B-157176, AUG. 30, 1965

B-157176, AUG. 30, 1965

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO LETTER DATED AUGUST 2, 1965, WITH ENCLOSURES, FROM THE ASSISTANT CHIEF FOR PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS, YOUR REFERENCE: R1, CONCERNING THE PROTEST OF RYAN INDUSTRIES IN CONNECTION WITH INVITATION FOR BIDS NO. 600-1015-65, ISSUED BY THE NAVY PURCHASING OFFICE, WASHINGTON, D.C. ENCLOSED WITH THE ABOVE LETTER IS THE CONTRACTING OFFICER'S STATEMENT OF FACTS SETTING FORTH THE CIRCUMSTANCES RELATIVE TO THE REJECTION OF RYAN INDUSTRIES' LATE BID UNDER THE ABOVE INVITATION FOR BIDS.

IT IS REPORTED THAT THE INVITATION FOR BIDS WAS ISSUED ON MAY 27, 1965, AND THE SOLICITATION STATED THAT SEALED BIDS WOULD BE RECEIVED IN THE ISSUING OFFICE UNTIL 10:30 A.M., E.D.S.T., JUNE 28, 1965. JUNE 28, 1965, WAS A MONDAY. RYAN INDUSTRIES' BID WAS RECEIVED IN THE NAVY PURCHASING OFFICE MAIL ROOM AT 4:15 P.M., JUNE 28, 1965, AND IN THE BID ROOM AT 4:18 P.M., OF THE SAME DAY. IT IS FURTHER REPORTED THAT IN ACCORDANCE WITH ASPR 2-303.2, RYAN INDUSTRIES WAS ADVISED THAT ITS BID WAS LATE AND SINCE IT WAS NOT REGISTERED OR CERTIFIED, IT COULD NOT BE CONSIDERED FOR AWARD. THE CONTRACTING OFFICER'S STATEMENT IS IN PART AS FOLLOWS:

"4. THE FOLLOWING IS A CHRONOLOGY OF THE HANDLING BY THE POST OFFICE:

"THE RYAN INDUSTRIES, INC., METER STAMP ON THE BID ENVELOPE SHOWED MAILING DATE OF 25 JUNE 1965, AND THE ENVELOPE WAS MARKED AIR MAIL AND SPECIAL DELIVERY. THE REVERSE OF THE ENVELOPE SHOWED RECEIPT IN THE SPECIAL DELIVERY SECTION (POST OFFICE) WASHINGTON, D.C., 26 JUNE 1965, 2:30 P.M., AND AGAIN ON 28 JUNE 1965, AT 10:00 A.M. THE FACE OF THE ENVELOPE WAS STAMPED "DELIVERY ATTEMPTED 27 JUNE 1965, BY MESSENGER 147.' THERE WAS ALSO A TIME STAMP 28 JUNE 1965, AND "CODE NWP.'

"5. CONCERNING THE PROCEDURE FOR ACCEPTANCE OF BIDS IN THE WASHINGTON NAVY YARD, INSTRUCTIONS WERE GIVEN AT THE TIME THE NAVY PURCHASING OFFICE WASHINGTON MOVED INTO THE WASHINGTON NAVY YARD THAT MAIL DIRECTED TO NAVPUROWASH SHOULD NOT BE ACCEPTED BY GUARDS AT GATES OR BY ANY PERSONNEL NOT ATTACHED TO NAVPURO. THERE ARE 37 ACTIVITIES HOUSED IN THE NAVY YARD INCLUDING GENERAL SERVICES ADMINISTRATION AND CENTRAL INTELLIGENCE AGENCY. THERE ARE 11 GATES TO THE YARD WITH VARIOUS GUARDS STATIONED THERE AT DIFFERENT HOURS OF THE DAY. IT WOULD BE IMPOSSIBLE TO VERIFY TIME OF RECEIPT IF THE VARIOUS GUARDS AND ACTIVITIES RECEIVED NAVPURO MAIL. ALL MAIL RECEIVED BY GUARDS EVENTUALLY REACHES THE MAIN GUARD OFFICE, BUT THE TIME OF RECEIPT AT ANY ONE POINT OR BY WHOM IT WAS RECEIVED WOULD BE IMPOSSIBLE TO VERIFY.'

RYAN INDUSTRIES' RECITATION OF FACTS IN ITS LETTER OF PROTEST OF JULY 7, 1965, OFFERS THE SAME INFORMATION AS STATED BY THE CONTRACTING OFFICER.

ASPR 2-303.2 PROVIDES, IN PERTINENT PART, 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.'

PARAGRAPH 4 OF THE BID INSTRUCTIONS AND CONDITIONS IS TO THE SAME EFFECT.

IN OUR DECISION 42 COMP. GEN. 508, WE HELD, QUOTING THE HEADNOTE, THAT:

"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 REGULATIONS, 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.'

IN APPLYING THAT DECISION TO THE MATTER HERE CONSIDERED, WE FIND THAT THE NAVY, BY ITS OWN INSTRUCTIONS, PREVENTED THE TIMELY DELIVERY TO THE BID ISSUING OFFICE OF RYAN INDUSTRIES' BID. AS ILLUSTRATED IN THE PRESENT MATTER, THE SETTING OF AN EARLY BID OPENING HOUR ON A DAY FOLLOWING A WEEKEND WHEN THE OFFICE IS CLOSED AND RESTRICTIONS PLACED ON RECEIPT OF MAIL DESTINED FOR THAT OFFICE, CAN ONLY RESULT IN AN INCREASE IN NUMBER OF TECHNICAL LATE BIDS. IN THIS CONNECTION, WE STATED IN 42 COMP. GEN. 508, AT PAGE 514, THAT:

"* * * 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 RYAN INDUSTRIES' BID, BUT FOR THE GOVERNMENT'S ACTIONS, WOULD HAVE BEEN RECEIVED PRIOR TO BID OPENING TIME, AND SHOULD BE CONSIDERED FOR AWARD.