[Protest of Army Contract Award]

B-170437, AUG. 10, 1970

BIDS -- DUPLICATE DECISION CONCLUDING THAT DUPLICATE BID OF MOODY CONTRACTING CO., MAY NOT BE CONSIDERED FOR AWARD FOR ROAD RESURFACING PROJECT AT ISLAND POINT, JIM WOODRUFF RESERVIOR, GEORGIA, BY MOBILE ARMY ENGINEER DISTRICT. A BID THAT WAS MAILED BY CERTIFIED MAIL AND TIMELY RECEIVED AT THE PROCUREMENT INSTALLATION BUT LOST BEFORE DELIVERY AT BID OPENING OFFICE IS NOT JUSTIFICATION FOR CONSIDERATION OF A DUPLICATE BID. HOWEVER IN VIEW OF THE SUBSTANTIAL DIFFERENCE BETWEEN AMOUNT OF ONLY BID RECEIVED AND GOVERNMENT ESTIMATE FOR THE WORK, THE DEPT. MAY CONSIDER WHETHER BEST INTERESTS OF GOVERNMENT WOULD BE TO REJECT BID AS BEING UNREASONABLE IN PRICE AND RESOLICIT THE PROCUREMENT.

TO MR. SECRETARY:

REFERENCE IS MADE TO A LETTER DATED JULY 22, 1970, WITH ENCLOSURES, FROM THE GENERAL COUNSEL, OFFICE OF THE CHIEF OF ENGINEERS, REQUESTING A DECISION AS TO WHETHER, UNDER THE FACTS AND CIRCUMSTANCES SET FORTH BELOW, A DUPLICATE BID FURNISHED BY THE MOODY CONTRACTING COMPANY, TALLAHASSE, FLORIDA, IN RESPONSE TO DEPARTMENT OF THE ARMY INVITATION FOR BIDS (IFB) NO. DACW01-70-B-0148 MAY BE CONSIDERED AND ACCEPTED.

THE CITED IFB ISSUED BY THE DISTRICT ENGINEER, U. S. ARMY ENGINEER DISTRICT, MOBILE, REQUESTED BIDS--TO BE OPENED AT 11 A.M., C.S.T., ON JUNE 29, 1970--FOR THE RESURFACING OF ROADS AND PARKING AREAS AT ISLAND POINT, SEALY'S POINT, RIVER JUNCTION, AND RESERVOIR MANAGER'S OFFICE, JIM WOODRUFF RESERVOIR, GEORGIA. THE ONLY BID TIMELY RECEIVED ON THIS INVITATION BY THE BID OPENING OFFICER WAS IN THE AMOUNT OF $41,310. THE GOVERNMENT'S ESTIMATE FOR THE WORK WAS $24,540.

AFTER THE BID OPENING ON JUNE 29, 1970, MR. E. E. DORCH OF THE MOODY CONTRACTING COMPANY TELEPHONED THE PROCUREMENT OFFICE TO OBTAIN THE RESULTS OF THE BID OPENING, AND HE WAS INFORMED THAT A BID HAD NOT BEEN RECEIVED FROM HIS FIRM. MR. DORCH STATED THAT HIS COMPANY'S BID HAD BEEN FORWARDED BY REGISTERED MAIL FROM PANAMA CITY, FLORIDA, ON JUNE 26, 1970. IN VIEW THEREOF, MR. DORCH WAS REQUESTED TO FURNISH THE ORIGINAL REGISTERED MAIL RECEIPT TOGETHER WITH VERIFICATION FROM THE PANAMA CITY, FLORIDA, POST OFFICE AS TO THE TIME OF MAILING IN ACCORDANCE WITH PARAGRAPH 2-303.3 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) IN ORDER TO DETERMINE WHETHER THE LATE BID COULD BE CONSIDERED. AT THE TIME OF THIS TELEPHONE CALL, MR. DORCH FURNISHED THE FOLLOWING PRICES, WHICH HE STATED WERE THE COMPANY'S BID PRICES, TO THE CHIEF, CONTRACT SECTION, MOBILE DISTRICT: ITEM 1, $26,014.50; ITEM 2, $975; FOR A TOTAL AGGREGATE BID OF $26,989.50.

THE RECORD INDICATES THAT THE MOODY CONTRACTING COMPANY HAS SUBMITTED TO THE DISTRICT ENGINEER THE FOLLOWING:

(A) THE ORIGINAL RECEIPT FOR REGISTERED MAIL NO. 10946, POSTMARKED PANAMA CITY, FLORIDA, JUNE 26, 1970. HOWEVER, THE RECEIPT DOES NOT SPECIFY THE CONTENTS OF THE ENVELOPE COVERED THEREBY NOR DOES IT SHOW THE TIME OF MAILING.

(B) A LETTER DATED JUNE 29, 1970, FROM THE ASSISTANT POSTMASTER OF THE PANAMA CITY POST OFFICE, IN WHICH HE STATES THAT REGISTERED ARTICLE NO. 10946 WAS MAILED AT COVE STATION ON JUNE 26, 1970, PRIOR TO 5 P.M., ADDRESSED TO U. S. ARMY ENGINEERS, SUPPLY DIVISION, POST OFFICE BOX 2288, MOBILE, ALABAMA 36601.

(C) A DUPLICATE BID BOND AND A DUPLICATE BID WHICH SHOWS THE SAME PRICES AS GIVEN BY THE COMPANY TO THE CHIEF, CONTRACT SECTION, MOBILE DISTRICT, ON JUNE 29, 1970.

(D) AN AFFIDAVIT DATED JULY 1, 1970, CERTIFYING THAT DUPLICATE BID AND BOND ARE TRUE COPIES OF THE ORIGINAL DOCUMENTS.

IN HIS REPORT OF JULY 7, 1970, THE DISTRICT ENGINEER STATES THAT REGISTERED ARTICLE 10946 HAD BEEN RECEIVED AT THE MOBILE POST OFFICE AND THAT IT HAD BEEN DELIVERED TO THE COURIER FOR THE MOBILE DISTRICT OFFICE AT 7:20 A.M., C.D.T., JUNE 29, 1970, PRIOR TO THE TIME SET FOR OPENING OF BIDS; THAT THE REGISTRY LOG ON FILE IN THE MAIL AND RECORDS SECTION, MOBILE DISTRICT, WAS ANNOTATED TO SHOW THAT THIS REGISTERED DOCUMENT WAS FORWARDED TO THE SUPPLY DIVISION; AND THAT CLERICAL PERSONNEL OF THE MAIL AND RECORDS SECTION, AS WELL AS THE MESSENGER BRINGING THE MAIL FROM THE POST OFFICE, REMEMBER HANDLING THE REGISTERED ENVELOPE IN QUESTION. HOWEVER, WE ARE ADVISED THAT PERSONNEL IN THE SUPPLY DIVISION DO NOT REMEMBER RECEIVING MOODY'S BID AND THAT IT CANNOT BE LOCATED AFTER A THOROUGH SEARCH.

IN A DECISION OF OCTOBER 25, 1962, B-149981, WE HELD THAT A CORPORATION, WHICH ALLEGED THAT THE FAILURE OF BOTH ITS BID AND ADDENDUM TO REACH THE CONTRACTING OFFICER PRIOR TO THE BID OPENING ON SEPTEMBER 19, 1962, WAS DUE TO THEIR LOSS IN THE MAILS, COULD NOT BE PERMITTED TO RESUBMIT ITS BID, NOTWITHSTANDING THAT A RECEIPT FOR CERTIFIED MAIL EVIDENCED THAT A LETTER WAS MAILED TO THE PROCUREMENT AGENCY ON SEPTEMBER 12, 1962. THERE, AS HERE, THE RECEIPT DID NOT SHOW THE CONTENTS OF THE ENVELOPE OR THE MAILING TIME. ALTHOUGH THAT CASE INVOLVED AN OSTENSIBLE BID WHICH APPARENTLY WAS LOST BY THE POST OFFICE, WE APPLIED THE RATIONALE OF THE CITED CASE TO TWO SITUATIONS WHEREIN, AS HERE, BIDS WERE MAILED BY CERTIFIED MAIL AND TIMELY RECEIVED AT THE PROCUREMENT ACTIVITY BUT INADVERTENTLY LOST BEFORE DELIVERY TO THE BID OPENING OFFICE. SEE B- 166973, JUNE 26, 1969, AND B 167369, SEPTEMBER 18, 1969. AS IN THE TWO ABOVE-CITED DECISIONS, THE FOLLOWING EXCERPT FROM THE 1962 DECISION--CITED IN THE 1969 DECISIONS- IS PERTINENT HERE:

"NINETEEN FIRMS SUBMITTED PRICES UNDER THIS INVITATION WHICH, OF COURSE, HAVE BEEN MADE PUBLIC. UNDER THESE CIRCUMSTANCES IT WOULD NOT BE REASONABLE, NOR PERMISSIBLE, TO ALLOW YOU (THE OSTENSIBLE BIDDER) TO RESUBMIT YOUR BID. ALTHOUGH THERE IS NO REASON TO QUESTION YOUR GOOD FAITH, AWARD ON THE BASIS OF SELF-SERVING STATEMENTS WOULD NOT BE CONSISTENT WITH THE MAINTENANCE OF THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM WHICH REQUIRES AWARD TO BE MADE TO THE LOW RESPONSIVE AND RESPONSIBLE BIDDER OF RECORD AT THE TIME OF THE OPENING, EXCEPT IN CERTAIN RECOGNIZED AREAS WHERE DETAILED PROCEDURES HAVE BEEN ESTABLISHED, AS IN LATE BID CASES."

WHILE THE LOSS OF MOODY'S ORIGINAL BID AT THE GOVERNMENT INSTALLATION IS UNFORTUNATE, THERE APPEARS NO PROPER BASIS FOR CONSIDERING MOODY'S DUPLICATE BID FOR PURPOSES OF MAKING AN AWARD. B-169214, JUNE 11, 1970; B -167369, SEPTEMBER 18, 1969; B-166973, JUNE 26, 1969.

HOWEVER, IN VIEW OF THE SUBSTANTIAL DIFFERENCE BETWEEN THE AMOUNT OF THE ONLY BID RECEIVED AT THE TIME OF THE BID OPENING AND THE AMOUNT OF THE GOVERNMENT'S ESTIMATE, THERE APPEARS TO BE FOR CONSIDERATION BY YOUR DEPARTMENT THE QUESTION WHETHER IT WOULD BE IN THE BEST INTERESTS OF THE GOVERNMENT TO REJECT THE ONLY BID RECEIVED AS BEING UNREASONABLE IN PRICE AND TO READVERTISE THE PROCUREMENT IN CONSONANCE WITH ASPR 2 404. COMP. GEN. 268, 273 (1963).