B-169473, APRIL 24, 1970, 49 COMP. GEN. 733

B-169473: Apr 24, 1970

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FORWARDED BY REGULAR MAIL IN SUFFICIENT TIME TO HAVE BEEN DELIVERED PRIOR TO THE TIME SET FOR THE OPENING OF BIDS BUT FOR THE UNPRECEDENTED POSTAL STRIKE THAT COMMENCED IN NEW YORK CITY ON BID OPENING DAY. MAY NOT BE CONSIDERED FOR AWARD BY WAIVING THE LATE BID REGULATIONS ON THE THEORY THE STRIKE WAS IN THE SAME REALM AS AN ACT OF GOD. EVEN ASSUMING THE STRIKE WAS AN ACT OF GOD. A RISK WHICH WAS NOT OVERCOME BY BID HANDLING INSTRUCTIONS TO PROCURING AGENCIES NECESSITATED BY THE STRIKE. 1970: REFERENCE IS MADE TO YOUR TELEGRAM OF APRIL 2. THE SUBJECT IFB WAS ISSUED FEBRUARY 17. BIDS WERE SCHEDULED FOR OPENING AT 2:00 P.M. IT IS ADMINISTRATIVELY REPORTED THAT YOUR BID WAS MAILED ON MARCH 17 VIA SPECIAL DELIVERY.

B-169473, APRIL 24, 1970, 49 COMP. GEN. 733

BIDS -- LATE -- POSTAL STRIKE EFFECT A BID, FORWARDED BY REGULAR MAIL IN SUFFICIENT TIME TO HAVE BEEN DELIVERED PRIOR TO THE TIME SET FOR THE OPENING OF BIDS BUT FOR THE UNPRECEDENTED POSTAL STRIKE THAT COMMENCED IN NEW YORK CITY ON BID OPENING DAY, MAY NOT BE CONSIDERED FOR AWARD BY WAIVING THE LATE BID REGULATIONS ON THE THEORY THE STRIKE WAS IN THE SAME REALM AS AN ACT OF GOD, DEFINED AS "SOME INEVITABLE ACCIDENT WHICH CANNOT BE PREVENTED BY HUMAN CARE, SKILL, OR FORESIGHT, BUT RESULTS FROM NATURAL CAUSES *** ." BUT EVEN ASSUMING THE STRIKE WAS AN ACT OF GOD, THE BIDDER IN NOT FORWARDING ITS BID BY REGISTERED OR CERTIFIED MAIL, ASSUMED THE RISK OF DELIVERY, A RISK WHICH WAS NOT OVERCOME BY BID HANDLING INSTRUCTIONS TO PROCURING AGENCIES NECESSITATED BY THE STRIKE, AS THE INSTRUCTIONS DID NOT SUSPEND THE LATE BID RULES CONTAINED IN ARMED SERVICES PROCUREMENT REGULATION 2-303 AND THE INVITATION.

TO GUIMOND FARMS, APRIL 24, 1970:

REFERENCE IS MADE TO YOUR TELEGRAM OF APRIL 2, 1970, AND SUBSEQUENT LETTERS DATED APRIL 7, APRIL 9, AND APRIL 18, 1970, PROTESTING THE DECISION OF THE SUBSISTENCE REGIONAL HEADQUARTERS, DEFENSE PERSONNEL SUPPORT CENTER, NEW YORK CITY, NOT TO CONSIDER YOUR LATE BID ON INVITATION FOR BIDS (IFB) NO. DSA 136-70-B-0181.

THE SUBJECT IFB WAS ISSUED FEBRUARY 17, 1970, FOR THE MILK AND DAIRY PRODUCTS REQUIREMENTS OF HANSCOM FIELD, BEDFORD, MASSACHUSETTS, FOR THE PERIOD MAY 1, 1970, THROUGH OCTOBER 31, 1970. BIDS WERE SCHEDULED FOR OPENING AT 2:00 P.M. ON MARCH 18, 1970. IT IS ADMINISTRATIVELY REPORTED THAT YOUR BID WAS MAILED ON MARCH 17 VIA SPECIAL DELIVERY, AND WAS RECEIVED AND TIME STAMPED AT THE CHURCH STREET POSTAL SUBSTATION, NEW YORK CITY, AT 4:30 A.M. ON MARCH 18, 1970, IN SUFFICIENT TIME TO HAVE BEEN DELIVERED TO THE SUBSISTENCE REGIONAL HEADQUARTERS PRIOR TO THE 2:00 P.M. DEADLINE. HOWEVER, BECAUSE OF A MAIL STRIKE WHICH COMMENCED IN NEW YORK CITY AT 12:01 A.M. ON MARCH 18, 1970, YOUR BID WAS NOT DELIVERED UNTIL MARCH 26, 1970.

YOU CONTEND THAT YOUR COMPANY SHOULD NOT BE PENALIZED AND DEPRIVED OF CONSIDERATION OF ITS BID BECAUSE OF DELAY IN DELIVERY CAUSED BY THE UNPRECEDENTED POSTAL STRIKE, WHICH YOU ARGUE COULD BE CONSIDERED IN THE SAME MANNER AS AN ACT OF GOD. YOU THEREFORE ASK THAT THE REGULATIONS BE WAIVED AND YOUR BID BE OPENED AND CONSIDERED FOR AWARD.

THIS CASE IS UNIQUE IN THAT THE POSTAL STRIKE, WHICH WAS UNPRECEDENTED, WAS THE SOLE FACTOR FOR THE DELAY IN THE DELIVERY OF YOUR BID. AT 5:00 P.M. ON MARCH 18, 1970, THE DEFENSE PERSONNEL SUPPORT CENTER, PHILADELPHIA, REACTING TO THE POSTAL STRIKE, DISPATCHED THE FOLLOWING TELETYPE MESSAGE TO THE SUBSISTENCE REGIONAL HEADQUARTERS IN NEW YORK CITY: POSTAL STRIKE IN NEW YORK CITY

THERE IS A POSTAL STRIKE IN NEW YORK CITY WHICH WILL EFFECT THE ABILITY OF BIDDERS TO MAIL BIDS FROM THAT CITY OR ITS SUBURBS. SUBSISTENCE BIDS OPENING IN THIS HEADQUARTERS THIS WEEK ARE BEING EXTENDED ONE WEEK WITH TELEGRAPHIC BIDS AUTHORIZED WHENEVER BIDS FROM THE NEW YORK AREA ARE ANTICIPATED. SUBSISTENCE REGIONAL HEADQUARTERS IN NEW YORK CITY WILL TAKE SIMILAR ACTION WITH ITS BIDS OPENING THIS WEEK. IF YOUR AMENDMENTS ARE IN MAIL AND CANNOT BE DELIVERED, IT WILL BE NECESSARY TO ASSUME THAT BIDDERS WILL HAVE RECEIVED THE PRESS RELEASE ISSUED FROM HERE AND/OR TO NOTIFY POTENTIAL BIDDERS BY PHONE OR WIRE. OTHER REGIONAL COMMANDERS SHOULD PREPARE TO TAKE SIMILAR ACTION IN THE EVENT THE STRIKE SHOULD SPREAD OUTSIDE THE NEW YORK AREA AND EFFECT YOUR SOURCES.

ON MARCH 20, 1970, THE DEPARTMENT OF DEFENSE SENT OUT A MESSAGE APPROVED BY THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) COMMITTEE AS FOLLOWS:

THE CURRENT MAIL STOPPAGE IN CERTAIN AREAS OF THE U.S. HAS CREATED SERIOUS PROBLEMS WITH REGARD TO THE SCHEDULED OPENING OF BIDS AND RECEIPT OF PROPOSALS. AS A DIRECT RESULT OF THE POSTAL STRIKE, TELEGRAPHIC COMMUNICATIONS MEDIA HAVE BECOME SEVERELY OVERLOADED. THE FOLLOWING IS THEREFORE FURNISHED FOR GUIDANCE OF ALL DOD PROCUREMENT OFFICES:

1. IF THE REQUIREMENT WILL PERMIT, SCHEDULED BID AND PROPOSAL OPENINGS SHOULD BE DELAYED UNTIL MAIL DELIVERY PROBLEMS HAVE BEEN SUBSTANTIALLY SOLVED. NOTWITHSTANDING ASPR 2-208 AND 3-505, NOTICE OF DELAY MAY BE LIMITED TO DISPLAY IN THE BID ROOM. WHEN MAIL SERVICE IS RESTORED, ALL PROSPECTIVE OFFERORS SHOULD BE NOTIFIED OF A NEW BID OR PROPOSAL OPENING DATE BY FORMAL IFB OR RFP AMENDMENT IN ACCORDANCE WITH 2-208 AND 3-505.

2. IF THE REQUIREMENT WILL NOT PERMIT DELAY, AVAILABLE BIDS OR PROPOSALS SHOULD BE OPENED AND AWARD MADE THEREON IF IT IS DETERMINED THAT THERE WAS ADEQUATE COMPETITION OR, IN THE CASE OF PROPOSALS, NEGOTIATION UNDERTAKEN WHEN REQUIRED. IF IT APPEARS BEFORE BID OPENING THAT AN INSUFFICIENT NUMBER OF BIDS HAS BEEN RECEIVED TO INDICATE ADEQUATE COMPETITION, CONSIDERATION SHOULD BE GIVEN TO CANCELING THE IFB PRIOR TO OPENING AND CONDUCTING NEGOTIATIONS, BY TELEPHONE IF SUCH ACTION IS NECESSARY.

HOWEVER, IT IS IMPORTANT TO NOTE THAT BOTH OF THESE MESSAGES WERE DISPATCHED AFTER BID OPENING IN THE INSTANT PROCUREMENT, AND THAT NEITHER OF THESE MESSAGES PROVIDES FOR A SUSPENSION OF THE LATE BID RULES, AS SET FORTH IN ASPR 2-303 AND PARAGRAPH 8 OF THE INSTRUCTIONS AND CONDITIONS TO THE INVITATION.

THE INVITATION CAUTIONED ALL BIDDERS TO TAKE NOTICE OF PARAGRAPH 8 OF THE INSTRUCTIONS AND CONDITIONS (STANDARD FORM 33A, JULY 1966) PROVIDING IN PERTINENT PART THAT:

(A) 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 *** , AND IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO DELAY IN THE MAILS, *** FOR WHICH THE OFFEROR WAS NOT RESPONSIBLE; OR (3) IF SUBMITTED BY MAIL *** IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION; *** .

THE CONDITIONS SET FORTH IN PARAGRAPH 8 OF THE INSTRUCTIONS AND CONDITIONS FOLLOW LITERALLY THE PROVISIONS OF PARAGRAPH 2-303.3 OF THE ASPR. THIS OFFICE HAS CONSISTENTLY HELD THAT THE ASPR LANGUAGE CONCERNING LATE BIDS IS MANDATORY AND ANY DEVIATION FROM THE REQUIREMENTS, PARTICULARLY FROM THE FAILURE TO USE REGISTERED OR CERTIFIED MAIL IN THE CASE OF A BID DELAYED IN THE MAIL AND RECEIVED AFTER THE TIME SET IN THE SOLICITATION, RENDERS THE BID LATE AND THEREFORE PRECLUDES ITS CONSIDERATION. 46 COMP. GEN. 42, 45 (1966); 42 COMP. GEN. 255 (1962). INDICATED IN OUR DECISION OF DECEMBER 1, 1964, B-155119, "THE ARMED SERVICES PROCUREMENT REGULATION IS A STATUTORY REGULATION PROMULGATED PURSUANT TO 10 U.S.C. 2202. IT HAS THE FORCE AND EFFECT OF LAW, AND THERE IS NO AUTHORITY FOR OUR OFFICE TO WAIVE ITS REQUIREMENTS EVEN WHEN SUCH ACTION MAY BE TO THE ADVANTAGE OF THE GOVERNMENT."

YOU CONTEND IN YOUR LETTER OF APRIL 18, 1970, THAT "THE POSTAL STRIKE COULD BE CONSIDERED IN THE SAME REALM AS AN ACT OF GOD." AN ACT OF GOD HAS BEEN DEFINED AS "SOME INEVITABLE ACCIDENT WHICH CANNOT BE PREVENTED BY HUMAN CARE, SKILL, OR FORESIGHT, BUT RESULTS FROM NATURAL CAUSES, SUCH AS LIGHTNING, TEMPEST, FLOODS, AND INUNDATIONS." DUBLE V CANADIAN PACIFIC S. S. CO., LIMITED, 49 F. 2D 291 (1930). THUS IT WOULD APPEAR THAT AN ACT OF GOD IS NOT A THING OR STATE IN CONTINUED OR PERSISTENT EXISTENCE, BUT IS A SINGULAR, UNEXPECTED AND IRREGULAR VISITATION OF A FORCE OF NATURE. POSTAL STRIKE WOULD NOT MEET THE REQUIREMENTS NECESSARY TO BE CONSIDERED AN ACT OF GOD. BUT EVEN ASSUMING, ARGUENDO, THAT A POSTAL STRIKE COULD BE CONSIDERED AN ACT OF GOD, IT HAS BEEN STATED THAT A FAILURE TO EXERCISE CONSIDERED AN ACT OF GOD, IT HAS BEEN STATED THAT A FAILURE TO EXERCISE REASONABLE DILIGENCE TO GUARD AGAINST AN ACT OF GOD, WHICH CAN BE GUARDED AGAINST, IS NEGLIGENT BEHAVIOR. DAVIS V IVEY, 112 SO. 264 (1927). IN THE PRESENT PROCUREMENT, THE ONLY REQUIREMENT FOR TOTAL PROTECTION AGAINST LATE DELIVERY WAS TO SEND YOUR BID BY REGISTERED OR CERTIFIED MAIL. SINCE YOU DID NEITHER, YOU ASSUMED THE RISK OF LATE DELIVERY EVEN IF CAUSED BY AN ACT OF GOD.

ALTHOUGH WE ARE SYMPATHETIC TO A SITUATION SUCH AS THIS, THIS OFFICE IS AUTHORIZED TO ACT ONLY IN ACCORDANCE WITH APPLICABLE LEGAL PRINCIPLES. ARE WITHOUT AUTHORITY TO SUBSTITUTE EQUITABLE CONSIDERATION FOR THE LAW IN CASES OF THIS KIND. 48 COMP. GEN. 59 (1968). IN PREVIOUSLY DISCUSSING THE NEED TO ADHERE TO THE LATE BID RULE, AS WRITTEN, EVEN UNDER UNUSUAL CONDITIONS EVOKING SYMPATHY FOR THE BIDDERS, WE STATED AT 48 COMP. GEN. 59 AT 62, SUPRA:

WHILE THESE PROVISIONS OF THE REGULATIONS AND OF THE INVITATION FOR BIDS MAY RESULT IN THE FAILURE OF THE GOVERNMENT TO RECEIVE THE BENEFIT OF LOWER BIDS AND MAY SEEM UNDULY HARSH BY BIDDERS AFFECTED ADVERSELY THEREBY, THE ADOPTION OF THE PRINCIPLES SET FORTH THEREIN HAVE BEEN DETERMINED TO BE NECESSARY NOT ONLY TO THE ORDERLY AND TIMELY PROCUREMENT OF SUPPLIES AND SERVICES BY THE GOVERNMENT, BUT TO THE INTEGRITY OF THE COMPETITIVE BID SYSTEM AS WELL.

IN VIEW OF THE CLEAR PROVISIONS OF PARAGRAPH 8 OF THE INVITATION'S INSTRUCTIONS AND CONDITIONS AND ASPR 2-303.3, AND THE LACK OF AUTHORITY TO WAIVE THESE PROVISIONS, WE MUST CONCLUDE THAT YOU ASSUMED THE RISK OF LATE DELIVERY WHEN YOU FAILED TO REGISTER OR CERTIFY YOUR BID. ACCORDINGLY, WE MUST CONCLUDE THAT THE REJECTION OF YOUR BID WAS PROPER, AND SUCH ACTION WILL NOT BE DISTURBED BY ..END :