THE INVITATION FOR BID OPENING, AND, EXCEPT FOR DELAY ATTRIBUTABLE TO PERSONNEL OF THE SALES OFFICE OR THEIR DESIGNEES, WOULD HAVE BEEN RECEIVED ON TIME. IN NO EVENT WILL HAND-CARRIED BIDS OR WITHDRAWALS BE CONSIDERED IF DELIVERED TO THE CONTRACTING OFFICER AFTER THE EXACT TIME AND DATE SET FOR BID OPENING. HOWEVER, A MODIFICATION WHICH MAKES THE TERMS OF THE OTHERWISE SUCCESSFUL BID MORE FAVORABLE TO THE GOVERNMENT WILL BE CONSIDERED AT ANY TIME IT IS RECEIVED PRIOR TO AWARD AND MAY BE ACCEPTED."

BY TELEGRAM DATED JANUARY 21, 1974, MR. SCHWARTZ PROTESTED TO OUR OFFICE AGAINST THE REJECTION OF HIS BID. HE STATED THAT HE AIRMAILED THE BID FROM LOS ANGELES, CALIFORNIA, ON JANUARY 11, 1974, IN AMPLE TIME TO HAVE ARRIVED AT THE BID OPENING SITE IN OGDEN, UTAH, PRIOR TO THE BID OPENING DATE, IF IT HAD BEEN PROPERLY HANDLED BY THE POST OFFICE. HOWEVER, HIS BID WAS EVIDENTLY MISHANDLED BY THE POST OFFICE AND DELIVERED TO OREM, UTAH, FROM WHICH IT WAS FORWARDED TO OGDEN TOO LATE FOR BID OPENING. MR. SCHWARTZ STATED THAT THE CONTRACTING OFFICER SHOULD HAVE EXAMINED THE BID'S ENVELOPE AND NOTED THAT THE BID WAS MISHANDLED THROUGH NO FAULT OF MR. SCHWARTZ AND ACCEPTED IT AS TIMELY AND RESPONSIVE. MR. SCHWARTZ FURTHER CONTENDED THAT IF HIS BID WAS CONSIDERED, IT WOULD BE HIGH ON SEVERAL ITEMS AND THEREFORE IT WOULD BE IN THE GOVERNMENT'S BEST INTERESTS TO ACCEPT HIS LATE BID.

UNDER THE ABOVE QUOTED LANGUAGE OF CONDITION C, IT IS CLEAR THAT A BID OR MODIFICATION RECEIVED AFTER THE TIME SET FOR BID OPENING CAN BE CONSIDERED ONLY UPON EVIDENCE ESTABLISHING THAT IT WAS IN FACT DELIVERED TO THE PLACE SPECIFIED IN THE SIFB, I.E., THE SALES OFFICE, IN SUFFICIENT TIME TO HAVE BEEN RECEIVED BY THE SALES CONTRACTING OFFICER BY THE TIME SET FOR BID OPENING. EVEN THOUGH YOUR BID MAY HAVE BEEN MAILED IN AMPLE TIME FOR TIMELY DELIVERY UNDER ORDINARY CONDITIONS, IT IS ALSO CLEAR THAT DELAY WHILE THE BID WAS IN THE CUSTODY OF THE POST OFFICE AFFORDS NO BASIS FOR RELIEF, INASMUCH AS CONDITION C ONLY EXEMPTS DELAY ATTRIBUTABLE TO PERSONNEL IN THE SALES OFFICE. SEE B-158257, FEBRUARY 10, 1966; B-170422, SEPTEMBER 23, 1970. THIS RULE IS THE SAME AS IN THE CASE OF LATE TELEGRAPHIC BID MODIFICATIONS ON SURPLUS SALES, AND IT WAS APPLIED IN OUR DECISION B 170906, NOVEMBER 9, 1970, TO MR. SCHWARTZ, THEN TRADING AS SURPLUS TIRE SALES.

WITH REGARD TO MR. SCHWARTZ'S CONTENTION THAT INASMUCH AS HIS LATE BID OFFERS A HIGHER PRICE, IT WOULD BE IN THE GOVERNMENT'S BEST INTERESTS TO ACCEPT IT, WE HAVE OFTEN OBSERVED THAT THE MAINTENANCE OF THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM IS MORE IN THE GOVERNMENT'S BEST INTERESTS THAN THE PECUNIARY ADVANTAGE TO BE GAINED IN A PARTICULAR CASE.

ACCORDINGLY, THE ACTION TAKEN BY THE SALES OFFICE WITH REGARD TO MR. SCHWARTZ'S LATE BID WAS PROPER AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE SIFB. THEREFORE, MR. SCHWARTZ'S PROTEST IS DENIED.