B-134594, DEC. 24, 1957

B-134594, DEC. 24, 1957

TO MARILYN L. NIEMANN, CONTRACTING OFFICER:

REFERENCE IS MADE TO SECOND INDORSEMENT DATED NOVEMBER 29, 1957, FROM THE COMMANDER, HEADQUARTERS 3345TH TECHNICAL TRAINING WING (ATC), REQUESTING DECISION AS TO THE ACTION THAT SHOULD BE TAKEN WITH RESPECT TO A BID WHICH WAS RECEIVED LATE FROM THE KOPELOVE IRON AND METAL COMPANY, SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. 11-602-S-58 3, COVERING FIVE ITEMS OF SCRAP MATERIAL OFFERED FOR SALE BY THE GOVERNMENT.

THE INVITATION PROVIDED THAT BIDS WOULD BE RECEIVED UNTIL 1:00 P.M. CST, OCTOBER 2, 1957, AND THEN PUBLICLY OPENED. IT IS FUNDAMENTAL THAT IN ORDER TO RECEIVE CONSIDERATION BIDS MUST BE SUBMITTED PRIOR TO THE TIME SET FOR THE OPENING. HOWEVER, THE ARMED SERVICES PROCUREMENT REGULATIONS PROVIDE--- IN CONFORMITY WITH DECISIONS OF OUR OFFICE--- THAT LATE BIDS SHALL BE CONSIDERED "/I) IF RECEIVED BEFORE AWARD, AND (II) IF IT IS DETERMINED THAT THE FAILURE TO ARRIVE ON TIME WAS DUE SOLELY TO DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE.' (ASPR 2-302).

THE RECORD SHOWS THAT THE BID OF KOPELOVE IRON AND METAL COMPANY WAS NOT RECEIVED BY YOU UNTIL ABOUT 9:30 A.M. ON OCTOBER 3, 1957, AT WHICH TIME NO AWARDS HAD BEEN MADE. THE ENVELOPE SHOWS THAT IT CONTAINED A BID SUBMITTED BY KOPELOVE IRON AND METAL COMPANY, BOX 894, DAYTON 1, OHIO, SUBMITTED IN RESPONSE TO INVITATION FOR "IFB 11-602-A 58-3, OPENING 2 OCTOBER 1957, 1:00 PM.' IT IS REPORTED THAT SINCE THE POSTMARK WAS BLURRED, BUT CONTAINED "OC1 8 PM," YOU DETERMINED THAT THE BID SHOULD BE REJECTED ON THE BASIS OF ASPR 2-302.1, WHICH PROVIDES THAT AS TO NON- REGISTERED AND NON-CERTIFIED MAIL, WHEN THE DATE OF MAILING CANNOT BE DETERMINED BY INSPECTION OF THE ENVELOPE, THE BID SHALL NOT BE CONSIDERED FOR AWARD. THE AWARDS OF THE FIVE ITEMS INVOLVED WERE MADE ON OCTOBER 4, 1957, TO THE HIGHEST BIDDERS. ON OCTOBER 15, 1957, THE ENVELOPE CONTAINING THE BID OF KOPELOVE IRON AND METAL COMPANY WAS RETURNED TO THE COMPANY UNOPENED, ADVISING THAT THE BID WAS NOT CONSIDERED SINCE IN ACCORDANCE WITH REGULATIONS A LATE BID MAY NOT BE CONSIDERED FOR AWARD WHEN THE DATE OF MAILING CANNOT BE DETERMINED BY INSPECTION OF THE ENVELOPE.

ON OCTOBER 17, 1957, A LETTER WAS RECEIVED FROM THE UNITED STATES POST OFFICE, DAYTON, OHIO, WRITTEN AT THE REQUEST OF KOPELOVE IRON AND METAL COMPANY, ADVISING THAT THE LETTER WAS POSTMARKED IN THE DAYTON, OHIO POST OFFICE ON THE NIGHT OF OCTOBER 1 AT 8:00 P.M. AND A LETTER SO MAILED SHOULD HAVE BEEN RECEIVED AT RANTOUL, ILLINOIS, AT 8:41 A.M. ON OCTOBER 2, 1957. ON RECEIPT OF THE LETTER, THE POSTAL OFFICIALS ATRANTOUL WERE CONTACTED AND THEY ADVISED THAT THE LETTER INVOLVED SHOULD HAVE REACHED RANTOUL AT 9:41 A.M. DST ON OCTOBER 2, AND THAT THE LETTER SHOULD HAVE CONNECTED WITH THE 12:30 P.M. DST MAIL RUN TO CHANUTE AIR FORCE BASE AND SHOULD HAVE BEEN RECEIVED THAT AFTERNOON. THE POST OFFICE ALSO ADVISED AND SHOWED THAT ON THE CANCELLATION STAMP OCTOBER IS NOW ABBREVIATED "OC" INSTEAD OF "OCT.' ON THAT BASIS THE POSTMARK IN QUESTION CLEARLY SHOWED THE DATE OF MAILING AS OCTOBER 1. THE BID WAS THEN OPENED AND IT WAS FOUND THAT IT WOULD HAVE BEEN THE HIGH BID ON ITEM 1.

IT APPEARS THAT THE PRIMARY REASON FOR THE DETERMINATION TO REJECT THE BID AS A LATE BID WAS BASED ON THE FACT THAT IT COULD NOT BE DETERMINED FROM THE POSTAL CANCELLATION STAMP THE DATE OF MAILING. THE CANCELLATION STAMP SHOWED "OC1 8 PM.' APPARENTLY IT WAS CONSIDERED THAT "OC1" WAS A BLURRED OR DEFECTIVE "OCT" RATHER THAN AN ABBREVIATION OF OCTOBER 1.

AS HEREINBEFORE STATED, IT IS THE PRIMARY RESPONSIBILITY OF THE BIDDER TO SEE THAT HIS BID IS DELIVERED PRIOR TO THE TIME SET FOR THE OPENING. INSTANCES WHERE THE FAILURE TO ARRIVE ON TIME MAY BE EXCUSABLE, A DETERMINATION MUST OF NECESSITY BE MADE BY THE CONTRACTING OFFICER. SUCH CASES, IF THE DETERMINATION IS MADE IN GOOD FAITH AND IS REASONABLE ON THE BASIS OF THE RECORD BEFORE THE CONTRACTING OFFICER, AN AWARD MADE TO ANOTHER ON THE BASIS THEREOF WILL NOT BE DISTURBED. FURTHERMORE, SINCE THE BID WAS RETURNED TO THE BIDDER AFTER THE OPENING OF THE BIDS AND HE WAS PLACED IN THE POSITION OF HAVING THE ELECTION OF RETURNING THE BID, OR POSSIBLY CHANGING THE BID PRICE AFTER HAVING KNOWLEDGE OF THE OTHER BIDS, THERE WOULD BE NO PROPER BASIS FOR CONSIDERING THE BID THEREAFTER.

IN THE CIRCUMSTANCES, YOU ARE ADVISED THAT THE PROTEST OF KOPELOVE IRON AND METAL COMPANY IS DENIED AND THE AWARD OF ITEM 1 AS MADE WILL NOT BE QUESTIONED BY THIS OFFICE.