B-173593, SEP 22, 1971

B-173593, SEP 22, 1971

BID PROTEST - LATE BID - CERTIFIED MAIL RECEIPT SUSTAINING PRIOR DECISION WHICH UPHELD PROTEST BY CLARK BROTHERS CONTRACTORS AGAINST ANY AWARD OF A CONTRACT TO L. M. JOHNSON, INC. UNDER A SOLICITATION ISSUED BY THE FOREST SERVICE. THE PRIOR DECISION WAS BASED ON JOHNSON'S INABILITY TO PRODUCE ITS RECEIPT FOR CERTIFIED MAIL IN ORDER THAT ITS LATE BID MIGHT BE CONSIDERED FOR AWARD. THE TIMELINESS OF THE GOVERNMENT'S REQUEST THAT JOHNSON PRODUCE THE RECEIPT IS NOT A MATERIAL CONSIDERATION WHERE THE BIDDER ADMITTEDLY DID NOT OBTAIN A RECEIPT.

TO WINSTON, REPSOLD & MCNICHOLS:

WE REFER TO YOUR TELEGRAM OF AUGUST 6, 1971, REQUESTING THAT WE RECONSIDER OUR DECISION DATED AUGUST 3, 1971, UPHOLDING THE PROTEST BY CLARK BROTHERS CONTRACTORS AGAINST ANY AWARD OF A CONTRACT TO L. M. JOHNSON, INC., UNDER SOLICITATION NO. R1-71-47, ISSUED BY THE FOREST SERVICE, MISSOULA, MONTANA. YOU SUPPLEMENTED YOUR TELEGRAM WITH LETTERS OF AUGUST 11 AND 13, 1971, AND WITH THE DOCUMENTATION CONTAINED THEREIN.

IN OUR DECISION OF AUGUST 3, WE CONCLUDED THAT BECAUSE L. M. JOHNSON WAS UNABLE TO PRODUCE ITS RECEIPT FOR CERTIFIED MAIL THAT FIRM'S LATE BID COULD NOT BE CONSIDERED FOR AWARD. YOU CONTEND THAT THE FAILURE OF L. M. JOHNSON TO PRODUCE THE RECEIPT FOR CERTIFIED MAIL SHOULD BE WAIVED, EITHER BECAUSE THE BIDDER WAS NOT PROPERLY NOTIFIED UNDER SECTION 1-2.303-6 OF THE FEDERAL PROCUREMENT REGULATIONS (FPR) OF THE NEED FOR THE RECEIPT, OR BECAUSE, AS YOU ALLEGE, THE CONTRACTOR WAS NOT REQUESTED TO PRODUCE THE RECEIPT UNTIL JUNE 25, OR 3 WEEKS AFTER THE BID OPENING, SUCH TARDY REQUEST BEING CONTRARY TO OUR DECISION B-171727 OF MAY 24, 1971. HOWEVER, ACCORDING TO A LETTER OF JULY 23, 1971, FROM THE PRESIDENT OF L. M. JOHNSON, INC., TO THE CONTRACTING OFFICER, THE INABILITY TO PRODUCE A CERTIFIED MAIL RECEIPT STEMMED FROM THE FACT THAT ONE WAS NOT OBTAINED FROM THE POST OFFICE. SINCE THE BIDDER ADMITTEDLY DID NOT OBTAIN A RECEIPT, THE QUESTION OF WHETHER THE BIDDER WAS PROPERLY OR TIMELY REQUESTED TO FURNISH A RECEIPT IS NOT A MATERIAL CONSIDERATION.

ADDITIONALLY, YOU CONTEND THAT THE LATE BID IS FOR CONSIDERATION BECAUSE IT WAS MISHANDLED BY THE MISSOULA POST OFFICE AND THAT IS A "GOVERNMENT INSTALLATION" WITHIN THE PROVISIONS OF PARAGRAPH 7 OF THE INSTRUCTIONS TO BIDDERS, WHICH PROVIDES IN PERTINENT PART:

"(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 *** (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. *** "

WHILE THE FOREST SERVICE OFFICE AND THE POST OFFICE ARE LOCATED IN THE MISSOULA FEDERAL BUILDING, SUCH CIRCUMSTANCE DOES NOT CONSTITUTE THE MISSOULA POST OFFICE A "GOVERNMENT INSTALLATION" WHICH MAY HAVE MISHANDLED THE BID WITHIN THE MEANING OF PARAGRAPH 7, ABOVE. IT IS CLEAR THAT THE PARAGRAPH HAS REFERENCE TO MISHANDLING BY THE PROCUREMENT ACTIVITY IDENTIFIED IN THE SOLICITATION AS THE PLACE FOR THE RECEIPT OF BIDS. THUS, IF THE BID WAS MISHANDLED BY THE MISSOULA POST OFFICE, SUCH FACT WOULD NOT REQUIRE CONSIDERATION OF THE LATE BID UNDER PARAGRAPH 7, ABOVE.

ACCORDINGLY, THE DECISION OF AUGUST 3, 1971, IS SUSTAINED.