B-154718, SEP. 4, 1964

B-154718, SEP. 4, 1964

TO THE HOMER D. BRONSON COMPANY:

WE REFER TO YOUR LETTER DATED JULY 13, 1964, PROTESTING AGAINST THE ACTION OF THE DEPARTMENT OF THE AIR FORCE, OKLAHOMA CITY AIR MATERIEL AREA (OCAMA), TINKER AIR FORCE BASE, OKLAHOMA, IN REJECTING YOUR LATE BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. 34-601-64 386/0CPAA).

THE INVITATION FOR BIDS WAS ISSUED ON JUNE 8, 1964, AND PROVIDED THAT BIDS WERE TO BE OPENED AT 2 P.M., C.S.T., ON JUNE 29, 1964. AT THE TIME OF THE OPENING YOUR BID HAD NOT BEEN RECEIVED. IT WAS RECEIVED ON JUNE 30, 1964, A DAY AFTER THE SCHEDULED BID OPENING, AT TINKER AIR FORCE BASE, AND WAS IMMEDIATELY TIME STAMPED AT 8:34 A.M., C.S.T., INDICATING THE TIME AND DATE OF RECEIPT AT THE BASE. YOUR BID ENVELOPE WAS PROMPTLY FORWARDED TO THE DIRECTORATE OF PENNSYLVANIA AND PRODUCTION AT 9:32 A.M., C.S.T. THE ENVELOPE IN WHICH THE BID OF YOUR COMPANY WAS AIR MAILED SHOWS THAT IT WAS METER STAMPED AT BEACON FALLS, CONNECTICUT, ON JUNE 27, 1964.

YOU CONTEND THAT YOUR BID WAS MAILED IN TIME TO HAVE BEEN RECEIVED PRIOR TO THE BID OPENING DATE, THE CAUSE OF ITS TARDINESS BEING DELAY IN THE MAILS BY THE GOVERNMENT (POST OFFICE EMPLOYEES) OR AT TINKER AIR FORCE BASE, AND NOT DUE TO ANY FAULT OR NEGLIGENCE ON THE PART OF YOUR FIRM.

ARTICLE 12 OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS, PROVIDES IN PART AS FOLLOWS:

"12. LATE BIDS AND MODIFICATIONS OR WITHDRAWALS (JAN 1964)

"/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:

"/I) THEY ARE RECEIVED BEFORE AWARD IS MADE; AND EITHER

"/II) 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 TELEGRAM IF 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

"/III) IF SUBMITTED BY MAIL (OR BY TELEGRAM IF AUTHORIZED), 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 OF SUCH INSTALLATION (IF READILY AVAILABLE) WITHIN THE CONTROL OF SUCH INSTALLATION OR OF THE POST OFFICE SERVING IT.

"HOWEVER, A MODIFICATION WHICH MAKES THE TERMS OF THE OTHERWISE SUCCESSFUL BID MORE FAVORABLE TO THE GOVERNMENT WILL BE CONSIDERED AT ANY TIME IT IS RECEIVED AND MAY THEREAFTER BE ACCEPTED.'

YOUR BID WAS NOT SENT BY REGISTERED OR CERTIFIED MAIL AS REQUIRED BY THE ABOVE PROVISONS OF THE INVITATION AS A PREREQUISITE TO ITS CONSIDERATION IN THE EVENT OF LATE RECEIPT. FURTHERMORE, YOUR BID MAY NOT BE REGARDED AS BEING MISHANDLED WITHIN THE MEANING OF SECTION (III) OF ARTICLE 12 OF THE INVITATION FOR BIDS, BECAUSE SUCH SECTION COVERS BIDS WHICH ARE MISHANDLED BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION. THE RECORD CLEARLY SHOWS THAT YOUR BID WAS PROCESSED AS PROMPTLY AS POSSIBLE. ANY MISHANDLING, IF ANY, OF YOUR BID BY THE GOVERNMENT (POST OFFICE EMPLOYEES) OCCURRED PRIOR TO ITS RECEIPT AT THE GOVERNMENT INSTALLATION, OCAMA MAILROOM.

THE LANGUAGE OF THE CLAIMS "LATE BIDS AND MODIFICATIONS OR WITHDRAWALS" WHICH WAS INCLUDED IN THIS INVITATION IS IDENTICAL WITH, AND REQUIRED TO BE INCLUDED BY, PARAGRAPH 2-201 (A) (XXV) OF THE ARMED SERVICES PROCUREMENT REGULATION. THIS LANGUAGE IS INTENDED TO IMPLEMENT THE REQUIREMENT OF PARAGRAPH 2-303.2 OF THE REGULATION WHICH PROVIDES AS FOLLOWS:

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

"/I) IT IS RECEIVED BEFORE AWARD; AND EITHER

"/II) 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 2-303-3), OR TO A DELAY BY THE TELEGRAPH COMPANY FOR WHICH THE BIDDER WAS NOT RESPONSIBLE; OR

"/III) 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 AT SUCH INSTALLATION (IF READILY AVAILABLE) WITHIN THE CONTROL OF SUCH INSTALLATION OR OF THE POST OFFICE SERVING IT.'

THE PROVISIONS OF PARAGRAPH 2-303.2 (III) ABOVE ARE CLEARLY INTENDED TO APPLY TO BIDS SUBMITTED BY MAIL WITHOUT POSTAL 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.

IN VIEW OF THE FACTS, CIRCUMSTANCES, AND REGULATIONS DISCUSSED ABOVE, IT APPEARS THAT THE ACTION OF THE AGENCY IN REJECTING YOUR BID IS NOT SUBJECT TO QUESTION BY THIS OFFICE.