B-160570, FEB. 6, 1967

B-160570, FEB. 6, 1967

TO WHITEHOUSE PRODUCTS, INC.:

YOUR TELEGRAM OF DECEMBER 16, 1966, AS SUPPLEMENTED BY YOUR LETTER OF DECEMBER 19, 1966, PROTESTS REJECTION OF A LATE BID SUBMITTED BY YOU ON A SMALL BUSINESS RESTRICTED PROCUREMENT ADVERTISED UNDER INVITATION FOR BIDS (IFB) NO. N00600-67-B-0334, ISSUED NOVEMBER 7, 1966, BY THE UNITED STATES NAVY PURCHASING OFFICE (NPO), WASHINGTON NAVY YARD, WASHINGTON, D.C.

UNDER THE TERMS OF THE IFB, BIDS WERE TO BE RECEIVED IN THE ISSUING OFFICE UNTIL 10:30 A.M., EASTERN STANDARD TIME, DECEMBER 7, 1966, AT WHICH TIME THERE WOULD BE A PUBLIC BID OPENING. PARAGRAPH 4 OF THE INSTRUCTIONS AND CONDITIONS--- SOLICITATION AND OFFER, AS MODIFIED BY SECTION 8.0, SUPPLEMENTAL PROVISIONS, ON PAGE 17 OF THE BID SCHEDULE, CONTAINS THE FOLLOWING PROVISIONS, WHICH EMBODY THE SUBSTANCE OF PARAGRAPH 2-303 OF THE ARMED SERVICES PROCUREMENT REGULATION:

"4. LATER OFFERS AND MODIFICATIONS OR WITHDRAWALS.

"/A) OFFERS AND MODIFICATIONS (OR WITHDRAWALS THEREOF, IF THIS SOLICITATION IS ADVERTISED) RECEIVED AT THE OFFICE DESIGNATED IN THE SOLICITATION AFTER THE EXACT HOUR (OR CLOSE OF BUSINESS IF THIS SOLICITATION IS NEGOTIATED AND NO HOUR IS SPECIFIED) AND DATE SPECIFIED FOR RECEIPT 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 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 OFFEROR 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 OF AN OFFER WHICH MAKES THE TERMS OF THE OTHERWISE SUCCESSFUL OFFER MORE FAVORABLE TO THE GOVERNMENT WILL BE CONSIDERED AT ANY TIME IT IS RECEIVED AND MAY THEREAFTER BE ACCEPTED.

"/B) OFFERORS USING CERTIFIED MAIL ARE CAUTIONED TO OBTAIN A RECEIPT FOR CERTIFIED MAIL SHOWING A LEGIBLE, DATED POSTMARK AND TO RETAIN SUCH RECEIPT AGAINST THE CHANCE THAT IT WILL BE REQUIRED AS EVIDENCE THAT A LATE OFFER WAS TIMELY MAILED.

"/C) THE TIME OF MAILING OF LATE BIDS SUBMITTED BY REGISTERED OR CERTIFIED MAIL SHALL BE DEEMED TO BE THE LAST MINUTE OF THE DATE SHOWN IN THE POSTMARK ON THE REGISTERED MAIL RECEIPT OR REGISTERED MAIL WRAPPER OR ON THE RECEIPT FOR CERTIFIED MAIL UNLESS THE BIDDER FURNISHES EVIDENCE FROM THE POST OFFICE STATION OF MAILING WHICH ESTABLISHES AN EARLIER TIME. IN THE CASE OF CERTIFIED MAIL, THE ONLY ACCEPTABLE EVIDENCE IS AS FOLLOWS: (I) WHERE THE RECEIPT FOR CERTIFIED MAIL IDENTIFIES THE POST OFFICE STATION OF MAILING; EVIDENCE FURNISHED BY THE BIDDER WHICH ESTABLISHES THAT THE BUSINESS DAY OF THAT STATION ENDED AT AN EARLIER TIME, IN WHICH CASE THE TIME OF MAILING SHALL BE DEEMED TO BE THE LAST MINUTE OF THE BUSINESS DAY OF THAT STATION; OR (II) AN ENTRY IN INK ON THE RECEIPT FOR CERTIFIED MAIL SHOWING THE TIME OF MAILING AND THE INITIALS OF THE POSTAL EMPLOYEE RECEIVING THE ITEM AND MAKING THE ENTRY, WITH APPROPRIATE WRITTEN VERIFICATION OF SUCH ENTRY FROM THE POST OFFICE STATION OF MAILING. IN WHICH CASE THE TIME OF MAILING SHALL BE THE TIME SHOWN IN THE ENTRY. IF THE POSTMARK ON THE ORIGINAL RECEIPT FOR CERTIFIED MAIL DOES NOT SHOW A DATE, THE BID SHALL NOT BE CONSIDERED.'

AT 2:11 P.M., DECEMBER 7, MORE THAN THREE HOURS AFTER THE SCHEDULED TIME OF BID OPENING, THE NPO RECEIVED FROM YOU A BID ENVELOPE WHICH HAD BEEN MAILED BY CERTIFIED MAIL AND TRANSMITTED VIA AIR MAIL, SPECIAL DELIVERY, AND WHICH BORE A POSTMARK EVIDENCING RECEIPT IN THE SPECIAL DELIVERY SECTION OF THE WASHINGTON, D.C., POST OFFICE AT 11:00 A.M., DECEMBER 7. ACCORDINGLY, ON DECEMBER 8, THE NPO ADDRESSED A LETTER TO YOU IN ACCORDANCE WITH ASPR 2-303.6, ADVISING YOU THAT YOUR BID HAD BEEN RECEIVED AFTER THE TIME FOR OPENING AND WOULD NOT BE CONSIDERED UNLESS PROOF OF DELAY IN THE MAIL, IN ACCORDANCE WITH SUBPARAGRAPH (C) QUOTED ABOVE, WAS FURNISHED.

IN RESPONSE TO THE NPO LETTER OF DECEMBER 8, YOU FORWARDED TO NPO A RECEIPT FOR CERTIFIED MAIL POSTMARKED AT THE BROOKLYN, NEW YORK, POST OFFICE ON DECEMBER 6, 1966, TOGETHER WITH A STATEMENT FROM THE BROOKLYN POSTMASTER TO THE EFFECT THAT A CLERK AT THE BROOKLYN POST OFFICE RECALLED ACCEPTING THE ITEM BEFORE 3:00 P.M., ON DECEMBER 6, 1966. IN ADDITION, AT THE REQUEST OF YOUR WASHINGTON, D.C., REPRESENTATIVE, THE POSTMASTER, WASHINGTON, D.C., ADDRESSED A LETTER DATED DECEMBER 19 TO THE NPO READING AS FOLLOWS:

"IT HAS BEEN BROUGHT TO THE ATTENTION OF THIS OFFICE THAT CERTIFIED LETTER NUMBER 018499 MAILED FROM BROOKLYN, NEW YORK, ON DECEMBER 6TH PRIOR TO 3:00 P.M. DID NOT REACH YOUR INSTALLATION IN TIME TO BE CONSIDERED FOR THE BID OPENINGS AT 10:30 A.M. ON DECEMBER 7, 1966.

"IN THE NORMAL COURSE OF DELIVERY, THIS LETTER SHOULD HAVE ARRIVED AT YOUR INSTALLATION AT 7:40 A.M. ON THE MORNING OF THE 7TH OF DECEMBER.

"OUR RECORDS SHOW THAT IT WAS NOT RECEIVED BY YOU UNTIL 10:30 A.M., DECEMBER 7, 1966.

"WE ARE UNABLE TO OFFER AN EXPLANATION FOR THE THREE-HOUR DELAY.'

YOU STATE THAT YOUR BID WAS HAND DELIVERED TO THE BROOKLYN POST OFFICE AT 2:30 P.M., DECEMBER 6, AND WAS CERTIFIED, BUT THE POSTAL CLERK DID NOT INSERT THE TIME ON THE CERTIFICATE. IT IS YOUR POSITION, HOWEVER, THAT THE STATEMENT WHICH YOU HAVE SUBMITTED FROM THE BROOKLYN POST OFFICE INDICATING THAT THE BID WAS MAILED PRIOR TO 3:00 P.M., DECEMBER 6, IS SUFFICIENT EVIDENCE OF TIMELY MAILING AND THAT THE STATEMENTS CONTAINED IN THE LETTER OF DECEMBER 19 FROM THE POSTMASTER, WASHINGTON, D.C., CONCERNING DELIVERY OF AN ITEM SO MAILED ARE EVIDENCE THAT THE BID SHOULD HAVE BEEN DELIVERED TO THE NPO IN AMPLE TIME FOR THE 10:30 A.M. BID OPENING ON DECEMBER 7. ACCORDINGLY, YOU STATE YOUR BELIEF THAT IT IS TO THE BEST INTEREST OF THE GOVERNMENT TO ACCEPT YOUR BID, WHICH, YOU ALLEGE, WOULD RESULT IN A SAVING OF APPROXIMATELY $6,000.

THE PROVISIONS OF ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2 303.2 PERTINENT TO THE FACTS HERE PRESENTED, PERMIT CONSIDERATION OF YOUR BID ONLY IF "IT WAS SENT * * * BY CERTIFIED MAIL FOR WHICH AN OFFICIAL DATED 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) * * *.'

ASPR 2-303.3 READS, IN PERTINENT PART, AS FOLLOWS:

"/B) CERTIFIED MAIL. THE TIME OF MAILING OF A LATE BID MAILED BY CERTIFIED MAIL FOR WHICH A POSTMARKED RECEIPT FOR CERTIFIED MAIL WAS OBTAINED SHALL BE DEEMED TO BE THE LAST MINUTE OF THE DATE SHOWN IN THE POSTMARK ON SUCH RECEIPT, EXCEPT WHERE (I) THE RECEIPT FOR CERTIFIED MAIL IDENTIFIES THE POST OFFICE STATION OF MAILING AND THE BIDDER FURNISHES EVIDENCE FROM SUCH STATION THAT THE BUSINESS DAY OF THAT STATION ENDED AT AN EARLIER TIME, IN WHICH CASE THE TIME OF MAILING SHALL BE DEEMED TO BE THE LAST MINUTE OF THE BUSINESS DAY OF THAT STATION; OR (II) AN ENTRY IN INK ON THE RECEIPT FOR CERTIFIED MAIL, SHOWING THE TIME OF MAILING AND THE INITIALS OF THE POSTAL EMPLOYEE RECEIVING THE ITEM AND MAKING THE ENTRY, IS APPROPRIATELY VERIFIED IN WRITING BY THE POST OFFICE STATION OF MAILING, IN WHICH CASE THE TIME OF MAILING SHALL BE THE TIME SHOWN IN THE ENTRY. IF THE POSTMARK DOES NOT SHOW A DATE, THE BID SHALL BE DEEMED TO HAVE BEEN MAILED TOO LATE.'

SINCE IT IS REPORTED THAT THE BROOKLYN POST OFFICE, WHERE YOUR BID WAS MAILED, DOES NOT CLOSE BEFORE MIDNIGHT, THE QUOTED REGULATIONS CLEARLY REQUIRE THAT YOU BID MUST BE DEEMED TO HAVE BEEN MAILED AT THE LAST MINUTE OF THE BUSINESS DAY OF THE MAILING POST OFFICE ON THE DATE SHOWN IN THE POSTMARK--- THAT IS, 11:59 P.M., DECEMBER 6, 1966. ONLY WHEN THE RECEIPT ITSELF CARRIES AN ENTRY IN INK AS TO THE TIME OF MAILING AND THE INITIALS OF THE POSTAL CLERK RECEIVING THE ITEM AND MAKING THE ENTRY, AS VERIFIED IN WRITING BY THE MAILING POST OFFICE, CAN ANY OTHER TIME BE ACCEPTED. THE NORMAL TIME OF DELIVERY OF THE ITEM WHICH THE PROCURING AGENCY IS PERMITTED TO ASCERTAIN FROM THE DELIVERING POST OFFICE MUST OF COURSE HAVE REFERENCE TO THE TIME OF MAILING WHICH THE AGENCY MUST ACCEPT UNDER THE REGULATION. THE REGULATION HAS THE FORCE AND EFFECT OF STATUTE AND ITS PROVISIONS MAY NOT BE WAIVED NOTWITHSTANDING ANY PECUNIARY ADVANTAGE TO BE GAINED THEREBY. ACCORDINGLY, A BIDDER WHO FAILS TO TAKE THE PRECAUTION OF HAVING THE TIME OF MAILING PROPERLY NOTED ON THE POSTMARKED CERTIFIED MAIL RECEIPT ASSUMES THE RISK THAT HIS BID MAY BE REJECTED AS LATE SOLELY BECAUSE HE IS PRECLUDED FROM USING ANY OTHER EVIDENCE TO ESTABLISH THE ACTUAL TIME OF MAILING.

WHILE THE STATEMENT WHICH YOU HAVE OBTAINED FROM THE BROOKLYN POSTMASTER TENDS TO SUPPORT YOUR CONTENTION THAT YOUR BID WAS TIMELY MAILED, NEVERTHELESS IT DOES NOT CONSTITUTE ACCEPTABLE EVIDENCE UNDER ASPR 2-303.2 (B) OF THE TIME OF THE MAILING OF THE BID. ACCORDINGLY, ABSENT THE REQUIRED WRITTEN NOTATION ON THE CERTIFIED MAIL RECEIPT, THE BID MUST BE DEEMED TO HAVE BEEN MAILED AT 11:59 P.M., DECEMBER 6, FROM BROOKLYN, AND SUCH TIME MUST BE USED IN ESTABLISHING WHETHER UNDER NORMAL CONDITIONS YOUR BID SENT BY AIR MAIL, SPECIAL DELIVERY COULD HAVE BEEN TIMELY DELIVERED TO THE NPO FOR THE 10:30 A.M. BID OPENING ON DECEMBER 7, THEREBY PRECLUDING CONSIDERATION OF THE INFORMATION QUOTED ABOVE FROM THE LETTER OF DECEMBER 19 FROM THE WASHINGTON, D.C., POSTMASTER TO THE NPO. SINCE THE INFORMATION RECEIVED FROM THE WASHINGTON, D.C., POST OFFICE, DOES NOT SHOW THAT A BID MAILED VIA AIR MAIL, SPECIAL DELIVERY AND CERTIFIED MAIL, FROM BROOKLYN AT 11:59 P.M., DECEMBER 6, UNDER NORMAL DELIVERY CONDITIONS WOULD HAVE BEEN DELIVERED TO THE NPO BEFORE THE SCHEDULE 10:30 BID OPENING, IT IS APPARENT THAT THE BID MAY NOT BE REGARDED AS HAVING BEEN TIMELY MAILED. WE ARE THEREFORE ADVISING THE NPO THAT YOUR BID MAY NOT BE CONSIDERED FOR AWARD, AND YOUR PROTEST IS DENIED. B-159192, JULY 25, 1966, 46 COMP. GEN. ----; B-156101, MARCH 25, 1965.