B-154875, AUG. 10, 1964

B-154875: Aug 10, 1964

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INC.: WE HAVE RECEIVED YOUR TELEGRAM OF AUGUST 4. THE RECORD SHOWS THAT 12 BIDS WERE OPENED AS SCHEDULED AT 3 P.M. WOULD HAVE BEEN RECEIVED AT THE SUPPLY CENTER PRIOR TO BID OPENING IF MAILED. BY LETTER DATED JULY 22 YOU WERE ADVISED THAT YOUR BID WOULD NOT BE CONSIDERED UNLESS YOU FURNISHED THE ORIGINAL POSTMARKED RECEIPT FOR CERTIFIED MAIL AND EVIDENCE OF THE CLOSING TIME OF THE STATION OF MAILING. THE BACK OF THE ENVELOPE INDICATES THAT A RETURN RECEIPT HAD BEEN ATTACHED THERETO AND WAS REMOVED. NOTWITHSTANDING YOUR FAILURE TO OBTAIN A POSTMARK STAMP ON YOUR RECEIPT FOR CERTIFIED MAIL" YOUR LATE BID SHOULD BE CONSIDERED FOR AWARD SINCE IT WAS MAILED BY CERTIFIED MAIL AND WAS ENCLOSED IN AN ENVELOPE BEARING A POSTMARK WHICH INDICATES THAT IT WAS MAILED IN SUFFICIENT TIME TO HAVE BEEN RECEIVED PRIOR TO BID OPENING.

B-154875, AUG. 10, 1964

TO COVINGTON INDUSTRIES, INC.:

WE HAVE RECEIVED YOUR TELEGRAM OF AUGUST 4, 1964, PROTESTING THE REJECTION OF YOUR LATE BID SUBMITTED PURSUANT TO INVITATION FOR BIDS (IFB) NO. DSA-1-64-1306, ISSUED BY DEFENSE CLOTHING AND TEXTILE SUPPLY CENTER, PHILADELPHIA, PENNSYLVANIA, ON JUNE 18, 1964.

THE RECORD SHOWS THAT 12 BIDS WERE OPENED AS SCHEDULED AT 3 P.M. ON JULY 16, 1964, AND THAT YOUR BID, SENT BY CERTIFIED MAIL, WOULD HAVE BEEN RECEIVED AT THE SUPPLY CENTER PRIOR TO BID OPENING IF MAILED, AS ALLEGED AND AS SHOWN BY THE POSTMARK ON THE BID ENVELOPE, FROM FEDERAL STATION ANNEX, ATLANTA, GEORGIA, ON JULY 14, 1964. HOWEVER, BECAUSE OF AN UNEXPLAINED DELAY IN THE MAILS YOUR BID DID NOT IN FACT ARRIVE UNTIL JULY 20, AND BY LETTER DATED JULY 22 YOU WERE ADVISED THAT YOUR BID WOULD NOT BE CONSIDERED UNLESS YOU FURNISHED THE ORIGINAL POSTMARKED RECEIPT FOR CERTIFIED MAIL AND EVIDENCE OF THE CLOSING TIME OF THE STATION OF MAILING.

THE RECORD FURTHER DISCLOSES THAT YOU PURCHASED A SUPPLY OF CERTIFIED MAIL COUPONS FROM A U.S. POST OFFICE, AFFIXED THE CERTIFIED MAIL STICKER PORTION OF SUCH COUPON TO THE FRONT OF THE ENVELOPE CONTAINING YOUR BID, AND TYPED BELOW THE STICKER, THE NOTATION "RETURN RECEIPT QUESTED.' THE BACK OF THE ENVELOPE INDICATES THAT A RETURN RECEIPT HAD BEEN ATTACHED THERETO AND WAS REMOVED, PRESUMABLY FOR RETURN TO YOU AS ASSURANCE THAT YOUR BID HAD BEEN RECEIVED. SEE POSTAL MANUAL 168.44B. HOWEVER, AT THE TIME OF MAILING YOU DID NOT TENDER THE OTHER PORTION OF THE COUPON, AND THE RECEIPT FOR CERTIFIED MAIL, TO A POSTAL EMPLOYEE FOR THE PURPOSE OF HAVING STAMPED THEREON AN OFFICIALLY DATED POSTMARK. SEE POSTAL MANUAL 168.44D AND E.

YOU CONTEND THAT, NOTWITHSTANDING YOUR FAILURE TO OBTAIN A POSTMARK STAMP ON YOUR RECEIPT FOR CERTIFIED MAIL" YOUR LATE BID SHOULD BE CONSIDERED FOR AWARD SINCE IT WAS MAILED BY CERTIFIED MAIL AND WAS ENCLOSED IN AN ENVELOPE BEARING A POSTMARK WHICH INDICATES THAT IT WAS MAILED IN SUFFICIENT TIME TO HAVE BEEN RECEIVED PRIOR TO BID OPENING. IN THIS CONNECTION, THE IFB CONTAINED THE FOLLOWING CLAUSES, WHICH ESSENTIALLY DUPLICATE THE REQUIREMENTS STATED IN ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-201/A) (XXV), 2-303.2 AND 2-303.3:

"CAUTION NOTICE TO BIDDER

"5. LATE BIDS--- NOTE ARTICLE 1A, DSA FORM 224 AND ARTICLE 59, DCTSC FORM 502, BOTH ENTITLED ,LATE BIDS AND MODIFICATIONS OR WITHDRAWALS," WHICH PROVIDE THAT LATE BIDS AND MODIFICATIONS OR WITHDRAWALS THEREOF SENT THROUGH THE MAILS ORDINARILY WILL BE CONSIDERED ONLY IF TIMELY MAILED BY REGISTERED MAIL OR BY CERTIFIED MAIL FOR WHICH A POSTMARKED RECEIPT HAS BEEN OBTAINED, AS SPECIFIED IN SUCH PROVISION. SUGGEST YOU REQUEST POST OFFICE INCLUDE HOUR DESIGNATION IN TMARK.'

"ALTERATIONS AND ADDITIONS TO TERMS AND CONDITIONS OF THE INVITATION FOR BIDS, STANDARD FORM 30 (SUPPLY CONTRACT)

"1. PARAGRAPH 4, LATE BIDS, IS SUPERSEDED BY THE FOLLOWING: LATE BIDS AND MODIFICATIONS OR WITHDRAWALS (AUG. 1963)

"/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 TELEGRAPH 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;

"/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, (I) IN THE CASE OF REGISTERED MAIL, ESTABLISHES AN EARLIER TIME; OR (II) 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. (ASPR 2-201 (A) (XXV) ("

"SUPPLEMENTAL GENERAL PROVISIONS

"59. LATE BIDS AND MODIFICATIONS OR WITHDRAWALS, (REPLACES PARAGRAPH 1 (B) OF "ALTERNATIONS AND ADDITIONS TO TERMS AND CONDITIONS OF THE INVITATION FOR BIDS, STANDARD FORM 30" CONTAINED ON DSA FORM 224)

"/B) BIDDERS USING CERTIFIED MAIL ARE CAUTIONED TO OBTAIN A RECEIPT FOR CERTIFIED MAIL SHOWING A LEGIBLE, DATED POSTMARK AND TO RETAIN SUCH RECEIPT AGAINST THE CHANCE THAT IT WILL BE REQUIRED AS EVIDENCE THAT A LATE BID WAS TIMELY MAILED.

"/C) THE TIME OF MAILING OF LATE BIDS SUBMITTED BY REGISTERED OR CERTIFIED MAIL SHALL BE DEEMED TO BE THE LAST MINUTE OF THE DATE SHOWN IN THE POSTMARK ON THE REGISTERED MAIL RECEIPT OR REGISTERED MAIL WRAPPER OR ON THE RECEIPT FOR CERTIFIED MAIL UNLESS THE BIDDER FURNISHES EVIDENCE FROM THE POST OFFICE STATION OF MAILING WHICH ESTABLISHES AN EARLIER TIME. IN THE CASE OF CERTIFIED MAIL, THE ONLY ACCEPTABLE EVIDENCE IS AS FOLLOWS: (I) WHERE THE RECEIPT FOR CERTIFIED MAIL IDENTIFIES THE POST OFFICE STATION OF MAILING, EVIDENCE FURNISHED BY THE BIDDER WHICH 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; OR (II) AN ENTRY IN INK ON THE RECEIPT FOR CERTIFIED MAIL SHOWING THE TIME OF MAILING AND THE INITIALS OF THE POSTAL EMPLOYEE RECEIVING THE ITEM AND MAKING THE ENTRY, WITH APPROPRIATE WRITTEN VERIFICATION OF SUCH ENTRY FROM THE POST OFFICE STATION OF MAILING, IN WHICH CASE THE TIME OF MAILING SHALL BE THE TIME SHOWN IN THE ENTRY. IF THE POSTMARK ON THE ORIGINAL RECEIPT FOR CERTIFIED MAIL DOES NOT SHOW A DATE THE BID SHALL NOT BE CONSIDERED.'

IN ADDITION, ASPR 2-303.6 PROVIDES:

"NOTIFICATION TO LATE BIDDERS. WHERE A LATE BID IS RECEIVED AND IT IS CLEAR FROM AVAILABLE INFORMATION THAT UNDER 2-303.2 SUCH LATE BID CANNOT BE CONSIDERED, THE CONTRACTING OFFICER OR HIS AUTHORIZED REPRESENTATIVE SHALL PROMPTLY NOTIFY THE BIDDER THAT HIS BID WAS RECEIVED LATE AND WILL NOT BE CONSIDERED (SEE ALSO 2-303.7). HOWEVER, WHERE A LATE BID IS TRANSMITTED BY REGISTERED MAIL AND RECEIVED BEFORE AWARD BUT IT IS NOT CLEAR FROM AVAILABLE INFORMATION WHETHER THE BID CAN BE CONSIDERED, OR IN ANY CASE OF A LATE BID TRANSMITTED BY CERTIFIED MAIL RECEIVED BEFORE AWARD, THE BIDDER SHALL BE PROMPTLY NOTIFIED SUBSTANTIALLY AS FOLLOWS:

SOLICITATION OF BIDS

"YOUR BID IN RESPONSE TO INVITATION FOR BIDS NO. ------------, DATED ---- --------, WAS RECEIVED AFTER THE TIME FOR OPENING SPECIFIED IN THE INVITATION. ACCORDINGLY, YOUR BID WILL NOT BE CONSIDERED FOR AWARD UNLESS (1) THERE IS RECEIVED FROM YOU BY ----------- CLEAR AND CONVINCING EVIDENCE

(DATE) FROM THE POST OFFICE STATION OF MAILING WHICH ESTABLISHES THE DATE (AND TIME, IF POSSIBLE) THAT THE BID WAS DEPOSITED WITH THAT STATION, AND (2) IT IS DETERMINED BY THE GOVERNMENT THAT LATE RECEIPT WAS DUE SOLELY TO A DELAY IN THE MAIL FOR WHICH YOU ARE NOT RESPONSIBLE. IN THE CASE OF CERTIFIED MAIL, THE ORIGINAL POSTMARKED RECEIPT FOR CERTIFIED MAIL MUST BE FURNISHED AND IS THE ONLY EVIDENCE ACCEPTABLE UNDER (1) ABOVE, EXCEPT THAT, WHERE THE RECEIPT FOR CERTIFIED MAIL IDENTIFIES THE POST OFFICE STATION OF MAILING, EVIDENCE FROM SUCH STATION OF ITS CLOSING TIME OR WRITTEN VERIFICATION BY SUCH STATION OF AN APPROVED TIME ENTRY ON THAT RECEIPT ARE ALSO ACCEPTABLE. (JAN. 1964)"

FROM THE ABOVE PROVISIONS, IT IS MANIFEST THAT A POSTMARK ON A REGISTERED LETTER IS ACCEPTABLE AS EVIDENCE OF THE DATE OF MAILING UNDER THE APPLICABLE PROCUREMENT REGULATION, SINCE SUCH A LETTER MUST BE SUBMITTED TO A POSTAL EMPLOYEE FOR REGISTRATION, WHEREAS A POSTMARK ON A CERTIFIED LETTER IS NOT ACCEPTABLE AS EVIDENCE. THE FACTS OF THIS CASE, WHICH SHOW THAT CERTIFICATION OF ANY PARTICULAR PIECE OF MAIL MAY BE ENTIRELY WITHIN THE CONTROL OF THE SENDER ALONE, JUSTIFY THE DISTINCTION ESTABLISHED IN THE ASPR. WHEN, AS HERE, CERTIFIED RATHER THAN REGISTERED MAIL IS EMPLOYED BY THE BIDDER, IT IS CLEAR THAT THE PORTION OF THE CERTIFIED MAIL COUPON WHICH IS ATTACHED TO THE ENVELOPE CONSTITUTES NO EVIDENCE WHATEVER FOR THE PURPOSE OF ESTABLISHING THE DATE OF MAIL. SEE ALSO 42 COMP. GEN. 255, IN WHICH CERTIFIED MAIL, ASSUMING PRODUCTION OF AN OFFICIAL POSTMARK ON THE RECEIPT FOR CERTIFIED MAIL, IS CONTRASTED WITH A "CERTIFICATE OF MAILING," A METHOD OF POSTING THAT DOES NOT REQUIRE STAMPING OF THE MAILED ARTICLE BY THE RECEIVING POSTAL EMPLOYEE. IT FOLLOWS THAT POSTMARKS ON CERTIFIED MAIL ENVELOPES ARE ENTITLED TO NO MORE CONSIDERATION UNDER ASPR THAN ARE POSTMARKS ON ORDINARY MAIL. IN THIS REGARD, SEE B-153190, MARCH 31, 1964, IN WHICH WE CONCLUDED THAT UNDER THE QUOTED PROVISIONS OF ASPR, A POSTMARK ON ORDINARY FIRST CLASS MAIL COULD NOT BE CONSIDERED CONCLUSIVE EVIDENCE OF THE DATE OF MAILING. TO THE SAME EFFECT, SEE B-152962, JANUARY 21, 1964, AND DECISIONS CITED THEREIN.

WHILE THESE PROVISIONS OF ASPR CAN RESULT IN THE FAILURE OF THE GOVERNMENT TO RECEIVE THE BENEFIT OF A LOWER BID WHICH, SOLELY BECAUSE OF DELAY IN THE MAILS, IS RECEIVED AFTER BID OPENING, THEIR ADOPTION HAS BEEN DETERMINED TO BE NECESSARY TO THE ORDERLY AND TIMELY PROCUREMENT OF SUPPLIES AND SERVICES BY THE GOVERNMENT, AND TO MAINTENANCE OF THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM. YOUR DECISION NOT TO COMPLY WITH THE REQUIREMENTS RELATIVE TO CERTIFIED MAIL AS SET OUT IN BOTH THE REGULATIONS AND THE INVITATION MUST THEREFORE BE CONSTRUED AS AN ELECTION TO ACCEPT THE LIKELIHOOD OF REJECTION OF YOUR BID IF NOT DELIVERED TO THE PROPER PROCUREMENT OFFICE PRIOR TO BID OPENING. SUCH PROVISIONS MAKE IT ABUNDANTLY CLEAR THAT PROPER AND CONVINCING EVIDENCE OF THE DATE OF MAILING OF CERTIFIED MAIL MAY BE ESTABLISHED, FOR PURPOSES OF DETERMINING THE ACCEPTABILITY OF A LATE BID, ONLY UPON PRODUCTION OF A RECEIPT FOR CERTIFIED MAIL SHOWING AN OFFICIAL, LEGIBLE, AND DATED POST OFFICE STAMP. IN THE ABSENCE OF SUCH EVIDENCE YOUR BID DOES NOT APPEAR TO BE ENTITLED TO CONSIDERATION, NOTWITHSTANDING THE FACT THAT IT WAS SENT BY CERTIFIED MAIL. 42 COMP. GEN. 508, 514.

ADDITIONALLY, YOU CONTEND THAT UNDER PARAGRAPH 5 OF THE CAUTION NOTICE TO BIDDER, QUOTED ABOVE, LATE BIDS SHOULD "ORDINARILY," BUT NOT ALWAYS, BE REJECTED IF MAILED IN A MANNER OTHER THAN PRESCRIBED. YOUR CONTENTION IS CORRECT. HOWEVER, WE KNOW OF NO CASE WHERE A LATE BID SO MAILED HAS BEEN, OR UNDER THE REGULATION COULD BE, ACCEPTED UNLESS PROPER PROOF ESTABLISHES THAT THE DELAY WAS DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT OF THE PARCEL AT THE GOVERNMENT INSTALLATION, RATHER THAN TO DELAY IN THE MAILS. SEE 42 COMP. GEN. 508. IN THE INSTANT CASE, THERE IS NO ALLEGATION OR INDICATION OF DELAY AT THE GOVERNMENT INSTALLATION.

YOU ALSO OBJECT TO THE FACT THE FORM,"ALTERATIONS AND ADDITIONS TO TERMS AND CONDITIONS OF THE INVITATION FOR BIDS, STANDARD FORM 30 (SUPPLY CONTRACT)," WAS NOT INCLUDED WITH THE BID DOCUMENTS SENT TO YOU. PARAGRAPH 1 OF THESE ALTERATIONS, QUOTED ABOVE, SUPERSEDED THE LATE BIDS PARAGRAPH OF STANDARD FORM 30, WHICH WAS INCLUDED WITH THE BID DOCUMENTS, AND IN WHICH NO MENTION WAS MADE OF THE ADVISABILITY OF RETAINING AN OFFICIALLY POSTMARKED RECEIPT FOR CERTIFIED MAIL.

HOWEVER, IT SHOULD BE NOTED THAT BOTH THE CAUTION NOTICE TO BIDDER AND THE SUPPLEMENTAL GENERAL PROVISIONS, WHICH WERE INCLUDED WITH THE BID DOCUMENTS, AND WHICH ARE ALSO QUOTED ABOVE IN RELEVANT PART, CONTAINED ESSENTIALLY THE SAME WARNING. MOREOVER, WE ARE INFORMALLY ADVISED THAT ON MARCH 18, 1964, ONLY TWO MONTHS PRIOR TO ISSUANCE OF THE IFB, THE SUPPLY CENTER MAILED THE ,ALTERATIONS AND ADDITIONS TO TERMS AND CONDITIONS OF THE INVITATION FOR BIDS, STANDARD FORM 30 (SUPPLY CONTRACT)" TO YOU AND APPROXIMATELY 3700 OTHER BIDDERS ON ITS BIDDERS' LIST. THE TRANSMITTAL LETTER ENCLOSING THAT DOCUMENT ADVISED THE RECIPIENTS TO RETAIN THE ENCLOSURES FOR REFERENCE IN FUTURE PROCUREMENTS, SINCE IT WOULD BE INCORPORATED BY REFERENCE INTO, BUT NOT INCLUDED WITH, FUTURE SOLICITATION FORMS. FOR THE FOREGOING REASONS, WE FIND NO LEGAL OBJECTION TO THE REJECTION OF YOUR LATE BID.