B-171002, APR 14, 1971

B-171002, APR 14, 1971

BID PROTEST - LATE BID DECISION DENYING PROTEST AGAINST AWARD OF CONTRACT TO DE WILDE'S GARDENS, SUCCESSFUL LOW BIDDER, UNDER IFB ISSUED BY THE BONNEVILLE POWER ADMINISTRATION FOR LANDSCAPING AND INSTALLATION OF A SPRINKLING SYSTEM. ALTHOUGH ONLY SEVEN BIDS WERE OPENED AT THE BID OPENING AND PROTESTANT APPEARED TO BE THE LOW BIDDER, TWO OTHER BIDS WOULD HAVE BEEN IN THE BID OPENING ROOM ON TIME BUT FOR MISHANDLING WITHIN THE GOVERNMENT INSTALLATION; THE CONTRACTING OFFICER, THEREFORE, PROPERLY CONSIDERED THESE BIDS FOR AWARD PURSUANT TO STANDARD FORM 22 INSTRUCTIONS TO BIDDERS, REFERENCED IN THE BID PACKAGE. ACCORDINGLY, THE PROTEST MUST BE DENIED.

TO LANDSCAPING, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 7, 1970, PROTESTING AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER INVITATION FOR BIDS NO. 1090, ISSUED BY THE BONNEVILLE POWER ADMINISTRATION, PROCUREMENT SECTION, BRANCH OF SUPPLY, DEPARTMENT OF THE INTERIOR, ON AUGUST 27, 1970, FOR LANDSCAPING AND INSTALLATION OF A SPRINKLING SYSTEM AT CUSTER SUBSTATION, WHATCOM COUNTY, WASHINGTON.

YOU STATE THAT YOU ATTENDED THE BID OPENING AT 10 A.M. ON SEPTEMBER 10, 1970, AND OF THE SEVEN BIDS OPENED, YOUR BID WAS LOW. YOU FURTHER STATE THAT TWO DAYS LATER YOU RECEIVED A COPY OF AN ABSTRACT OF OFFERS WHICH SHOWED NINE BIDS RECEIVED AND THAT ONE OF THE TWO ADDITIONAL BIDS WAS LOWER THAN YOURS; THAT EFFORT WAS MADE TO OBTAIN INFORMATION CONCERNING THE ADDITIONAL BIDS BUT TO NO AVAIL; AND THAT THEREAFTER YOU LEARNED THAT A CONTRACT WAS AWARDED TO THE LOW ADDITIONAL BIDDER.

AT OUR REQUEST, AN INQUIRY WAS MADE INTO THE MATTER AND A REPORT SUBMITTED ACCOMPANIED BY COPIES OF PERTINENT DOCUMENTS.

AS YOU HAVE REPORTED, BIDS WERE OPENED AT 10 A.M. ON SEPTEMBER 17, 1970, WITH SEVEN BIDS READ. YOUR BID WAS THE APPARENT LOW BID. ONE HOUR LATER TWO ADDITIONAL BIDS WERE RECEIVED IN THE PROCUREMENT SECTION. THESE TWO BIDS WERE IN THE BONNEVILLE POWER ADMINISTRATION MAIL ROOM AT 7:30 A.M. ON SEPTEMBER 17, 1970, BUT WERE NOT PROPERLY DISPATCHED IN ACCORDANCE WITH STANDING INSTRUCTIONS. AS THESE BIDS WERE IN THE POSSESSION OF THE GOVERNMENT PRIOR TO BID OPENING, THEY WERE OPENED AND THE BID ABSTRACT PREPARED INCLUDING THE TWO BIDS. THIS ABSTRACT OF BIDS INDICATED THAT DEWILDE'S GARDENS BECAME THE LOW BIDDER. THE CONTRACTING OFFICER FOUND THIS BID TO BE IN ORDER AND AWARDED A CONTRACT TO DEWILDE'S GARDENS ON SEPTEMBER 23, 1970. THE NOTICE TO PROCEED DATE WAS OCTOBER 9, 1970, AND THE COMPLETION DATE WAS NOVEMBER 26, 1970. AS OF NOVEMBER 30, 1970, THE WORK HAD BEEN COMPLETED EXCEPT FOR LAWN AND COVER CROP PLANTING DELAYED UNTIL SPRING AT THE GOVERNMENT'S REQUEST.

THE SOLE ISSUE WITH WHICH WE ARE CONCERNED HERE IS WHETHER THE DEWILDE'S GARDENS BID WAS PROPERLY CONSIDERED FOR AWARD. WITH REGARD TO LATE BIDS, STANDARD FORM 22-INSTRUCTIONS TO BIDDERS REFERENCED IN THE BID PACKAGE, PROVIDES AS FOLLOWS:

"7. LATE BIDS AND MODIFICATIONS OR WITHDRAWALS.

(A) BIDS AND MODIFICATIONS OR WITHDRAWALS THEREOF RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS AFTER THE EXACT TIME SET FOR OPENING OF BIDS WILL NOT BE CONSIDERED UNLESS: (1) THEY ARE RECEIVED BEFORE AWARD IS MADE; AND *** (3) IF SUBMITTED BY MAIL *** IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION: PROVIDED, THAT TIMELY RECEIPT AT SUCH INSTALLATION IS ESTABLISHED UPON EXAMINATION OF AN APPROPRIATE DATE OR TIME STAMP (IF ANY) OF SUCH INSTALLATION, OR OF OTHER DOCUMENTARY EVIDENCE OF RECEIPT (IF READILY AVAILABLE) WITHIN THE CONTROL OF SUCH INSTALLATION OR OF THE POST OFFICE SERVING IT." (SEE FPR 1- 2.303.3(A)).

RECEIPT OF THE BID ENVELOPE IN THE ACTIVITY MAIL ROOM AT 7:30 A.M. ON NOVEMBER 17, 1970, IS DOCUMENTED BY AN ENDORSEMENT ON THE BID ENVELOPE TO THAT EFFECT. THE CONTRACTING ACTIVITY CONCEDES THAT THE BID WOULD HAVE BEEN IN THE BID-OPENING ROOM ON TIME BUT FOR MISHANDLING WITHIN THE GOVERNMENT INSTALLATION.

UPON REVIEW OF THE RECORD HERE, WE AGREE THAT, UNDER THE FACTS AND CIRCUMSTANCES INVOLVED, THE RECEIPT OF THE DEWILDE'S BID AT THE BID OPENING OFFICE AFTER THE BID OPENING, WAS DUE TO MISHANDLING AFTER RECEIPT AT THE BONNEVILLE POWER ADMINISTRATION MAIL ROOM. WE THINK YOU WILL AGREE THAT IT WOULD NOT BE FAIR TO PENALIZE A BIDDER BECAUSE OF THE GOVERNMENT'S IMPROPER ACTION. THEREFORE, AND PURSUANT TO THE LANGUAGE OF THE INVITATION, WE FIND THAT THE DEWILDE'S BID WAS PROPERLY CONSIDERED FOR AWARD.