B-170158, AUG. 28, 1970

B-170158: Aug 28, 1970

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LATE BID WHICH WAS NOT SENT BY REGISTERED OR CERTIFIED MAIL AND DID NOT ARRIVE AT PURCHASING OFFICE UNTIL DAY FOLLOWING AWARD WAS PROPERLY REJECTED SINCE THERE IS NO EVIDENCE OF GOVERNMENT MISHANDLING AND BIDDER ASSUMES RISK OF LATE DELIVERY WHEN HE FAILS TO SEND HIS BID BY REGISTERED OR CERTIFIED MAIL. TO MCCARTER LUMBER AND PILING COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JUNE 23. WAS ISSUED ON JUNE 5. IT IS REPORTED THAT YOUR BID WAS RECEIVED BY THE PURCHASING ACTIVITY AT 8:15 A.M. MARCH 1969) 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.

B-170158, AUG. 28, 1970

BID PROTEST -- LATE BID DENIAL OF PROTEST AGAINST REJECTION OF LATE BID FOR EUCALYPTUS PILES FOR DEFENSE CONSTRUCTION SUPPLY CENTER. LATE BID WHICH WAS NOT SENT BY REGISTERED OR CERTIFIED MAIL AND DID NOT ARRIVE AT PURCHASING OFFICE UNTIL DAY FOLLOWING AWARD WAS PROPERLY REJECTED SINCE THERE IS NO EVIDENCE OF GOVERNMENT MISHANDLING AND BIDDER ASSUMES RISK OF LATE DELIVERY WHEN HE FAILS TO SEND HIS BID BY REGISTERED OR CERTIFIED MAIL.

TO MCCARTER LUMBER AND PILING COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JUNE 23, 1970, PROTESTING THE REJECTION OF YOUR LATE BID SUBMITTED UNDER SOLICITATION NO. DSA-72C-70 -B-0898 ISSUED BY THE DEFENSE SUPPLY AGENCY, DEFENSE CONSTRUCTION SUPPLY CENTER, WOOD PRODUCTS OFFICE, PORTLAND, OREGON.

THE SUBJECT SOLICITATION FOR 400 EACH EUCALYPTUS PILES, UNTREATED, WAS ISSUED ON JUNE 5, 1970 AND OPENED AT 3:00 P.M., PDT, JUNE 15, 1970. IT IS REPORTED THAT YOUR BID WAS RECEIVED BY THE PURCHASING ACTIVITY AT 8:15 A.M., PDT, ON JUNE 16, 1970. YOU STATE THAT YOU FORWARDED YOUR BID VIA AIR MAIL FROM SANTA ROSA, CALIFORNIA, ON JUNE 14, 1970.

THE INVITATION CAUTIONED ALL BIDDERS TO TAKE NOTICE OF PARAGRAPH 8 OF THE INSTRUCTIONS AND CONDITIONS (STANDARD FORM 33A, MARCH 1969) 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 THE PROVISIONS OF PARAGRAPH 2-303.3 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). THIS OFFICE HAS CONSISTENTLY HELD THAT THE ASPR LANGUAGE CONCERNING LATE BIDS IS MANDATORY AND ANY DEVIATION FROM THE REQUIREMENTS, PARTICULARLY 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 (1966).

IN VIEW OF THE CLEAR PROVISIONS OF PARAGRAPH 8 OF THE INVITATION'S INSTRUCTIONS AND CONDITIONS AND ASPR 20303.3, WE MUST CONCLUDE YOU ASSUMED THE RISK OF LATE DELIVERY WHEN YOU FAILED TO REGISTER OR CERTIFY YOUR BID. THE ONLY BASIS FOR CONSIDERING YOUR BID, THEREFORE, WOULD BE THAT LATE RECEIPT WAS DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION. AS INDICATED ABOVE, IT IS REPORTED THAT YOUR BID WAS NOT RECEIVED BY THE PURCHASING ACTIVITY UNTIL 8:15 A.M., PDT, JUNE 16, 1970; THERE IS NO EVIDENCE IN THE RECORD OF GOVERNMENT MISHANDLING OF YOUR BID.

IN VIEW OF THE FOREGOING, WE MUST CONCLUDE THAT REJECTION OF YOUR BID WAS PROPER. ACCORDINGLY, YOUR PROTEST IS DENIED.