B-158206, FEB. 17, 1966

B-158206, FEB. 17, 1966

TO FLUID MECHANICS, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF DECEMBER 18, 1965, PROTESTING AGAINST THE ACTION OF THE DEPARTMENT OF THE NAVY IN CONSIDERING A LATE BID SUBMITTED BY THE FRAM CORPORATION, WARNER LEWIS INDUSTRIAL FILTER DIVISION, IN RESPONSE TO INVITATION FOR BIDS NO. 600 321-66-S, ISSUED BY THE NAVY PURCHASING OFFICE, WASHINGTON, D.C.

THE RECORD DISCLOSES THAT THE REFERRED-TO INVITATION REQUESTED BIDS--- TO BE OPENED AT 10:30 A.M. ON NOVEMBER 29, 1965--- FOR FURNISHING TO THE BUREAU OF SHIPS 26 RETURN LINE FILTRATION UNITS AND 156 SETS REPLACEMENT FILTER ELEMENTS FOR THE FILTRATION UNITS; THAT AT THE DESIGNATED TIME ON NOVEMBER 29, 1965, FIVE BIDS INCLUDING THAT OF YOUR FIRM WERE PUBLICLY OPENED AND READ; AND THAT YOUR BID IN THE AMOUNT OF $48,103.70 WAS THE LOWEST OF THOSE READ AT THE BID OPENING.

IT IS REPORTED THAT 3 HOURS AFTER THE SPECIFIED BID OPENING TIME A BID WAS RECEIVED IN THE BID OPENING OFFICE FROM THE FRAM CORPORATION, WARNER LEWIS INDUSTRIAL FILTER DIVISION, HEREINAFTER REFERRED TO AS FRAM. ACCORDANCE WITH PARAGRAPH 2-303 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), WHICH ALLOWS THE CONSIDERATION OF LATE BIDS IF THE BID WAS RECEIVED LATE SOLELY BECAUSE OF A PROVABLE DELAY IN THE MAILS, THE PROCURING ACTIVITY PROCEEDED TO DETERMINE WHETHER FRAM'S BID COULD BE CONSIDERED. ULTIMATELY IT WAS DETERMINED BY THE PROCURING ACTIVITY THAT THE BID OF FRAM WAS TIMELY MAILED AND, THEREFORE, SHOULD BE OPENED AND CONSIDERED FOR AWARD. UPON OPENING FRAM'S BID IT WAS NOTED THAT THE AMOUNT THEREOF WAS $29,684.72. IT IS REPORTED THAT AN AWARD UNDER THE INVITATION FOR BIDS TO FRAM HAS NOT BEEN MADE AND THAT IT IS BEING DEFERRED PENDING A DECISION BY OUR OFFICE ON YOUR PROTEST.

IN YOUR TELEGRAM YOU STATE FOUR REASONS AS TO WHY YOU BELIEVE THAT THE ACTION OF THE CONTRACTING OFFICER IN CONSIDERING THE LATE BID SUBMITTED BY FRAM WAS IMPROPER.

THE FIRST REASON GIVEN BY YOU IS THAT YOUR FIRM WAS THE LOW BIDDER AT THE TIME SPECIFIED FOR OPENING OF BIDS. WHILE IT IS TRUE THAT YOU WERE THE LOW BIDDER AT THE TIME OF THE BID OPENING, THAT FACT DOES NOT AUTOMATICALLY ENTITLE YOU TO AWARD OF THE CONTRACT. IT CONSISTENTLY HAS BEEN HELD THAT WHERE IT CAN BE SHOWN THAT A BID WAS DEPOSITED IN THE MAIL IN SUFFICIENT TIME NORMALLY TO HAVE ARRIVED AT THE PROPER PLACE IN TIME FOR A SCHEDULED BID OPENING, BUT IS DELAYED THROUGH NO FAULT OF THE BIDDER, THE BID, IF OTHERWISE ACCEPTABLE, MAY PROPERLY BE CONSIDERED IN MAKING THE AWARD. IN VIEW OF THE FOREGOING, THE CONTRACTING OFFICER MUST CONSIDER FOR PURPOSES OF AWARD NOT ONLY THOSE BIDS OPENED AT THE BID OPENING BUT ALSO THOSE LATE BIDS WHICH MEET THE LATE BID REQUIREMENTS OF ASPR 2-303.

THE SECOND GROUND FOR YOUR PROTEST IS THAT "IT IS UNFAIR TO ALL BIDDERS IN GOOD FAITH FOR LATE BIDS TO BE CONSIDERED.' BUT WE CANNOT SEE WHY IT IS UNFAIR TO CONSIDER LATE BIDS WHICH HAVE BEEN DELAYED THROUGH NO FAULT OF THE BIDDERS AND WHERE THE RECORD INDICATES THAT THE RIGHTS OF OTHER BIDDERS ARE NOT PREJUDICED THEREBY. ASPR 2-303 SETS FORTH THE POLICY TO BE FOLLOWED BY CONTRACTING OFFICERS IN DETERMINING WHETHER A LATE BID SHOULD BE OPENED AND CONSIDERED FOR AWARD. THAT POLICY IS PREDICATED ON THE RIGHTS OF OTHER BIDDERS AND THE INTEREST OF THE GOVERNMENT FROM THE STANDPOINT OF COST.

THE THIRD BASIS FOR YOUR PROTEST IS THAT FRAM'S LATE BID IS "UNFAIR COMPETITION AS IT IS IMPOSSIBLE FOR THE ITEMS INVOLVED IN THE CONTRACT TO BE PRODUCED FOR THE AMOUNT OF THE LATE BID.' IT IS REPORTED THAT IN VIEW OF THE DIFFERENCE BETWEEN YOUR BID AND FRAM'S BID, THAT CORPORATION WAS REQUESTED TO VERIFY ITS BID. BY LETTERS DATED JANUARY 24 AND FEBRUARY 3, 1966, FRAM ADVISED THE BUREAU OF SHIPS, THE USING ACTIVITY, THAT EXCEPT FOR AN ERROR OF $1,500, WHICH WAS TO COVER THE COST OF THE INSTRUCTION MANUALS, ITS BID PRICE FOR THE EQUIPMENT WAS CORRECT. THE CORPORATION STATED THAT IT WAS NOT SEEKING CORRECTION OF ITS BID PRICE AND THAT IT WOULD FURNISH THE ITEMS AT ITS ORIGINAL BID PRICE. IN VIEW THEREOF WE SEE NO BASIS FOR FURTHER QUESTIONING THE PRICE QUOTED BY IT.

IN REGARD TO YOUR FOURTH CONTENTION TO THE EFFECT THAT YOU ARE A SMALL BUSINESS CONCERN, IT IS NOT APPARENT HOW SUCH FACT IS RELEVANT TO THIS CASE SINCE THE PROCUREMENT IN QUESTION IS NOT A SMALL BUSINESS SET-ASIDE.

WITH REGARD TO LATE BIDS, ASPR 2-303.2 PROVIDES AS FOLLOWS:

"2-303.2 CONSIDERATION FOR AWARD. A LATE BID SHALL BE CONSIDERED FOR AWARD ONLY IF:

"/1) IT IS RECEIVED BEFORE AWARD; AND EITHER

"/II) IT WAS SENT BY REGISTERED MAIL, OR BY CERTIFIED MAIL FOR WHICH AN OFFICIAL DATED POST OFFICE STAMP (POSTMARK) ON THE ORIGINAL RECEIPT FOR CERTIFIED MAIL HAS BEEN OBTAINED, OR BY TELEGRAPH IF AUTHORIZED, AND IT IS DETERMINED THAT THE LATENESS WAS DUE SOLELY TO A DELAY IN THE MAILS (BASED ON EVIDENCE PURSUANT TO 2-303.3), OR TO A DELAY BY THE TELEGRAPH COMPANY FOR WHICH THE BIDDER WAS NOT RESPONSIBLE; * * *"

THE DEPARTMENT OF THE NAVY REPORTS THAT A LETTER DATED DECEMBER 8, 1965, WAS RECEIVED FROM THE FRAM CORPORATION FORWARDING CERTIFIED MAIL RECEIPT NO. 924868 COVERING ITS BID AND A LETTER DATED DECEMBER 7, 1965, FROM THE POSTMASTER, TULSA, OKLAHOMA. IN THE LETTER THE POSTMASTER AFFIRMED THAT CERTIFIED LETTER NO. 924868 WAS MAILED AT THE WHITTIER STATION BEFORE 5 P.M. ON NOVEMBER 26, 1965. AFTER RECEIVING THE ABOVE EVIDENCE, THE NAVY PURCHASING OFFICE CONTACTED THE WASHINGTON, D.C., POST OFFICE AND, AFTER RECITING THE FOREGOING FACTS, IT WAS ADVISED THAT FRAM'S BID SHOULD HAVE BEEN RECEIVED IN THE WASHINGTON POST OFFICE ON SUNDAY, NOVEMBER 28, 1965, AND, THEREFORE, IT SHOULD HAVE BEEN DELIVERED TO THE PROCURING ACTIVITY PRIOR TO THE BID OPENING ON THE FOLLOWING DAY. ON THE BASIS OF THE RECORD IN THIS CASE, THE BUREAU OF SHIPS TAKES THE POSITION THAT THE BID OFFICER FOLLOWED THE ASPR PROCEDURES FOR LATE BIDS AND THAT THE CONTRACTING OFFICER ACTED PROPERLY IN OPENING THE BID. WE AGREE.

WE CONCLUDE FROM THE RECORD THAT THE LATE BID OF THE FRAM CORPORATION MAY BE CONSIDERED FOR AWARD. ACCORDINGLY, YOUR PROTEST AGAINST THE PROPOSED AWARD IS DENIED.