B-156052, MAR. 22, 1965

B-156052, MAR. 22, 1965

TO BANKS BROTHERS, INC.:

BY LETTER DATED FEBRUARY 2, 1965, AND SUBSEQUENT CORRESPONDENCE, YOU PROTESTED AGAINST THE RETURN OF YOUR UNOPENED BID SUBMITTED IN RESPONSE TO SALES INVITATION NO. 25-S-65-57, ISSUED BY THE DEFENSE SURPLUS SALES OFFICE, NORFOLK, VIRGINIA, ON JANUARY 7, 1965. YOU ALSO PROTESTED AGAINST ANY AWARD THEREUNDER UNTIL A PROPER DETERMINATION IS MADE AS TO THE ACCEPTABILITY OF YOUR BID.

UNDER THE TERMS OF THIS INVITATION, BIDS WERE TO BE MAILED TO THE SALES CONTRACTING OFFICER, DEFENSE SURPLUS SALES OFFICE, BUILDING SDA 224, SOUTH ANNEX, HAMPTON ROADS BRANCH POST OFFICE, NORFOLK, VIRGINIA 23511, IN TIME FOR BID OPENING SCHEDULED FOR 10:30 A.M., E.S.T., JANUARY 28, 1965. EVIDENCED BY THE ENVELOPE CONTAINING YOUR BID, IT APPEARS THAT YOUR BID, PROPERLY ADDRESSED, WAS MAILED FROM PHILADELPHIA ON JANUARY 26, 1965, SOMETIME DURING THE AFTERNOON OF THAT DAY, VIA FIRST-CLASS MAIL. IT IS REPORTED THAT THE TIME OF MAILING WAS CONSIDERED AS HAVING BEEN AT 11:59 P.M. ON JANUARY 26 AND THAT WITH THE MINIMUM $0.05 POSTAL FEE, THE ENVELOPE SHOULD HAVE BEEN RECEIVED AT THE SALES OFFICE BY 10:30 A.M. ON JANUARY 28, 1965. IN THIS CONNECTION, THE SALES OFFICE ADVISES THAT:

"ON THE MORNING OF THE SALE, THE MAIN POST OFFICE IN NORFOLK DELIVERED MAIL TO THE BRANCH POST OFFICE AT APPROXIMATELY 7:00 A.M. AND AT APPROXIMATELY 9:00 A.M. UPON ARRIVAL AT THE BRANCH, THIS MAIL HAD TO BE SORTED AND EARMARKED FOR THE VARIOUS ADDRESSES AT THE NAVAL SUPPLY CENTER. ON THAT SAME MORNING, THE MESSENGER PICKED UP MAIL AT THE BRANCH POST OFFICE, FOR DELIVERY TO THE SALES OFFICE, AT APPROXIMATELY 9:00 A.M. AND AT APPROXIMATELY 11:00 A.M. MAIL PICKED UP BY THE MESSENGER AT OR ABOUT 9:00 A.M. WAS DELIVERED TO THE SALES OFFICE AT APPROXIMATELY 9:30 A.M. THAT SAME MORNING. MAIL PICKED UP BY THE MESSENGER AT OR ABOUT 11:00 A.M. WAS DELIVERED TO THE SALES OFFICE AT APPROXIMATELY 11:30 A.M. THAT SAME MORNING.

"ON THE MORNING THE SALE OPENED, THE SALES CONTRACTING OFFICER CONSIDERED FOR AWARD ALL BIDS WHICH THE MESSENGER PICKED UP AT THE BRANCH POST OFFICE AT ABOUT 9:00 A.M. AND DELIVERED TO THE SALES OFFICE AT ABOUT 9:30 A.M. THE BID OF BANKS BROTHERS, INC., WAS NOT AMONG THE BIDS RECEIVED AT THAT TIME BUT IT WAS AMONG MAIL WHICH THE MESSENGER PICKED UP AT ABOUT 11:00 A.M. AND DELIVERED TO THE SALES OFFICE AT 11:38 A.M., ONE HOUR AND EIGHT MINUTES AFTER THE SALE OPENED. IRRESPECTIVE OF WHETHER THE BANKS BROTHERS, INC., BID HAD BEEN IN THE BRANCH POST OFFICE AT 10:30 A.M., THE SALES CONTRACTING OFFICER DETERMINED THAT, SINCE THE BID WAS NOT IN THE SALES OFFICE AT THE TIME THE SALE OPENED. IT WAS NOT ELIGIBLE FOR CONSIDERATION UNDER ARTICLE AC.'

ARTICLE AC, REFERRED TO ABOVE, WAS CONTAINED IN THE SPECIAL SEALED BID PROVISIONS ON PAGE 38 OF THE SALES INVITATION AND PROVIDED AS FOLLOWS:

"ARTICLE AC: CONSIDERATION OF LATE BIDS. BIDS MUST BE IN THE POSSESSION OF THE SALES CONTRACTING OFFICER BY THE TIME SET FOR BID OPENING. ANY BID WHICH IS NOT IN THE POSSESSION OF THE SALES CONTRACTING OFFICER BY THE TIME SET FOR BID OPENING WILL BE CONSIDERED ONLY IF IT IS RECEIVED BY THE SALES CONTRACTING OFFICER PRIOR TO AWARD, WAS MAILED AND IN FACT DELIVERED TO THE PLACE SPECIFIED IN THE INVITATION FOR BIDS IN SUFFICIENT TIME TO HAVE BEEN RECEIVED BY THE SALES CONTRACTING OFFICER BY THE TIME SET FOR BID OPENING, AND EXCEPT FOR DELAY ATTRIBUTABLE TO SALES PERSONNEL OR THEIR DESIGNEES, WOULD HAVE BEEN ON TIME. IN NO EVENT WILL HAND-CARRIED BIDS BE CONSIDERED IF DELIVERED TO THE SALES OFFICE AFTER THE EXACT TIME SET FOR BID OPENING.'

HOWEVER, SINCE THE SALES CONTRACTING OFFICER DETERMINED THAT YOU HAD SUBMITTED AN UNACCEPTABLE LATE BID, YOUR BID WAS RETURNED TO YOU UNOPENED ON JANUARY 29, 1965. WHILE THE ACTIONS TAKEN BY THE SALES CONTRACTING OFFICER WERE, IN OUR OPINION, IMPROPER, WE HAVE NO ALTERNATIVE OTHER THAN TO DENY YOUR PROTEST FOR THE FOLLOWING REASONS.

THE PRESENT POSTURE OF THIS CASE WAS DUE PRIMARILY TO THE FAILURE OF THE SALES CONTRACTING OFFICER TO FOLLOW PERTINENT INSTRUCTIONS WHICH PROVIDED:

"IRRESPECTIVE OF REGULAR MAIL PICK UP TIMES, DSSOS WILL ASSURE THAT MAIL IS PICKED UP AS CLOSE TO A SCHEDULED BID OPENING AS IS POSSIBLE, CONSIDERING THE TIME REQUIRED TO GET THE MAIL TO THE SALES OFFICE IN TIME FOR BID OPENING.'

THE SALES CONTRACTING OFFICER SHOULD HAVE CHECKED THE BRANCH POST OFFICE FOR MAILED BIDS AT ABOUT 10 A.M., JANUARY 28, RATHER THAN AT 9 A.M. ON THAT DAY, AND HE SHOULD HAVE CHECKED THE SALES OFFICE IMMEDIATELY PRIOR TO BID OPENING. IT WAS PROBABLE THAT YOUR BID WAS AT THE BRANCH POST OFFICE AT 10 A.M. ON THE DATE OF THE SALE AND, HENCE, SHOULD HAVE BEEN CONSIDERED FOR AWARD.

WHILE THE ACTIONS TAKEN WERE REGRETTABLE, THE MATTER IS COMPLICATED BY THE FACT THAT YOUR BID HAS BEEN IN YOUR POSSESSION FOR ABOUT TWO MONTHS. WE HAVE SERIOUS RESERVATIONS ABOUT CONSIDERING A LATE BID ONCE IT HAS BEEN RETURNED TO THE BIDDER, ESPECIALLY WHERE THE BID PRICES OF OTHER BIDDERS HAVE ALREADY BEEN REVEALED PUBLICLY. WE DO NOT BELIEVE THAT IT WOULD BE IN THE BEST INTERESTS OF THE COMPETITIVE SALES PROCEDURES TO PERMIT CONSIDERATION OF YOUR BID AT THIS TIME. SEE 41 COMP. GEN. 404; CF. B- 156034 DATED MARCH 5, 1965. IN THAT CONNECTION, WE NOTE THAT THE SUBJECT SALE GENERATED CONSIDERABLE COMPETITION WHICH RESULTED IN HIGH BIDS REPRESENTING FAIR RETURNS TO THE GOVERNMENT FOR THE ITEMS ADVERTISED.

UNDER THE CIRCUMSTANCES, THEREFORE, WE HAVE NO ALTERNATIVE OTHER THAN TO DENY YOUR PROTEST. HOWEVER, WE ARE ADVISED BY THE DEFENSE LOGISTICS SERVICES CENTER THAT, IN ORDER TO AVOID SIMILAR PROBLEMS IN THE FUTURE, SPECIFIC INSTRUCTIONS HAVE BEEN SENT TO ALL SALES OFFICES DIRECTING EACH SALES CONTRACTING OFFICER TO HAVE A DESIGNEE AT THE PLACE NAMED FOR SUBMISSION OF BIDS AT THE EXACT TIME OF BID OPENING, AND THAT BIDS TIMELY RECEIVED AT THAT PLACE WILL BE CONSIDERED TO BE IN THE CONSTRUCTIVE POSSESSION OF THE SALES CONTRACTING OFFICER AT THE TIME OF BID OPENING.