B-151093, APR. 29, 1963

B-151093: Apr 29, 1963

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TO LANSING COMPANY: REFERENCE IS MADE TO YOUR LETTER DATED MARCH 19. INVITATION NO. 1476 WAS ISSUED ON FEBRUARY 19. - (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. 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 OR BY TELEGRAPH IS AUTHORIZED. IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO DELAY IN THE MAILS. FOR WHICH THE BIDDER WAS NOT RESPONSIBLE.

B-151093, APR. 29, 1963

TO LANSING COMPANY:

REFERENCE IS MADE TO YOUR LETTER DATED MARCH 19, 1963, PROTESTING AGAINST THE ACTION OF THE POST OFFICE DEPARTMENT IN REFUSING TO CONSIDER A BID SUBMITTED BY YOUR COMPANY UNDER IFB NO. 1476.

INVITATION NO. 1476 WAS ISSUED ON FEBRUARY 19, 1963. IT REQUESTED BIDS ON 4,200 PLATFORM HAND TRUCKS AND ADVISED THAT BIDS WOULD BE PUBLICLY OPENED AT THE OFFICES OF THE PROCUREMENT DIVISION IN WASHINGTON, D.C., AT 2:00 P.M. ON MARCH 12, 1963. WITH RESPECT TO BIDS RECEIVED AFTER SUCH DATE AND TIME THE INVITATION ADVISED BIDDERS AS FOLLOWS:

"LATE BIDS AND MODIFICATIONS OR WITHDRAWALS

THE FOLLOWING PROVISIONS SHALL BE SUBSTITUTED FOR PARAGRAPH 4 OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS ON THE BACK OF STANDARD FORM 33, OCTOBER 1957 EDITION:

"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 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 OR BY TELEGRAPH IS AUTHORIZED, AND IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO DELAY IN THE MAILS, OR DELAY BY THE TELEGRAPH COMPANY, FOR WHICH THE BIDDER WAS NOT RESPONSIBLE; OR (3) IF SUBMITTED BY MAIL (OR BY TELEGRAM IF AUTHORIZED), IT IS DETERMINED 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 THE POST OFFICE SERVING IT. HOWEVER, A MODIFICATION WHICH MAKES THE TERMS OF THE OTHERWISE ACCEPTABLE BID MORE FAVORABLE TO THE GOVERNMENT WILL BE CONSIDERED AT ANY TIME IT IS RECEIVED AND MAY THEREAFTER BE ACCEPTED.

(B) BIDDERS USING CERTIFIED MAIL ARE CAUTIONED TO OBTAIN A LEGIBLY POSTMARKED DATED RECEIPT FOR CERTIFIED MAIL AND RETAIN IT AGAINST THE CHANCE THAT THE POSTMARK THEREON WILL BE REQUIRED AS EVIDENCE THAT A LATE BID WAS TIMELY MAILED. IF THE POSTMARK ON SUCH RECEIPT, OR ON THE REGISTERED MAIL WRAPPER, SHOWS THE HOUR OF MAILING AS WELL AS THE DATE, THE TIME OF MAILING SHALL BE ESTABLISHED ACCORDINGLY; IF IT SHOWS THE DATE BUT NOT THE HOUR, THE TIME OF MAILING SHALL BE DEEMED TO BE THE LAST MINUTE OF THE DATE SHOWN UNLESS THE BIDDER FURNISHES EVIDENCE FROM THE POST OFFICE OF MAILING WHICH, (1) IN THE CASE OF REGISTERED MAIL, ESTABLISHES AN EARLIER TIME; OR (2) IN THE CASE OF CERTIFIED MAIL, WHERE THE RECEIPT FOR CERTIFIED MAIL IDENTIFIES THE POST OFFICE STATION OF MAILING ESTABLISHES THAT THE BUSINESS DAY OF THAT STATION ENDED AT AN EARLIER TIME, IN WHICH CASE THE TIME OF MAILING SHALL BE DEEMED TO BE THE LAST MINUTE OF THE BUSINESS DAY OF THAT STATION. IF ANY SUCH RECEIPT FOR CERTIFIED MAIL DOES NOT SHOW THE DATE, THE BID SHALL NOT BE CONSIDERED.'

THE FAILURE TO CONSIDER YOUR COMPANY'S BID IS BASED UPON THE FACT THAT YOUR BID WAS NOT RECEIVED IN THE DEPARTMENTAL MAIL ROOM UNTIL 7:30 A.M. ON MARCH 13, 1963, AS EVIDENCED BY A HANDWRITTEN NOTATION TO THAT EFFECT, AND BY A PROCUREMENT DIVISION DATE STAMP, READING "MAR 13 :20 A.M. 1963," ON AN ENVELOPE BEARING YOUR COMPANY'S RETURN ADDRESS AND THE NUMBER OF THE INVITATION IN QUESTION. THIS ENVELOPE BORE A POSTAGE METER IMPRINT INDICATING IT HAD BEEN MAILED AT LANSING, MICHIGAN, ON MARCH 7, 1963. HOWEVER, IT HAD NOT BEEN SENT VIA REGISTERED OR CERTIFIED MAIL AND WAS THEREFORE RETURNED UNOPENED TO YOUR COMPANY ON MARCH 13, 1963, TOGETHER WITH A LETTER WHICH SET OUT THE DATE ON WHICH THE BID WAS RECEIVED AND WHICH ADVISED YOU THAT YOUR BID COULD NOT BE CONSIDERED FOR AWARD IN VIEW OF THE PROVISIONS OF THE INVITATION RELATIVE TO LATE BIDS, AS QUOTED ABOVE.

YOUR PROTEST AGAINST THIS ACTION IS BASED UPON THE FACT THAT YOUR BID WAS MAILED AT LANSING 110 HOURS BEFORE BID OPENING, AND THAT NORMAL TRANSMISSION TIME IS 46 HOURS, AS INDICATED BY THE FACT THAT YOU RECEIVED THE DEPARTMENT'S REJECTION OF YOUR BID 46 HOURS AFTER IT WAS MAILED IN WASHINGTON. YOU THEREFORE CONTEND THAT YOU COMPLIED WITH ALL NORMAL CONDITIONS IN ALLOWING MORE THAN TWICE THE NORMAL TIME FOR DELIVERY AND YOU STATE THAT IF THE ABOVE-QUOTED PROVISIONS OF THE INVITATION WERE INTENDED TO RULE OUT BIDS WHICH WERE DELIVERED LATE DUE TO UNREASONABLE DELAY IN THE MAILS, ACT OF GOD, OR MYSTERIOUS HAPPENINGS, THEY SHOULD HAVE STATED THAT BIDDERS MUST SUBMIT BIDS BY CERTIFIED OR REGISTERED MAIL. ADDITIONALLY, YOU CONTEND THAT 128 HOURS FOR DELIVERY OF THE BID FROM LANSING TO WASHINGTON, AS INDICATED BY THE HANDWRITTEN NOTATION ON THE BID ENVELOPE SHOWING RECEIPT OF THE BID AT 7:30 A.M. ON MARCH 13, 1963, IS SO UNREASONABLE AS TO INDICATE "THAT THE LATE RECEIPT WAS DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION," AND THAT THE BID SHOULD THEREFORE BE SO CONSIDERED UNDER THE LATE BID PROVISIONS OF THE INVITATION QUOTED ABOVE.

THE LANGUAGE OF THE CLAUSE ENTITLED "LATE BIDS AND MODIFICATIONS OR WITHDRAWALS" WHICH WAS INCLUDED IN IFB NO. 1476 IS IDENTICAL WITH, AND REQUIRED TO BE INCLUDED BY, SUBSECTION 1-2.201 (A) (23) OF THE FEDERAL PROCUREMENT REGULATIONS. THIS LANGUAGE IS INTENDED TO IMPLEMENT THE REQUIREMENTS OF SUBSECTION 1-2.303-2 OF THE REGULATIONS WHICH PROVIDE AS FOLLOWS:

"SUBSECTION 1-2303-2 CONSIDERATION FOR AWARD.

A LATE BID SHALL BE CONSIDERED FOR AWARD ONLY IF:

(A) IT IS RECEIVED BEFORE AWARD; AND EITHER

(B) IT WAS 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, OR BY TELEGRAPH IF AUTHORIZED, AND IT IS DETERMINED THAT THE LATENESS WAS DUE SOLELY TO A DELAY IN THE MAILS (BASED ON EVIDENCE PURSUANT TO SUBSECTION 1-2.303-3), OR TO A DELAY BY THE TELEGRAPH COMPANY, FOR WHICH THE BIDDER WAS NOT RESPONSIBLE; OR

(C) IF SUBMITTED BY MAIL (OR BY TELEGRAM WHERE AUTHORIZED), IT 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. THE ONLY EVIDENCE ACCEPTABLE TO ESTABLISH TIMELY RECEIPT AT THE GOVERNMENT INSTALLATION IS THAT WHICH CAN BE 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 THE POST OFFICE SERVING IT.'

THE PROVISIONS OF SUBSECTION (C) ABOVE ARE CLEARLY INTENDED TO APPLY TO BIDS SUBMITTED BY MAIL WITHOUT POSTAL REGISTRATION OR CERTIFICATION. UNDER THIS REGULATION A BIDDER WHO ELECTS TO USE THE POSTAL SERVICE FOR DELIVERY OF HIS BID WITHOUT REGISTRATION OR CERTIFICATION ASSUMES THE RISK OF LATE DELIVERY TO THE GOVERNMENT INSTALLATION SPECIFIED IN THE INVITATION, AND IS PUT ON NOTICE THAT THE DATE AND TIME OF DELIVERY TO SUCH INSTALLATION WILL BE ESTABLISHED BY THE RECORDS OF SUCH INSTALLATION. WHILE THIS REGULATION MAY RESULT IN THE FAILURE OF THE GOVERNMENT TO RECEIVE THE BENEFIT OF LOWER BIDS WHICH, SOLELY BECAUSE OF DELAY IN THE MAILS, ARE RECEIVED AFTER BID OPENING, ITS ADOPTION HAS BEEN DETERMINED TO BE NECESSARY TO THE ORDERLY AND TIMELY PROCUREMENT OF SUPPLIES AND SERVICES BY THE GOVERNMENT.

THE PROVISIONS OF SUBSECTION (A) (3) OF THE "LATE BIDS AND MODIFICATIONS OR WITHDRAWALS" CLAUSE IN IFB 1476 MUST THEREFORE BE CONSTRUED AS NOTICE TO ALL BIDDERS THAT THEIR ELECTION TO SUBMIT BIDS BY UNREGISTERED OR UNCERTIFIED MAIL WOULD NECESSARILY RESULT IN REJECTION OF THE BID IN THE EVENT IT SHOULD NOT BE DELIVERED TO THE DEPARTMENT IN WASHINGTON UNTIL AFTER THE DATE AND TIME SET FOR BID OPENING. SINCE THE DATE OF RECEIPT IS TO BE ESTABLISHED BY THE RECORDS OF THE DEPARTMENT UNDER THE PROVISIONS OF THE INVITATION, AND THE REGULATIONS QUOTED ABOVE FURTHER PROVIDE THAT SUCH RECORDS SHALL BE THE ONLY ACCEPTABLE EVIDENCE TO ESTABLISH TIMELY RECEIPT, IT WOULD APPEAR THAT THE ACTION OF THE DEPARTMENT IN REJECTING YOUR BID IS NOT SUBJECT TO QUESTION BY THIS OFFICE.