B-158029, JAN. 17, 1966

B-158029, JAN. 17, 1966

TO SENTINEL ELECTRONICS, INC.:

REFERENCE IS MADE TO A TELEGRAM DATED NOVEMBER 15, 1965, FROM YOUR ATTORNEY PROTESTING ON YOUR BEHALF AGAINST REJECTION OF YOUR LATE BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. AMC/Z/-01-021-66-1515, ISSUED BY THE UNITED STATES ARMY MISSILE COMMAND, PROCUREMENT AND PRODUCTION DIRECTORATE, REDSTONE ARSENAL, ALABAMA.

THE SUBJECT INVITATION COVERING THE PROCUREMENT OF ONE ITEM OF CONTROL RECEIVER, FSN 1430-085-3544, OPN 9993352 FOR THE NIKE MISSILE SYSTEM, WAS ISSUED ON OCTOBER 11, 1965, AND PROVIDED THAT BIDS WERE TO BE OPENED AT 2:30 P.M., C.S.T., ON NOVEMBER 10,1965. THE RECORD SHOWS THAT THE ENVELOPE CONTAINING THE BID SUBMITTED BY YOUR FIRM IN THIS PROCUREMENT BORE A METERED MAILSTAMP OF NOVEMBER 8, 1965; WAS MAILED FROM PHILADELPHIA, PENNSYLVANIA, AT MIDNIGHT ON NOVEMBER 9, 1965 (THE DATE OF NOVEMBER 9, 1965, BEING INDICATED BY THE UNITED STATES POST OFFICE STAMP); ARRIVED AT REDSTONE ARSENAL, HUNTSVILLE, ALABAMA, CENTRAL MAIL ROOM AT 1:30 P.M. ON NOVEMBER 10, 1965; RECEIVED IN PROCUREMENT AND PRODUCTION DIRECTORATE AT 2:45 P.M. ON NOVEMBER 10, 1965; AND RECEIVED IN FORMAL ADVERTISING BRANCH AT APPROXIMATELY 3:15 P.M. ON NOVEMBER 10, 1965. THIS WAS 45 MINUTES AFTER BID OPENING. EVEN ASSUMING OPTIMUM CONDITIONS, THE MAIL SCHEDULE OF THE PROCURING ACTIVITY SHOWS THAT HAD THE ENVELOPE CONTAINING YOUR BID ARRIVED AT THE CENTRAL MAIL ROOM OF REDSTONE ARSENAL AT 1:00 P.M., NOVEMBER 10, 1965, THE EARLIEST IT COULD HAVE BEEN HANDLED, SORTED AND DELIVERED TO THE FORMAL ADVERTISING BRANCH OF THE PROCUREMENT AND PRODUCTION DIRECTORATE WOULD HAVE BEEN 2:55 P.M., OR 25 MINUTES AFTER BID OPENING. IT IS TO BE NOTED THAT YOU TRANSMITTED YOUR BID BY AIRMAIL SPECIAL DELIVERY, RATHER THAN BY REGISTERED OR CERTIFIED MAIL.

IN CONNECTION WITH THE FOREGOING, THE SUBJECT INVITATION (PAGE 17) CAUTIONED BIDDERS TO SEE THE SPECIAL PROVISION ENTITLED "LATE BIDS AND MODIFICATIONS OR WITHDRAWALS" WHICH PROVIDES 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. SUCH LATE BID PROVISION, APPEARING AT PAGE 18 OF THE INVITATION, PROVIDES IN PERTINENT PART AS FOLLOWS:

"LATE BIDS AND MODIFICATIONS OR WITHDRAWALS (JAN. 1965)

"/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 AT 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 PROVISIONS OF THE INVITATION AS A PREREQUISITE TO ITS CONSIDERATION IN THE EVENT OF LATE RECEIPT. CONSEQUENTLY, THE CONTRACTING OFFICER NOT ONLY WAS UNDER NO DUTY BUT WAS UNAUTHORIZED TO CONTACT THE POST OFFICE FOR A DETERMINATION REGARDING TIMELY MAILING. FURTHERMORE, THE RECORD SHOWS THAT AFTER YOUR BID WAS RECEIVED AT THE ARSENAL IT WAS ACCORDED THE NORMAL HANDLING, SORTING AND DELIVERY PROCEDURES GIVEN TO ALL SPECIAL DELIVERY, AIR MAIL AND FIRST CLASS MAIL ARRIVING AT REDSTONE ARSENAL. IT SEEMS CLEAR, THEREFORE, THAT YOUR BID MAY NOT BE REGARDED AS HAVING BEEN MISHANDLED WITHIN THE MEANING OF SECTION (III), QUOTED ABOVE.

THE LANGUAGE OF THE CLAUSE "LATE BIDS AND MODIFICATIONS OR WITHDRAWALS" WHICH WAS INCLUDED IN THIS INVITATION IS PATTERNED AFTER AND INTENDED TO IMPLEMENT THE REQUIREMENTS OF PARAGRAPH 2-303.2 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) 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 NOT ONLY ASSUMES THE RISK OF ELECTS TO USE THE POSTAL SERVICE FOR DELIVERY OF HIS BID WITHOUT REGISTRATION OR CERTIFICATION NOT ONLY ASSUMES THE RISK OF LATE DELIVERY TO THE GOVERNMENT INSTALLATION SPECIFIED IN THE INVITATION, BUT 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 THE LIGHT OF THE FACTS AND THE REGULATIONS DISCUSSED ABOVE, IT APPEARS THAT THE ACTION OF THE AGENCY IN REJECTING YOUR BID IS NOT SUBJECT TO QUESTION BY THIS OFFICE. SEE 42 COMP. GEN. 255.