B-122060, DEC 21, 1954

B-122060, DEC 21, 1954

PRECIS-UNAVAILABLE

AMERICAN FABRICATED PRODUCTS CO.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 9, 1954, RELATIVE TO YOUR BID SUBMITTED IN RESPONSE TO INVITATION NO. IFB-01-608 55-7, ISSUED BY THE GADSDEN AIR FORCE DEPOT, GADSDEN, ALABAMA, FOR BIDS TO BE OPENED ON OCTOBER 25, 1954.

THE INVITATION PROVIDES THAT BIDS WOULD BE RECEIVED "AT THE ABOVE OFFICE" UNTIL 2:00 P.M., CENTRAL STANDARD TIME, OCTOBER 25, 1954. THE RECORD DISCLOSES THAT YOU SENT YOUR BID BY AIRMAIL ON FRIDAY, OCTOBER 22, 1954. ONLY 60 CENTS POSTAGE WAS AFFIXED BY YOUR CLERK TO THE ENVELOPE CONTAINING THE BID INSTEAD OF THE 65 CENTS REQUIRED. THE POST OFFICE IN INDIANAPOLIS FORWARDED THIS MAIL TO GADSDEN, ALABAMA, IN ACCORDANCE WITH NORMAL PROCEDURE IN THE CASE OF POSTAGE-DUE MAIL. THIS MAIL PRESUMABLY ARRIVED AT GADSDEN ON SATURDAY, OCTOBER 23, 1954, BUT, SINCE THE AIR FORCE DEPOT AT THAT PLACE WAS CLOSED ON SATURDAYS AND SUNDAYS, NOTICE OF THE POSTAGE- DUE MAIL WAS NOT SENT TO THE DEPOT UNTIL MONDAY, OCTOBER 25. THE MAIL WAS REFUSED AND CHECKED OUT FROM THE GADSDEN POST OFFICE ON OCTOBER 25 AT 1:30 P.M. YOU CALLED THE DEPOT ON TUESDAY, OCTOBER 26, TO ASCERTAIN THE RESULTS OF THE BIDDING BUT WERE UNABLE TO GET BID RESULTS OVER THE TELEPHONE. YOU WERE ADVISED THAT THE RESULTS WERE AVAILABLE ON THE BULLETIN BOARD AND THAT "WESTERN UNION IN GADSDEN OFTEN PERFORMED THIS RECAP SERVICE FOR BIDDERS." AFTER ASCERTAINING ON TUESDAY, OCTOBER 26, THAT YOUR BID WAS NOT RECEIVED AT GADSDEN AIR FORCE DEPOT, YOU EVENTUALLY DISCOVERED THAT YOUR BID HAD BEEN RETURNED TO THE INDIANAPOLIS POST OFFICE. THEREAFTER, YOU ARRANGED WITH THE POSTMAN TO RETAIN THE RETURNED MAIL IN THE POST OFFICE AND AFFIX THE REQUIRED POSTAGE FOR FORWARDING IT TO GADSDEN WITHOUT THE PIECE OF MAIL BEING SEEN OR HANDLED BY ANYONE CONNECTED WITH YOUR COMPANY SINCE THE ORIGINAL MAILING ON OCTOBER 22, 1954. THE BID FINALLY WAS RECEIVED AT THE GADSDEN AIR FORCE DEPOT ON OCTOBER 27, 1954.

PARAGRAPH 10(C) OF TERMS AND CONDITIONS OF THE INVITATION FOR BIDS APPEARING ON THE REVERSE SIDE OF STANDARD FORM 30 (INVITATION AND BID) PROVIDES THAT NO BID OR MODIFICATION THEREOF RECEIVED AFTER THE TIME SET FOR OPENING WILL BE CONSIDERED EXCEPT WHEN SUCH BID OR MODIFICATION ARRIVES BY MAIL BEFORE AWARD IS MADE AND IT IS DETERMINED BY THE GOVERNMENT THAT NONARRIVAL ON TIME WAS DUE "SOLELY" TO DELAY IN THE MAILS "FOR WHICH BIDDER WAS NOT RESPONSIBLE."

YOU CONTEND THAT IT IS THE PROCEDURE OF THE POST OFFICE DEPARTMENT, IN THE CASE OF MAIL WITH INSUFFICIENT POSTAGE DIRECTED TO A GOVERNMENT ESTABLISHMENT, TO RETURN SUCH MAIL AT THE SOURCE, BUT NO SUPPORTING EVIDENCE TO THIS EFFECT HAS BEEN FURNISHED. IN FACT, IT HAS BEEN REPORTED IN A LETTER OF DECEMBER 11, 1954, FROM THE SECRETARY OF THE AIR FORCE, THAT IT WAS INFORMALLY ASCERTAINED FROM THE POST OFFICE DEPARTMENT THAT THE REGULAR PROCEDURE APPLICABLE TO POSTAGE-DUE MAIL WAS FOLLOWED IN THIS CASE. THE CORRECTNESS OF THIS REPORT HAS BEEN CONFIRMED BY THIS OFFICE.

YOU CONTEND ALSO THAT UNDER THE INVITATION THE GOVERNMENT RESERVED THE RIGHT TO WAIVE ANY MINOR INFORMALITY OR IRREGULARITY IN MAKING AWARD AND THAT IT WOULD BE TO THE ADVANTAGE OF THE GOVERNMENT, WITHOUT JEOPARDIZING THE COMPETITIVE BIDDING SYSTEM, TO CONSIDER YOUR BID IN MAKING AWARD SINCE YOUR BID WOULD SAVE THE GOVERNMENT AN AMOUNT IN EXCESS OF $25,000.

SINCE YOUR BID WAS TIMELY MAILED IT COULD BE ARGUED THAT THE BID'S LATE ARRIVAL RESULTED FROM DELAY WHICH OCCURRED WHILE IT WAS IN THE MAIL. SUCH AN ARGUMENT, HOWEVER, WOULD OVERLOOK THE ESTABLISHED FACT THAT THE PROXIMATE CAUSE OF THE DELAY WAS THE ACT OF NEGLIGENCE ON YOUR PART IN NOT PLACING SUFFICIENT POSTAGE ON THE PIECE OF MAIL CONTAINING YOUR BID. YOUR NEGLIGENCE IN THAT REGARD REQUIRES THE CONCLUSION THAT YOU ARE NOT FREE FROM RESPONSIBILITY IN THE MATTER AND IT FOLLOWS THAT CONSIDERATION OF YOUR BID IN MAKING THE AWARD IS PRECLUDED BY THE EXPRESS TERMS OF THE INVITATION, UNLESS, OF COURSE, IT COULD BE SAID THAT THE LATE ARRIVAL OF THE BID CONSTITUTED AN INFORMALITY WHICH MAY BE WAIVED BY THE GOVERNMENT IN ITS DISCRETION.

THE UNDERLYING REASON FOR THE PROHIBITION AGAINST CONSIDERATION OF LATE BIDS IS TO PREVENT A BIDDER FROM OBTAINING AN ADVANTAGE OVER OTHER BIDDERS BY DELAYING THE SUBMISSION OF HIS BID UNTIL HE IS IN A POSITION TO KNOW THE RESULTS OF THE OTHER BIDS. YOU OBTAINED SUCH AN ADVANTAGE IN THIS INSTANCE. WHEN YOUR BID WAS RETURNED TO YOUR LOCAL POST OFFICE YOU HAD ALREADY LEARNED THE RESULTS OF THE BIDDING UNDER THE INVITATION. YOU THEN HAD THE OPPORTUNITY OF EITHER WITHDRAWING YOUR BID OR OF FURNISHING THE ADDITIONAL POSTAGE REQUIRED FOR ITS RESUBMISSION. CONSIDERATION OF YOUR BID AFTER YOU HAD THUS BEEN GIVEN TWO CHANCES AT THE BIDDING WOULD NOT BE FAIR TO THE OTHER BIDDERS UNDER THE INVITATION, AND THIS OFFICE HAS CONSISTENTLY REFUSED TO APPROVE OR CONDONE SUCH A PRACTICE.

THIS OFFICE HAS NO ALTERNATIVE, THEREFORE, BUT TO ADVISE THE SECRETARY OF THE AIR FORCE THAT YOUR BID PROPERLY MAY NOT BE CONSIDERED IN MAKING AN AWARD UNDER THIS INVITATION. THE SECRETARY IS BEING ADVISED FURTHER, HOWEVER, THAT, IN VIEW OF THE SUBSTANTIAL SAVINGS WHICH APPARENTLY WOULD ACCRUE TO THE GOVERNMENT IF YOUR COMPANY WERE PERMITTED TO PARTICIPATE IN THE PROCUREMENT, ADMINISTRATIVE CONSIDERATION SHOULD BE GIVEN TO THE POSSIBILITY OF REJECTING ALL BIDS FOR THE ITEMS INVOLVED AND READVERTISING OR NEGOTIATING FOR THOSE ITEMS, AS AUTHORIZED BY THE ARMED SERVICES PROCUREMENT ACT OF 1947.