B-158257, FEB. 10, 1966

B-158257, FEB. 10, 1966

TO THE HARRISBURG WASTE PAPER COMPANY:

YOUR LETTER OF DECEMBER 30, 1965, PROTESTS THE REFUSAL OF THE DEFENSE SURPLUS SALES OFFICE (DSSO), DEFENSE SUPPLY AGENCY (DSA), PHILADELPHIA, PENNSYLVANIA, TO CONSIDER YOUR BID ON SURPLUS GOVERNMENT PROPERTY OFFERED FOR SALE UNDER SEALED BID SALE INVITATION NO. 11-6070, ISSUED DECEMBER 7, 1965. THE BASIS OF YOUR PROTEST IS THAT YOUR BID WAS TIMELY MAILED AND THAT ITS RECEIPT BY THE DSSO AFTER THE SCHEDULED TIME OF BID OPENING WAS OCCASIONED BY AN ERROR ON THE PART OF THE POST OFFICE DEPARTMENT, A BRANCH OF THE FEDERAL GOVERNMENT. ACCORDINGLY, AND ON THE BASIS THAT YOU ARE THE HIGH BIDDER ON ITEM NO. 42, AS PER ADVICE FROM THE DEFENSE LOGISTICS SERVICES CENTER (DLSC), BATTLE CREEK, MICHIGAN, YOU CONTEND THAT YOUR BID SHOULD BE HONORED AS TO THAT ITEM. PENDING OUR DECISION, AWARD OF ITEM NO. 42 HAS BEEN WITHHELD BY DSA.

THE INVITATION, COVERING 128 ITEMS OF SCRAP METALS AND MATERIALS AT VARIOUS LOCATIONS, SPECIFIED THAT MAILED BIDS SHOULD BE ADDRESSED TO THE SALES CONTRACTING OFFICER, DSSO, P.O. BOX 8019, PHILADELPHIA, BUT BIDS COULD BE DELIVERED TO THE SALES CONTRACTING OFFICER, DSSO, BUILDING 652, U.S. NAVAL BASE, PHILADELPHIA. BID OPENING WAS SCHEDULED AT 10 A.M., EASTERN STANDARD TIME, DECEMBER 27, 1965, AT THE DSSO, BUILDING 652. ARTICLE AC, SPECIAL SEALED BID CONDITIONS, GOVERNING CONSIDERATION OF LATE BIDS, READS AS FOLLOWS:

"BIDS MUST BE IN THE POSSESSION OF THE SALES CONTRACTING OFFICER BY THE TIME SET FOR BID OPENING. ANY BID WHICH IS NOT IN THE POSSESSION OF THE SALES CONTRACTING OFFICER BY THE TIME SET FOR BID OPENING WILL BE CONSIDERED ONLY IF IT IS RECEIVED BY THE SALES CONTRACTING OFFICER PRIOR TO AWARD, WAS MAILED AND IN FACT DELIVERED TO THE PLACE SPECIFIED IN THE INVITATION FOR BIDS IN SUFFICIENT TIME TO HAVE BEEN RECEIVED BY THE SALES CONTRACTING OFFICER BY THE TIME SET FOR BID OPENING, AND EXCEPT FOR DELAY ATTRIBUTABLE TO SALES PERSONNEL OR THEIR DESIGNEES, WOULD HAVE BEEN ON TIME. IN NO EVENT WILL HAND-CARRIED BIDS BE CONSIDERED IF DELIVERED TO THE SALES OFFICE AFTER THE EXACT TIME SET FOR BID OPENING.'

PRIOR TO THE SCHEDULED HOUR OF BID OPENING ON DECEMBER 27, THE SALES CONTRACTING OFFICER ANNOUNCED THAT BIDS WHICH WERE RECEIVED BY 10 A.M. THAT DAY AT BOX 8019 IN THE MAIN POST OFFICE IN PHILADELPHIA WOULD BE CONSIDERED FOR AWARD. ACCORDINGLY, A DSSO REPRESENTATIVE STOOD BY THE POST OFFICE BOX UNTIL 10 A.M., AT WHICH TIME HE COLLECTED ALL OF THE MAIL IN THE BOX AND RETURNED TO THE DSSO. THERE WERE 115 TIMELY RECEIVED BIDS. YOUR BID WAS NOT AMONG THEM.

ON DECEMBER 28, THE DAY AFTER BID OPENING, THERE WERE DELIVERED TO THE CONTRACTING DIVISION AT THE DSSO 18 LATE BIDS, FOUR OF WHICH HAD BEEN FORWARDED IN ERROR BY POSTAL EMPLOYEES TO A PHILADELPHIA BANK, WHICH, IN TURN, HAD ROUTED THEM TO THE DDSO. YOUR BID WAS ONE OF THE FOUR MISROUTED BIDS.

UPON DETERMINATION THAT THE LATE DELIVERY OF THE 18 BIDS TO THE SALES CONTRACTING OFFICER WAS NOT ATTRIBUTABLE TO SALES OFFICE PERSONNEL OR THEIR DESIGNEES, A PREREQUISITE, UNDER THE PROVISIONS OF ARTICLE AC OF THE SPECIAL SEALED BID CONDITIONS, TO CONSIDERATION OF LATE BIDS RECEIVED BEFORE AWARD, ALL 18 BIDS WERE RETURNED TO THE SENDERS WITH ADVICE THAT THEY HAD BEEN RECEIVED TOO LATE TO BE CONSIDERED FOR AWARD.

IN A REPORT FORWARDED TO OUR OFFICE BY DSA, IT IS STATED THAT YOUR BID WAS RECEIVED IN THE SALES OFFICE DURING THE AFTERNOON OF DECEMBER 28, 1965, THE DAY AFTER BID OPENING, AND THAT THE DELAY IN ITS RECEIPT BY THE SALES CONTRACTING OFFICER WAS NOT ATTRIBUTABLE TO ANY FAULT ON THE PART OF THE DSSO SALES PERSONNEL OR THEIR DESIGNEES. REGARDING YOUR ALLEGED STANDING AS HIGH BIDDER ON ITEM NO. 42, IT IS STATED THAT WHILE THE DLSC AT BATTLE CREEK FURNISHED YOU INFORMATION BY TELEPHONE SO TO THE HIGH BIDS ON THE ITEMS ON WHICH YOU HAD ALLEGEDLY BID, THE CENTER HAD NO KNOWLEDGE OF THE AMOUNT OF YOUR BID,WHICH HAD BEEN RETURNED TO YOU, AND, THEREFORE, DID NOT, AS YOU CLAIM, ADVISE YOU THAT YOU WERE THE HIGH BIDDER ON ITEM NO. 42.

UNDER THE PROVISIONS OF ARTICLE AC OF THE SPECIAL SEALED BID CONDITIONS, A BID RECEIVED BY THE SALES CONTRACTING OFFICER AFTER THE TIME SET FOR BID OPENING, BUT BEFORE AWARD, COULD BE CONSIDERED FOR AWARD ONLY UPON PROOF THAT IT WAS IN FACT DELIVERED TO THE PLACE SPECIFIED IN THE INVITATION FOR BIDS (IN THIS CASE, P.O. BOX 8019, PHILADELPHIA) IN SUFFICIENT TIME TO HAVE BEEN RECEIVED BY THE SALES CONTRACTING OFFICER BY THE TIME SET FOR BID OPENING AND BUT FOR DELAY ATTRIBUTABLE TO SALES PERSONNEL OR THEIR DESIGNEES WOULD HAVE BEEN ON TIME. NO ALLOWANCE IS MADE FOR OTHER DELAYS BY THE GOVERNMENT, INCLUDING DELAYS BY THE POST OFFICE DEPARTMENT. BY WAY OF EXPLANATION, DSA ADVISES THAT THE LATE BID CLAUSE, AS IT APPEARS IN THE INVITATION IN QUESTION, WAS PUT INTO USE IN SALES INVITATIONS COMMENCING DECEMBER 1, 1964, TO REPLACE AN EARLIER CLAUSE WHICH PERMITTED CONSIDERATION OF LATE BIDS WHICH HAD BEEN MISHANDLED BY THE GOVERNMENT, PROVIDED THE BIDDER HAD USED CERTIFIED OR REGISTERED MAIL. UNDER THE EARLIER CLAUSE, THERE WAS OFTEN A LONG DELAY INCIDENT TO INVESTIGATING MAIL DELAYS TO DETERMINE THE ACCEPTABILITY OF LATE BIDS, A SITUATION WHICH IS NOT DESIRABLE FROM THE GOVERNMENT'S STANDPOINT IN THE DISPOSAL OF PROPERTY, SINCE IT DELAYS REMOVAL OF THE PROPERTY, REFUND OF UNSUCCESSFUL BID DEPOSITS, AND AWARD TO THE SUCCESSFUL BIDDER. UNDER THE NEW CLAUSE, HOWEVER, IT IS REPORTED THAT, IN CONTRACT TO THE MANY DIFFICULTIES ENCOUNTERED UNDER THE FORMER PROVISIONS, HUNDREDS OF SALES HAVE BEEN ACCOMPLISHED WITHOUT ANY PARTICULAR PROBLEM.

WHILE THE EXACT TIME AT WHICH YOUR BID REACHED BOX 8019 IN THE MAIN POST OFFICE AT PHILADELPHIA IS NOT OF RECORD, IT IS CLEAR THAT AT THE SCHEDULED TIME OF BID OPENING YOUR BID HAD NOT REACHED EITHER THE POST OFFICE BOX OR THE SALES OFFICE. THE DELAYED RECEIPT, THEREFORE, CAN IN NO WAY BE ATTRIBUTED TO THE SALES OFFICE PERSONNEL OR THEIR DESIGNEES. ACCORDINGLY, NOTWITHSTANDING THE ABSENCE OF FAULT ON YOUR PART OR THE FACT THAT THE LATE RECEIPT OF YOUR BID WAS ATTRIBUTABLE TO A GOVERNMENT AGENCY, THE POST OFFICE DEPARTMENT, WE MUST CONCUR WITH THE VIEW OF DSA THAT THE REFUSAL OF THE DSSO TO CONSIDER YOUR BID WAS PROPER UNDER THE TERMS OF THE INVITATION FOR BIDS. YOU ARE ADVISED, HOWEVER, THAT THE MATTER OF THE DELAY BY THE POST OFFICE DEPARTMENT HAS BEEN BROUGHT TO THE ATTENTION OF POSTAL OFFICIALS IN THE PHILADELPHIA POST OFFICE, AND THE DSSO HAS BEEN ASSURED THAT THE MISDELIVERY WILL BE INVESTIGATED; THAT POSTAL PERSONNEL WILL BE ALERTED TO PROPERLY HANDLE DSSO MAIL; AND THAT CARE WILL BE TAKEN TO AVOID SUCH ERRORS HEREAFTER.

CONCERNING YOUR ALLEGED STANDING AS HIGH BIDDER ON ITEM NO. 42 AS CONSTITUTING A BASIS FOR AWARD OF THE ITEM TO YOU, IT WOULD APPEAR THAT NEITHER YOU NOR THE SALES OFFICE IS IN A POSITION TO STATE THAT YOUR BID ON ITEM NO. 42 WAS HIGH, SINCE AT LEAST 14 OTHER LATE BIDS WERE RETURNED UNOPENED. UNDER THE CIRCUMSTANCES, THERE IS FOR APPLICATION, IN OUR OPINION, THE PRINCIPLE LONG OBSERVED IN THE CONDUCT OF GOVERNMENT PROCUREMENTS--- THAT IT IS INFINITELY MORE IN THE PUBLIC INTEREST TO ABIDE BY THE RULES OF COMPETITIVE BIDDING THAN TO OBTAIN A PECUNIARY ADVANTAGE IN A PARTICULAR CASE BY THE VIOLATION OF SUCH RULES. SINCE 115 OTHER BIDDERS, WHOSE BID PRICES HAVE BEEN PUBLICLY DISCLOSED, HAVE MET THE DEADLINE FIXED IN THE INVITATION FOR SUBMISSION OF BIDS, CLEARLY IT WOULD BE UNFAIR TO THOSE BIDDERS TO WAIVE THE DEADLINE TO PERMIT CONSIDERATION OF YOUR LATE BID WHICH DOES NOT QUALIFY FOR CONSIDERATION UNDER THE LATE BID CLAUSE. FURTHER, WE HAVE STATED IN BOTH PROCUREMENT AND SALES CASES, EVEN WHEN THE RETURN OF THE BID WAS, IN OUR VIEW, UNJUSTIFIED, THAT WE HAVE SERIOUS RESERVATIONS ABOUT CONSIDERING A LATE BID ONCE IT HAS BEEN RETURNED TO A BIDDER AND THE OTHER BIDS HAVE BEEN PUBLICLY DISCLOSED. THEREFORE, WE HAVE DECLINED TO AUTHORIZE CONSIDERATION OF SUCH A BID ON THE BASIS THAT SUCH ACTION WOULD NOT BE IN THE BEST INTEREST OF EITHER THE COMPETITIVE BIDDING SYSTEM OR COMPETITIVE SALES PROCEDURE. 41 COMP. GEN. 404; B-122060, DECEMBER 21, 1954; B-156052, MARCH 22, 1965.

FOR THE REASONS STATED, WE MUST CONCUR WITH THE ACTION TAKEN BY THE DSSO IN REJECTING YOUR BID AS A LATE BID. THEREFORE, YOUR PROTEST IS DENIED.