B-162035, AUG. 25, 1967

B-162035, AUG. 25, 1967

BIDS - LATE - MAIL DELAY EVIDENCE DECISION TO L.J. VAN SICKLE CO., LATE BIDDER, PROTESTING AWARD BY NAVAL AIR ENGINEERING CENTER FOR ANCHOR CABLE SUPPORT ASSEMBLIES. BIDDER WHO WAS NOTIFIED THAT BID SENT VIA CERTIFIED MAIL ARRIVED DAY AFTER BID OPENING (JUNE 22) AND REQUESTED TO SUBMIT MAIL DELAY EVIDENCE BY JUNE 29 SO THAT AWARD COULD BE MADE BY END OF FISCAL YEAR MAY NOT HAVE EVIDENCE SUBMITTED ON JULY 5, 1967, CONSIDERED. ASPR 2-303.6 PERMITS CONTRACTING OFFICERS TO SET TIME LIMITS FOR SUBMISSION OF EVIDENCE BY LATE BIDDERS. ALSO ABSENCE OF NEED FOR PROMPT AWARD IN INVITATION DOES NOT PERMIT BIDDER TO DISREGARD WARNING IN LETTER. HENCE THERE IS NO BASIS TO CONSIDERING AWARD INVALID.

TO L.J. VAN SICKLE COMPANY:

REFERENCE IS MADE TO YOUR LETTERS OF JULY 11, JULY 20 AND JULY 31, 1967, IN WHICH YOU PROTEST AN AWARD OF A CONTRACT MADE UNDER INVITATION FOR BIDS (IFB) NO. N00156-67-B-0698, ISSUED ON MAY 22, 1967, BY THE SUPPLY DEPARTMENT, NAVAL AIR ENGINEERING CENTER, PHILADELPHIA, PENNSYLVANIA. THE IFB SOLICITED PROPOSALS FROM 20 SOURCES FOR THE PROCUREMENT OF 100 EACH ANCHOR CABLE SUPPORT ASSEMBLIES. BID OPENING DATE WAS LISTED AS 1:00 P.M., EDT., JUNE 21, 1967, AT THE SUPPLY DEPARTMENT OF THE CENTER IN PHILADELPHIA. SIX BIDS RANGING FROM A UNIT PRICE OF $55.84 TO $166.37 WERE RECEIVED AT THE OPENING. ON JUNE 22, 1967, AT 9:06 A.M., YOUR LATE BID, SENT VIA CERTIFIED MAIL, WAS DELIVERED TO THE CENTER. BY LETTER OF THE SAME DATE, THE CONTRACTING OFFICER NOTIFIED YOU OF THE LATE RECEIPT OF YOUR BID, IN ACCORDANCE WITH ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-303.6- NOTIFICATION TO LATE BIDDERS, WHICH STATES AS FOLLOWS:

"2-303.6 NOTIFICATION TO LATE BIDDERS. WHERE A LATE BID IS RECEIVED AND IT IS CLEAR FROM AVAILABLE INFORMATION THAT UNDER 2-303.2 SUCH LATE BID CANNOT BE CONSIDERED, THE CONTRACTING OFFICER OR HIS AUTHORIZED REPRESENTATIVE SHALL PROMPTLY NOTIFY THE BIDDER THAT HIS BID WAS RECEIVED LATE AND WILL NOT BE CONSIDERED (SEE ALSO 2-303.7). HOWEVER, WHERE A LATE BID IS TRANSMITTED BY REGISTERED MAIL AND RECEIVED BEFORE AWARD BUT IT IS NOT CLEAR FROM AVAILABLE INFORMATION WHETHER THE BID CAN BE CONSIDERED, OR IN ANY CASE OF A LATE BID TRANSMITTED BY CERTIFIED MAIL RECEIVED BEFORE AWARD, THE BIDDER SHALL BE PROMPTLY NOTIFIED SUBSTANTIALLY AS FOLLOWS:

"SOLICITATION OF BIDS

"YOUR BID IN RESPONSE TO INVITATION FOR BIDS NO.--------, DATED---- ---, WAS RECEIVED AFTER THE TIME FOR OPENING SPECIFIED IN THE INVITATION. ACCORDINGLY, YOUR BID WILL NOT BE CONSIDERED FOR AWARD UNLESS (1) THERE IS RECEIVED FROM YOU BY--------/DATE/--------CLEAR AND CONVINCING EVIDENCE FROM THE POST OFFICE STATION OF MAILING WHICH ESTABLISHES THE DATE (AND TIME, IF POSSIBLE) THAT THE BID WAS DEPOSITED WITH THAT STATION, AND (2) IT IS DETERMINED BY THE GOVERNMENT THAT LATE RECEIPT WAS DUE SOLELY TO A DELAY IN THE MAIL FOR WHICH YOU ARE NOT RESPONSIBLE. IN THE CASE OF CERTIFIED MAIL, THE ORIGINAL POSTMARKED RECEIPT FOR CERTIFIED MAIL MUST BE FURNISHED AND IS THE ONLY EVIDENCE ACCEPTABLE UNDER (1) ABOVE, EXCEPT THAT, WHERE THE RECEIPT FOR CERTIFIED MAIL IDENTIFIES THE POST OFFICE STATION OF MAILING, EVIDENCE FROM SUCH STATION OF ITS CLOSING TIME OR WRITTEN VERIFICATION BY SUCH STATION OF AN APPROVED TIME ENTRY ON THE RECEIPT ARE ALSO CEPTABLE.' YOU WERE REQUESTED TO FURNISH EVIDENCE OF TIMELY MAILING BY JUNE 29, 1967, THIS DATE HAVING BEEN FIXED IN ORDER TO PERMIT AWARD OF A CONTRACT BY THE END OF THE FISCAL YEAR, JUNE 30, 1967. YOU MAINTAIN THE REQUEST WAS NOT RECEIVED BY YOUR COMPANY UNTIL JUNE 28, 1967, AND CONSEQUENTLY, YOUR REPLY WAS DELAYED UNTIL JULY 5, 1967. SINCE THE CONTRACTING OFFICER DID NOT RECEIVE A REPLY FROM YOU BY THE STATED DEADLINE, CONTRACT N00156-67-C-2557 WAS AWARDED ON JUNE 29, 1967, TO THE BIDDER WHO HAD SUBMITTED THE LOWEST, TIMELY OFFER. BY LETTER DATED JULY 5, 1967, YOU FORWARDED YOUR CERTIFIED MAIL RECEIPT, WHICH THE CONTRACTING OFFICER HAD REQUESTED. SINCE AWARD HAD ALREADY BEEN MADE BEFORE RECEIPT THEREOF, YOUR UNOPENED BID WAS RETURNED ON JULY 20, 1967. YOU RETURNED IT TO THE CENTER ON JULY 24, 1967, IN CONNECTION WITH THE PROCESSING OF YOUR PROTEST.

YOU CONTEND THAT THE CONTRACTING OFFICER ACTED IN VIOLATION OF PARAGRAPH 6 OF STANDARD FORM (SF) 33-A, BIDDING INSTRUCTIONS, BY NOT CONSIDERING YOUR CERTIFIED MAIL RECEIPT AS EVIDENCING YOUR TIMELY BID. YOU ALSO MAINTAIN THAT YOUR SUBMISSION OF PROOF OF TIMELY MAILING BY JULY 5, 1967, SHOULD BE CONSIDERED SUFFICIENT SINCE YOU DID NOT RECEIVE THE CONTRACTING OFFICER'S REQUEST UNTIL JUNE 28; MOREOVER, YOU ASSERT THAT THE IFB MADE NO MENTION OF THE NEED FOR PROMPT AWARD.

PARAGRAPH 6, LATE BIDS AND MODIFICATION OR WITHDRAWAL, SF 33-A, MUST BE READ IN CONJUNCTION WITH ASPR 2-303.6, NOTIFICATION TO LATE BIDDERS, PREVIOUSLY QUOTED. THIS LATTER SECTION ENABLES CONTRACTING OFFICERS TO SET TIME LIMITS WITHIN WHICH LATE BIDDERS MUST SUBMIT EVIDENCE OF TIMELY MAILING PURSUANT TO THE REQUIREMENTS SET FORTH IN PARAGRAPH 6. FURTHERMORE, THE LANGUAGE UTILIZED IN REQUESTS FOR EVIDENCE OF TIMELY MAILING SEEMS TO CONTAIN A CLEAR WARNING TO LATE BIDDERS THAT THEIR BIDS MAY NOT BE CONSIDERED IF THEY FAIL TO OBSERVE THE INDICATED DEADLINE FOR SUBMISSION. ACCORDINGLY, WE ARE UNABLE TO HOLD THAT THE CONTRACTING OFFICER ACTED IN VIOLATION OF THE TERMS OF PARAGRAPH 6, BIDDING INSTRUCTIONS, BY PROCEEDING WITH AWARD OF A CONTRACT AFTER EXPIRATION OF THE TIME FIXED, OR BY REFUSING THEREAFTER TO CONSIDER YOUR CERTIFIED MAIL RECEIPT; NOR CAN WE UPHOLD YOUR CONTENTION THAT THE ABSENCE OF ANY INDICATION IN THE IFB OF THE NEED FOR A PROMPT AWARD WOULD ENABLE YOU TO DISREGARD THE CLEAR WARNING CONTAINED IN THE JUNE 22 LETTER OF THE CONTRACTING OFFICER.

WITH REGARD TO YOUR SECOND CONTENTION WE AGREE THAT ANY DEADLINE INSERTED IN A REQUEST ADDRESSED TO A LATE BIDDER MUST ALLOW HIM A REASONABLE TIME TO RESPOND. WE ARE ADVISED THAT THE PHILADELPHIA POST OFFICE HAS STATED THAT YOU SHOULD HAVE RECEIVED THE REQUEST FOR EVIDENCE OF TIMELY MAILING BY JUNE 24. WHILE IT IS UNFORTUNATE THAT YOU DID NOT RECEIVE THE REQUEST UNTIL JUNE 28, WE THINK THE CONTRACTING OFFICER REASONABLY RELIED ON THE POST OFFICE'S NORMAL MAILING SCHEDULE BETWEEN PHILADELPHIA AND DALLAS, AND SINCE ALL THAT WAS REQUESTED OF YOU WAS TO FORWARD THE CERTIFIED MAIL RECEIPT, WE DO NOT THINK THE TIME FIXED WAS UNREASONABLY SHORT.

BY YOUR OWN ADMISSION YOU RECEIVED THE CONTRACTING OFFICER'S LETTER ON JUNE 28, AND IN VIEW OF THE JUNE 29 LIMIT WE THINK IT WOULD HAVE BEEN PRUDENT FOR YOU TO HAVE NOTIFIED THE CONTRACTING OFFICER PROMPTLY OF YOUR DELAYED RECEIPT OF HIS WARNING INSTEAD OF WAITING A FULL WEEK TO SEND THE RECEIPT.

EVEN IF WE REGARDED YOUR RESPONSE IN THIS REGARD AS FREE FROM CRITICISM WE COULD NOT ALLOW THE PROCURING ACTIVITY TO CONSIDER YOUR BID NOW, BECAUSE YOU HAD COMPLETE CONTROL OF IT FOR A PERIOD OF TIME AFTER ITS INITIAL RETURN TO YOU. EVEN WHEN THE RETURN OF A LATE BID WAS UNJUSTIFIED, OUR OFFICE HAS CONSISTENTLY REFUSED TO ALLOW CONSIDERATION OF A BID IN SUCH CIRCUMSTANCES. 41 COMP. GEN. 404; B 158257, FEBRUARY 10, 1966.

IN THE CIRCUMSTANCES, WE COULD FIND NO LEGAL JUSTIFICATION FOR CONSIDERING THE AWARD MADE TO BE INVALID, AND YOUR PROTEST MUST BE DENIED.