B-166573, JUN. 16, 1969

B-166573: Jun 16, 1969

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LIMITED: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 25. N61339-69-B-0080 WAS ISSUED FEBRUARY 20. ONLY TWO BIDS WERE RECEIVED. THE BIDS OF THE WARD AIR CONDITIONING COMPANY AND THE STAPLES AND STEVENS COMPANY WERE OPENED AND RECORDED ON THE ABSTRACT OF BIDS. IT WAS CONTEMPLATED THAT A PROMPT AWARD WOULD BE MADE TO THE WARD COMPANY AS THE LOWEST BIDDER. A BID WAS RECEIVED FROM YOUR COMPANY IN AN ENVELOPE BEARING A CERTIFIED MAIL LABEL. THE ORLANDOPOST OFFICE WAS CONTACTED AND INFORMATION WAS RELAYED REGARDING MAILING DATE AND RECEIPT DATE AND TIME. THE BID OPENING OFFICER WAS INFORMED THAT YOUR BID SHOULD HAVE ARRIVED IN TIME FOR THE BID OPENING. IT WAS DETERMINED THAT YOUR BID WOULD BE CONSIDERED AS A LATE ACCEPTABLE BID.

B-166573, JUN. 16, 1969

TO TRADERS DISTRIBUTING CO., LIMITED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 25, 1969, PROTESTING THE REJECTION OF YOUR BID UNDER DEPARTMENT OF THE NAVY SOLICITATION NO. N61339-69-B-0080, ISSUED BY THE NAVAL TRAINING DEVICE CENTER, ORLANDO, FLORIDA.

SOLICITATION NO. N61339-69-B-0080 WAS ISSUED FEBRUARY 20, 1969, FOR THE PROCUREMENT OF A 40-TON AIR-COOLED WATER CHILLER UNIT WITH CHILLED WATER COILS, CIRCULATING CHILLED WATER PUMP, AND FAN MOTORS. IT CALLED FOR BIDS TO BE RECEIVED UNTIL 2 P.M., E.S.T., ON MARCH 13, 1969. OF THE 10 FIRMS SOLICITED, ONLY TWO BIDS WERE RECEIVED. AT EXACTLY 2 P.M., E.S.T., ON MARCH 13, 1969, THE BIDS OF THE WARD AIR CONDITIONING COMPANY AND THE STAPLES AND STEVENS COMPANY WERE OPENED AND RECORDED ON THE ABSTRACT OF BIDS. THE WARD COMPANY SUBMITTED A BID IN THE AMOUNT OF $10,442 AND THE STAPLES AND STEVENS COMPANY SUBMITTED A BID IN THE AMOUNT OF $12,250. CONSIDERING THE URGENCY OF THE REQUIREMENT AND BASED ON TECHNICAL EVALUATION, IT WAS CONTEMPLATED THAT A PROMPT AWARD WOULD BE MADE TO THE WARD COMPANY AS THE LOWEST BIDDER.

AT 9:03 A.M., ON MARCH 14, 1969, A BID WAS RECEIVED FROM YOUR COMPANY IN AN ENVELOPE BEARING A CERTIFIED MAIL LABEL, NO. 478582. THE ORLANDOPOST OFFICE WAS CONTACTED AND INFORMATION WAS RELAYED REGARDING MAILING DATE AND RECEIPT DATE AND TIME. THE BID OPENING OFFICER WAS INFORMED THAT YOUR BID SHOULD HAVE ARRIVED IN TIME FOR THE BID OPENING. THEREFORE, IT WAS DETERMINED THAT YOUR BID WOULD BE CONSIDERED AS A LATE ACCEPTABLE BID. YOUR BID ENVELOPE WAS OPENED AND DISCLOSED BID PRICE IN THE AMOUNT OF $9,800 WHICH WAS RECORDED ON THE ABSTRACT OF BIDS WITH A NOTATION THAT ALL THE REQUIRED DESCRIPTIVE LITERATURE WAS NOT FURNISHED. A COVER LETTER WITH YOUR BID STATED THAT "THE LITERATURE ON THE CHILLED WATER COILS IS BEING MAILED UNDER SEPARATE COVER BY OUR SUPPLIER, AIRFAN ENGINEERING CO. OF LOS ANGELES, CALIFORNIA.'

HOWEVER, YOU WERE ADVISED BY LETTER RECEIVED ON MARCH 20, 1969, FROM THE CONTRACTING OFFICER, THAT AWARD WAS MADE TO THE WARD AIR CONDITIONING COMPANY. THE LETTER ADVISED AS FOLLOWS: "IN ACCORDANCE WITH SECTION H OF THE INVITATION FOR BID SCHEDULE ALL NECESSARY DESCRIPTIVE LITERATURE WAS NOT AVAILABLE AT TIME OF BID OPENING. THEREFORE, IN ACCORDANCE WITH ARMED SERVICES PROCUREMENT REGULATION 2 404.2 YOUR BID WAS CONSIDERED AS NON- RESPONSIVE.'

ALTHOUGH THE REJECTION OF YOUR BID INITIALLY WAS BASED UPON THE TECHNICAL DEVIATIONS CONTAINED IN YOUR DESCRIPTIVE LITERATURE, IT APPEARS THAT YOUR BID WAS AN UNACCEPTABLE LATE BID WHICH SHOULD HAVE BEEN RETURNED TO YOU UNOPENED PURSUANT TO PARAGRAPH 2-303.7 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR).

CLAUSE 8 OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"/A) OFFERS AND MODIFICATIONS OF OFFERS * * * RECEIVED AT THE OFFICE DESIGNATED IN THE SOLICITATION AFTER THE EXACT HOUR AND DATE SPECIFIED FOR RECEIPT 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 * * *" ASPR 2-303.3 (B) PROVIDES, 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, * * *. IF THE POSTMARK DOES NOT SHOW A DATE, THE BID SHALL BE DEEMED TO HAVE BEEN MAILED TOO LATE.'

WHILE YOU STATE THAT YOUR BID WAS MILED IN AMPLE TIME TO BE RECEIVED BY THE PROCUREMENT AGENCY BEFORE BID OPENING, YOU DID NOT ESTABLISH THAT YOUR BID WAS TRANSMITTED BY ONE OF THE MODES OF MAILING PROVIDED IN ASPR 2- 303.3 AND CLAUSE 8 OF THE SOLICITATION INSTRUCTIONS. IN ORDER TO SUPPORT THE TIMELY MAILING OF YOUR BID BY CERTIFIED MAIL, IT WAS NECESSARY TO FURNISH THE ORIGINAL RECEIPT FOR CERTIFIED MAIL BEARING AN OFFICIAL DATED POST OFFICE STAMP. YOU FAILED TO SUBMIT SUCH A RECEIPT TO SUPPORT TIMELY MAILING. IN THIS CONNECTION, WE HELD IN B 154875, AUGUST 10, 1964, THAT A BID MAILED BY CERTIFIED MAIL BUT WHICH WAS NOT SUPPORTED BY A RECEIPT FOR CERTIFIED MAIL PROPERLY STAMPED COULD NOT BE CONSIDERED AS AN ACCEPTABLE LATE BID EVEN THOUGH IT BORE A POSTMARK EVIDENCING THAT IT WAS MAILED IN SUFFICIENT TIME TO HAVE BEEN RECEIVED BEFORE BID OPENING. SEE 42 COMP. GEN. 255; 46 ID. 85.

WE HAVE TAKEN THE POSITION IN THE CASE OF LATE METERED MAIL BIDS THAT THE TIME OF ACTUAL MAILING MUST BE ESTABLISHED BY SOURCES OTHER THAN THE BIDDER HIMSELF AND THAT SELF-SERVING STATEMENTS BY EMPLOYEES OF THE BIDDER THAT THE BID ENVELOPE WAS MAILED AT A CERTAIN TIME ARE NOT SUFFICIENT TO SHOW THAT A BID SHOULD HAVE ARRIVED ON TIME IN THE NORMAL COURSE OF THE MAILS. B-135672, MAY 29, 1958; B-136670, 38 COMP. GEN. 21. WHILE AN "APPLICATION FOR REGISTRATION OR CERTIFICATION" WAS SUBMITTED TO PROVE TIMELY MAILING, SUCH APPLICATION IS CLEARLY NOT A "RECEIPT" FOR CERTIFIED MAIL PROPERLY POSTMARKED.

THE TIME FOR OPENING OF BIDS WAS UNEQUIVOCALLY SET FORTH ON THE FIRST PAGE OF THE INVITATION FOR BIDS. EACH BIDDER IS RESPONSIBLE FOR THE SEASONABLE ARRIVAL OF HIS OWN BID AT THE DESIGNATED OFFICE BEFORE THE SCHEDULED OPENING TIME. YOUR BID SHOULD NOT HAVE BEEN OPENED BUT SHOULD HAVE BEEN DISREGARDED AS A LATE BID. THE INADVERTENT OPENING OF A LATE BID WILL NOT ALONE JUSTIFY DISREGARD FOR THE INJUNCTION OF ASPR 2-404.1 AGAINST WITHHOLDING AWARD FROM THE LOWEST RESPONSIBLE AND RESPONSIVE BIDDER WITHOUT COMPELLING REASON TO REJECT ALL BIDS AND CANCEL THE INVITATION. B-155568 DATED JANUARY 4, 1965.

IT IS UNFORTUNATE THAT YOUR BID WAS OPENED WITH THE RESULT THAT YOU WERE MISLED AS TO THE ACCEPTABILITY OF YOUR BID, BUT FOR THE REASONS STATED WE HAVE NO ALTERNATIVE OTHER THAN TO CONCLUDE THAT YOUR BID COULD NOT BE CONSIDERED FOR AWARD.