B-157751, DEC. 16, 1965

B-157751: Dec 16, 1965

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LOGAN COMPANY: REFERENCE IS MADE TO YOUR CORRESPONDENCE OF SEPTEMBER 24. THE RECORD SHOWS THAT THE SUBJECT IFB INVITED SEALED BIDS WHICH WERE TO BE OPENED AT THE MARSHALL SPACE FLIGHT CENTER. SEVEN BIDS WERE RECEIVED AND OPENED AT BID OPENING TIME ON SEPTEMBER 14. " WAS RECEIVED AT THE CENTER ON SEPTEMBER 18. THIS BID WAS REJECTED BY LETTER DATED SEPTEMBER 20. WHICH IS ENTITLED "LATE BIDS AND MODIFICATIONS OR WITHDRAWALS. AS FOLLOWS: "/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.

B-157751, DEC. 16, 1965

TO GLENN O. LOGAN COMPANY:

REFERENCE IS MADE TO YOUR CORRESPONDENCE OF SEPTEMBER 24, 1965, PROTESTING THE REJECTION OF YOUR BID AS A LATE UNACCEPTABLE BID UNDER INVITATION FOR BIDS NO. MSFC 66-43.

THE RECORD SHOWS THAT THE SUBJECT IFB INVITED SEALED BIDS WHICH WERE TO BE OPENED AT THE MARSHALL SPACE FLIGHT CENTER, HUNTSVILLE, ALABAMA, AT 9:00 A.M., CST, SEPTEMBER 14, 1965. SEVEN BIDS WERE RECEIVED AND OPENED AT BID OPENING TIME ON SEPTEMBER 14, 1965. AS INDICATED BY THE DATE STAMP THEREON, AN ENVELOPE BEARING YOUR FIRM'S NAME AND MARKED "SEALED BID- DELIVER UNOPENED," WAS RECEIVED AT THE CENTER ON SEPTEMBER 18, 1965. THIS BID WAS REJECTED BY LETTER DATED SEPTEMBER 20, 1965, FROM THE CONTRACTING OFFICER, CITING PARAGRAPH 6 OF THE BIDDING INSTRUCTIONS, TERMS AND CONDITIONS OF THE IFB, WHICH IS ENTITLED "LATE BIDS AND MODIFICATIONS OR WITHDRAWALS," AND WHICH READS, IN PERTINENT PART, AS FOLLOWS:

"/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 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 (3) 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 (IF READILY AVAILABLE) WITHIN THE CONTROL OF SUCH INSTALLATION OR OF THE POST OFFICE SERVING IT.'

IN RESPONSE, YOU CONTEND THERE IS NO ABSOLUTE RULE THAT BIDS MUST BE MAILED IN THE MANNER SET OUT IN PARAGRAPH 6 ABOVE, AND THAT REGULAR MAIL IS ACCEPTABLE IF THE BID IS MAILED IN SUFFICIENT TIME TO REACH THE CONTRACTING OFFICER PRIOR TO BID OPENING. ADDITIONALLY, YOU HAVE SUPPLIED A STATEMENT FROM THE NORTHSIDE STATION POSTMASTER, WHERE YOU MAILED YOUR BID, SHOWING THAT THE NORMAL COURSE OF MAIL DELIVERY WOULD BE ONE DAY, AND SINCE THE BID WAS MAILED ON SEPTEMBER 10, 1965, YOU CONTEND IT SHOULD HAVE ARRIVED ON SEPTEMBER 11, 1965, IN AMPLE TIME FOR BID OPENING.

PARAGRAPH 6 OF THE BIDDING INSTRUCTIONS QUOTED ABOVE IS A PORTION OF STANDARD FORM 33A, WHICH IS PRESCRIBED FOR USE BY ALL FEDERAL AGENCIES. ADDITIONALLY, THE PROVISIONS OF PARAGRAPH 6 ARE IN ACCORD WITH THE PROVISIONS OF PARAGRAPH 2.303-2 OF THE NASA PROCUREMENT REGULATION WHICH, AS CONSTITUTED AT THE TIME OF YOUR BID, PROVIDED IN PERTINENT PART AS FOLLOWS:

"CONSIDERATION FOR AWARD. A LATE BID SHALL NOT BE CONSIDERED FOR AWARD UNLESS:

(I) IT IS RECEIVED BEFORE AWARD AND IT IS DETERMINED THAT THE BIE 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 SOLELY TO MISHANDLING ON THE PART OF THE GOVERNMENT AT THE INSTALLATION, WOULD HAVE BEEN RECEIVED ON TIME AT THE OFFICE DESIGNATED; OR

(II)IT IS RECEIVED BEFORE AWARD AND---

(A) IN THE CASE OF A MAILED BID, 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 IT IS DETERMINED THAT THE LATENESS WAS DUE SOLELY TO A DELAY IN THE MAILS (BASED ON EVIDENCE PURSUANT TO 2.303-3); * * *.'

UNDER INSTRUCTIONS AND REGULATIONS OF THIS NATURE IT HAS BEEN THE CONSISTENT POSITION OF THIS OFFICE THAT 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. SEE B-154718, SEPTEMBER 4, 1964, AND B-152858, JANUARY 28, 1964. THE STRICTNESS OF THIS RULE IS INTENDED TO PLACE UPON THE BIDDER THE RESPONSIBILITY FOR TIMELY RECEIPT OF BIDS BY THE PROCURING ACTIVITY. SEE B-151607, JUNE 28, 1963.

WHILE YOUR BID APPEARS TO HAVE BEEN TIMELY MAILED, THE ONLY EVIDENCE BEARING UPON THE TIME OF ITS RECEIPT AT THE CONTRACTING INSTALLATION IS THE INSTALLATION'S DATE RECEIVED STAMP ON THE BID ENVELOPE, WHICH SHOWS THAT IT WAS NOT TIMELY RECEIVED AT THE INSTALLATION AS REQUIRED BY BOTH THE INVITATION AND THE REGULATION.

IN VIEW THEREOF, AND SINCE YOU FAILED TO UTILIZE EITHER CERTIFIED OR REGISTERED MAILING SERVICES AS REQUIRED BY THE INVITATION AND THE APPLICABLE REGULATIONS, WE MUST CONCLUDE THAT THE REJECTION OF YOUR BID WAS PROPER.