B-153156, JAN. 24, 1964

B-153156, JAN. 24, 1964

TO DISTRICT DELIVERY SERVICE:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 26, 1963, PROTESTING THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. AID/W 64-1, ISSUED BY THE DEPARTMENT OF STATE, AGENCY FOR INTERNATIONAL DEVELOPMENT, COVERING VARIOUS NEWSPAPER SUBSCRIPTIONS FROM JANUARY 1 THROUGH DECEMBER 31, 1964.

THE RECORD DISCLOSES THAT THE AGENCY FOR INTERNATIONAL DEVELOPMENT (A.I.D.) RECEIVED 2 BIDS IN RESPONSE TO THE ABOVE INVITATION. EVIDENCED BY THE REGISTRY RETURN RECEIPT, YOUR BID WAS RECEIVED IN THE A.I.D. CENTRAL MAILROOM LOCATED IN THE NEW STATE BUILDING ON FRIDAY AFTERNOON, DECEMBER 13. IT WAS SUBSEQUENTLY RECEIVED BY THE CONTRACTS,PROCUREMENT AND SUPPLY BRANCH, ROOM 123, STATE ANNEX NO. 1 ON MONDAY MORNING, DECEMBER 16, ALONG WITH THE FIRST MAIL DELIVERY. EXAMINATION OF THE ENVELOPE DISCLOSES THAT IT WAS TIME STAMPED BY THAT OFFICE ON DECEMBER 16, AT 9:46 A.M. IN ERROR, THE ENVELOPE CONTAINING YOUR BID WAS OPENED BY THE MAIL CLERK. IMMEDIATELY RECOGNIZING HIS MISTAKE, THE MAIL CLERK RESEALED THE ENVELOPE AND MADE A NOTATION THEREON TO THE EFFECT THAT HE WAS RESEALING THE ENVELOPE AS OF 9:50 A.M. THE BID WAS THEN PLACED IN THE BAR LOCKED FILE CABINET WHERE ALL BIDS ARE HELD PRIOR TO PUBLIC OPENING. WE SHOULD LIKE TO NOTE THAT WHILE AID FIRST REPORTED THAT YOUR BID WAS RECEIVED AT 9:46 A.M., DECEMBER 17, EXAMINATION OF THE ENVELOPE BY THIS OFFICE SHOWS THAT YOUR BID, IN FACT, WAS RECEIVED IN THE CONTRACTS, PROCUREMENT AND SUPPLY BRANCH AT 9:46 A.M., ON DECEMBER 16. THE NATIONAL NEWS AGENCY BID WAS HAND DELIVERED TO THE PROCUREMENT AND SUPPLY BRANCH AND TIME STAMPED ON TUESDAY, DECEMBER 17, AT 2:34 P.M.AT 3:00 P.M., BIDS WERE REMOVED FROM THE CABINET AND OPENED IN THE PRESENCE OF REPRESENTATIVES OF BOTH BIDDERS.

IN ITS REPORT DATED JANUARY 10, 1964, THE AGENCY REPORTS,"A CAREFUL INVESTIGATION WAS MADE TO DETERMINE IF THERE WAS A REASONABLE POSSIBILITY OF IMPROPRIETY OR PREJUDICE, INCLUDING AN ANALYSIS OF THE BIDS ALONG WITH PRICES PAID UNDER OUR EXISTING CONTRACT AND WE FOUND NO BASIS FOR SUCH CONCLUSION.' WHILE THE ACTION OF THE MAIL CLERK IN OPENING YOUR BID PRIOR TO THE SCHEDULED TIME WAS BOTH IRREGULAR AND IMPROPER, SUCH ACTION APPARENTLY OCCURRED THROUGH INADVERTENCE. FURTHERMORE, THE RECORD IS COMPLETELY VOID OF ANY EVIDENCE OR SUGGESTION THAT THE SUCCESSFUL BIDDER OBTAINED ANY ADVANTAGE AS A RESULT OF THE EARLY OPENING. CONSEQUENTLY, WHILE THIS OFFICE REMAINS COGNIZANT OF THE NEED TO MAINTAIN GOVERNMENTAL INTEGRITY IN THE BIDDING SYSTEM, UNDER THE PRESENT FACTUAL SITUATION THERE APPEARS NO VALID BASIS FOR REQUIRING READVERTISEMENT. TO DENY THE LOW BIDDER THE RIGHT TO HAVE HIS BID CONSIDERED UNDER THE PRESENT INVITATION WOULD NOT ONLY BE UNFAIR TO HIM, BUT WOULD ALSO DENY THE GOVERNMENT THE BENEFIT OF THE LOWER PRICE. IN 34 COMP. GEN. 395, QUOTING FROM THE SYLLABUS, WE HELD:

"A CONTRACT AWARDED TO THE LOW BIDDER WHOSE BID WAS RECEIVED AND OPENED AT THE TIME SPECIFIED IN THE INVITATION, BUT AFTER THE ADMINISTRATIVE AGENCY HAD ERRED IN OPENING OTHER BIDS TWO AND ONE-HALF HOURS PRIOR TO THE TIME SPECIFIED, MAY NOT BE CANCELED BY THE GOVERNMENT WITHOUT INCURRING LIABILITY WHERE EVIDENCE SUPPORTS ADMINISTRATIVE DETERMINATION THAT THE LOW BIDDER DID NOT OBTAIN UNFAIR ADVANTAGE.'

THEREFORE, SINCE THIS OFFICE HAS NO BASIS FOR QUESTIONING THE ADMINISTRATIVE ACTION TAKEN IN THIS MATTER, YOUR PROTEST IS HEREBY DENIED.