B-163777, APR. 16, 1968

B-163777, APR. 16, 1968

TO MR. SECRETARY:

REFERENCE IS MADE TO A LETTER DATED MARCH 6, 1968, WITH ENCLOSURES, FROM THE DEPUTY ASSISTANT SECRETARY FOR ADMINISTRATION, REQUESTING OUR DECISION AS TO WHETHER THE AWARD OF A GRAZING LEASE TO MR. GLENN L. HUMPHREY, BIG SANDY, MONTANA, UNDER INVITATION FOR BIDS NO. 604-528, ISSUED BY THE BUREAU OF RECLAMATION, GREAT FALLS, MONTANA, WAS PROPER UNDER THE CIRCUMSTANCES. THE AWARD WAS PROTESTED BY MRS. EDNA BITZ ON THE GROUND THAT MR. HUMPHREY'S BID, ALTHOUGH THE HIGHEST RECEIVED ON THE TRACT OF LAND COVERED BY ITEM 9 OF THE INVITATION, WAS RECEIVED AFTER THE TIME FIXED FOR THE OPENING OF BIDS.

THE INVITATION PROVIDED THAT SEALED PROPOSALS WOULD BE RECEIVED "AT THE OFFICE OF THE BUREAU OF RECLAMATION, P.O. BOX 1629, GREAT FALLS, MONTANA, UNTIL 10:00 A.M., DECEMBER 21, 1967.' HOWEVER, THE INVITATION DID NOT PROVIDE FOR THE CONSIDERATION OF LATE BIDS. IN THIS RESPECT, WE KNOW OF NO REGULATORY REQUIREMENT THAT APPROPRIATE "LATE BID" PROVISIONS BE INCLUDED IN INVITATIONS COVERING THE LEASING OF PUBLIC GRAZING LANDS. BIDS WERE OPENED AT THE SPECIFIED TIME AND IT WAS FOUND THAT MRS. EDNA J. BITZ'S BID IN THE AMOUNT OF $193.60 WAS THE HIGHEST BID RECEIVED ON THE TRACT OF LAND COVERED BY ITEM 9. HOWEVER, IT IS REPORTED THAT AT 12:30 P.M., ON THE DAY OF THE BID OPENING, A BID WHICH WAS SENT BY CERTIFIED MAIL WAS RECEIVED IN THE PROJECT MANAGER'S OFFICE FROM MR. GLENN L. HUMPHREY. THE PROJECT MANAGER PROCEEDED TO DETERMINE WHETHER MR. HUMPHREY'S LATE BID COULD BE CONSIDERED FOR AWARD. WITH RESPECT TO THE QUESTION AS TO THE RESPONSIBILITY FOR THE DELAY IN RECEIPT OF THE BID, THE PROJECT MANAGER WAS ADVISED BY LETTER DATED DECEMBER 21, 1967, FROM THE POSTMASTER AT GREAT FALLS, MONTANA, AS FOLLOWS:

"WITH REFERENCE TO THE CERTIFIED LETTER NUMBER 621230, MAILED IN BIG SANDY, MONTANA, ON DECEMBER 20, 1967, BEARING AN AM POSTMARK, NORMAL MAIL HANDLING WOULD HAVE PROVIDED AN 0800 DELIVERY ON DECEMBER 21, 1967.

"DELAY IN DELIVERY UNTIL AFTER 1000 WAS DUE TO SEASONAL MAIL VOLUME WHICH PRECLUDED THE NORMAL IMMEDIATE HANDLING THAT IT WOULD HAVE RECEIVED.'

IN A LETTER DATED DECEMBER 22, 1967, THE PROJECT MANAGER ADVISED MRS. BITZ THAT AFTER THE BID OPENING, A BID HIGHER THAN HERS ON ITEM 9 IN THE AMOUNT OF $205 WAS RECEIVED FROM MR. GLENN L. HUMPHREY AND THAT SINCE HE HAD BEEN ADVISED BY THE POSTMASTER AT GREAT FALLS, MONTANA, THAT THE BID OF MR. HUMPHREY WAS MAILED BY HIM IN SUFFICIENT TIME TO REACH THE PROJECT MANAGER'S OFFICE PRIOR TO THE BID OPENING, ITEM 9 WOULD BE AWARDED TO MR. HUMPHREY. ON DECEMBER 26, 1967, THE PROJECT MANAGER ADVISED MR. HUMPHREY THAT ITEM 9 HAD BEEN AWARDED TO HIM.

ATTORNEYS FOR MRS. BITZ CONTEND THAT IT WAS UNFAIR TO ALL BIDDERS FOR A LATE BID TO BE FAVORABLY CONSIDERED WHERE THE INVITATION PROVIDES FOR RECEIPT OF BIDS BY A SPECIFIED TIME. HOWEVER, UNDER THE INSTANT INVITATION, THE CONSIDERATION OF A LATE BID WHICH HAS BEEN DELAYED IN THE MAIL THROUGH NO FAULT OF THE BIDDER IS PROPER WHERE, AS HERE, THE RECORD INDICATES THAT THE RIGHTS OF OTHER BIDDERS ARE NOT PREJUDICED THEREBY. WHILE IT IS TRUE THAT MRS. BITZ WAS THE HIGHEST BIDDER ON ITEM 9 AT THE TIME OF THE BID OPENING, THAT FACT DID NOT AUTOMATICALLY ENTITLE HER TO AWARD OF THE LEASE WHEN THE GOVERNMENT HAD IN HAND A HIGHER BID WHICH WAS RECEIVED LATE VIA CERTIFIED MAIL.

WHILE THE INVITATION DID NOT PROVIDE THAT LATE BIDS WOULD BE CONSIDERED, NEITHER DID IT EXPRESSLY PRECLUDE THE CONSIDERATION OF LATE BIDS. THE CONSIDERATION OF THE LATE BID IN THIS INSTANCE WAS IN THE INTEREST OF THE GOVERNMENT FROM THE STANDPOINT OF RECEIPTS. ALSO, THE DELAYED RECEIPT OF THE PROPOSAL WAS NOT DUE TO THE FAULT OR NEGLIGENCE OF MR. HUMPHREY. THE PROPOSAL WAS MAILED IN SUFFICIENT TIME TO HAVE BEEN DELIVERED BY THE TIME SPECIFIED FOR THE OPENING OF BIDS. HENCE, MR. HUMPHREY COULD NOT HAVE HAD ANY KNOWLEDGE OF THE OTHER BIDS AND OBVIOUSLY DID NOT SUBMIT HIS BID LATE IN AN ATTEMPT TO GAIN AN UNFAIR ADVANTAGE OVER THE OTHER BIDDERS. UNDER SUCH CIRCUMSTANCES, THE RIGHTS OF THE OTHER BIDDERS COULD NOT HAVE BEEN PREJUDICED BY THE SELECTION OF MR. HUMPHREY AS THE SUCCESSFUL BIDDER ON ITEM 9. SEE B 107417, MARCH 11, 1952.

ACCORDINGLY, WE FIND NO LEGAL BASIS TO OBJECT TO THE AWARD OF THE LEASE TO MR. GLENN L. HUMPHREY AS THE HIGHEST BIDDER UNDER THE INVITATION.