B-150514, MARCH 22, 1963, 42 COMP. GEN. 508

B-150514: Mar 22, 1963

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WERE DELIVERED TO THE BID ROOM AFTER THE SCHEDULED BID OPENING TIME DUE TO THE GOVERNMENT'S DELAY IN HANDLING THE PHYSICAL TRANSMISSION OF THE BIDS FROM ONE PLACE TO ANOTHER IS NOT REQUIRED AND THE BIDS MAY BE CONSIDERED FOR AWARD. WHICH PROVIDES FOR CONSIDERATION OF LATE BIDS MISHANDLED BY THE GOVERNMENT WITHOUT REGARD TO WHETHER THE LATE BID WAS SENT BY CERTIFIED OR REGISTERED MAIL. THIS MATTER WAS THE SUBJECT OF YOUR DEPARTMENT'S REPORT OF FEBRUARY 13. THE INVITATION WAS ISSUED BY THE DIRECTORATE OF PROCUREMENT AND PRODUCTION. BIDS WERE SOLICITED FOR FURNISHING CERTAIN QUANTITIES OF FLYING HELMETS OF VARIOUS TYPES. APPROXIMATELY 50 PERCENT OF THE PROCUREMENT WAS SET ASIDE FOR AWARD TO A LABOR SURPLUS AREA CONCERN.

B-150514, MARCH 22, 1963, 42 COMP. GEN. 508

BIDS - LATE - MISHANDLING DETERMINATION - INVITATION V. REGULATION THE REJECTION OF BIDS THAT ARRIVED TIMELY BY WAY OF REGULAR MAIL ON THE BID OPENING DAY, BUT WERE DELIVERED TO THE BID ROOM AFTER THE SCHEDULED BID OPENING TIME DUE TO THE GOVERNMENT'S DELAY IN HANDLING THE PHYSICAL TRANSMISSION OF THE BIDS FROM ONE PLACE TO ANOTHER IS NOT REQUIRED AND THE BIDS MAY BE CONSIDERED FOR AWARD, THE BIDS MAILED BY CERTIFIED OR REGISTERED MAIL, AS REQUIRED BY THE INVITATION IN ACCORDANCE WITH PARAGRAPH 2-201 (A) (XXV) OF THE ARMED SERVICES PROCUREMENT REGULATION, AND ARRIVING AT THE INSTALLATION AT THE SAME TIME HAVING BEEN TIMELY DELIVERED TO THE BID ROOM; THEREFORE, THE DELAY IN THE DISTRIBUTION OF THE REGULAR MAIL CONSTITUTES A DELAY WITHIN THE MEANING OF PARAGRAPH 2-303.2 (III) (B), WHICH PROVIDES FOR CONSIDERATION OF LATE BIDS MISHANDLED BY THE GOVERNMENT WITHOUT REGARD TO WHETHER THE LATE BID WAS SENT BY CERTIFIED OR REGISTERED MAIL, AND PARAGRAPH 2-303.2 BEING ONE OF POLICY, IT PREVAILS OVER PARAGRAPH 2-201 (A) (XXV), A PROCEDURAL IMPLEMENTATION.

TO THE SECRETARY OF THE AIR FORCE, MARCH 22, 1963:

WE REFER TO THE PROTEST OF SIERRA ENGINEERING COMPANY AGAINST THE REJECTION OF ITS BID UNDER INVITATION FOR BIDS NO. 36-600-63-307. THIS MATTER WAS THE SUBJECT OF YOUR DEPARTMENT'S REPORT OF FEBRUARY 13, 1963 (REFERENCE AFSPPCA) TO OUR OFFICE.

THE INVITATION WAS ISSUED BY THE DIRECTORATE OF PROCUREMENT AND PRODUCTION, MIDDLETOWN AIR MATERIEL AREA, OLMSTED AIR FORCE BASE, PENNSYLVANIA, ON NOVEMBER 14, 1962. BIDS WERE SOLICITED FOR FURNISHING CERTAIN QUANTITIES OF FLYING HELMETS OF VARIOUS TYPES, DESCRIPTIONS AND SIZES, AND APPROXIMATELY 50 PERCENT OF THE PROCUREMENT WAS SET ASIDE FOR AWARD TO A LABOR SURPLUS AREA CONCERN.

THE INVITATION ORIGINALLY SET THE TIME FOR BID OPENING AT 11:30 A.M., ON DECEMBER 14, 1962, BUT THE OPENING WAS RESCHEDULED BY AMENDMENT FOR 10:30 A.M., DECEMBER 20, 1962. BIDS WERE RECEIVED IN THE BID OFFICE AT THE SCHEDULED TIME FROM BILL JACK INDUSTRIES, CONSOLIDATED COMPONENTS AND PROTECTION, INC. SUBSEQUENT TO THE BID OPENING, FOUR OTHER BIDS WERE RECEIVED, INCLUDING A BID FROM SIERRA ENGINEERING COMPANY. THE CONTRACTING OFFICER PREPARED A TABLE WHICH REVEALS THE FOLLOWING INFORMATION REGARDING THE LATE BIDS:

* * * * * * * * * * * * * * (CHART OMITTED) * * * * * * * * * * * * * *

IT IS ALSO SIGNIFICANT TO NOTE THAT PROTECTION'S BID, WHICH WAS SENT AIRMAIL CERTIFIED, ON DECEMBER 18, 1962, FROM CALIFORNIA, WAS TIME STAMPED AT THE MAIL BRANCH AT 9:00 A.M., ON DECEMBER 20, AND WAS RECEIVED AT THE BID ROOM AT 9:30 A.M., OR BEFORE THE 10:30 A.M. BID OPENING. AS INDICATED ABOVE, PROTECTION'S BID WAS DULY OPENED.

THE CONTRACTING OFFICER REPORTS THAT---

4. MAIL IS RECEIVED IN THE PROCUREMENT ORGANIZATION ON A REGULAR SCHEDULED BASIS, FOUR TIMES DAILY. IN ADDITION TO THIS CERTIFIED, REGISTERED AND INSURED MAIL IS RECEIVED BY SPECIAL MESSENGER. TAB E SPECIAL RECAP OF BIDDERS SHOWS THE DATE AND TIME OF RECEIPT OF THE BIDS ON THIS IFB, AT THREE DIFFERENT LOCATIONS. THE FIRST POINT OF RECEIPT OF MAIL ON THIS BASE IS AT THE OLMSTED AIR FORCE BRANCH OF THE MIDDLETOWN, PA. POST OFFICE. MAIL IS RECEIVED AT THIS LOCATION AT 10520 AM AND 10700 AM FROM THE HARRISBURG, PA. POST OFFICE. MAIL IS RECEIVED AT THIS LOCATION ALSO AT 0850 AM AND 1115 AM FROM THE MIDDLETOWN POST OFFICE. THE MAIL RECEIVED FROM THE MIDDLETOWN POST OFFICE IS USUALLY MAIL ADDRESSED AS "MIDDLETOWN, PA.' RATHER THAN "OLMSTED AFB, PA.' MAIL RECEIVED ON THESE FOUR DELIVERIES IS TURNED OVER TO THE ADMINISTRATIVE SERVICES MAIL BRANCH, WHO ARE LOCATED ADJACENT TO THE POST OFFICE IN THE SAME BUILDING. AT THIS LOCATION THE MAIL IS ASSORTED FOR DISTRIBUTION TO THE VARIOUS "BUILDINGS" ON THIS BASE. MAIL DESTINED FOR THIS BUILDING (BUILDING NUMBER 659) LEAVES THE ADMINISTRATIVE SERVICES MAIL BRANCH AT 10810, 10900, 1000 AND 1100 AM. IT ARRIVES AT THIS BUILDING (ROOM E-213) APPROXIMATELY FIVE MINUTES LATER. IT IS THEN ASSORTED FOR THE VARIOUS ORGANIZATIONS HOUSED IN THIS BUILDING. MAIL FOR THE PROCUREMENT ORGANIZATION LEAVES ROOM E-213 AT 10909 AND 1108 A.M. TWO OTHER DELIVERIES ARE ALSO RECEIVED IN THE AFTERNOON. THE MAIL IS NORMALLY RECEIVED IN PROCUREMENT WITHIN TEN OR FIFTEEN MINUTES AFTER LEAVING ROOM E-213.

5. IT IS TO BE NOTED * * * THAT THE BID OF PROTECTION RECEIVED BY THE ADMINISTRATIVE SERVICES MAIL BRANCH AT 10900 AM WAS RECEIVED IN PROCUREMENT AT 10930 AM. WHEREAS, THE BID OF GENTEX RECEIVED 15 MINUTES PRIOR TO THE PROTECTION BID WAS NOT RECEIVED UNTIL 1130 AM. THIS CAN BE ACCOUNTED FOR AS REGULAR MAIL GETS REGULAR DISTRIBUTION AND HANDLING. WHEREAS, CERTIFIED, REGISTERED AND INSURED MAIL IS HANDLED BY SPECIAL TRIPS. THE SPECIAL TRIPS FROM THE ADMINISTRATIVE SERVICES MAIL BRANCH WILL ALSO VARY IN TIME, AS WHEN THIS MESSENGER LEAVES THAT LOCATION, HE HAS MAIL DESTINED FOR OTHER LOCATIONS THAN THIS BUILDING.

IN HIS CONCLUSIONS AND RECOMMENDATIONS THE CONTRACTING OFFICER STATES AS FOLLOWS:

2. ALTHOUGH THE BIDS BEAR STAMPS SHOWING THE DATE AND TIME RECEIVED AT THE THREE LOCATIONS AT OLMSTED AFB, THIS IS NOT THE ACTUAL RECEIPT, BUT RATHER THE TIME THE BID WAS STAMPED AFTER RECEIPT. DUE TO THE VOLUME OF MAIL BEING SORTED, IT IS A PHYSICAL IMPOSSIBILITY TO SORT THE BIDS OUT OF ALL THE MAIL RECEIVED AND TIME STAMP WITHOUT LOSING OR EXPENDING SOME TIME.

3. FROM THE SCHEDULES FURNISHED, IT WOULD APPEAR THAT THE BID OF PROTECTION, TIME STAMPED IN THE ADMINISTRATIVE SERVICES MAIL BRANCH, AS BEING RECEIVED AT 9:00 AM, 20 DECEMBER 1962, AND THE LATE BIDS OF GENTEX AND SIERRA, TIME STAMPED AS BEING RECEIVED AT 8:45 AM AND 9:45 AM RESPECTIVELY ON THE SAME DATE, ARRIVED FROM THE HARRISBURG, PA., POST OFFICE ON THE FIRST TRIP AT 5:20 AM ON 20 DECEMBER 1962. UNDER NORMAL CIRCUMSTANCES THESE BIDS SHOULD HAVE BEEN IN PROCUREMENT PRIOR TO BID OPENING TIME. IN FACT, THE BIDS OF GENERAL TIRE AND RUBBER AND MINE SAFETY APPLIANCE CO., UNDER NORMAL CIRCUMSTANCES SHOULD HAVE REACHED PROCUREMENT PRIOR TO BID OPENING TIME.

THE INVITATION CONTAINED THE FOLLOWING CLAUSES REGARDING LATE BIDS- -

CAUTION TO BIDDERS--- LATE BIDS: SEE THE SPECIAL PROVISION ENTITLED "LATE BIDS AND MODIFICATIONS OR WITHDRAWALS" WHICH PROVIDES THAT LATE BIDS AND MODIFICATIONS OR WITHDRAWALS THEREOF SENT THROUGH THE MAILS WILL BE CONSIDERED ONLY IF SENT BY REGISTERED MAIL, OR BY CERTIFIED MAIL FOR WHICH A POSTMARKED RECEIPT HAS BEEN OBTAINED AS SPECIFIED IN SUCH PROVISIONS. (APR. 1962)

LATE BIDS AND MODIFICATIONS:

LATE BIDS AND MODIFICATIONS OR WITHDRAWALS. 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; (A) THEY ARE RECEIVED BEFORE AWARD IS MADE; (B) THEY ARE SENT BY REGISTERED MAIL OR BY CERTIFIED MAIL FOR WHICH AN OFFICIAL POST OFFICE STAMP (POSTMARK) ON THE ORIGINAL RECEIPT FOR CERTIFIED MAIL HAS BEEN OBTAINED OR BY TELEGRAPH IF AUTHORIZED; AND (C) IT IS DETERMINED BY THE GOVERNMENT THAT LATE RECEIPT WAS DUE SOLELY TO EITHER (I) DELAY IN THE MAILS, OR DELAY BY THE TELEGRAPH COMPANY IF TELEGRAPHIC BIDS ARE AUTHORIZED, FOR WHICH THE BIDDER WAS NOT RESPONSIBLE OR (II) MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION. * * *

IN YOUR DEPARTMENTAL REPORT, SIGNED BY THE CHIEF, PROCUREMENT OPERATIONS DIVISION, IT IS CONTENDED THAT UNDER THESE TERMS OF THE INVITATION, WHICH WERE SPECIFIED FOR USE BY ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2- 201 (A) (XXV) AND (XXVII), REVISION 9, APRIL 15, 1962, NO LATE MAILED BID MAY BE CONSIDERED FOR AWARD UNLESS IT WAS MAILED BY CERTIFIED OR REGISTERED MAIL. THIS WOULD EXCLUDE FROM CONSIDERATION THE LATE BIDS RECEIVED FROM GENTEX, GENERAL TIRE AND RUBBER AND SIERRA ENGINEERING COMPANY, WHICH WERE NOT SENT BY CERTIFIED OR REGISTERED MAIL. HOWEVER, GIVING SUCH EFFECT TO THE CLAUSE IN QUESTION WOULD BRING IT SQUARELY IN CONFLICT WITH ASPR 2 303.2, WHICH IS THE SUBSTANTIVE REGULATION PROMULGATED BY THE SAME ASPR REVISION 9 WHICH PRESCRIBED THE CLAUSE QUOTED ABOVE. SPECIFICALLY, ASPR 2-303.2 PROVIDES THAT:

* * * A LATE BID SHALL BE CONSIDERED FOR AWARD ONLY IF:

(II) IN THE CASE OF A MAILED BID (OTHER THAN ONE COVERED BY (III) (B) BELOW), IT WAS SENT BY REGISTERED MAIL, OR BY CERTIFIED MAIL FOR WHICH AN OFFICIAL POST OFFICE STAMP (POSTMARK) ON THE ORIGINAL RECEIPT FOR CERTIFIED MAIL HAS BEEN OBTAINED; AND

(III) IT IS DETERMINED THAT EITHER:

(B) THE BID, IF SUBMITTED BY MAIL (OR BY TELEGRAM WHEN AUTHORIZED), WAS RECEIVED AT THE GOVERNMENT INSTALLATION IN SUFFICIENT TIME TO BE RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION BY THE TIME SET FOR OPENING AND, EXCEPT FOR DELAY DUE TO MISHANDLING ON THE PART OF THE GOVERNMENT AT THE INSTALLATION, WOULD HAVE BEEN RECEIVED ON TIME AT THE OFFICE DESIGNATED.

THUS, UNDER ASPR 2-303.2 (III) (B), LATE MAILED BIDS MAY BE CONSIDERED FOR AWARD IN THE CIRCUMSTANCE DESCRIBED (MISHANDLING BY THE GOVERNMENT AT THE INSTALLATION) WITHOUT REGARD TO WHETHER THE LATE BID WAS SENT BY CERTIFIED, REGISTERED, OR ORDINARY MAIL.

THE CONTRACTING OFFICER REPORTS THAT UNDER NORMAL CIRCUMSTANCES THE SIERRA AND GENTEX BIDS, WHICH WERE TIME STAMPED IN THE POST MAIL ROOM AT 8:45 A.M. AND 9:45 A.M., RESPECTIVELY, ON DECEMBER 20, 1962, SHOULD HAVE REACHED THE 10:30 A.M. BID OPENING ON TIME. HE ALSO REPORTS THAT UNDER NORMAL CIRCUMSTANCES THE OTHER TWO LATE BIDS (THE BIDS OF GENERAL TIRE AND RUBBER AND MINE SAFETY APPLIANCE) SHOULD HAVE BEEN RECEIVED ON TIME. ASSUME THAT IN THE CASE OF SIERRA AND GENTEX THE CONTRACTING OFFICER MEANS "UNDER NORMAL CIRCUMSTANCES" AT THE INSTALLATION, WHEREAS IN THE CASE OF GENERAL TIRE AND MINE SAFETY HE MEANS "UNDER NORMAL CIRCUMSTANCES" IN THE POSTAL MAIL.

YOUR DEPARTMENTAL REPORT EXPRESSES THE VIEW THAT THERE WAS NO MISHANDLING OF THE SIERRA BID ON THE PART OF THE GOVERNMENT, WITHIN THE MEANING OF ASPR 2-303.2. THIS VIEW IS PRESENTED ON THE BASIS THAT ALTHOUGH CONSIDERABLE TIME ELAPSED BETWEEN THE ARRIVAL OF THE BIDS AT THE ADMINISTRATIVE SERVICES MAIL BRANCH AND THEIR DELIVERY TO THE PROPER BUILDING AND OFFICE, THIS WAS APPARENTLY DUE TO THE LARGE AMOUNT OF MAIL WHICH HAD TO BE SORTED, AND THAT THERE IS NO INDICATION THAT THIS IS NOT A CIRCUMSTANCE NORMALLY ENCOUNTERED IN THE DISTRIBUTION OF MAIL AT THE INSTALLATION.

HOWEVER, WE CONCLUDE FROM THE FACTS REPORTED THAT THERE IS AMPLE SUPPORT FOR THE CONTRACTING OFFICER'S FINDING THAT THERE WAS MISHANDLING BY THE GOVERNMENT WITHIN THE MEANING OF ASPR 2-303.2. THE SIERRA AND GENTEX BIDS APPARENTLY ARRIVED ON POST WITH THE 5:20 A.M. MAIL DELIVERY ON DECEMBER 20, 1962. AS REPORTED, MAIL LEAVES THE ADMINISTRATIVE SERVICES MAIL BRANCH AT 10810, 10900, 10:00 AND 11:00 A.M. DAILY. THE MAIL ARRIVES AT THE PROCUREMENT BUILDING, IN ROOM E 213, APPROXIMATELY FIVE MINUTES LATER. IT THEN LEAVES ROOM E-213 AT 10909 AND 11:08 A.M., AND IS NORMALLY RECEIVED IN THE BID ROOM 10 OR 15 MINUTES LATER. IT WOULD APPEAR THEREFORE, THAT AT LEAST THE GENTEX BID, WHICH WAS TIME STAMPED IN ADMINISTRATIVE SERVICES AT 10845, SHOULD NORMALLY HAVE MADE THE 10900 DELIVERY TO ROOM E-213, AND THE 109009 DELIVERY FROM ROOM E-213 TO THE BID ROOM BEFORE 10:30 A.M. THE BID OPENING TIME WAS ORIGINALLY SET AT 11:30 A.M., DECEMBER 14, BUT WAS CHANGED TO 10:30 A.M., DECEMBER 20. WE SUPPOSE THAT THE CONTRACTING OFFICE ANTICIPATED RECEIVING THE EARLY MORNING MAIL IN TIME FOR THE 10:30 A.M. BID OPENING, AND JUDGING FROM THE CONTRACTING OFFICER'S STATEMENTS, THE EARLY MORNING MAIL NORMALLY WOULD HAVE BEEN RECEIVED IN TIME FOR THE BID OPENING. FROM THIS WE DRAW THE CONCLUSION THAT ABNORMAL DELAY OCCURRED IN THE DISTRIBUTION OF MAIL AT THE INSTALLATION ON THE MORNING OF DECEMBER 20. WE THINK THAT THIS CONSTITUTES AN INSTANCE OF DELAY BY THE GOVERNMENT WITHIN THE MEANING OF ASPR 2-303.2 (III) (B). IN FACT, IF BIDS INVITED TO BE SENT BY MAIL ARE TO BE REQUIRED TO BE AT A PARTICULAR ROOM OR OFFICE BY THE TIME SET FOR OPENING, ALTHOUGH DELIVERIES OF MAIL BY POSTAL EMPLOYEES MUST BE MADE AT A DIFFERENT POINT, WE FEEL THAT THE GOVERNMENT OWES TO ALL PROSPECTIVE BIDDERS A DUTY TO ESTABLISH PROCEDURES CALCULATED TO INSURE THAT THE PHYSICAL TRANSMISSION OF BIDS FROM THE ONE PLACE TO THE OTHER WILL NOT BE UNREASONABLY DELAYED. WE CAN CONCEIVE OF NO ADEQUATE JUSTIFICATION FOR A PROCEDURE UNDER WHICH BIDS DELIVERED BY THE POST OFFICE AT A GOVERNMENT INSTALLATION AT :20 A.M. ARE NOT RECEIVED AT THE DESIGNATED BID OPENING ROOM BY 10:30 A.M., WHEN THE ACTUAL TIME REQUIRED TO GO FROM ONE PLACE TO THE OTHER APPEARS TO BE NO MORE THAN 15 OR 20 MINUTES. NOR DO WE FEEL THAT PROCEDURES FOR HANDLING BIDS SHOULD PROVIDE DIFFERENT DEGREES OF EXPEDITION DEPENDING ON THE TYPE OF MAIL INVOLVED, AS APPARENTLY WAS THE CASE HERE.

SINCE WE CONCLUDE THAT THE LATE RECEIPT AT THE BID ROOM OF THE SIERRA AND GENTEX BIDS WAS OCCASIONED SOLELY BY MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE INSTALLATION, WE MUST CONSIDER WHETHER THEIR CONSIDERATION IS PRECLUDED BECAUSE THEY WERE NOT SENT BY REGISTERED OR CERTIFIED MAIL.

WE TAKE NOTE OF THE FACT THAT THE CURRENT REGULATIONS ON THE SUBJECT OF LATE BIDS, BOTH ASPR 2-303 AND FPR 1-2,303, WHICH ARE SUBSTANTIALLY IDENTICAL, WERE PROMULGATED FOLLOWING LENGTHY CONSIDERATION BY COGNIZANT OFFICIALS OF THE DEPARTMENT OF DEFENSE AND OF THE GENERAL SERVICES ADMINISTRATION, DURING WHICH THEIR VIEWS AND ACTIONS WERE COORDINATED BY JOINT DISCUSSIONS, SOME OF WHICH WERE PARTICIPATED IN ALSO BY REPRESENTATIVES OF THIS OFFICE AND OF THE POST OFFICE DEPARTMENT, WITH THE OBJECTIVE OF ESTABLISHING UNIFORM RULES WHICH SHOULD BE THE SAME FOR BOTH MILITARY AND CIVILIAN AGENCIES. IN THIS CONTEXT, WE HAVE CONSIDERABLE DIFFICULTY IN ACCEPTING THE VIEW THAT THE LANGUAGE PRESCRIBED BY ASPR 2- 201 (A) (XXV), PROMULGATED BY THE SAME REVISION AS CONTAINED SECTION 2- 303.2, WAS DELIBERATELY DESIGNED AND INTENDED TO STATE A DIFFERENT RULE FROM THAT STATED IN THE LATTER SECTION. WE ARE CONCERNED ALSO THAT THE "RESTRICTIVE" LATE BID CLAUSE (ASPR 2-201 (A) (XXV) (, IF READ LITERALLY AND WITHOUT REFERENCE TO ASPR 2-303.2, IS NOT IN AGREEMENT WITH THE COUNTERPART FPR CLAUSE (FPR 1-2.201 (A) (23) ( ISSUED OCTOBER 23, 1962, REGARDING THE CONSIDERATION OF LATE MAILED BIDS. UNDER THE PROVISIONS OF SECTION 206 (B) THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED BY SUBSECTION (K) OF SECTION 1 OF PUBLIC LAW 822, 82D CONG., 66 STAT. 593 (40 U.S.C. 487) EACH FEDERAL AGENCY IS REQUIRED TO UTILIZE SUCH UNIFORM STANDARDIZED FORMS AND PROCEDURES AS ARE PRESCRIBED BY THE ADMINISTRATOR OF GENERAL SERVICES, EXCEPT AS THE ADMINISTRATOR SHALL OTHERWISE PROVIDE. PURSUANT THERETO THE GENERAL SERVICES ADMINISTRATOR HAS PROVIDED UNDER FPR 1-1004, THAT THE FEDERAL PROCUREMENT REGULATIONS ARE NOT MANDATORY ON THE DEPARTMENT OF DEFENSE "EXCEPT FOR STANDARD GOVERNMENT FORMS AND CLAUSES, FEDERAL SPECIFICATIONS AND STANDARDS, AND EXCEPT AS DIRECTED BY THE PRESIDENT, CONGRESS, OR OTHER AUTHORITY.' IN THE ANALYSIS OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED, PREPARED AT THE REQUEST OF THE COMMITTEE ON GOVERNMENT OPERATIONS, UNITED STATES SENATE, BY THE GENERAL SERVICES ADMINISTRATION, 85TH CONG., 2D SESS 1959, P. 47, IT IS STATED THAT:

THE AUTHORITY TO STANDARDIZE GOVERNMENT PURCHASE AND CONTRACT FORMS, PROCEDURES, AND SPECIFICATIONS HAS BEEN IN EFFECT AND IN USE FOR MANY YEARS AND IS DEMANDED BY INDUSTRY TO MAKE ITS RELATIONS WITH GOVERNMENT EASIER. IT IS CONFUSING AND COSTLY, FOR EXAMPLE, TO HAVE A CONTRACT WITH TERMS, FORMS, AND CONDITIONS FOR A SUPPLY ITEM WITH ONE AGENCY DIFFERING IN MEANING AND EFFECT FROM ONE FOR THE SAME KIND OF ITEM WITH ANOTHER AGENCY. * * *

IT SEEMS TO US THAT AN INVITATION CLAUSE GOVERNING THE CONSIDERATION OF LATE BIDS IS A STANDARD CLAUSE WHICH BY LAW AND REGULATION IS PRESCRIBED FOR USE BY ALL FEDERAL AGENCIES, INCLUDING THE DEPARTMENT OF DEFENSE, BY THE FEDERAL PROCUREMENT REGULATIONS, AND THAT THE ONLY PERMISSIBLE ALTERNATIVE TO THE USE OF STANDARD FORMS 30 AND 33 (1957 EDITION) AND 22 (1961 EDITION), INCLUDING THE LATE BID CLAUSES INCORPORATED THEREIN, IS TO USE THE CLAUSE PRESCRIBED BY FPR 1-2.201 (A) (23), ALTHOUGH USE OF THAT CLAUSE WAS NOT COMPULSORY UNTIL JANUARY 2, 1963.

THERE IS ALSO FOR CONSIDERATION THE FACT THAT ASPR 2-303.2 IS A POLICY PROVISION, WHILE SECTION 2-201 (A) (XXV) IS MERELY A PROCEDURAL IMPLEMENTATION THEREOF. AS A GENERAL MATTER, WE BELIEVE THAT CONFLICTS BETWEEN SUCH PROVISIONS SHOULD BE RESOLVED IN FAVOR OF THE POLICY PROVISION.

WE RECOGNIZE THAT BIDDERS NORMALLY COMPUTE THEIR BIDS ON THE BASIS OF THE TERMS AND CONDITIONS STATED IN AN INVITATION, AND WILL OTHERWISE RELY ON THESE PROVISIONS, AND THAT GENERALLY IT IS A SERIOUS MATTER TO VARY OR DISREGARD ANY OF THE STATED TERMS AND CONDITIONS OF THE SOLICITATION AFTER THE BIDS HAVE BEEN OPENED. IN THIS INSTANCE, HOWEVER, WE FAIL TO SEE HOW ANY BIDDER WOULD BE PREJUDICED IN ANY MATERIAL SENSE BY READING INTO THE LATE BID CLAUSE OF THE INVITATION THE EXCEPTION CONTAINED IN ASPR 2-303.2, OR BY APPLYING THAT SECTION TO CONSIDERATION OF THE BIDS. THE PURPOSE OF THE RULES GOVERNING CONSIDERATION OF LATE BIDS IS TO INSURE FOR THE GOVERNMENT THE BENEFITS OF THE MAXIMUM OF LEGITIMATE COMPETITION, NOT TO GIVE ONE BIDDER A WHOLLY UNMERITED ADVANTAGE OVER ANOTHER BY OVER- TECHNICAL APPLICATION OF THE RULES.

ACCORDINGLY, WE CONCLUDE THAT THE LATE BIDS OF SIERRA ENGINEERING COMPANY AND GENTEX CORPORATION MAY BE CONSIDERED FOR AWARD. ON THE OTHER HAND, WE DO NOT FIND THAT THE BIDS OF GENERAL TIRE AND RUBBER AND MINE SAFETY APPLIANCE CO., MAY BE CONSIDERED. THE BID OF GENERAL TIRE AND RUBBER WAS NOT SENT BY REGISTERED OR CERTIFIED MAIL, AND ITS LATE RECEIPT WAS DUE, APPARENTLY, TO DELAY IN THE MAILS. IN ACCORDANCE WITH ASPR 2-303.2, THAT BID SHOULD NOT BE CONSIDERED. SEE B-150124, NOVEMBER 21, 1962, PUBLISHED AT 42 COMP. GEN. 255. ALSO, WHILE THE BID OF MINE SAFETY APPLIANCE CO. WAS SENT BY CERTIFIED MAIL, THE CONTRACTING OFFICER REPORTS THAT THE BIDDER HAS NOT FURNISHED THE ORIGINAL POSTMARKED RECEIPT FOR CERTIFIED MAIL AS REQUIRED BY ASPR 2 303.6 TO ESTABLISH A DELAY IN THE MAILS. THE ABSENCE OF SUCH EVIDENCE THAT BID DOES NOT APPEAR TO BE ENTITLED TO CONSIDERATION.