B-165349, NOVEMBER 1, 1968, 48 COMP. GEN. 271

B-165349, NOVEMBER 1, 1968, 48 COMP. GEN. 271

BIDS - LATE - MISHANDLING DETERMINATION UNDER AN INVITATION THAT SHOWED DIFFERENT STREET ADDRESSES FOR THE INVITATION ISSUING OFFICE AND THE BID RECEIVING OFFICE LOCATED IN THE SAME CITY WITHOUT DISTINGUISHING BETWEEN THEM, A BID ERRONEOUSLY FORWARDED BY REGISTERED MAIL, WHICH TIMELY REDIRECTED WAS FORWARDED TO THE OFFICE ISSUING THE INVITATION INSTEAD OF THE BID OPENING OFFICE AND NOT DRAWN TO THE ATTENTION OF THE APPROPRIATE PROCUREMENT OFFICIAL BEFORE BID OPENING TIME MAY BE OPENED AND EVALUATED FOR AWARD ON THE BASIS THE TWO OFFICES CONSTITUTE A "GOVERNMENT INSTALLATION" WITHIN THE MEANING OF THE LATE BID PROVISION EXCEPTION IN SECTION 1-2.303.2 (C) OF THE FEDERAL PROCUREMENT REGULATIONS FOR THE PURPOSE OF DETERMINING THAT THE BID HAD BEEN MISHANDLED BY THE GOVERNMENT. HOWEVER, THIS RULING SHOULD NOT BE GIVEN GENERAL APPLICATION IN VIEW OF THE UNIQUE AND SPECIAL CIRCUMSTANCES INVOLVED.

TO THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, NOVEMBER 1, 1968:

REFERENCE IS MADE TO LETTER OF OCTOBER 14, 1968, FROM YOUR GENERAL COUNSEL, REPORTING WITH RESPECT TO THE LATE BID OF PROPPER MANUFACTURING CO., INC., UNDER INVITATION FOR BIDS FPNGC-B-70217-A-8 26-68, COVERING LABORATORY EQUIPMENT AND SUPPLIES ON A REQUIREMENTS BASIS FROM NOVEMBER 1, 1968, OR DATE OF AWARD, WHICH EVER IS LATER, THROUGH OCTOBER 31, 1969.

BLOCK 7 ON THE FRONT OF STANDARD FORM 33 SHOWS THAT THE INVITATION WAS ISSUED BY: PROCUREMENT OPERATIONS DIVISION, F.S.S. GENERAL SERVICES ADMINISTRATION 1734 NEW YORK AVENUE, N.W. WASHINGTON, D.C. 20406 BLOCK 8, ALONGSIDE BLOCK 7, STATES: ADDRESS OFFER TO (IF OTHER THAN BLOCK 7) 7TH AND D STS., S.W. WASHINGTON, D.C. 20407 BID ROOM 7122 MARK BID LOWER LEFT CORNER FPNGC-B-70217-A-8-26-68. BLOCK 9 STATES THAT OFFERS WILL BE RECEIVED IN THE PLACE SPECIFIED IN BLOCK 8 UNTIL 12:30 P.M., AUGUST 26, 1968.

PROPPER MANUFACTURING ADDRESSED ITS BID ENVELOPE WITH AN INCORRECT ADDRESS LABEL. THE PRINTED LABEL BEARS THE FOLLOWING ADDRESS: DEFENSE PERSONNEL SUPPORT CENTER ATTN: BID. BR., DIR. OF PROC. AND PROD. 2800 SOUTH 20TH STREET PHILADELPHIA, PENNSYLVANIA 19101. BELOW THE ADDRESS, THE LABEL STATES IN LARGE BOLD PRINT "CAUTION--- SEALED BID/OFFER.' THE LABEL ALSO CONTAINS BLANKS WHICH PROPPER FILLED IN TO SHOW THE INVITATION NUMBER, OPENING DATE AND HOUR AS FOLLOWS: IFB NO. FPNGC-B-70217-A-OPENING DATE 8/26/68/HR: 12:30

THE BID WAS SENT BY REGISTERED MAIL AND IS POSTMARKED AUGUST 21,1968. ACCORDING TO STAMPINGS ON THE ENVELOPE, IT WAS RECEIVED BY THE DEFENSE PERSONNEL SUPPORT CENTER OF THE DEFENSE SUPPLY AGENCY ON AUGUST 22, 1968, AND WAS OPENED FOR IDENTIFICATION. THE BID WAS THEN REPLACED IN THE ORIGINAL ENVELOPE, RESEALED AND INSERTED IN A FRANKED DEFENSE PERSONNEL SUPPORT CENTER ENVELOPE ON WHICH WAS PRINTED "OFFICIAL BUSINESS" AND "FIRST CLASS MAIL.' THIS ENVELOPE WAS MISTAKENLY ADDRESSED TO THE OFFICE WHICH ISSUED THE INVITATION RATHER THAN TO THE ADDRESS STATED IN BLOCK 8 OF THE INVITATION.

THE DEFENSE PERSONNEL SUPPORT CENTER ENVELOPE AND THE INNER ENVELOPE CONTAINING THE BID ARE BOTH TIME STAMPED APPROXIMATELY 11 A.M., AUGUST 26, 1968, BY THE CHEMICAL, MEDICAL AND DRUG SECTION WHICH IS REPORTED TO BE THE SECTION OF THE PROCUREMENT OPERATIONS DIVISION WHICH ISSUED THE INVITATION. IT IS STATED THAT THE SECTION CHIEF'S SECRETARY TREATED THE ENVELOPES AS ROUTINE MAIL AND BECAUSE OF THE PRESS OF OTHER DUTIES DID NOT DELIVER IT TO THE PROCUREMENT AGENT'S DESK UNTIL 11:30 A.M., BY WHICH TIME HE HAD ALREADY LEFT HIS NEW YORK AVENUE OFFICE TO ATTEND THE BID OPENING AT 7TH AND D STREETS, S.W. THEREFORE, THE PROCUREMENT AGENT DID NOT BECOME AWARE OF THE BID UNTIL AFTER HE RETURNED FROM THE BID OPENING.

SECTION 1-2.303-1 OF THE FEDERAL PROCUREMENT REGULATIONS (FPR) STATES:

BIDS RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS AFTER THE EXACT TIME SET FOR OPENING OF BIDS ARE LATE BIDS. LATE BIDS SHALL NOT BE CONSIDERED FOR AWARD EXCEPT AS AUTHORIZED IN THIS SEC. 1 2.303. FPR SECTION 1-2.303-2 PROVIDES:

A LATE BID SHALL BE CONSIDERED FOR AWARD ONLY IF:

(A) IT IS RECEIVED BEFORE AWARD; AND EITHER

(B) IT WAS SENT BY REGISTERED MAIL OR BY CERTIFIED MAIL * * * AND IT IS DETERMINED THAT THE LATENESS WAS DUE SOLELY TO A DELAY IN THE MAILS * * * FOR WHICH THE BIDDER WAS NOT RESPONSIBLE: OR

THE QUESTION AS TO WHAT CONSTITUTES A "GOVERNMENT INSTALLATION" WITHIN THE MEANING OF THE LATE BID PROVISIONS OF THE FEDERAL PROCUREMENT REGULATIONS IS FOR CONSIDERATION SOLELY ON THE BASIS OF THE FACTS AND CIRCUMSTANCES PRESENT IN THE PARTICULAR CASE AND NO ATTEMPT WILL BE MADE TO PROVIDE A DEFINITION OF THAT TERM FOR GENERAL APPLICATION IN LATE BID SITUATIONS. IN 41 COMP. GEN. 696, CITED BY YOUR GENERAL COUNSEL, WE HELD THAT RECEIPT BY THE NEW YORK ORDNANCE DISTRICT WAS NOT RECEIPT AT THE GOVERNMENT INSTALLATION--- THE ORDNANCE AMMUNITION COMMAND, JOLIET, ILLINOIS. IN THAT CASE, THE QUESTION OF THE "CONSTRUCTIVE" RECEIPT OF A BID MODIFICATION WAS CONSIDERED. TWO WIDELY SEPARATE AGENCY OFFICES WERE INVOLVED, ONLY ONE OF WHICH WAS BOTH THE ISSUING AND BID OPENING OFFICE. WE THEREFORE CANNOT APPLY THE RATIONALE OF THAT CASE TO THE INSTANT CASE.

ALTHOUGH BIDS SUCH AS INVOLVED HERE ARE USUALLY RECEIVED AND OPENED AT THE 7TH AND D LOCATION, THE PROCUREMENT OPERATIONS DIVISION AT THE NEW YORK AVENUE ADDRESS IS THE OFFICE WHICH ISSUES AND ADMINISTERS THE INVITATION AND EVALUATES THE BIDS AFTER OPENING. IT IS INTERESTING TO NOTE THAT, WHILE BLOCK 8 ON THE FRONT OF STANDARD FORM 33 INDICATES THE ADDRESS TO WHICH BIDS SHOULD BE SENT, THERE WAS NO INDICATION THEREIN THAT THE ADDRESSEE SHOULD BE ANY DIFFERENT THAN THE ADDRESSE NAMED IN BLOCK 7 AS THE ISSUER OF THE INVITATION. THUS, WHILE THE INVITATION SHOWS DIFFERENT STREET ADDRESSES FOR THE INVITATION ISSUING OFFICE AND THE BID RECEIVING OFFICE, THERE IS NO BASIS TO DISTINGUISH BETWEEN THE NAME OF THE INVITATION ISSUING OFFICE AND THE BID OPENING OFFICE. IT THEREFORE APPEARS ENTIRELY REASONABLE TO REGARD BOTH OFFICES AS INTEGRAL PARTS OF THE COGNIZABLE PROCUREMENT ACTIVITY AND, FOR PURPOSES OF ADMINISTERING THE INSTANT INVITATION, THEY MAY BE REGARDED AS THE "INSTALLATION" FOR THE PURPOSES OF THE LATE BID PROVISIONS OF THE INVITATION. WE, OF COURSE, RECOGNIZE THAT OTHER GSA OFFICES IN THE METROPOLITAN AREA ARE ENGAGED IN INTERRELATED PROCUREMENT FUNCTIONS, BUT OUR HOLDING HERE RESPECTING "INSTALLATION" SHOULD NOT BE GIVEN GENERAL APPLICATION SINCE IT AROSE FROM UNIQUE AND SPECIAL CIRCUMSTANCES AT LEAST PARTIALLY CREATED BY THE INVITATION ITSELF. WE THEREFORE HOLD THE PROCUREMENT OPERATIONS DIVISION AT THE NEW YORK AVENUE ADDRESS IS THE "GOVERNMENT INSTALLATION" FOR THE PURPOSES OF NOW DETERMINING WHETHER THE PROPPER BID WAS MISHANDLED AT THAT INSTALLATION.

(C) IF SUBMITTED BY MAIL * * *, IT WAS RECEIVED AT THE GOVERNMENT INSTALLATION IN SUFFICIENT TIME TO BE RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION BY THE TIME SET FOR OPENING AND, EXCEPT FOR DELAY DUE TO MISHANDLING ON THE PART OF THE GOVERNMENT AT THE INSTALLATION, WOULD HAVE BEEN RECEIVED ON TIME AT THE OFFICE DESIGNATED. * * * PARAGRAPH 8 OF THE STANDARD FORM A,"SOLICITATION INSTRUCTIONS AND CONDITIONS," CONTAINS ESSENTIALLY THE SAME LATE BID PROVISIONS AS THE FEDERAL REGULATIONS EXCEPT THAT, UNLIKE FPR SECTION 1-2.303-2 (C), IT PROVIDES THAT TO BE EXCUSABLE THE LATE RECEIPT MUST BE DUE "SOLELY" TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE INSTALLATION.

THE LATENESS OF THE BID WAS NOT DUE TO A DELAY IN THE MAILS AND, THEREFORE, FPR SECTION 1-2.303-2 (B) DOES NOT HAVE ANY APPLICATION TO THE MATTER. HOWEVER, THE REPORT TO OUR OFFICE TAKES THE POSITION THAT THE LATE BID WAS NOT MISHANDLED AT THE GSA NEW YORK AVENUE OFFICE AND THAT, IN ANY EVENT, THAT OFFICE IS NOT THE "GOVERNMENT INSTALLATION" REFERRED TO IN THE LATE BID PROVISIONS. IT IS CONTENDED THAT THERE WAS AN ABSENCE OF MISHANDLING BECAUSE THE CLERICAL PERSONNEL OF THE CHEMICAL, MEDICAL AND DRUG SECTION ARE NOT RESPONSIBLE FOR HANDLING BIDS AND IT IS UNUSUAL FOR THEM TO SEE A BID PRIOR TO OPENING. WITH RESPECT TO THE MEANING OF THE WORD ,INSTALLATION," IT IS STATED THAT THE TWO GSA LOCATIONS INVOLVED ARE SERVED BY SEPARATE MAILROOMS, EACH RECEIVING MAIL DIRECTLY FROM THE POST OFFICE, AND THEREFORE,"INSTALLATION" SHOULD NOT BE CONSTRUED TO INCLUDE BUILDINGS WHICH ARE SEPARATED GEOGRAPHICALLY EVEN WHEN THOSE BUILDINGS ARE IN POSSESSION AND UNDER THE CONTROL OF A SINGLE AGENCY OR ORGANIZATION ELEMENT.

ALTHOUGH IT MAY NOT BE THE RESPONSIBILITY OF THE CLERICAL PERSONNEL OF THE CHEMICAL, MEDICAL AND DRUG SECTION OF THE PROCUREMENT OPERATIONS DIVISION TO HANDLE BIDS, SUCH PERSONNEL ARE IN INTIMATE CONTACT WITH PROCUREMENT FUNCTIONS GENERALLY. IT IS REASONABLE, FROM THE RECORD, TO SAY THAT THE SECRETARY SHOULD HAVE BEEN KNOWLEDGEABLE AT LEAST WITH RESPECT TO THE DISPOSITION TO BE MADE OF THIS BID SINCE SHE PLACED IT ON THE DESK OF THE OFFICIAL WHO WOULD BE INVOLVED IN THE OPENING OF BIDS RECEIVED UNDER THE INVITATION. AT LEAST, IT IS EVIDENT THAT THE DATA ON THE BID ENVELOPE GAVE THIS EMPLOYEE SUFFICIENT INFORMATION TO TAKE THE NECESSARY ACTION TO SEE THAT THE BID WAS BROUGHT TO THE ATTENTION OF THE APPROPRIATE OFFICIAL BEFORE THE TIME OF BID OPENING.

NO DEFINITION IS FOUND IN THE FEDERAL PROCUREMENT REGULATIONS AS TO WHAT CONSTITUTES ,MISHANDLING.' IN SOME CASES OUR OFFICE HAS EQUATED MISHANDLING WITH A FAILURE TO FOLLOW PRESCRIBED PROCEDURE,BUT THE ABSENCE OF A PRESCRIBED PROCEDURE DOES NOT EXCUSE MISHANDLING ESPECIALLY WHERE PROCUREMENT PERSONNEL ARE INVOLVED IN THE PARTICULAR SOLICITATION. WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY INCLUDES "TO MANAGE WRONGLY OR IGNORANTLY" IN THE DEFINITION OF "MISHANDLE.' IN THIS CASE, THE BID ENVELOPE CERTAINLY WAS HANDLED IN AN ERRONEOUS MANNER IN VIEW OF THE INFORMATION CONTAINED ON ITS FACE. THIS CONCLUSION IS ALSO SUPPORTED BY THE FACT THAT APPARENTLY IN THE LAST YEAR OR SO MORE THAN 300 BIDS ERRONEOUSLY SENT TO THE NEW YORK AVENUE ADDRESS HAVE BEEN TAXIED TO THE BID ROOM AT 7TH AND D BY GSA PERSONNEL. THUS, THERE HAS BEEN SOME RECOGNITION ON THE PART OF THE NEW YORK AVENUE OFFICE THAT IT HAS A DEGREE OF RESPONSIBILITY WITH RESPECT TO THE RECEIPT OF BIDS WHICH ARE REQUIRED TO BE OPENED AT THE 7TH AND D STREETS OFFICE.

IT IS TRUE THAT GENERALLY BIDDERS HAVE THE RESPONSIBILITY TO ASSURE THAT THEIR BIDS ARRIVE ON TIME AT THE OFFICE DESIGNATED IN THE INVITATION, AND BIDDERS CANNOT GENERALLY SHIFT THAT RESPONSIBILITY TO THE GOVERNMENT. HOWEVER, THAT RESPONSIBILITY IS NOT AN ABSOLUTE UNDERTAKING. THE CURRENT REGULATIONS RECOGNIZE THAT IF THE BID ARRIVES AT THE GOVERNMENT INSTALLATION IN SUFFICIENT TIME TO REACH THE DESIGNATED OFFICE ON TIME, THE BIDDER'S RESPONSIBILITY IS THEN SHIFTED TO THE GOVERNMENT WHICH HAS THE DUTY TO AVOID MISHANDLING BY PROMPTLY DELIVERING THE BID TO THE DESIGNATED OFFICE.

ALTHOUGH THERE IS A DIFFERENCE IN LANGUAGE BETWEEN STANDARD FORM 33A AND THE FEDERAL PROCUREMENT REGULATIONS WITH RESPECT TO WHETHER BID MISHANDLING MUST BE DUE "SOLELY" TO MISHANDLING BY THE INSTALLATION, WE NEED NOT RESORT TO AN OVERTECHNICAL APPLICATION TO REACH A MORE RESTRICTIVE REQUIREMENT THAN THAT CONTAINED IN THE FEDERAL PROCUREMENT REGULATIONS UNDER THE PARTICULAR CIRCUMSTANCES OF THIS CASE. B-150514, MARCH 22, 1963. WHILE IN 37 COMP. GEN. 35 OUR OFFICE HELD THAT A LATE BID ERRONEOUSLY MAILED TO THE WRONG AGENCY WAS THE SOLE CAUSE OF DELAY IN THE ARRIVAL OF THE BID, THE LATE BID PROVISION WHICH WAS IN EFFECT AT THAT TIME PROVIDED FOR OPENING OF LATE BIDS RECEIVED BEFORE AWARD WHICH ARE DETERMINED TO HAVE FAILED TO ARRIVE ON TIME DUE SOLELY TO DELAYS IN THE MAIL FOR WHICH THE BIDDER WAS NOT RESPONSIBLE. AS INDICATED ABOVE, THE CURRENT FEDERAL PROCUREMENT REGULATIONS SPEAK ONLY OF MISHANDLING BY THE INSTALLATION AND ARE SILENT AS TO THE BIDDER'S CARELESSNESS WHICH MAY HAVE PRECEDED A TIMELY RECEIPT BY THE GOVERNMENT. IN OTHER WORDS, WHILE A BIDDER MAY HAVE BEEN INITIALLY RESPONSIBLE FOR THE DELAYED RECEIPT OF THE BID AT THE GOVERNMENT INSTALLATION, THE BID MAY BE CONSIDERED UNDER CURRENT REGULATIONS PROVIDED IT WAS RECEIVED IN SUFFICIENT TIME TO BE RECEIVED AT THE BID OPENING OFFICE AND ITS LATE ARRIVAL WAS DUE TO GOVERNMENT MISHANDLING AT THE INSTALLATION.

UNDER THE CIRCUMSTANCES HERE INVOLVED, THE BID FROM PROPPER MANUFACTURING COMPANY SHOULD BE OPENED AND EVALUATED FOR AWARD.

THE SEALED BID WHICH ACCOMPANIED THE ADMINISTRATIVE REPORT IS RETURNED HEREWITH.