B-158791, MAY 17, 1966

B-158791: May 17, 1966

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BIDS WERE SCHEDULED TO BE OPENED AT 10 A.M. IT IS CLEARLY MARKED "SPECIAL DELIVERY. - (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. IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO DELAY IN THE MAILS. FOR WHICH THE BIDDER WAS NOT RESPONSIBLE. 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 AN EXAMINATION OF AN APPROPRIATE DATE OR TIME STAMP (IF ANY) OF SUCH INSTALLATION.

B-158791, MAY 17, 1966

TO ABC MANUFACTURING COMPANY:

WE REFER AGAIN TO YOUR LETTER DATED MARCH 16, 1966, WITH ENCLOSURES, MAKING PROTEST AGAINST THE REFUSAL BY THE FEDERAL SUPPLY SERVICE OF THE GENERAL SERVICES ADMINISTRATION TO CONSIDER YOUR BID OFFERING TO SELLSHEET METAL WORKING TOOLS SUBMITTED IN RESPONSE TO INVITATION FPNTT E3-55755-A-2 -24-66. THE PROCURING INSTALLATION PROPOSES TO RETURN THE BID TO YOU UNOPENED AS A LATE BID.

BIDS WERE SCHEDULED TO BE OPENED AT 10 A.M., E.S.T., ON FEBRUARY 24, 1966, IN BID ROOM NO. 7122 OF THE GENERAL SERVICES ADMINISTRATION, 7TH AND D STREETS, S.W., WASHINGTON, D.C. THE ENVELOPE CONTAINING YOUR BID BEARS THE POSTMARK "PHILADELPHIA, PA., FEB 23, 1966, P.M.' IT IS CLEARLY MARKED "SPECIAL DELIVERY," AND THE STAMP OF THE GENERAL SERVICES ADMINISTRATION REGION 3 MAIL OPERATIONS SECTION READS,"RECEIVED FEB 24 1966" AT 10:30 A.M. THE STAMP OF THE BID OPENING ROOM MARKED YOUR BID AS,"RECEIVED 1966 FEB AM 10 59.'

THE INSTRUCTIONS TO BIDDERS CONTAINED ON STANDARD FORM 33-A READ, IN PERTINENT PART, AS OLLOWS:

"6. LATE BIDS AND MODIFICATIONS OR WITHDRAWALS.---

(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 AN 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. 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.'

YOU ARGUE FIRST, THAT SF 33-A PARAGRAPH 6 (A) (1) SIMPLY PROVIDES FOR CONSIDERATION OF LATE BIDS WHEN RECEIVED PRIOR TO AWARD. HOWEVER, PARAGRAPH 6 (A) MUST BE READ IN ITS ENTIRETY. IN ADDITION TO ARRIVAL BEFORE AWARD THE CONDITIONS DESCRIBED IN 6 (A) (2) OR 6 (A) (3) MUST EXIST. 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 A LATE RECEIPT. CF. 42 COMP. GEN. 255. MOREOVER, PARAGRAPH 6 (C) OF THE PROVISIONS CONTAINED IN THE INVITATION PROVIDES THAT THE LAST MINUTE OF THE DATE SHOWN IN THE POSTMARK SHALL BE THE TIME WHICH A LATE BID WILL BE CONSIDERED TO HAVE BEEN MAILED EVEN WHEN SENT BY REGISTERED OR CERTIFIED MAIL, UNLESS THE BIDDER CAN FURNISH CERTAIN PRESCRIBED EVIDENCE FROM THE POST OFFICE STATION WHICH ESTABLISHES THE EXACT TIME OF MAILING. A BID ARRIVING LATE ON THE MORNING OF BID OPENING, WHICH WAS MAILED THE DAY BEFORE WOULD THUS BE CONSIDERED MAILED AT MIDNIGHT OF THE MAILING DATE, AND COULD NOT BE CONSIDERED FOR AWARD SINCE IT WOULD NOT HAVE BEEN MAILED IN SUFFICIENT TIME TO ARRIVE BEFORE THE EXACT TIME SET FOR OPENING.

SECONDLY, YOU URGE THAT ALTHOUGH THE GENERAL SERVICES ADMINISTRATION INDICATES THE TIME OF RECEIPT AS 10:30 A.M. ON THE BID ENVELOPE THE BID MUST HAVE ARRIVED PRIOR TO THIS TIME, PRESUMABLY BEFORE 10 A.M., AND WAS SIMPLY NOT STAMPED IN IMMEDIATELY BECAUSE IT TAKES CONSIDERABLE TIME TO STAMP EVERY PIECE OF MAIL THEY RECEIVE. THE INVITATION'S PROVISION 6 (A) (3) COVERS BIDS WHICH ARE MISHANDLED BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION. HOWEVER, AS PROVIDED BY SECTION 1-2.303.2 OF THE FEDERAL PROCUREMENT REGULATIONS, THE ONLY AVAILABLE EVIDENCE WHICH MAY BE CONSIDERED ARE THE TIME STAMPS INDICATING RECEIPT IN THE MAIL ROOM AT 10:30 A.M., AND RECEIPT AT THE BID ROOM AT 10:59 A.M. THE RECORD, THEREFORE, CLEARLY SHOWS THAT YOUR BID WAS PROCESSED AS PROMPTLY AS POSSIBLE.

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 PROVISION MAY SOMETIMES 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 APPLICATION IS NECESSARY TO PROVIDE FOR THE ORDERLY AND TIMELY PROCUREMENT OF SUPPLIES AND SERVICES BY THE GOVERNMENT.

IN VIEW OF THE FACTS, CIRCUMSTANCES, AND PROVISIONS DISCUSSED ABOVE, IT APPEARS THAT THE ACTION OF THE AGENCY IN REFUSING TO OPEN AND CONSIDER YOUR BID IS NOT SUBJECT TO QUESTION BY THIS OFFICE.