B-169211, MAY 8, 1970

B-169211, MAY 8, 1970

BIDS--DISCARDING ALL BIDS--PRICES EXCESSIVE PROTEST TO NONCONSIDERATION OF BID AND TELEGRAPHIC AMENDMENT, BOTH SENT TO CHARLESTON, S.C; WHEREAS INSTRUCTIONS TO BIDDERS IN INVITATION SPECIFICALLY SET FORTH KEY WEST, FLA; AS LOCATION FOR RECEIPT OF BIDS, IS DENIED SINCE INSTRUCTIONS CLEARLY STATED "BIDS MUST BE * * * ADDRESSED AS DIRECTED IN INVITATION FOR BIDS," AND WHEN ALL BIDS TIMELY RECEIVED AT KEY WEST EXCEEDED GOVERNMENT ESTIMATE BIDS WERE REJECTED AND INVITATION CANCELED UNDER AUTHORITY OF ASPR 2-404.1 (B) (VI), QUESTION OF PROPER RECEIPT AND HANDLING BY GOVERNMENT OF WRONGLY ADDRESSED BID AND TELEGRAPHIC AMENDMENT IS ACADEMIC.

TO MR. V. KEITH YOUNG:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MARCH 11, 1970, SUPPLEMENTING THE TELEGRAPHED PROTEST DATED MARCH 2, 1970, FROM GENERAL MAINTENANCE AND ENGINEERING CO; INC; COCOA BEACH, FLORIDA, UNDER DEPARTMENT OF THE NAVY INVITATION FOR BIDS NO. N62467-69-B-0036, SPECIFICATION NO. 06-69-0036, ISSUED BY THE NAVAL FACILITIES ENGINEERING COMMAND, CHARLESTON, SOUTH CAROLINA.

PARAGRAPH 6 OF THE INSTRUCTIONS TO BIDDERS ADVISED THAT "BIDS MUST BE * * * ADDRESSED AS DIRECTED IN THE INVITATION FOR BIDS"; AND THE INVITATION (STANDARD FORM 20) PROVIDED THAT SEALED BIDS FOR MODIFICATIONS TO BUILDINGS NO. V-800 AND NO. 1332, NAVY EXCHANGE FACILITIES AT THE NAVAL STATION, KEY WEST, FLORIDA, WOULD BE RECEIVED UNTIL 2:30 P.M; E.S.T; THURSDAY, FEBRUARY 26, 1970, AT THE OFFICE OF THE RESIDENT OFFICER IN CHARGE OF CONSTRUCTION, BUILDING NO. 178, NAVAL STATION, KEY WEST, FLORIDA 33040, AND AT THAT TIME PUBLICLY OPENED. THIS INFORMATION WAS REPEATED IN FORM OF A NOTICE ON FIRST PAGE OF NAVFAC SPECIFICATION NO. 06-69-0036. SECTION 1C OF THE ADDITIONAL GENERAL PARAGRAPHS OF THE INVITATION, ENTITLED "BIDS," PROVIDED THAT:

"1C.1 INSTRUCTIONS TO BIDDERS, U. S. STANDARD FORM 22 AND THE ADDITIONAL INSTRUCTIONS CONTAINED ON THE REVERSE SIDE OF THE INVITATION FOR BIDS, U. S. STANDARD FORM 20, SHALL BE OBSERVED IN THE PREPARATION OF BIDS. ENVELOPES CONTAINING BIDS MUST BE SEALED, MARKED AND ADDRESSED AS FOLLOWS:

BID FOR: TO:

MODIFICATIONS TO BUILDINGS RESIDENT OFFICER IN CHARGE

NO. V-800 AND NO. 1332, NAVY OF CONSTRUCTION

EXCHANGE FACILITIES P. O. BOX N1045 - BUILDING

NO. 178, NAVAL STATION

KEY WEST, FLORIDA 33040"

FURTHER, PAGE 2 OF THE BID FORM, STANDARD FORM 21, UNDER LAST BLOCK ENTITLED "DIRECTIONS FOR SUBMITTING BIDS" STATES:

"ENVELOPES CONTAINING BIDS, GUARANTEE, ETC; MUST BE SEALED, MARKED, AND ADDRESSED AS FOLLOWS:

RESIDENT OFFICER IN CHARGE OF CONSTRUCTION

BUILDING NO. 178, NAVAL STATION

KEY WEST, FLORIDA 33040"

YOUR LETTER OF MARCH 11, 1970, REFERS TO THE FACT THAT THE INVITATION CONTAINED THE KEY WEST, FLORIDA, ADDRESS FOR SUBMITTING BIDS, WHEREAS, THE BID FORM (STANDARD FORM 21) INDICATES THAT BIDS SHOULD BE ADDRESSED TO THE COMMANDING OFFICER, SOUTHEAST DIVISION, NAVAL FACILITIES ENGINEERING COMMAND, 2144 MELBOURNE STREET, CHARLESTON, SOUTH CAROLINA 29411. YOU STATE THAT YOUR CLIENT'S BID WAS MAILED ON FEBRUARY 20, 1970, IN THE AMOUNT OF $200,000 TO THE CHARLESTON, SOUTH CAROLINA, ADDRESS SHOWN ON THE BID FORM. YOU STATE FURTHER THAT THE BID PRICE WAS REDUCED TO $138,888 BY TELEGRAM SENT TO THE CHARLESTON, SOUTH CAROLINA, ADDRESS ON FEBRUARY 26, 1970, AT 12:05 P.M. IT IS YOUR VIEW THAT THE ORIGINAL BID MAILED FEBRUARY 20, 1970, SHOULD HAVE BEEN FORWARDED TO KEY WEST, FLORIDA, IN THE ORDINARY COURSE OF THE MAILS, AND THAT IN VIEW OF THE FACT THAT THE FEBRUARY 26, 1970, TELEGRAPHIC REDUCTION HAD BEEN RECEIVED BY THE COMMANDING OFFICER, SOUTHEAST DIVISION, IT COULD AND SHOULD HAVE BEEN TRANSMITTED TO KEY WEST BY A TIMELY INTERNAL GOVERNMENT COMMUNICATION. YOU CONCLUDE FROM THESE STATEMENTS THAT IT WOULD SEEM LEGALLY PROPER THAT YOUR CLIENT SHOULD BE AWARDED THE CONTRACT AS THE LOWEST BIDDER.

THE BID ENVELOPE FROM GENERAL MAINTENANCE AND ENGINEERING WAS RECEIVED IN CHARLESTON, SOUTH CAROLINA, THE ISSUING OFFICE, AT 1:19 P.M. ON FEBRUARY 25, 1970, THE DAY BEFORE THE BID OPENING WAS SCHEDULED TO TAKE PLACE IN KEY WEST, FLORIDA. IT IS REPORTED THAT NO ACTION WAS TAKEN BY THE SOUTHEAST DIVISION TO OPEN THE SEALED BID TO DETERMINE THE EFFECT OF THE TELEGRAPHIC MODIFICATION AS IT WAS CONSIDERED THAT THIS WOULD VIOLATE THE SAFEGUARDS OF THE COMPETITIVE BID PROCEDURE WHICH REQUIRED THAT BIDS BE PUBLICLY OPENED IN KEY WEST. NOR WAS ANY ACTION TAKEN TO FORWARD THE BID TO KEY WEST, BECAUSE IT WAS CONSIDERED THAT SUCH ACTION WOULD MAKE THE GOVERNMENT A PARTY TO THE PROCESSING OF A NONRESPONSIVE BID. SEE PARAGRAPH 2-301 (A) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). RATHER, THE BID WAS HELD UNOPENED BY THE SOUTHEAST DIVISION AND LATER RETURNED TO THE BIDDER.

WE HAVE BEEN ADVISED BY THE DEPARTMENT OF THE NAVY THAT IT HAS REJECTED ALL BIDS TIMELY RECEIVED AT KEY WEST BECAUSE THE BIDS EXCEEDED THE GOVERNMENT ESTIMATE OF $136,905, AND THAT THE WORK WILL BE READVERTISED. SEE ASPR 2-404.1 (B) (VI) WHICH AUTHORIZES THE REJECTION OF ALL BIDS AND THE CANCELLATION OF THE INVITATION WHEN ALL OTHERWISE ACCEPTABLE BIDS RECEIVED ARE AT UNREASONABLE PRICES. IN THE CIRCUMSTANCES, ANY QUESTION AS TO THE PROPER RECEIPT AND HANDLING OF YOUR CLIENT'S BID BY THE GOVERNMENT HAS BECOME ACADEMIC.