B-178862, APR 11, 1974, 53 COMP GEN 767

B-178862: Apr 11, 1974

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BIDS - LATE - MAIL DELIVERY EVIDENCE - AGENCY OBTAINED EVIDENCE EFFECT CONTRACTING OFFICER ACTED IN ACCORDANCE WITH ADVICE OF POSTAL OFFICIALS IN ACCEPTING LATE REGISTERED MAIL BID ON BASIS THAT LATENESS WAS DUE SOLELY TO A DELAY IN THE MAILS FOR WHICH BIDDER WAS NOT RESPONSIBLE. AWARD WILL NOT BE DISTURBED BECAUSE IT LATER APPEARS THAT POSTAL OFFICIALS' ADVICE MAY HAVE BEEN ERRONEOUS. BIDS - LATE - MAIL DELIVERY EVIDENCE - PROCEDURE TO OBTAIN IT WAS NOT IMPROPER FOR THE CONTRACTING OFFICER. TO HAVE GATHERED INFORMATION UPON WHICH THE DETERMINATION TO ACCEPT THE LATE BID WAS MADE. CONTRACTING OFFICER WAS NOT OBLIGATED TO CONDUCT A HEARING PRIOR TO MAKING HIS DETERMINATION. BIDDERS - QUALIFICATIONS - ADMINISTRATIVE DETERMINATIONS - ACCEPTANCE CONTRACTING OFFICER'S DETERMINATION THAT SUCCESSFUL BIDDER WAS RESPONSIBLE WAS NOT ARBITRARY.

B-178862, APR 11, 1974, 53 COMP GEN 767

BIDS - LATE - MAIL DELIVERY EVIDENCE - AGENCY OBTAINED EVIDENCE EFFECT CONTRACTING OFFICER ACTED IN ACCORDANCE WITH ADVICE OF POSTAL OFFICIALS IN ACCEPTING LATE REGISTERED MAIL BID ON BASIS THAT LATENESS WAS DUE SOLELY TO A DELAY IN THE MAILS FOR WHICH BIDDER WAS NOT RESPONSIBLE. AWARD WILL NOT BE DISTURBED BECAUSE IT LATER APPEARS THAT POSTAL OFFICIALS' ADVICE MAY HAVE BEEN ERRONEOUS. BIDS - LATE - MAIL DELIVERY EVIDENCE - PROCEDURE TO OBTAIN IT WAS NOT IMPROPER FOR THE CONTRACTING OFFICER, RATHER THAN THE LOW BIDDER, TO HAVE GATHERED INFORMATION UPON WHICH THE DETERMINATION TO ACCEPT THE LATE BID WAS MADE. CONTRACTING OFFICER WAS NOT OBLIGATED TO CONDUCT A HEARING PRIOR TO MAKING HIS DETERMINATION. BIDDERS - QUALIFICATIONS - ADMINISTRATIVE DETERMINATIONS - ACCEPTANCE CONTRACTING OFFICER'S DETERMINATION THAT SUCCESSFUL BIDDER WAS RESPONSIBLE WAS NOT ARBITRARY, CAPRICIOUS, OR UNSUPPORTED BY SUBSTANTIAL EVIDENCE.

IN THE MATTER OF THE FRIEDEN CONSTRUCTION COMPANY, APRIL 11, 1974:

FRIEDEN CONSTRUCTION COMPANY (FRIEDEN) REQUESTED RECONSIDERATION OF OUR DECISION B-178862, OCTOBER 10, 1973, IN WHICH WE HELD THAT A CONTRACTING OFFICER PROPERLY ACCEPTED A LATE, REGISTERED MAIL BID. FOR THE REASONS STATED BELOW, OUR INITIAL DECISION IS AFFIRMED.

THE BID IN QUESTION WAS SENT VIA REGISTERED AIR MAIL FROM MISSION, TEXAS, TO LINCOLN, NEBRASKA, IN RESPONSE TO AN INVITATION FOR BIDS WHICH SET THE BID OPENING TIME AS 1:30 P.M., MONDAY, APRIL 16, 1973. THE BID WAS NOT RECEIVED BY THE PROCURING ACTIVITY UNTIL 10:50 A.M., APRIL 17, 1973.

IN RESPONSE TO AN INQUIRY FROM THE CONTRACTING OFFICER, THE MISSION POSTMASTER ADVISED WHEN THE BID ENVELOPE LEFT MISSION AND EXPRESSED THE OPINION THAT THE BID "SHOULD HAVE BEEN IN THE LINCOLN, NEBRASKA POST OFFICE ON SATURDAY MORNING ON APRIL 14, 1973." SIMILARLY, THE LINCOLN POSTMASTER STATED THAT:

UNDER NORMAL CIRCUMSTANCES, WE FEEL THIS LETTER SHOULD HAVE ARRIVED IN TIME FOR DELIVERY ON APRIL 16. HOWEVER, SOME CONNECTIONS MAY HAVE BEEN MISSED BECAUSE OF SEVERE WEATHER OR OTHER CIRCUMSTANCES BEYOND CONTROL OF THE POSTAL SERVICE.

IN VIEW OF HIS RECEIPT OF THIS INFORMATION, WE CONCLUDED THAT THE CONTRACTING OFFICER COMPLIED WITH FEDERAL PROCUREMENT REGULATIONS (FPR) 1- 2.303-3 THEN IN EFFECT, WHICH PERMITTED BIDS SENT BY REGISTERED MAIL TO BE CONSIDERED FOR AWARD IF "*** IT IS DETERMINED THAT THE LATENESS WAS DUE SOLELY TO A DELAY IN THE MAILS *** FOR WHICH THE BIDDER WAS NOT RESPONSIBLE."

IN ITS REQUEST FOR RECONSIDERATION, FRIEDEN ASSERTED THAT IT WAS IMPROPER FOR SOLELY THE CONTRACTING OFFICER (RATHER THAN THE BIDDER) TO HAVE MADE THE INQUIRIES AND ASSEMBLED THE INFORMATION UPON WHICH THE DETERMINATION WAS MADE THAT THE LATE BID COULD BE ACCEPTED. FRIEDEN URGES THAT OUR DECISION B-158029, JANUARY 17, 1966, STANDS FOR THE PROPOSITION THAT THE CONTRACTING OFFICER SHOULD NOT HAVE MADE THE INQUIRIES OF POSTAL OFFICIALS.

ADDITIONALLY, FRIEDEN MAINTAINS THAT IT SHOULD HAVE BEEN AFFORDED A HEARING BY THE CONTRACTING OFFICER PRIOR TO HIS DETERMINATION OF THE ACCEPTABILITY OF THE LATE BID, AND THAT HAD SUCH A HEARING BEEN HELD, FRIEDEN COULD HAVE ESTABLISHED THE UNACCEPTABILITY OF THE LATE BID. THIS CONNECTION, FRIEDEN'S COUNSEL MAKES THE GENERAL OBSERVATION THAT HE IS "NOT CERTAIN" THAT WE CORRECTLY CONCLUDED THAT THE FORMAL NOTICE AND HEARING REQUIREMENTS OF THE ADMINISTRATIVE PROCEDURE ACT (5 U.S.C. 551) DID NOT APPLY TO AN ADMINISTRATIVE DETERMINATION OF THE ACCEPTABILITY OF A LATE BID.

IN B-158029, SUPRA, WE STATED:

YOUR BID WAS NOT SENT BY REGISTERED OR CERTIFIED MAIL AS REQUIRED BY THE ABOVE PROVISIONS OF THE INVITATION AS A PRE-REQUISITE TO ITS CONSIDERATION IN THE EVENT OF LATE RECEIPT. CONSEQUENTLY, THE CONTRACTING OFFICER NOT ONLY WAS UNDER NO DUTY BUT WAS UNAUTHORIZED TO CONTACT THE POST OFFICE FOR A DETERMINATION REGARDING TIMELY MAILING. ***

WE BELIEVE IT IS CLEAR THAT THE REFERENCE IN B-158029 TO A LACK OF DUTY OR AUTHORITY IN THE CONTRACTING OFFICER TO MAKE INQUIRY OF THE POST OFFICE RESULTED FROM THE REGULAR MAIL TRANSMISSION OF THE BID IN THAT CASE. FURTHERMORE, FPR 1-2.303-3(D) IN EFFECT AT THE TIME OF BID OPENING EXPRESSLY CONTEMPLATED THAT THE "PROCURING ACTIVITY" WOULD OBTAIN "INFORMATION CONCERNING THE NORMAL TIME FOR DELIVERY" OF BIDS SENT BY REGISTERED OR CERTIFIED MAIL.

IN THE ABSENCE OF ANY SPECIFICIALLY IDENTIFIED REASON OR CITATION OF AUTHORITY AS TO THE APPLICABILITY OF THE ADMINISTRATIVE PROCEDURE ACT, WE DO NOT BELIEVE IT HAS BEEN SHOWN THAT OUR INITIAL DECISION CONTAINED A MATERIAL ERROR OF LAW IN THIS REGARD. WE ALSO OBSERVE THAT FPR 1 2.303, WHICH GOVERNS THE CONSIDERATION OF LATE BIDS, MAKES NO PROVISION FOR NOTICE TO OTHER BIDDERS OR THE CONDUCT OF HEARINGS. WE THEREFORE REMAIN OF THE OPINION THAT THE CONTRACTING OFFICER WAS NOT OBLIGATED TO CONDUCT HEARINGS PRIOR TO HIS DETERMINATION OF THE ACCEPTABILITY OF THE LATE BID.

FRIEDEN'S ASSERTION THAT IT COULD HAVE ESTABLISHED THE UNACCEPTABILITY OF THE LATE BID, HAD THE CONTRACTING OFFICER CONDUCTED A HEARING, IS LARGELY DERIVED FROM INQUIRIES BY FRIEDEN OF MISSION AND LINCOLN POSTAL OFFICIALS AFTER RECEIPT OF OUR INITIAL DECISION. ASSUMING THE ACCURACY OF COUNSEL'S RECITATION OF STATEMENTS MADE TO HIM BY POSTAL OFFICIALS, THERE IS SOME BASIS FOR CONCLUDING THAT THE LOW BIDDER HAD NOT MAILED ITS BID IN TIME FOR THE APRIL 16 OPENING. THE FACT REMAINS, HOWEVER, THAT WHEN HE ACCEPTED THE LOW BID, THE CONTRACTING OFFICER WAS ACTING IN ACCORDANCE WITH THE ADVICE GIVEN HIM BY POSTAL OFFICIALS. WE DO NOT REGARD THE AWARD AS BEING ARBITRARILY MADE, NOR ARE WE PREPARED TO DISTURB THE AWARD, BECAUSE IT LATER APPEARS THAT THE POSTAL OFFICIALS MAY HAVE BEEN MISTAKEN.

THIS PROTEST, HOWEVER, ILLUSTRATES THE DIFFICULTY IN OBTAINING SUBSTANTIATING INFORMATION FROM THE POSTAL SERVICE, AND THE ADMINISTRATIVE EFFORT, TIME AND CONFUSION WHICH HAVE BEEN ASSOCIATED WITH THE PROCEDURES FOR HANDLING OF LATE BIDS. THESE CONSIDERATIONS LED TO THE REVISION OF THE LATE BID RULES SUBSEQUENT TO THE TIME PERIOD RELEVANT TO THIS PROTEST. IN VIEW OF POSTAL SERVICE STATISTICS, WHICH INDICATE THAT OVER 95 PERCENT OF ALL MAIL IN THE UNITED STATES IS RECEIVED WITHIN FIVE DAYS OF MAILING, IT WAS DECIDED TO USE THIS TIME PERIOD IN CONJUNCTION WITH THE USE OF REGISTERED OR CERTIFIED MAIL TO ESTABLISH AN ACCEPTABLE SHARING OF RISK OF LATE RECEIPT BETWEEN THE GOVERNMENT AND THE BIDDER. FEDERAL PROCUREMENT REGULATIONS 1 2.201(B)(31) NOW PROVIDES, IN REGARD TO SITUATIONS SUCH AS THAT PRESENTED BY FRIEDEN'S PROTEST, THAT:

(A) ANY BID RECEIVED AT THE OFFICE DESIGNATED IN THE SOLICITATION AFTER THE EXACT TIME SPECIFIED FOR RECEIPT WILL NOT BE CONSIDERED UNLESS IT IS RECEIVED BEFORE AWARD IS MADE AND EITHER:

(1) IT WAS SENT BY REGISTERED OR CERTIFIED MAIL NOT LATER THAN THE FIFTH CALENDAR DAY PRIOR TO THE DATE SPECIFIED FOR THE RECEIPT OF BIDS (E.G., A BID SUBMITTED IN RESPONSE TO A SOLICITATION REQUIRING RECEIPT OF BIDS BY THE 20TH OF THE MONTH MUST HAVE BEEN MAILED BY THE 15TH OR EARLIER); ***.

IN ITS REQUEST FOR RECONSIDERATION, FRIEDEN RENEWED ITS ASSERTION THAT THE LOW BIDDER WAS NOT A RESPONSIBLE PROSPECTIVE CONTRACTOR, PRINCIPALLY BECAUSE IT ALLEGEDLY DID NOT SATISFY THE SOLICITATION REQUIREMENT THAT BIDDERS BE "REGULARLY ESTABLISHED IN THE BUSINESS."

THE INSTANT PROCUREMENT WAS FOR THE DEMOLITION OF AN ELEVATED STEEL WATER TANK. THE FILE SHOWS THAT IN RESPONSE TO AN INQUIRY BY THE CONTRACTING OFFICER, A LARGE MIDWESTERN DESIGNER AND FABRICATOR OF STEEL STORAGE TANKS ADVISED THAT THE LOW BIDDER "HAS SUCCESSFULLY DISMANTLED OLD ELEVATED AND GROUND STORAGE TANKS AS A SUBCONTRACTOR *** IN THE PAST" AND THAT THE LOW BIDDER "IS PRESENTLY UNDER CONTRACT TO DISMANTLE SEVERAL TANKS AS A SUBCONTRACTOR *** LATER THIS YEAR AT VARIOUS LOCATIONS."

IT HAS LONG BEEN THE RULE OF OUR OFFICE TO ACCEPT THE CONTRACTING OFFICER'S DETERMINATION OF RESPONSIBILITY, UNLESS IT IS SHOWN BY CONVINCING EVIDENCE THAT THE FINDING WAS ARBITRARY, CAPRICIOUS OR NOT BASED ON SUBSTANTIAL EVIDENCE. 45 COMP. GEN. 4 (1965); 51 ID. 233 (1971). IN VIEW OF THE INFORMATION AVAILABLE TO THE CONTRACTING OFFICER, WE HAVE NO REASON TO QUESTION THE LOW BIDDER'S QUALIFICATIONS.

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