B-169263, JUN. 1, 1970

B-169263: Jun 1, 1970

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IT IS RESPONSIBILITY OF BIDDER TO SEE THAT BIDS REACH DESIGNATED OFFICE BEFORE TIME SPECIFIED. BIDS NOT RECEIVED BY SUCH TIME GENERALLY ARE NOT CONSIDERED UNLESS LATENESS IS DUE SOLELY TO DELAY IN MAILS FOR WHICH BIDDER IS NOT RESPONSIBLE. CASE IS NOW COMPLICATED BECAUSE BID HAS BEEN RETURNED TO BIDDER AND HAS BEEN OUT OF GOVERNMENT'S CONTROL FOR OVER 3 MONTHS. EVEN IF BIDDER COULD PROVE THAT LATE RECEIPT WAS DUE SOLELY TO DELAY IN MAIL FOR WHICH BIDDER WAS NOT RESPONSIBLE. INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 3. THE SUBJECT INVITATION WAS ISSUED ON JANUARY 9. THE INVITATION WAS MAILED TO EIGHT FIRMS AND WE ARE ADVISED THAT THREE TIMELY BIDS WERE RECEIVED. WE ARE FURTHER ADVISED THAT NO AWARD HAS BEEN MADE UNDER THE SUBJECT INVITATION.

B-169263, JUN. 1, 1970

BIDS--LATE--BIDDER'S RESPONSIBILITY FOR DELIVERY BID RECEIVED AFTER TIME FOR BID OPENING SPECIFIED IN INVITATION FOR BIDS MAY NOT BE CONSIDERED FOR AWARD UNDER SUBJECT INVITATION, BECAUSE WHILE CONTRACTING OFFICE FAILED TO STRICTLY COMPLY WITH ARMED SERVICES PROCUREMENT REGULATION LATE BID PROVISIONS, COMPTROLLER GENERAL HAS SERIOUS RESERVATIONS ABOUT CONSIDERING LATE BID WHERE, AS HERE, IT HAS BEEN RETURNED TO BIDDER. IT IS RESPONSIBILITY OF BIDDER TO SEE THAT BIDS REACH DESIGNATED OFFICE BEFORE TIME SPECIFIED, AND BIDS NOT RECEIVED BY SUCH TIME GENERALLY ARE NOT CONSIDERED UNLESS LATENESS IS DUE SOLELY TO DELAY IN MAILS FOR WHICH BIDDER IS NOT RESPONSIBLE. SEE COMP. GEN. DECS. CITED. BIDS--LATE--DISPOSITION BID POSTED BY CERTIFIED MAIL AND RECEIVED AFTER TIME FOR BID OPENING SPECIFIED IN INVITATION FOR BID MAY NOT BE CONSIDERED FOR AWARD UNDER SUBJECT INVITATION. WHILE CONTRACTING OFFICE FAILED TO COMPLY WITH LATE BID REGULATIONS PROMULGATED BY ARMED SERVICES PROCUREMENT REGULATION, CASE IS NOW COMPLICATED BECAUSE BID HAS BEEN RETURNED TO BIDDER AND HAS BEEN OUT OF GOVERNMENT'S CONTROL FOR OVER 3 MONTHS, AND EVEN IF BIDDER COULD PROVE THAT LATE RECEIPT WAS DUE SOLELY TO DELAY IN MAIL FOR WHICH BIDDER WAS NOT RESPONSIBLE, COMPTROLLER GENERAL HAS SERIOUS RESERVATIONS ABOUT CONSIDERING LATE BID AFTER ITS RETURN TO BIDDER. SEE COMP. GEN. DECS. CITED.

TO PORTER BOILER SERVICE, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 3, 1970, PROTESTING THE HANDLING OF YOUR BID SUBMITTED UNDER INVITATION FOR BIDS (IFB) NO. M67400- 70-B-0015, ISSUED BY THE PURCHASING AND CONTRACTING OFFICE, MARINE CORPS BASE, CAMP SMEDLEY D. BUTLER, USMC, FLEET POST OFFICE, SEATTLE, WASHINGTON.

THE SUBJECT INVITATION WAS ISSUED ON JANUARY 9, 1970, AND CALLED FOR TWO STEAM BOILERS FOR USE BY THE MARINE CORPS BASE, CAMP SMEDLEY D. BUTLER, OKINAWA. THE INVITATION PROVIDES THAT BIDS WOULD BE RECEIVED AT THE PURCHASING AND CONTRACTING OFFICE, CAMP SMEDLEY D. BUTLER, USMC, C/O FPO SEATTLE, WASHINGTON 98773 UNTIL 1 P.M; JAPAN STANDARD TIME, FEBRUARY 6, 1970. THE INVITATION WAS MAILED TO EIGHT FIRMS AND WE ARE ADVISED THAT THREE TIMELY BIDS WERE RECEIVED. WE ARE FURTHER ADVISED THAT NO AWARD HAS BEEN MADE UNDER THE SUBJECT INVITATION.

YOU STATE THAT ALTHOUGH YOUR BID WAS POSTED "CERTIFIED AIR MAIL" ON FEBRUARY 4, 1970, IN AMPLE TIME TO ARRIVE AT THE ONLY ADDRESS MENTIONED ON THE GOVERNMENT BID FORM, THE ENTIRE BID WAS RETURNED TO YOU UNOPENED WITH A TYPEWRITTEN SLIP OF PAPER STATING THAT YOUR BID WAS TOO LATE FOR AN OVERSEAS OPENING TIME. YOU STATE THAT THIS IS CONFUSING TO YOU BECAUSE YOU ONLY HAD ONE ADDRESS FOR BID MAILING AND THEN RECEIVED YOUR "CERTIFIED MAIL RECEIPT" SIGNED BY A NEW YORK OFFICE.

THE MAILING ADDRESS FOR RECEIPT OF BIDS AS SPECIFIED IN THE IFB IS CLEARLY AN OVERSEAS ADDRESS. WE ARE ADVISED THAT BECAUSE OF THE TIME DIFFERENTIAL, FEBRUARY 4, 1970, IN CALIFORNIA IS FEBRUARY 5, 1970, IN OKINAWA. WE ARE FURTHER ADVISED THAT THE MAILING OF YOUR BID ON FEBRUARY 4, 1970, FOR A BID OPENING OF FEBRUARY 6, 1970, IN OKINAWA DID NOT ALLOW SUFFICIENT TIME FOR YOUR BID TO REACH THE ADDRESS SPECIFIED IN THE INVITATION AND THAT YOUR BID WAS NOT RECEIVED BY THE PROCUREMENT ACTIVITY IN OKINAWA UNTIL FEBRUARY 9, 1970. WE ARE ADVISED THAT THE REASON THE "CERTIFIED MAIL RECEIPT" APPEARS TO HAVE BEEN SIGNED BY A NEW YORK OFFICE IS THAT UNDER THE MARINE CORPS POSTAL SYSTEM, U. S. MARINE POST OFFICES ON OKINAWA ARE DESIGNATED AS BRANCHES OF THE UNITED STATES POST OFFICE, NEW YORK, NEW YORK. CONSEQUENTLY, ALTHOUGH RECEIPTED AS COMING FROM A NEW YORK OFFICE, THE RECEIPT ORIGINATED AT CAMP SMEDLEY D. BUTLER IN OKINAWA.

PARAGRAPH 8 OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS, STANDARD FORM 33A, PROVIDES IN PERTINENT PART AS FOLLOWS:

"(A) OFFERS AND MODIFICATIONS OF OFFERS (OR WITHDRAWALS THEREOF, IF THIS SOLICITATION IS ADVERTISED) 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, OR BY TELEGRAPH IF AUTHORIZED, AND IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO DELAY IN THE MAILS, OR DELAY BY THE TELEGRAPH COMPANY, FOR WHICH THE OFFEROR WAS NOT RESPONSIBLE; OR (3) IF SUBMITTED BY MAIL (OR BY TELEGRAM IF AUTHORIZED) IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION; PROVIDED, THAT TIMELY RECEIPT AT SUCH INSTALLATION IS ESTABLISHED UPON EXAMINATION OF AN APPROPRIATE DATE OR TIME STAMP (IF ANY) OF SUCH INSTALLATION, OR OF OTHER DOCUMENTARY EVIDENCE OF RECEIPT (IF READILY AVAILABLE) WITHIN THE CONTROL OF SUCH INSTALLATION OR OF THE POST OFFICE SERVING IT. * * *"

SINCE YOUR BID WAS NOT DELIVERED TO THE PLACE DESIGNATED IN THE INVITATION PRIOR TO THE DEADLINE FOR THE SUBMISSION OF BIDS, IT SHOULD HAVE BEEN REGARDED AS A LATE BID SUBJECT TO THE RULES IN PARAGRAPH 2 303 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), CONTROLLING THE DISPOSITION OF SUCH BIDS. IT IS THE RESPONSIBILITY OF THE BIDDERS TO SEE THAT THEIR BIDS REACH THE DESIGNATED OFFICE BEFORE THE TIME FIXED FOR THE OPENING OF THE BIDS. 34 COMP. GEN. 150, 151 (1954).

THE GENERAL RULE IS THAT EXCEPT WHERE DUE SOLELY TO DELAY IN THE MAILS FOR WHICH THE BIDDER IS NOT RESPONSIBLE, BIDS NOT RECEIVED BY THE TIME SET FOR OPENING SHALL NOT BE CONSIDERED FOR AWARD. SEE ASPR 2 303.1 AND 40 COMP. GEN. 709, 710 (1961). THE BASIC PURPOSE OF THAT RULE IS TO PREVENT ANY UNDUE ADVANTAGE WHICH MIGHT RESULT IF BIDDERS WERE PERMITTED TO SUBMIT THEIR BIDS AFTER THE TIME SET FOR BID OPENING.

OUR OFFICE HAS BEEN ADVISED BY A REPRESENTATIVE OF THE POSTAL AFFAIRS BRANCH, HEADQUARTERS, U.S. MARINE CORPS, THAT IF AN AIRMAIL LETTER WAS POSTMARKED AT HOLLYWOOD, CALIFORNIA, ON THE MORNING OF FEBRUARY 4, 1970, IT SHOULD HAVE BEEN DELIVERED TO OKINAWA ON FEBRUARY 9, 1970, BARRING ADVERSE WEATHER CONDITIONS. FEBRUARY 9, 1970, WAS ON A MONDAY AND WE ARE ADVISED THAT THERE ARE NO MAIL DELIVERIES IN OKINAWA ON SUNDAYS. UNDER THESE CIRCUMSTANCES, YOUR BID COULD NOT BE CONSIDERED FOR AWARD. HOWEVER, THE RECORD BEFORE US INDICATES THAT THE CONTRACTING OFFICER FAILED TO COMPLY WITH ASPR 2-303.6 WHICH PROVIDES THAT IN THE CASE OF A LATE BID TRANSMITTED BY CERTIFIED MAIL AND RECEIVED BEFORE AWARD, THE BIDDER SHALL BE PROMPTLY NOTIFIED SUBSTANTIALLY AS FOLLOWS:

"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 THE 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 ACCEPTABLE."

THE PURPOSE OF THE ABOVE-CITED REGULATION IS TO PERMIT A LATE BIDDER BEFORE ANY AWARD IS MADE TO SUBMIT INFORMATION AND EVIDENCE THAT HIS BID MAILED BY CERTIFIED MAIL IS FOR CONSIDERATION AS AN ACCEPTABLE LATE BID UNDER THE CRITERIA SET OUT IN ASPR 2-303.3(A) AND (C).

IN RETURNING YOUR UNOPENED BID PRIOR TO AWARD, THE CONTRACTING OFFICE ALSO FAILED TO COMPLY WITH ASPR 2-303.7 WHICH PROVIDES THAT LATE BIDS WHICH ARE NOT CONSIDERED FOR AWARD SHALL BE HELD UNOPENED UNTIL AFTER AWARD AND THEN RETURNED TO THE BIDDER.

HOWEVER, WHILE THE CONTRACTING OFFICE MAY HAVE ACTED IMPROPERLY IN THE CIRCUMSTANCES, THIS CASE IS NOW COMPLICATED BY THE FACT THAT YOUR BID HAS BEEN RETURNED TO YOU AND THE HANDLING OF IT HAS BEEN OUT OF THE CONTROL OF THE GOVERNMENT FOR MORE THAN 3 MONTHS. EVEN IF YOU COULD NOW PROVE THAT THE LATE RECEIPT WAS DUE SOLELY TO A DELAY IN THE MAIL FOR WHICH YOU WERE NOT RESPONSIBLE, OUR OFFICE HAS EXPRESSED SERIOUS RESERVATIONS ABOUT CONSIDERING A LATE BID AFTER IT HAS ONCE BEEN RETURNED TO THE BIDDER. SEE 41 COMP. GEN. 404 (1961); B-122060, DECEMBER 21, 1954.

OUR OFFICE HAS NO ALTERNATIVE, THEREFORE, BUT TO ADVISE THE MARINE CORPS THAT YOUR LATE BID MAY NOT BE CONSIDERED IN MAKING AN AWARD UNDER THE INVITATION. HOWEVER, WE ARE ADVISING THE MARINE CORPS THAT APPROPRIATE MEASURES SHOULD BE TAKEN TO INSURE THAT THE LATE BID REGULATIONS PROMULGATED BY ASPR WILL BE STRICTLY OBSERVED IN FUTURE PROCUREMENTS.