B-160894, APR. 6, 1967

B-160894, APR. 6, 1967

TO ACE ELECTRONICS ASSOCIATES, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF FEBRUARY 13 AND 27, 1967, WITH ENCLOSURES, PROTESTING AGAINST THE REJECTION OF YOUR LATE BID UNDER NAVY INVITATION NO. N00163-67-B-0416.

THE INVITATION ADVISED BIDDERS TO ADDRESS THEIR BIDS TO THE CONTRACTING OFFICER, U.S. NAVAL AVIONICS FACILITY, 21ST STREET AND ARLINGTON AVENUE, INDIANAPOLIS, INDIANA 46218, AND STATED THAT BIDS WOULD BE OPENED AT 2:00 P.M., E.S.T., ON FEBRUARY 6, 1967.

AFTER BID OPENING, THERE WAS RECEIVED IN THE BID OPENING ROOM AT 10:45 A.M., E.S.T., ON FEBRUARY 9, 1967, A SEALED BID FROM YOUR COMPANY. THE ENVELOPE CONTAINED MARKINGS SHOWING THAT IT WAS SENT VIA AIR MAIL AND POSTMARKED SOMERVILLE, MASSACHUSETTS, ON FEBRUARY 2, 1967. OTHER MARKINGS ON THE ENVELOPE SHOWED THAT THE BID WAS RECEIVED IN THE U.S. NAVAL AVIONICS FACILITY MAIL ROOM AT 9:33 A.M., E.S.T., ON FEBRUARY 9, 1967. THE ENCLOSURE TO YOUR FEBRUARY 27 LETTER INDICATES THAT THE BID ENVELOPE WAS MAILED UNDER THE "CERTIFICATE OF MAILING" METHOD OF POSTING. THE CONTRACTING OFFICER DETERMINED THAT THE LATE DELIVERY OF THE BID WAS NOT DUE TO DELAY IN THE MAIL OR MISHANDLING AT THE GOVERNMENT INSTALLATION AND THAT THE BID COULD NOT BE CONSIDERED. YOUR COMPANY WAS NOTIFIED BY THE PROCUREMENT AGENCY BY LETTER DATED FEBRUARY 10, 1967, THAT ITS BID WAS LATE AND COULD NOT BE CONSIDERED, AND THAT YOUR BID WOULD BE RETURNED AFTER AWARD. YOUR UNOPENED BID WAS RETURNED TO YOU ON FEBRUARY 14, 1967, THE DAY AFTER AN AWARD WAS MADE PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2 303.7.

PARAGRAPH 6 (A) OF THE BIDDING INSTRUCTIONS, TERMS AND CONDITIONS OF THE INVITATION PROVIDED IN PERTINENT PART STATED AS FOLLOWS:

"/A) BIDS * * * 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 EITHER (2) THEY ARE SENT BY REGISTERED MAIL, OR BY CERTIFIED MAIL FOR WHICH AN OFFICIAL DATED POST OFFICE STAMP (POSTMARK) ON THE ORIGINAL RECEIPT FOR CERTIFIED MAIL HAS BEEN OBTAINED, * * * AND IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO DELAY IN THE MAILS, * * * OR (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. * * *"

ALTHOUGH THE RECORD DOES NOT REVEAL THE BASIS UPON WHICH THE CONTRACTING OFFICE DETERMINED THAT THERE WAS NO DELAY OF YOUR BID IN THE MAILS,YOUR BID ENVELOPE WAS NOT SENT EITHER BY REGISTERED OR CERTIFIED MAIL AS REQUIRED BY THE INVITATION. SEE, ALSO, ASPR 2 303.2. UNDER THE TERMS OF THE INVITATION AND THE APPLICABLE PROVISIONS OF THE ASPR, THE FACT THAT THE BID WAS DELAYED IN THE MAILS NOTWITHSTANDING THAT IT MAY HAVE BEEN POSTED IN SUFFICIENT TIME TO REACH THE PROCUREMENT OFFICE BEFORE BID OPENING DOES NOT EXCUSE ITS LATE RECEIPT AND ITS INABILITY TO BE CONSIDERED FOR AWARD. WHILE YOU STATE THAT YOU REQUESTED MAILING BY CERTIFIED MAIL, THE RECORD SHOWS THAT THE BID WAS POSTED INSTEAD UNDER A "CERTIFICATE OF MAILING," A METHOD OF MAILING WHICH IS NOT INCLUDED IN THE FOREGOING PROVISIONS ENTITLING THE BID TO CONSIDERATION AS AN ACCEPTABLE LATE BID. SEE 42 COMP. GEN. 255.

WHILE APPLICATION OF THESE PROVISIONS RELATING TO THE HANDLING OF "LATE" BIDS MAY RESULT IN THE FAILURE OF THE GOVERNMENT TO RECEIVE THE BENEFIT OF LOWER PRICES, SUCH PROVISIONS PRESERVE AND MAINTAIN THE INTEGRITY OF THE FORMAL COMPETITIVE BIDDING PROCEDURES. RESPECTING YOUR STATEMENT THAT YOU HAD INFORMALLY QUOTED YOUR BID PRICE BY PHONE ON RECEIPT OF A REQUEST THEREFOR PRIOR TO THE TIME YOU SUBMITTED YOUR FORMAL BID, AWARD MUST BE MADE UNDER 10 U.S.C. 2305 (C) TO THAT RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE PROVISIONS OF THE INVITATION.

SINCE YOU FAILED TO UTILIZE ONE OF THE MAILING SERVICES LISTED IN PARAGRAPH 6 (A) OF THE BIDDING INSTRUCTIONS AND SINCE THERE IS NO AUTHORITY TO WAIVE THESE ADVERTISED REQUIREMENTS, WE MUST CONCLUDE THAT THE REJECTION OF YOUR LATE BID WAS PROPER.