B-161639, AUG. 16, 1967

B-161639: Aug 16, 1967

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SINCE LATE RECEIPT WAS NOT FOR ANY EXCUSABLE CAUSE IT MAY NOT BE CONSIDERED AND PROTEST MUST BE DENIED. CLAUSE RELATIVE TO DELAY IN MAILS WHICH WAS OMITTED FROM PRESENT PROCUREMENT BE INCLUDED. WILLIAM MATERA: REFERENCE IS MADE TO YOUR LETTERS OF MAY 24 AND JUNE 23. MOST OF THE PROCEDURES USED IN ADVERTISED PROCUREMENTS WERE UTILIZED IN THIS RFP. WRITTEN FINDINGS IN ACCORD WITH FEDERAL PROCUREMENT REGULATION (FPR) SEC. 1.3.301 WERE MADE IN JUSTIFYING NEGOTIATION OF THE CONTRACT UNDER SECTION 302 (C) (15) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT. WAS STATED FOR SUBMISSION OF PROPOSALS. AFTER THE CLOSE OF BUSINESS OR THE DATE SET FOR RECEIPT WILL NOT BE CONSIDERED UNLESS * * *" THIS WAS FOLLOWED BY LANGUAGE WHICH IN SUBSTANCE PROVIDED THAT A LATE PROPOSAL WOULD BE CONSIDERED ONLY IF IT WAS RECEIVED BEFORE AWARD AND IT WAS DETERMINED THAT THE LATE RECEIPT WAS DUE SOLELY TO DELAY OR MISHANDLING FOR WHICH THE OFFEROR WAS NOT RESPONSIBLE.

B-161639, AUG. 16, 1967

BIDS - LATE - NEGOTIATION DECISION TO WILLIAM MATERA BIDDER WHO SUBMITTED LATE PROPOSAL FOR CONSTRUCTION OF "CONFLUENCE THEATRE" FOR HEMISFAIR PURSUANT TO NEGOTIATED PROCUREMENT BY DEPT. OF COMMERCE. OFFEROR WHO DID NOT MAIL OFFER IN TIME TO BE RECEIVED AT PROCURING AGENCY BY SUBMISSION DATE CONSIDERING EITHER DAYLIGHT OR STANDARD TIME MAY NOT BE REGARDED AS HAVING BEEN PREJUDICED BY FACT THAT INSTRUCTIONS INDICATED STANDARD RATHER THAN DAYLIGHT TIME. CONTENTION THAT WORD "SUBMITTED" IN INSTRUCTION SHOULD BE CONSTRUED TO PERMIT OFFERS MAILED RATHER THAN RECEIVED BY DATE SPECIFIED WOULD RENDER MEANINGLESS WARNING THAT LATE OFFERS WOULD NOT BE CONSIDERED UNLESS DELAY EXCUSABLE. SINCE LATE RECEIPT WAS NOT FOR ANY EXCUSABLE CAUSE IT MAY NOT BE CONSIDERED AND PROTEST MUST BE DENIED. LETTER TO SECY. OF COMMERCE SUGGESTING IN FUTURE, CLAUSE RELATIVE TO DELAY IN MAILS WHICH WAS OMITTED FROM PRESENT PROCUREMENT BE INCLUDED.

TO MR. WILLIAM MATERA:

REFERENCE IS MADE TO YOUR LETTERS OF MAY 24 AND JUNE 23, 1967, IN WHICH YOU PROTEST THE REJECTION OF YOUR OFFER UNDER REQUEST FOR PROPOSALS (RFP) NO. 7-35378 ISSUED ON APRIL 14, 1967, BY THE CONTRACTING BRANCH, UNITED STATES DEPARTMENT OF COMMERCE. THE RFP SOUGHT OFFERS FOR THE ERECTION OF A "CONFLUENCE THEATER," AS PART OF THE OVERALL CONSTRUCTION OF THE UNITED STATES PAVILION FOR THE HEMISFAIR INTERNATIONAL EXPOSITION TO BE HELD AT SAN ANTONIO, TEXAS, IN 1968. PUBLIC LAWS 89-284 AND 89-685 AUTHORIZE THE SECRETARY OF COMMERCE TO ENTER INTO SUCH CONTRACTS AS HE DEEMS NECESSARY TO PROVIDE FOR UNITED STATES PARTICIPATION IN THE EXPOSITION WITHOUT REGARD TO THE PROHIBITIONS AND LIMITATIONS IMPOSED BY THE FEDERAL PROCUREMENT STATUTES. NONETHELESS, MOST OF THE PROCEDURES USED IN ADVERTISED PROCUREMENTS WERE UTILIZED IN THIS RFP, WITH THE EXCEPTION OF PUBLIC OPENING AND DISCLOSURE OF THE COMPETING PRICES SUBMITTED. ADDITIONALLY, WRITTEN FINDINGS IN ACCORD WITH FEDERAL PROCUREMENT REGULATION (FPR) SEC. 1.3.301 WERE MADE IN JUSTIFYING NEGOTIATION OF THE CONTRACT UNDER SECTION 302 (C) (15) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT.

ON PAGE 3 OF THE GENERAL INSTRUCTIONS TO THE RFP, A DEADLINE OF 5:00 P.M. E.S.T., MAY 9, 1967, WAS STATED FOR SUBMISSION OF PROPOSALS. IMMEDIATELY FOLLOWING THIS CLAUSE THE INSTRUCTIONS TATED:

"PROPOSALS AND MODIFICATIONS THEREOF RECEIVED AT THE OFFICE DESIGNATED HEREIN, AFTER THE CLOSE OF BUSINESS OR THE DATE SET FOR RECEIPT WILL NOT BE CONSIDERED UNLESS * * *" THIS WAS FOLLOWED BY LANGUAGE WHICH IN SUBSTANCE PROVIDED THAT A LATE PROPOSAL WOULD BE CONSIDERED ONLY IF IT WAS RECEIVED BEFORE AWARD AND IT WAS DETERMINED THAT THE LATE RECEIPT WAS DUE SOLELY TO DELAY OR MISHANDLING FOR WHICH THE OFFEROR WAS NOT RESPONSIBLE. ON STANDARD FORM (SF) 20 THE DATE SET FOR RECEIPT WAS LISTED AS 5:00 P.M., E.D.S.T., MAY 9, 1967, AT THE U.S. DEPARTMENT OF COMMERCE, CONTRACTING BRANCH, WASHINGTON, D.C. WE HAVE BEEN ADVISED THAT THE PROJECTED TIME SCHEDULE FOR CONSTRUCTION OF THE THEATER REQUIRED A MANDATORY CUT-OFF DATE FOR THE RECEIPT OF OFFERS TO PERMIT PROMPT AWARD AND INITIATION OF CONSTRUCTION. YOU MAILED YOUR PROPOSAL ON MAY 9, 1967, FROM SAN ANTONIO, TEXAS, AND IT WAS NOT UNTIL MAY 11, 1967, THAT IT WAS RECEIVED IN WASHINGTON. THE CONTRACTING OFFICER DETERMINED THAT YOUR OFFER WAS NOT TIMELY MAILED AND RECEIVED IN ACCORD WITH THE TERMS OF THE RFP. YOU MAINTAIN THAT THE PROVISIONS OF THE RFP REGARDING THE DEADLINE ESTABLISHED FOR RECEIPT OF PROPOSALS WERE AMBIGUOUS. ADDITIONALLY, YOU CONTEND THAT THE CONTRACTING OFFICER ASSURED YOU THAT YOUR OFFER WOULD BE CONSIDERED PURSUANT TO A CONVERSATION HELD ON MAY 10, 1967.

THE MISTAKEN INCLUSION OF STANDARD TIME, RATHER THAN DAYLIGHT SAVING TIME, IN THE DATE STATED FOR SUBMISSION OF PROPOSALS ON PAGE 3 OF THE GENERAL INSTRUCTIONS TO THE RFP CLEARLY CREATED AMBIGUITY AS TO THE EXACT HOUR PROPOSALS WOULD BE CONSIDERED LATE. HOWEVER, IF SUCH A DISCREPANCY CONFUSED YOU IT WOULD SEEM THAT YOU COULD HAVE BROUGHT THE INCONSISTENCY TO THE ATTENTION OF THE CONTRACTING OFFICER PRIOR TO SUBMITTING YOUR OFFER. B-135933, JUNE 26, 1958. IN ANY EVENT, SINCE YOUR OFFER WAS NOT MAILED IN SAN ANTONIO UNTIL THE AFTERNOON OF MAY 9, IT IS APPARENT THAT IT COULD NOT HAVE BEEN RECEIVED IN WASHINGTON BY EITHER 5:00 P.M. STANDARD OR DAYLIGHT TIME, AND WE THEREFORE SEE NO BASIS ON WHICH YOU COULD HAVE BEEN PREJUDICED BY THE INCONSISTENCY IN THE BID OPENING TIMES.

YOU ALSO SUGGEST THAT USE OF THE WORD "SUBMITTED" IN CONNECTION WITH THE TIME SPECIFIED ON PAGE 3 OF THE GENERAL INSTRUCTIONS INDICATES YOU WOULD HAVE COMPLIED WITH THE REQUIREMENTS OF THE RFP IF YOU MAILED YOUR OFFER PRIOR TO THE TIME STATED. IF ACCEPTED, YOUR CONTENTION WOULD RENDER MEANINGLESS THE WARNING IMMEDIATELY FOLLOWING THE TIME STATED FOR SUBMISSION OF PROPOSALS ON PAGE 3 TO THE EFFECT THAT "OFFERS RECEIVED AT THE OFFICE DESIGNATED HEREIN" AFTER THE DATE SET FOR RECEIPT (INDICATED ON SF 20 AS 5:00 P.M., E.D.S.T., MAY 9, 1967) WOULD NOT BE CONSIDERED FOR EVALUATION UNLESS IT WAS DETERMINED THAT THE LATE RECEIPT WAS DUE SOLELY TO DELAY OR MISHANDLING FOR WHICH YOU WERE NOT RESPONSIBLE. ACCORDINGLY, TO GIVE MEANING TO THE REFERENCED WARNING WE MUST CONSTRUE THE TIME REQUIREMENT CONTAINING THE WORD "SUBMITTED" AS EMPHASIZING THE CUT-OFF PROVISION LISTED IN THE FOLLOWING SENTENCE ON PAGE 3, AND THAT OFFERS WOULD BE CONSIDERED TIMELY ONLY IF RECEIVED IN WASHINGTON PRIOR TO THE TIME INDICATED IN SF 20, RATHER THAN MERELY BEING MAILED BY THAT DATE. MOREOVER, AS ALL OTHER OFFERORS SENT PROPOSALS WHICH WERE RECEIVED PRIOR TO THE INDICATED TIME WE ARE UNABLE TO CONCLUDE THAT USE OF THE WORD "SUBMITTED" RENDERED THE LATE OFFER PROVISIONS AMBIGUOUS.

WITH RESPECT TO WHETHER YOUR FAILURE TO SUBMIT A PROPOSAL BY 5:00 P.M. ON MAY 9, 1967, MAY BE REGARDED AS A MINOR IRREGULARITY, IT HAS BEEN THE CONSISTENT POSITION OF THIS OFFICE THAT PROVISIONS RELATIVE TO THE CONSIDERATION OF LATE OFFERS ARE FOR THE PROTECTION OF OTHER OFFERORS; THAT FAILURE TO ENFORCE SUCH PROVISIONS STRICTLY IN ACCORDANCE WITH THEIR TERMS WOULD THEREFORE BE PREJUDICIAL TO SUCH OTHER OFFERORS; AND THAT FAILURE TO COMPLY WITH THE LATE OFFER PROVISIONS THEREFORE MAY NOT BE WAIVED AS A MINOR IRREGULARITY. SINCE YOU MAILED YOUR OFFER OF MAY 9, 1967, FROM SAN ANTONIO IT SEEMS CLEAR THAT THE REASON FOR ITS LATE RECEIPT IN WASHINGTON WAS NOT DUE TO ANY CAUSE WHICH WOULD PERMIT ITS CONSIDERATION UNDER THE TERMS OF THE RFP.

WHILE YOU CONTEND THE CONTRACTING OFFICER TOLD YOU ON MAY 10, 1967, THAT YOUR BID WOULD BE CONSIDERED DESPITE ITS LATE RECEIPT, A MEMO DATED MAY 12, 1967, AND SIGNED BY THE CONTRACTING OFFICER INDICATES HE TOLD YOU YOUR BID WOULD BE CONSIDERED IF IT WAS RECEIVED BEFORE AWARD AND WAS OTHERWISE TIMELY MAILED. IN DISPUTES OF THIS NATURE, IT IS THE LONG-ESTABLISHED RULE OF OUR OFFICE TO ACCEPT THE FACTS AS ESTABLISHED BY THE ADMINISTRATIVE RECORDS, UNLESS THERE IS SUFFICIENT EVIDENCE TO REFUTE THE PRESUMPTION OF CORRECTNESS OF SUCH RECORDS. 37 COMP. GEN. 568. WE DO NOT FIND SUCH EVIDENCE IN THE PRESENT RECORD.

FOR THE REASONS SET OUT ABOVE, YOUR PROTEST MUST THEREFORE BE DENIED.