B-166853, JUN. 24, 1969

B-166853: Jun 24, 1969

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INCORPORATED: FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 30. THE INVITATION WAS ISSUED ON MARCH 27. TWO BIDS HAD BEEN RECEIVED WHEN THE BID OPENING WAS HELD AT THAT TIME AND PLACE. YOUR BID WAS RECEIVED IN AN ENVELOPE BEARING AIR MAIL AND SPECIAL DELIVERY STAMPINGS. YOU TELEPHONICALLY REQUESTED A TABULATION OF BIDS AND YOU WERE INFORMED THAT YOUR BID HAD BEEN RECEIVED BUT THAT IT COULD NOT BE CONSIDERED AS AN ACCEPTABLE LATE BID BECAUSE IT HAD NOT BEEN MAILED BY REGISTERED OR CERTIFIED MAIL AS REQUIRED BY PARAGRAPH 8 OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS. YOU ADVISED THAT THE REJECTION OF YOUR BID WAS NOT IN THE BEST INTERESTS OF THE GOVERNMENT AND THAT THE LATE RECEIPT OF YOUR BID WAS NOT DUE TO ANY NEGLIGENCE ON YOUR PART.

B-166853, JUN. 24, 1969

TO SPACELABS, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 30, 1969, PROTESTING THE REJECTION OF YOUR BID SUBMITTED UNDER INVITATION FOR BIDS NO. 344-4-11 -69, ISSUED BY THE NATIONAL INSTITUTES OF HEALTH (NIH), DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE.

THE INVITATION WAS ISSUED ON MARCH 27, 1969. IT REQUESTED BIDS ON TWO PHYSIOLOGICAL PATIENT MONITORS AND ADVISED THAT BIDS WOULD BE PUBLICLY OPENED AT THE OFFICES OF THE PROCUREMENT SECTION, SMB, BUILDING 13, ROOM 2733, BETHESDA, MARYLAND, 20014, AT 3 P.M., E.S.T., ON APRIL 11, 1969. TWO BIDS HAD BEEN RECEIVED WHEN THE BID OPENING WAS HELD AT THAT TIME AND PLACE. ON APRIL 14, 1969, AT 10:40 A.M., YOUR BID WAS RECEIVED IN AN ENVELOPE BEARING AIR MAIL AND SPECIAL DELIVERY STAMPINGS. ON THAT DATE, YOU TELEPHONICALLY REQUESTED A TABULATION OF BIDS AND YOU WERE INFORMED THAT YOUR BID HAD BEEN RECEIVED BUT THAT IT COULD NOT BE CONSIDERED AS AN ACCEPTABLE LATE BID BECAUSE IT HAD NOT BEEN MAILED BY REGISTERED OR CERTIFIED MAIL AS REQUIRED BY PARAGRAPH 8 OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS.

ON APRIL 17, 1969, YOU ADVISED THAT THE REJECTION OF YOUR BID WAS NOT IN THE BEST INTERESTS OF THE GOVERNMENT AND THAT THE LATE RECEIPT OF YOUR BID WAS NOT DUE TO ANY NEGLIGENCE ON YOUR PART. YOU FURNISHED A CHRONOLOGICAL SEQUENCE OF THE MAILING OF YOUR BID AND ENCLOSED A COPY OF A LETTER FROM THE POSTMASTER OF THE PANORAMA CITY, CALIFORNIA, POST OFFICE IN WHICH IT WAS STATED THAT YOUR LETTER TO NIH, BETHESDA, MARYLAND, WAS MAILED AT THE PANORAMA CITY STATION ON APRIL 9 AND RECEIVED A P.M. CANCELLATION ON THAT DATE AND WAS DISPATCHED---

"* * * IN TIME TO NORMALLY PERMIT POSSIBLE DELIVERY LATE EVENING OF THE FOLLOWING DAY, THE 10TH, BUT IN ANY CASE, IT COULD DEFINITELY HAVE BEEN DELIVERED EARLY ON THE MORNING OF THE 11TH. * * *"

YOU MAINTAIN THAT THE DELAY IN RECEIPT OF YOUR BID WAS DIRECTLY ATTRIBUTABLE TO IMPROPER HANDLING BY THE POST OFFICE AND THAT THE BASIS FOR ITS REJECTION BY THE CONTRACTING OFFICER IS NOT WITHIN THE INTENT OR SCOPE OF THE LATE BID REGULATIONS.

PARAGRAPH 8 OF THE INVITATION IS AN IMPLEMENTATION OF SECTION 1 2.303-3 (A) OF THE FEDERAL PROCUREMENT REGULATIONS (FPR) WHICH PROVIDES AS FOLLOWS:

"SEC. 1-2.303-3 MAILED BIDS.

"/A) CIRCUMSTANCES PERMITTING CONSIDERATION FOR AWARD OF A LATE MAILED BID. A LATE MAILED BID RECEIVED BEFORE AWARD MAY BE CONSIDERED FOR AWARD ONLY IF:

"/1) IT WAS 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, AND IT IS DETERMINED THAT THE LATENESS WAS DUE SOLELY TO A DELAY IN THE MAILS (BASED ON EVIDENCE OBTAINED PURSUANT TO SEC. 1-2.303-3 (B), (C), AND (D) ( FOR WHICH THE BIDDER WAS NOT RESPONSIBLE; OR

"/2) IT WAS RECEIVED AT THE GOVERNMENT INSTALLATION IN SUFFICIENT TIME TO BE RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION BY THE TIME SET FOR OPENING AND, EXCEPT FOR DELAY DUE TO MISHANDLING ON THE PART OF THE GOVERNMENT AT THE INSTALLATION WOULD HAVE BEEN RECEIVED ON TIME AT THE OFFICE DESIGNATED. THE ONLY EVIDENCE ACCEPTABLE TO ESTABLISH TIMELY RECEIPT AT THE GOVERNMENT INSTALLATION IS THAT WHICH CAN BE 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.'

YOUR BID WAS NOT SENT BY REGISTERED OR CERTIFIED MAIL AS REQUIRED BY THE ABOVE PROVISIONS OF THE FPR AS A PREREQUISITE TO ITS CONSIDERATION IN THE EVENT OF LATE RECEIPT; NEITHER WAS IT MISHANDLED BY THE GOVERNMENT AFTER ITS RECEIPT. UNDER THE TERMS OF THE INVITATION AND THE APPLICABLE PROVISIONS OF THE FPR, THE FACT THAT THE BID MAY HAVE BEEN DELAYED IN THE MAILS NOTWITHSTANDING THAT IT MAY HAVE BEEN POSTED IN SUFFICIENT TIME TO REACH THE PROCUREMENT OFFICE BEFORE BID OPENING DOES NOT EXCUSE ITS LATE RECEIPT AND ITS INABILITY TO BE CONSIDERED FOR AWARD. SEE 42 COMP. GEN. 255.

WHILE APPLICATION OF THESE PROVISIONS RELATING TO THE HANDLING OF"LATE" BIDS MAY RESULT IN THE FAILURE OF THE GOVERNMENT TO RECEIVE THE BENEFIT OF LOWER PRICES, SUCH PROVISIONS PRESERVE AND MAINTAIN THE INTEGRITY OF THE FORMAL COMPETITIVE BIDDING PROCEDURES. SINCE YOU FAILED TO UTILIZE ONE OF THE MAILING SERVICES LISTED IN FPR SECTION 1 2.303-3 (A) (1) AND SINCE THERE IS NO AUTHORITY TO WAIVE THESE REQUIREMENTS, WE MUST CONCLUDE THAT THE REJECTION OF YOUR LATE BID WAS PROPER. SEE B-160894, APRIL 6, 1967, AND APRIL 28, 1967.

YOUR PROTEST AGAINST SUCH REJECTION MUST THEREFORE BE DENIED.

WE HAVE BEEN ADVISED BY THE INVOLVED ADMINISTRATIVE OFFICE THAT SINCE BOTH BIDS RECEIVED AND EVALUATED UNDER THE INVITATION WERE FOUND TO BE NONRESPONSIVE, THE PROCUREMENT WILL BE READVERTISED.