B-135918, MAY 2, 1958

B-135918, MAY 2, 1958

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO LETTER DATED APRIL 22, 1958, FROM THE ASSISTANT CHIEF FOR PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS, WITH ENCLOSURES, RELATIVE TO A PROTEST BY W. A. APPLE MFG., INC., AGAINST THE CONTRACTING OFFICER'S DETERMINATION THAT THE HAND-CARRIED BID OF THE PROTESTANT, SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. IFB 383-550-58, WAS A LATE BID AND AS SUCH COULD NOT BE CONSIDERED FOR AWARD.

THE INVITATION FOR BIDS PROVIDED THAT BIDS WOULD BE RECEIVED AT THE AVIATION SUPPLY OFFICE, 700 ROBBINS AVENUE, PHILADELPHIA 11, PENNSYLVANIA, UNTIL 10:00 A.M., EST, APRIL 3, 1958. THE RECORD DISCLOSES THAT THE PROTESTANT'S BID WAS HAND-CARRIED BY MR. APPLE; THAT IT WAS NECESSARY FOR MR. APPLE TO OBTAIN A TEMPORARY BADGE AT THE MAIN GATE BEFORE PROCEEDING INTO THE BUILDING PROPER; AND THAT THE BID WAS DELIVERED TO THE BID OPENING SUPERVISOR AT OR VERY SHORTLY AFTER 10:00 A.M. BUT THAT THE AUTOMATIC TIME STAMPING CLOCK REGISTERED 10:01 ON THE BID ENVELOPE. FURTHER APPEARS THAT THE BID WAS RECEIVED PRIOR TO THE ACTUAL OPENING OF BIDS. THE AUTOMATIC ELECTRIC CLOCK USED FOR RECORDING THE SUBMISSION TIME OF HAND-CARRIED BIDS STAMPS HOURS AND MINUTES BUT DOES NOT STAMP SECONDS. THUS, ANY BID INSERTED INTO THE CLOCK FROM 10:00 UNTIL 59 SECONDS AFTER 10:00 WOULD BE STAMPED 10:00, BUT A BID INSERTED INTO THE CLOCK 60 SECONDS AFTER 10:00 UNTIL 59 SECONDS AFTER 10:01 WOULD BE STAMPED 10:01. IN VIEW THEREOF, IT IS ADMINISTRATIVELY DETERMINED THAT THE BID WAS NOT RECEIVED AT OR BEFORE 10:00 A.M.

INFORMATION IN THE FILE, TOGETHER WITH STATEMENTS FROM MR. APPLE, INDICATES THAT THE BID PROBABLY WAS NOT ACTUALLY RECEIVED UNTIL AT LEAST 20 SECONDS AFTER 10:00 A.M.--- THE TIME SET FOR OPENING OF BIDS.

THE INVITATION SPECIFICALLY PROVIDED THAT---

"BIDS AND MODIFICATIONS OR WITHDRAWALS THEREOF RECEIVED AFTER THE TIME SET FOR OPENING WILL NOT BE CONSIDERED, UNLESS THEY ARE RECEIVED BEFORE THE AWARD IS MADE, AND IT IS DETERMINED BY THE GOVERNMENT THAT FAILURE TO ARRIVE ON TIME WAS DUE SOLELY TO DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE.'

IN A DECISION OF MARCH 26, 1957, B-130889, WE HELD THAT A BID HANDED IN BY A BIDDER'S REPRESENTATIVE BEFORE OPENING AND TIME-STAMPED AT 10:02 A.M. WAS PROPERLY REJECTED. THE FOLLOWING LANGUAGE OF THAT DECISION APPEARS TO BE DISPOSITIVE OF THE PRESENT CASE:

"IT HAS BEEN CONSISTENTLY HELD THAT IT IS THE RESPONSIBILITY OF BIDDERS TO SEE THAT THEIR BIDS REACH THE DESIGNATED OFFICE BEFORE THE TIME FIXED FOR THE OPENING OF THE BIDS. THE PURPOSE OF THE REQUIREMENT IS TO GIVE ALL BIDDERS AN EQUAL OPPORTUNITY, TO PREVENT FRAUD, AND TO PRESERVE THE INTEGRITY OF THE COMPETITIVE BID SYSTEM.

"UNDER THE EXPRESS TERMS OF THE INVITATION, HAND-CARRIED BIDS WERE REQUIRED TO BE SUBMITTED PRIOR TO 10:00 A.M. YOUR BID WAS NOT SUBMITTED PRIOR TO THE TIME SPECIFIED. YOUR LACK OF KNOWLEDGE OF THE OTHER BIDS AND GOOD FAITH ARE, UNDER THE CIRCUMSTANCES, NOT FOR CONSIDERATION. THERE MUST BE A TIME AFTER WHICH BIDS MAY NOT BE RECEIVED, AND TO PERMIT SUCH CONSIDERATIONS TO AFFECT OR ALTER THE FIXED AND EXACT TIME CLEARLY STATED IN AN INVITATION WOULD, IN OUR OPINION, TEND TO WEAKEN THE COMPETITIVE SYSTEM. WHILE THE REQUIREMENT IN CERTAIN INSTANCES MAY OPERATE HARSHLY ANY RELAXATION OF THE RULE WOULD INEVITABLY CREATE CONFUSION AND DISAGREEMENTS AS TO ITS APPLICABILITY IN MANY CASES AND FACILITATE THE PERPETUATION OF FRAUDS.'

YOU ARE THEREFORE ADVISED THAT THE LATE BID OF W. A. APPLE MFG., INC., IS NOT PROPERLY FOR CONSIDERATION.