B-151212, MAY 9, 1963

B-151212: May 9, 1963

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INC: REFERENCE IS MADE TO YOUR LETTER OF MARCH 28. THE RECORD SHOWS THAT UNDER THE TERMS OF THE INVITATION NO PROVISION WAS MADE FOR THE ACCEPTANCE OF TELEGRAPHIC BIDS. WHICH OTHERWISE WERE PROHIBITED BY THE STANDARD PROVISIONS OF THE INVITATION AND. THAT YOUR WRITTEN OFFER WAS NOT DEPOSITED IN THE MAIL AT BALTIMORE. THAT IT WAS NOT RECEIVED UNTIL THE FOLLOWING DAY. BIDS WHICH ARE RECEIVED IN THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS AFTER THE EXACT TIME SET FOR OPENING ARE "LATE BIDS. A LATE BID SHALL BE CONSIDERED FOR AWARD ONLY IF: (I) IT IS RECEIVED BEFORE AWARD. IT WAS SENT BY REGISTERED MAIL. (III) IT IS DETERMINED THAT EITHER: (A) THE LATENESS WAS DUE SOLELY TO A DELAY IN THE MAILS (BASED ON EVIDENCE PURSUANT TO 2-303.3).

B-151212, MAY 9, 1963

TO BALTIMORE LUMBER CO., INC:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 28, 1963, WITH ENCLOSURES, SUBMITTING FOR OUR CONSIDERATION THE ACTION TAKEN BY THE CORPS OF ENGINEERS DISTRICT OFFICE, NEW YORK, NEW YORK, IN CONNECTION WITH YOUR TELEGRAPHIC BID OF FEBRUARY 17, AND FORMAL BID OF FEBRUARY 18, 1963, SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. ENG-30-075-63-100.

THE RECORD SHOWS THAT UNDER THE TERMS OF THE INVITATION NO PROVISION WAS MADE FOR THE ACCEPTANCE OF TELEGRAPHIC BIDS, WHICH OTHERWISE WERE PROHIBITED BY THE STANDARD PROVISIONS OF THE INVITATION AND, THEREFORE, YOUR REFERRED-TO TELEGRAM COULD NOT BE CONSIDERED, IT BEING NOTED THAT SUCH COMMUNICATION DID NOT CONSTITUTE A PRICE CHANGE OR OTHER MODIFICATION TO A PREVIOUSLY SUBMITTED WRITTEN PROPOSAL. SUCH PROVISION FOLLOWS PARAGRAPH 2-301 (B) OF THE ARMED SERVICES PROCUREMENT REGULATION WHICH STIPULATES THAT--- "TELEGRAPHIC BIDS SHALL NOT BE CONSIDERED UNLESS PERMITTED BY THE INVITATION FOR BIDS.'

THE RECORD FURTHER SHOWS THAT THE TERMS OF THE INVITATION STIPULATED THE TIME AND DATE FOR THE OPENING OF BIDS AS 11:00 A.M., FEBRUARY 18, 1963, IN THE NEW YORK DISTRICT OFFICE; THAT YOUR WRITTEN OFFER WAS NOT DEPOSITED IN THE MAIL AT BALTIMORE, MARYLAND, UNTIL FEBRUARY 18, 1963; AND, THAT IT WAS NOT RECEIVED UNTIL THE FOLLOWING DAY, OR ONE DAY LATE FOR THE OPENING. THAT CONNECTION THE ARMED SERVICES PROCUREMENT REGULATION (PARAGRAPHS 2- 303.1 AND 2-303.2) PROVIDES AS FOLLOWS:

"2-303.1 GENERAL. BIDS WHICH ARE RECEIVED IN THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS AFTER THE EXACT TIME SET FOR OPENING ARE "LATE BIDS," EVEN THOUGH RECEIVED ONLY ONE OR TWO MINUTES LATE. LATE BIDS SHALL NOT BE CONSIDERED FOR AWARD EXCEPT AS AUTHORIZED IN THIS PARAGRAPH 2-303.

"2-303.2 CONSIDERATION FOR AWARD. A LATE BID SHALL BE CONSIDERED FOR AWARD ONLY IF:

(I) IT IS RECEIVED BEFORE AWARD;

(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:

(A) THE LATENESS WAS DUE SOLELY TO A DELAY IN THE MAILS (BASED ON EVIDENCE PURSUANT TO 2-303.3), OR TO A DELAY BY THE TELEGRAPH COMPANY WHERE THE INVITATION AUTHORIZES TELEGRAPHIC BIDS, FOR WHICH THE BIDDER WAS NOT RESPONSIBLE; OR

(B) THE BID, IF SUBMITTED BY MAIL (OR BY TELEGRAM WHERE 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.'

IT IS APPARENT THAT THE DELAY IN RECEIPT OF YOUR BID, WHICH WAS NEITHER REGISTERED NOR CERTIFIED, WAS NOT DUE TO THE MISHANDLING OF THE MAILS BY THE POSTAL SERVICES, BUT SOLELY TO YOUR FAILURE TO TIMELY DEPOSIT IT IN THE LOCAL POST OFFICE. UNDER THESE CIRCUMSTANCES THE CONTRACTING OFFICER WAS PRECLUDED BY LAW FROM MAKING AN AWARD TO YOUR CONCERN ON THE BASIS OF THE TELEGRAM OR THE FORMAL WRITTEN BID.

ACCORDINGLY, THE ACTION TAKEN BY THE CORPS OF ENGINEERS WILL NOT BE DISTURBED.