B-163081, MAR. 15, 1968

B-163081: Mar 15, 1968

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ALTHOUGH A PROPOSAL WHICH WAS SENT BY REGULAR MAIL AND DID NOT REACH THE PROCURING OFFICE TWO DAYS LATER AFTER THE CLOSING DATE FOR SUBMISSION OF PROPOSALS MAY HAVE BEEN TIMELY MAILED. SINCE THE PROPOSAL WAS NOT SENT BY REGISTERED OR CERTIFIED MAIL. CONTRACTING OFFICER'S FINDING THAT PROPOSAL WAS LATE MUST BE UPHELD. INCORPORATED: FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 7. THE SUBJECT RFP WAS ISSUED ON NOVEMBER 8. PROVIDED THAT THE CLOSING DATE FOR SUBMISSION OF PROPOSALS WAS 3:00 P.M. YOUR PROPOSAL WAS NOT DELIVERED TO THE CONTRACTING OFFICER UNTIL APPROXIMATELY 10:00 A.M. THE RECORD SHOWS THAT YOUR ENVELOPE WAS RECEIVED AT THE UNITED STATES POST OFFICE. THE ENVELOPE WAS NEITHER REGISTERED NOR CERTIFIED AS REQUIRED BY PARAGRAPH 3-506 (A) (II) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR).

B-163081, MAR. 15, 1968

BIDS - LATE - NEGOTIATION DECISION TO INTERAMERICAN CHEMICALS, INC. DENYING PROTEST AGAINST REJECTION OF PROPOSAL BY EDGEWOOD ARSENAL. ALTHOUGH A PROPOSAL WHICH WAS SENT BY REGULAR MAIL AND DID NOT REACH THE PROCURING OFFICE TWO DAYS LATER AFTER THE CLOSING DATE FOR SUBMISSION OF PROPOSALS MAY HAVE BEEN TIMELY MAILED, A STATEMENT BY THE POST OFFICE DOES NOT CONSTITUTE "RECEIPT" AS USED IN 3-506 (A) (II) OF ASPR. SINCE THE PROPOSAL WAS NOT SENT BY REGISTERED OR CERTIFIED MAIL, THE PROPOSAL DOES NOT QUALIFY FOR CONSIDERATION AS A LATE PROPOSAL TIMELY MAILED. THEREFORE, CONTRACTING OFFICER'S FINDING THAT PROPOSAL WAS LATE MUST BE UPHELD.

TO INTERAMERICAN CHEMICALS, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 7, 1967, AND YOUR LETTER OF MARCH 1, 1968, WITH ENCLOSURES, PROTESTING AGAINST THE REJECTION OF YOUR PROPOSAL SUBMITTED IN RESPONSE TO REQUEST FOR PROPOSALS (RFP) NO. DAAA15-68-R-0319, ISSUED BY THE EDGEWOOD ARSENAL, EDGEWOOD ARSENAL, MARYLAND, AS A LATE PROPOSAL.

THE SUBJECT RFP WAS ISSUED ON NOVEMBER 8, 1967, COVERING THE PROCUREMENT OF 447,040 POUNDS OF RIOT CONTROL AGENT, CS-1, AND PROVIDED THAT THE CLOSING DATE FOR SUBMISSION OF PROPOSALS WAS 3:00 P.M., E.S.T., NOVEMBER 27, 1967. AT THE TIME SET FOR RECEIPT OF THE PROPOSALS, FOUR PROPOSALS HAD BEEN RECEIVED. YOUR PROPOSAL WAS NOT DELIVERED TO THE CONTRACTING OFFICER UNTIL APPROXIMATELY 10:00 A.M. ON NOVEMBER 28, 1967. THE RECORD SHOWS THAT YOUR ENVELOPE WAS RECEIVED AT THE UNITED STATES POST OFFICE, EDGEWOOD ARSENAL, MARYLAND, IN A SHIPMENT OF MAIL DELIVERED AT 4:30 P.M. ON NOVEMBER 27, 1967. THE ENVELOPE WAS NEITHER REGISTERED NOR CERTIFIED AS REQUIRED BY PARAGRAPH 3-506 (A) (II) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), WHICH WAS MADE A PART OF THE RFP IN PARAGRAPH 8 OF STANDARD FORM 33A. THUS IT WAS DETERMINED THAT YOUR PROPOSAL SHOULD BE HANDLED AS A LATE PROPOSAL AND IN ACCORDANCE WITH ASPR 3-506 (C), YOUR PROPOSAL WAS OPENED TO DETERMINE WHETHER ITS CONSIDERATION WAS OF SUCH EXTREME IMPORTANCE TO THE GOVERNMENT THAT IT WARRANTED THE AUTHORIZATION OF AN EXCEPTION TO THE NORMAL LATE PROPOSAL REQUIREMENTS BY THE SECRETARY OF THE ARMY. AFTER EVALUATION SHOWED THAT YOUR PROPOSAL DID NOT WARRANT FURTHER CONSIDERATION UNDER THE ABOVE EXCEPTION, YOU WERE NOTIFIED BY LETTER DATED NOVEMBER 28, 1967, THAT YOUR PROPOSAL COULD NOT BE CONSIDERED FOR AWARD BECAUSE OF ITS LATE RECEIPT.

YOU STATE THAT YOUR PROPOSAL UNDER THE SOLICITATION WAS MAILED AT THE MAIN POST OFFICE IN BRISTOL, PENNSYLVANIA ON SATURDAY, NOVEMBER 25, 1967, AND THAT THE POST OFFICE DEPARTMENT INFORMED YOU THE ENVELOPE WAS DISPATCHED AT 5:30 P.M. ON THAT DATE WITH DELIVERY TO EDGEWOOD ARSENAL THE MORNING OF NOVEMBER 27, 1967. THE RECORD BEFORE THIS OFFICE STATES THAT YOUR ENVELOPE WAS MAILED FROM THE LEVITTOWN, PENNSYLVANIA POST OFFICE ON NOVEMBER 25, 1967, AND AS STATED ABOVE, WAS RECEIVED AT 4:30 P.M. ON NOVEMBER 27, 1967, AT THE EDGEWOOD ARSENAL POST OFFICE, THE NORMAL CLOSING TIME FOR BUSINESS AT THE EDGEWOOD ARSENAL.

IN THIS REGARD, THE LETTER DATED DECEMBER 28, 1967, FROM THE POSTMASTER AT BRISTOL, PENNSYLVANIA, DOES NOT CLARIFY THE MAILING TIME BUT RATHER STATES THAT SERVICE IS AVAILABLE FOR A FIRST-CLASS LETTEROR ARTICLE TO BE MAILED AT BRISTOL, PENNSYLVANIA, NOT LATER THAN 5:30 P.M. ON A SATURDAY AND ARRIVE IN BALTIMORE, MARYLAND, IN AMPLE TIME TO PERMIT SUBSEQUENT ARRIVAL AT EDGEWOOD ARSENAL, MARYLAND, BY 8:00 A.M. ON MONDAY. SUCH A STATEMENT, WHILE IT TENDS TO ESTABLISH TIMELY MAILING, DOES NOT CONSTITUTE THE "RECEIPT" CONTEMPLATED BY ASPR. ALTHOUGH IT IS UNFORTUNATE THAT THE ENVELOPE CONTAINING YOUR PROPOSAL WAS INADVERTENTLY DESTROYED, THERE IS NO CONTENTION THAT IT WAS SENT BY REGISTERED OR CERTIFIED MAIL.

THE CONDITIONS SET FORTH IN PARAGRAPH 8 OF THE INSTRUCTIONS AND CONDITIONS OF THE RFP AND ASPR 3-506 CONSTITUTE MANDATORY LANGUAGE CONCERNING LATE PROPOSALS AND THE FAILURE TO USE REGISTERED OR CERTIFIED MAIL IN THE CASE OF A PROPOSAL DELAYED IN THE MAIL AND RECEIVED AFTER THE TIME SET IN THE SOLICITATION, MAKES IT IMMATERIAL WHETHER A LATE PROPOSAL WAS TIMELY MAILED. THE INTENT OF ASPR 3-506 IS TO PROVIDE PROOF OF THE TIME OF MAILING, AND THE CERTIFIED OR REGISTERED MAIL REQUIREMENT IS REASONABLE AND NECESSARY BECAUSE IT CONSTITUTES A HIGHER DEGREE OF PROOF THAN A POSTMARK, WHICH HAS LIMITED EVIDENTIARY VALUE, PARTICULARLY IN THE CASE OF PRIVATELY METERED MAIL. THE RECEIPT SPECIFIED IN THE REGULATION IS THE RECEIPT FOR CERTIFIED MAIL ON WHICH THE DATE OR THE DATE AND TIME OF MAILING ARE STAMPED BY THE POST OFFICE EMPLOYEES AND WHICH IS RETAINED BY THE SENDER OF AN ARTICLE SENT BY CERTIFIED MAIL IN THE EVENT IT BECOMES NECESSARY TO ESTABLISH TIME OF MAILING. ACCORDINGLY, YOUR PROPOSAL DOES NOT QUALIFY FOR CONSIDERATION AS A LATE PROPOSAL THAT WAS TIMELY MAILED.

YOU CONTEND THAT THE INTEREST OF THE GOVERNMENT WOULD BE BEST SERVED IF EVERY BONA FIDE OFFER ON A NEGOTIATED SOLICITATION BE CONSIDERED, PROVIDED SUCH OFFER IS RECEIVED PRIOR TO THE CLOSE OF BUSINESS ON THE DATE SPECIFIED IN THE OFFER. IN THE INSTANT CASE, WHILE THIS MIGHT HAVE BEEN BOTH FEASIBLE AND APPROPRIATE, YOUR PROPOSAL DID NOT ARRIVE AT THE DESIGNATED PLACE FOR OPENING UNTIL THE FOLLOWING DAY. IT IS WITHIN THE DISCRETION OF THE PROCURING ACTIVITY TO FIX THE CLOSING DATE AND TIME, SEE ASPR 3-501 (B) (IV), AND ONCE SUCH DATE AND TIME IS ESTABLISHED, IT BECOMES THE RESPONSIBILITY OF ALL OFFERORS TO SEE THAT THEIR PROPOSALS ARE RECEIVED AT THE TIME AND PLACE DESIGNATED IN THE RFP.

ACCORDINGLY, SINCE IT WAS ADMINISTRATIVELY DETERMINED THAT CONSIDERATION OF YOUR PROPOSAL WAS NOT OF SUCH EXTREME IMPORTANCE TO THE GOVERNMENT THAT IT WARRANTED THE GRANTING OF AN EXCEPTION TO THE LATE PROPOSAL REQUIREMENTS IN ACCORDANCE WITH ASPR 3-506 (C) (II), WE MUST CONCUR WITH THE CONTRACTING OFFICER'S FINDING THAT IT WAS A LATE PROPOSAL. YOUR PROTEST THEREFORE MUST BE DENIED.