B-157752, NOV. 24, 1965

B-157752, NOV. 24, 1965

TO PRODUCTION CLEANING SYSTEMS DIVISION, NATIONAL ULTRASONIC CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 27, 1965, WITH ENCLOSURE, PROTESTING AGAINST THE ACTION OF THE UNITED STATES NAVY PURCHASING OFFICE, WASHINGTON, D.C., IN REJECTING YOUR LATE BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. IFB600-266-66 COVERING THE FURNISHING OF TWO CLEANING MACHINES AND PROVISIONING TECHNICAL DOCUMENTATION.

THE INVITATION FOR BIDS WAS ISSUED ON SEPTEMBER 7, 1965, AND PROVIDED THAT BIDS WERE TO BE OPENED AT 10:30 A.M., E.D.S.T., SEPTEMBER 24, 1965. THE NATIONAL ULTRASONIC CORPORATION'S METER STAMP SHOWED MAILING DATE OF SEPTEMBER 23, 1965, AND THE ENVELOPE WAS MARKED AIRMAIL AND SPECIAL DELIVERY. YOUR BID WAS RECEIVED LATE IN THE BID ROOM AT 11:53 A.M., E.D.S.T., ON THE DAY OF BID OPENING.

YOU CONTEND THAT SUFFICIENT TIME WAS ALLOWED FOR YOUR BID TO HAVE BEEN RECEIVED BY 10:30 A.M. ON SEPTEMBER 24, 1965. HOWEVER, THE POST OFFICE DEPARTMENT IN WASHINGTON, D.C., ADVISES THAT 2 HOURS SHOULD BE ALLOWED FOR SPECIAL DELIVERY FROM THE WASHINGTON POST OFFICE. IN OTHER WORDS, SPECIAL DELIVERY MAIL RECEIVED IN WASHINGTON 2 HOURS OR MORE PRIOR TO BID OPENING SHOULD BE RECEIVED ON TIME. NATIONAL ULTRASONICCORPORATION'S BID WAS NOT RECEIVED IN THE SPECIAL DELIVERY SECTION OF THE WASHINGTON POST OFFICE UNTIL 9:15 A.M. AND THEREFORE IT MUST BE CONSIDERED LATE FOR REASONS OTHER THAN A DELAY IN THE MAILS.

PARAGRAPH 2-303.2 OF THE ARMED SERVICES PROCUREMENT REGULATION 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 FOROPENING 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.'

YOUR BID WAS NOT SENT EITHER BY REGISTERED OR CERTIFIED MAIL, AS REQUIRED BY THE REGULATIONS AS A PREREQUISITE TO ITS CONSIDERATION IN THE EVENT OF LATE RECEIPT. UNDER THIS REGULATION 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 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 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. SEE B-054718, SEPTEMBER 4, 1964. ACCORDINGLY, IT APPEARS THAT THE ACTION OF THE AGENCY IN REJECTING YOUR BID IS NOT SUBJECT TO QUESTION BY THIS OFFICE.