B-170106, SEP. 21, 1970

B-170106, SEP. 21, 1970

BID PROTEST - LATE BID DENIAL OF PROTEST AGAINST REJECTION OF A BID FOR PURCHASE OF GOVERNMENT- OWNED INDUSTRIAL PLANT EQUIPMENT DUE TO LATE RECEIPT IN OFFICE OF THE CONTRACTOR WHO CONDUCTED THE SALE. SINCE LATE METERED BID WAS TIME STAMPED ON DAY AFTER BID OPENING AND PERSONNEL HAD BEEN ALERTED TO DELIVERY OF BID PRIOR TO ITS LATE RECEIPT, THE LATE RECEIPT MAY NOT BE REGARDED AS DUE TO MISHANDLING OF SALES PERSONNEL.

TO CADILLAC MACHINERY COMPANY, INCORPORATED:

WE REFER TO YOUR LETTER DATED JUNE 17, 1970, AND ENCLOSURE, PROTESTING THE REJECTION OF YOUR BID ON THE PLANT CLEARANCE SALE OF A FELLOWS GEAR SHAPER BY ANADITE, INCORPORATED, FORT WORTH, TEXAS.

THE SALES INVITATION, ISSUED MAY 28, 1970, OFFERED TWO ITEMS OF GOVERNMENT-OWNED INDUSTRIAL PLANT EQUIPMENT UNDER A CONTRACTOR CONDUCTED SALE AT ANADITE, INCORPORATED, FORT WORTH, TEXAS. BIDS WERE OPENED AS SCHEDULED AT 10:00 A.M. ON JUNE 15, 1970.

ON JUNE 16, 1970, AT 8:00 A.M., A SEALED BID FROM YOUR COMPANY WAS RECEIVED INITIALLY AT THE ANADITE PLANT. THE MARKINGS ON THE BID ENVELOPE SHOWED THAT IT WAS SENT AIRMAIL AND METER POSTMARKED JUNE 11, 1970, CHICAGO, ILLINOIS. IN YOUR TELEPHONE CONVERSATION WITH THE GOVERNMENT PLANT CLEARANCE OFFICER ON JUNE 17, 1970, YOU WERE ADVISED THAT YOUR BID WOULD NOT BE CONSIDERED BECAUSE OF ITS LATENESS AND WAS BEING RETURNED UNOPENED.

IN YOUR LETTER OF PROTEST YOU CONTEND THAT YOUR BID WAS IN THE ANADITE PLANT AT NOON ON JUNE 15 AND THAT THE PROJECT ENGINEER STILL DID NOT HAVE THE BID IN HIS HAND AFTER 3:00 P.M. THAT DAY. YOU FURTHER CONTEND THAT ALTHOUGH YOU ARE UNABLE TO DETERMINE AT WHAT HOUR THE BID ACTUALLY ARRIVED IN THE OFFICE OF ANADITE, YOU HAVE REASON TO BELIEVE THAT THEY RECEIVED THEIR MAIL THAT DAY BEFORE 10:00 A.M., AND THIS BEING SO, IT CAN BE PROPERLY CLAIMED THAT THE BID WAS MISHANDLED AND THAT THERE WAS THE POSSIBILITY THAT IT COULD HAVE BEEN DELIVERED TO THE PROPER HANDS FOR THE BID OPENING BY 10:00 A.M.

PARAGRAPH 2 OF THE SALES INVITATION SET FORTH THE FOLLOWING INSTRUCTIONS TO BIDDERS:

"BIDS WILL BE INCLUDED IN AN ENVELOPE PLAINLY MARKED 'BID INVITATION,' COMPANY'S SALE NO. 1, CONTRACT NO. F33-657-67-C-0184, PLANT CLEARANCE CASE NO. S4403A-051-OE, TO BE OPENED 10:00 A.M., JUNE 15, 1970. MAILED BIDS MUST BE MAILED IN TIME TO BE IN POSSESSION OF THE 'CONTRACTOR' BY THE DATE AND HOUR OF BID OPENING. A LATE MAILED BID WILL BE CONSIDERED ONLY IF RECEIVED BEFORE AWARD AND SUCH BID WAS MAILED BY REGISTERED MAIL OR BY CERTIFIED MAIL FOR WHICH AN OFFICIAL POST OFFICE STAMP (POST MARK) ON THE ORIGINAL RECEIPT FOR CERTIFIED OR REGISTERED MAIL HAS BEEN OBTAINED AND IT IS DETERMINED THAT EITHER THE LATENESS WAS DUE SOLELY TO A DELAY IN MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE OR THE BID WAS RECEIVED AT THE SALES OFFICE IN SUFFICIENT TIME TO BE RECEIVED BY THE 'CONTRACTOR' IN TIME FOR OPENING AND EXCEPT FOR DELAY DUE TO MISHANDLING ON THE PART OF THE 'CONTRACTOR' AT THE SALES OFFICE, WOULD HAVE BEEN ON TIME. BIDDERS USING CERTIFIED MAIL ARE CAUTIONED TO OBTAIN A RECEIPT FOR CERTIFIED MAIL SHOWING A LEGIBLE, DATED POSTMARK AND TO RETAIN SUCH RECEIPT AGAINST THE CHANCE THAT IT WILL BE REQUIRED AS EVIDENCE THAT A LATE BID WAS TIMELY MAILED."

ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-303.2(A) PROVIDES THAT A LATE MAILED BID RECEIVED BEFORE AWARD MAY BE CONSIDERED FOR AWARD ONLY IF:

"(I) 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 (B), (C), AND (D)) FOR WHICH THE BIDDER WAS NOT RESPONSIBLE; OR

(II) 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."

BASED ON THESE INSTRUCTIONS AND REGULATION, WE HAVE TAKEN THE POSITION THAT A BIDDER WHO ELECTS OTHER THAN REGISTERED OR CERTIFIED MAIL WHEN USING THE POSTAL SERVICE FOR DELIVERY OF HIS BID ASSUMES THE RISK OF LATE DELIVERY TO THE GOVERNMENT INSTALLATION SPECIFIED IN THE INVITATION. 168107, DECEMBER 18, 1969.

YOUR BID WAS NOT SENT BY REGISTERED OR CERTIFIED MAIL AS REQUIRED BY THE ABOVE PROVISION OF THE INVITATION FOR BIDS AS A PREREQUISITE TO ITS CONSIDERATION IN THE EVENT OF LATE RECEIPT. WHILE YOUR BID MAY HAVE BEEN TIMELY MAILED AND DELAYED BY MISHANDLING IN THE POSTAL SYSTEM, WE HAVE HELD, 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 THE CONDITIONS SET FORTH IN PARAGRAPH 2 AND ASPR 2-303.2 CONSTITUTE MANDATORY DIRECTIONS TO THE PROCUREMENT AGENCY, WHICH MAY NOT BE WAIVED IN AN INDIVIDUAL CASE TO EXCUSE LATE RECEIPT. SEE B 166853, JUNE 24, 1969; B -161556, JUNE 29, 1967. NOTWITHSTANDING THE FAILURE OF THE GOVERNMENT IN SOME CASES TO RECEIVE THE BENEFIT OF MORE ADVANTAGEOUS BIDS WHICH ARE RECEIVED AFTER BID OPENING, WE BELIEVE THAT SUCH PROVISIONS PRESERVE AND MAINTAIN THE INTEGRITY OF THE FORMAL COMPETITIVE BIDDING PROCEDURES.

AS TO YOUR CONTENTION THAT THE LATE RECEIPT AT THE BID OPENING OFFICE WAS DUE TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT OF THE BID AT THE GOVERNMENT INSTALLATION, THE ABOVE-QUOTED REGULATION REQUIRES THAT TIMELY RECEIPT AT THE INSTALLATION BE ESTABLISHED BY A DATE OR TIME STAMP OF THE INSTALLATION OR OTHER DOCUMENTARY EVIDENCE WITHIN THE CONTROL OF SUCH INSTALLATION OR OF THE POST OFFICE SERVING IT. THE STAMP OF THE ANADITE CONTRACT ADMINISTRATOR SHOWS RECEIPT OF YOUR BID AT 8:00 A.M. ON JUNE 16, 1970, AND DOCUMENTATION IN THE RECORD FURNISHED OUR OFFICE SHOWS THAT MAIL TO ANADITE IS DELIVERED AND TIME RECORDED TWICE DAILY; SHORTLY AFTER 8:00 A.M. AND AGAIN SHORTLY AFTER 1:00 P.M. IN ADDITION, THE PERSON RESPONSIBLE FOR DISPATCHING AND OPENING MAIL WAS INSTRUCTED TO BE ON THE ALERT FOR YOUR BID PRIOR TO THE 8:00 A.M. DELIVERY OF YOUR BID ON JUNE 16, 1970, INASMUCH AS THE SALE OFFICIALS WERE AWARE FROM A TELEPHONE CONVERSATION WITH YOUR MR. HENRY COHEN ON JUNE 15 THAT YOU WERE SUBMITTING A BID. THE BASIS OF THE RECORD EVIDENCE WE CANNOT CONCLUDE THAT THE LATE RECEIPT OF YOUR BID WAS DUE TO MISHANDLING BY THE SALES OFFICIALS AT THE SALES INSTALLATION.

IN VIEW OF THE FACTS AND REGULATIONS DISCUSSED, WE MUST CONCLUDE THAT THE REJECTION OF YOUR BID WAS PROPER AND YOUR PROTEST IS DENIED.