B-172974, JUL 28, 1971, 51 COMP GEN 69

B-172974, JUL 28, 1971, 51 COMP GEN 69

BIDS - LATE - HAND CARRIED DELAY A HAND-CARRIED BID WHICH WAS PLACED IN THE WRONG BOX NEAR THE BID OPENING ROOM MORE THAN AN HOUR BEFORE THE SCHEDULED BID OPENING TIME, WHICH IF OPENED ON SCHEDULE WOULD HAVE BEEN THE LOW BID, WAS PROPERLY CONSIDERED NOT TO BE A LATE BID WITHIN THE MEANING OF PARAGRAPH 2-303.5 OF THE ARMED SERVICES PROCUREMENT REGULATION - A DETERMINATION CONSISTENT WITH 34 COMP. GEN. 150 - AS THE GOVERNMENT DUE TO THE VAGUENESS OF AN EMPLOYEE'S DIRECTIONS AND THE UNIDENTIFIED CHANGE IN THE LOCATION OF THE BID BOX WAS PRIMARILY RESPONSIBLE FOR THE MISDELIVERY, NOTWITHSTANDING THE LACK OF GOOD JUDGMENT IN DEPOSITING THE BID. THEREFORE, THE BID, RESPONSIVE BOTH AS TO METHOD AND TIMELINESS OF SUBMISSION, MAY BE CONSIDERED FOR AWARD WITHOUT VIOLATING THE SPIRIT AND INTEREST OF MAINTAINING THE INTEGRITY OF THE FORMAL BID ADVERTISING SYSTEM.

TO THE FREDERICKS RUBBER COMPANY, JULY 28, 1971:

REFERENCE IS MADE TO YOUR TELEFAX OF MAY 18, 1971, AND TO SUBSEQUENT CORRESPONDENCE, RELATIVE TO YOUR PROTEST AGAINST THE POSSIBLE AWARD OF A CONTRACT TO TRENTON TEXTILE ENGINEERING & MANUFACTURING COMPANY, TRENTON, NEW JERSEY (TRENTON TEXTILE), PURSUANT TO INVITATION FOR BIDS NO. DSA100- 71-B-1183, ISSUED APRIL 16, 1971, BY THE DEFENSE PERSONNEL SUPPORT CENTER, PHILADELPHIA, PENNSYLVANIA, FOR THE PROCUREMENT OF 25,480 ALL WEATHER, COATED NYLON TWILL, PARKAS.

YOUR PROTEST INVOLVES A HAND-CARRIED BID WHICH WAS PLACED IN THE WRONG BOX NEAR THE BID OPENING ROOM, AND THEREFORE NOT OPENED AND READ WITH THE OTHER BIDS DURING THE BID OPENING MEETING SCHEDULED TO BEGIN AT 2:00 P.M., LOCAL TIME, MAY 6, 1971. THE LOWEST OF THE THREE BIDS OPENED AND READ AT SUCH TIME WAS SUBMITTED BY YOUR COMPANY. YOU QUOTED A UNIT PRICE OF $9.21 FOR DELIVERY, F.O.B. DESTINATION, AT EACH OF THE SPECIFIED DESTINATION DELIVERY POINTS. THE HAND-CARRIED BID WHICH WAS PLACED IN THE WRONG BOX WAS FOUND AT APPROXIMATELY 3:50 P.M., MAY 6, 1971. THE BID WAS THAT OF TRENTON TEXTILE AND IT QUOTED THREE SEPARATE UNIT PRICES OF $8.44, $8.52 AND $8.60, BASED UPON DELIVERY, F.O.B. DESTINATION, OF THE QUANTITIES REQUIRED FOR DELIVERY AT THE DIFFERENT DESTINATION POINTS SPECIFIED IN THE INVITATION FOR BIDS.

IT IS THE POSITION OF THE CONTRACTING OFFICER AND HEADQUARTERS, DEFENSE SUPPLY AGENCY, THAT THE TRENTON TEXTILE BID IS NOT A LATE HAND CARRIED BID, WITHIN THE MEANING OF PARAGRAPH 2-303.5 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), WHICH STATES THAT A LATE HAND CARRIED BID, OR ANY OTHER LATE BID NOT SUBMITTED BY MAIL OR TELEGRAM, SHALL NOT BE CONSIDERED FOR AWARD. YOU CONTEND THAT THE BID SHOULD BE REGARDED AS A LATE HAND-CARRIED BID WITHIN THE MEANING OF ASPR 2-303.5; THAT CONSIDERATION OF THE BID WOULD BE CONTRARY TO THE SPIRIT AND INTEREST OF MAINTAINING THE INTEGRITY OF THE FORMAL BID ADVERTISING SYSTEM; AND THAT CONSIDERATION OF THE BID WOULD BE IN VIOLATION OF ASPR 2-301(A), CONCERNING THE MATTER OF RESPONSIVENESS OF BIDS, AND OF ASPR 2-401, ENTITLED "RECEIPT AND SAFEGUARDING OF BIDS." ASPR 2-301(A) REQUIRES RESPONSIVENESS BOTH AS TO METHOD AND TIMELINESS OF BID SUBMISSIONS, AND ASPR 2-401(A) TATE IN PART THAT ALL BIDS RECEIVED PRIOR TO TIME OF OPENING "SHALL BE KEPT SECURE AND *** UNOPENED, IN A LOCKED BID BOX OR SAFE."

THE INVITATION FOR BIDS PROVIDED THAT BIDS WOULD BE RECEIVED AT THE DEFENSE PERSONNEL SUPPORT CENTER OR, IF HAND-CARRIED, IN THE DEPOSITORY LOCATED IN "RECEPTIONIST'S DESK 2ND FLOOR, BUILDING 12."

IT APPEARS FROM THE REPORT OF THE CONTRACTING OFFICER THAT THE BID OF TRENTON TEXTILE WAS HAND-CARRIED BY A MR. SIMON, WHO ARRIVED AT THE MAIN GATE OF THE DEFENSE PROCUREMENT SUPPORT CENTER AT ABOUT 12:30 P.M., MAY 6, 1971, AND INFORMED THE SECURITY GUARD THAT HE HAD A BID TO DELIVER. WAS DIRECTED TO THE PROCUREMENT AND PRODUCTION RECEPTIONIST IN BUILDING 12 AND HE WAS INFORMED, ACCORDING TO A STATEMENT OF THE RECEPTIONIST, WHO WAS SUBSTITUTING FOR THE REGULAR RECEPTIONIST, THAT HE SHOULD WALK TO THE END OF THE HALL AND DROP THE BID IN THE BOX, "THE BOX THAT SAYS 'BIDS.'" MR. SIMON WENT IN THE PROPER DIRECTION AND REPORTEDLY STAYED LONGER THAN USUAL TO DEPOSIT THE BID.

MR. SIMON HAS INDICATED THAT HE WAS TOLD BY THE SUBSTITUTE RECEPTIONIST TO TAKE THE BID "IN THE BACK AND PUT IT IN THE BOX." MR. SIMON APPARENTLY BELIEVED THAT THE BOX WAS IN THE DISPLAY AREA WHICH SEPARATES THE HALLWAY DESIGNATED BY THE SUBSTITUTE RECEPTIONIST. THE BID WAS PLACED INTO AN OPEN BOX WHICH WAS ONE OF THE BID ITEMS ON DISPLAY. MR. SIMON WAS SIGNED OUT ON HIS VISITOR'S PASS AND THE VISITOR REGISTER AS OF 12:50 P.M., AND THE SAME TIME WAS STAMPED ON HIS VISITOR'S PASS WHEN HE LEFT THE MAIN GATE OF THE CENTER, LOCATED JUST OUTSIDE OF BUILDING 12. THE BID APPARENTLY WAS PLACED IN THE BOX ABOUT 1 HOUR AND 10 OR 15 MINUTES BEFORE THE SCHEDULED BID OPENING TIME.

THE BOX IN WHICH THE BID OF TRENTON TEXTILE WAS FOUND IS DESCRIBED IN THE CONTRACTING OFFICER'S REPORT AS A GRAY STEEL NAVY GEAR BOX, 15 1/32" DEEP, 22 9/32" WIDE AND 34 5/16" LONG. AT THE TIME IN QUESTION, THE BOX REPORTEDLY WAS LOCATED APPROXIMATELY 7 FEET FROM THE HALLWAY IN THE DISPLAY AREA WHICH SEPARATES THE HALLWAY LEADING TO THE BID OPENING ROOM, BID ROOM 4, WHICH IS LOCATED AT THE EXTREME END OF THE HALLWAY, BEYOND THE DISPLAY AREA. THE BID BOX HAD IN THE PAST BEEN LOCATED ON THE RECEPTIONIST'S DESK OR COUNTER ON THE SECOND FLOOR OF BUILDING 12. HOWEVER, IT HAD BEEN REMOVED EARLY IN MARCH 1971, 1 MONTH BEFORE THE ISSUANCE OF THE PRESENT INVITATION FOR BIDS, AND AFFIXED TO A STAND OUTSIDE OF BID ROOM 4.

THE CONTRACTING OFFICER STATES THAT, ALTHOUGH THERE WAS A SIGN ON THE PILLAR NEXT TO THE RECEPTIONIST'S DESK STATING THE LOCATION OF THE BID BOX, MR. SIMON EVIDENTLY DID NOT SEE THE SIGN. INSTEAD, HE APPARENTLY WANDERED AROUND THE RECEPTION AREA FOR A FEW MINUTES UNTIL HE FOUND THE ONLY THING HE RECOGNIZED AS A BOX WHICH POSSIBLY COULD BE USED AS A BID DEPOSITORY. TO ADD TO THE CONFUSION, A BLANK NAVY SOLICITATION WAS IN THE GRAY STEEL NAVY GEAR BOX ON DISPLAY AS A BID ITEM. IT APPEARS FROM THE RECORD THAT MR. SIMON MAY HAVE PREVIOUSLY DEPOSITED BIDS OF TRENTON TEXTILE AT THE DEFENSE PERSONNEL SUPPORT CENTER, BUT THAT HE WAS NOT FAMILIAR WITH THE NEW LOCATION OF THE BOX.

THE CONTRACTING OFFICER EXPRESSED THE OPINION THAT THE CASE FALLS SQUARELY WITHIN 34 COMP. GEN. 150 (1954), IN WHICH IT WAS DETERMINED THAT A HAND-CARRIED BID COULD BE CONSIDERED FOR AWARD ALTHOUGH IT WAS PRESENTED 3 MINUTES LATE TO THE OFFICER IN CHARGE OF THE OPENING OF BIDS. IT WAS NOTED IN THE DECISION THAT THE BID HAD ALREADY BEEN DELIVERED TO THE ROOM USUALLY SET ASIDE FOR RECEIVING BIDS.

THE REPRESENTATIVE OF TRENTON TEXTILE MAY NOT HAVE EXERCISED THE BEST JUDGMENT WHEN HE DEPOSITED THE BID IN AN OPEN BOX NOT IDENTIFIED AS A BID DEPOSITORY BUT IT APPEARS THAT THE GOVERNMENT, AND NOT THE BIDDER, SHOULD BE CONSIDERED TO BE PRIMARILY RESPONSIBLE FOR THE MISTAKE WHICH OCCURRED. THE INVITATION PROVIDED, AND THE BIDDER HAD EVERY RIGHT TO EXPECT, THAT THE BID BOX WOULD BE LOCATED EITHER ON THE RECEPTIONIST'S DESK OR ON A COUNTER NEAR THE DESK ON THE SECOND FLOOR OF BUILDING 12. THE BID WAS HAND-CARRIED TO THE DESK MORE THAN 1 HOUR PRIOR TO THE TIME SET FOR THE OPENING OF BIDS AND IT WOULD SEEM UNREASONABLE TO CONCLUDE THAT THE BIDDER DID NOT COMPLY WITH THE TERMS OF THE INVITATION SO FAR AS CONCERNS THE MATTER OF SUBMITTING HAND-CARRIED BIDS.

WE BELIEVE THAT CONSIDERATION OF THE TRENTON TEXTILE BID WOULD BE CONSISTENT WITH THE DETERMINATION MADE IN THE CASE OF 34 COMP. GEN. 150, CITED BY THE CONTRACTING OFFICER. FURTHERMORE, THERE IS NOTHING IN THE RECORD TO SUGGEST THAT THERE WAS ANY VIOLATION OF THE ASPR REQUIREMENT IN REGARD TO THE RECEIPT AND SAFEGUARDING OF BIDS AND, AS INDICATED IN THE CONTRACTING OFFICER'S REPORT, MR. SIMON'S LEAVING FROM THE MAIN GATE OF THE DEFENSE PERSONNEL SUPPORT CENTER AT 12:50 P.M., ON THE BID OPENING DATE, WOULD TEND TO NEGATE ANY POSSIBLE INTENTION ON THE PART OF TRENTON TEXTILE TO TAKE THE BID OUT OF THE NAVY GEAR BOX AFTER OTHER BIDS HAD BEEN OPENED AND THE BID PRICES WERE DISCLOSED. THE TRENTON TEXTILE BID MAY BE CONSIDERED AS HAVING BEEN RESPONSIVE BOTH AS TO METHOD AND TIMELINESS OF SUBMISSION, AND IT IS APPARENT THAT AN AWARD TO THAT COMPANY WOULD NOT BE CONTRARY, IN ANY MANNER, TO THE SPIRIT AND INTEREST OF MAINTAINING THE INTEGRITY OF THE FORMAL BID ADVERTISING SYSTEM.

ACCORDINGLY, YOUR PROTEST IN THE MATTER IS HEREBY DENIED.