B-170231, AUG. 17, 1970

B-170231, AUG. 17, 1970

BID PROTEST -- LATE BID DENIAL OF PROTEST AGAINST CONSIDERATION OF LATE BID OF DERO RESEARCH AND DEVELOPMENT CORP., FOR OSCILLOSCOPES FOR USE BY ARMY ELECTRONICS COMMAND. LOW BID WHICH WAS SENT BY CERTIFIED MAIL IN SUFFICIENT TIME TO HAVE BEEN DELIVERED BEFORE BID OPENING BUT WAS DELAYED IN THE MAILS WAS PROPERLY FOR CONSIDERATION.

TO PHILADELPHIA SCIENTIFIC CONTROLS, INC.:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 1, 1970, PROTESTING THE AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER SOLICITATION NO. N00600 70-B-0484, ISSUED BY THE NAVAL SUPPLY SYSTEMS COMMAND, NAVY PURCHASING OFFICE (NPO), WASHINGTON, D. C.

THE SOLICITATION, ISSUED ON MAY 18, 1970, INVITED BIDS FOR 609 OSCILLOSCOPES FOR USE BY THE UNITED STATES ARMY ELECTRONICS COMMAND. BID OPENING WAS SCHEDULED FOR JUNE 18, 1970, AT 10:30 A.M., E.S.T. THE THREE BIDS RECEIVED WERE OPENED AS SCHEDULED AND IT APPEARED THAT YOUR FIRM HAD SUBMITTED THE LOWEST BID IN THE AMOUNT OF $216 PER UNIT. ON THE FOLLOWING DAY, JUNE 19, 1970, A BID WAS RECEIVED FROM THE DERO RESEARCH AND DEVELOPMENT CORPORATION, HUNTINGTON, NEW YORK (DERO), AT NPO AT 8:26 A.M., E.S.T., IN AN ENVELOPE BEARING A CERTIFIED MAIL LABEL NO. 891782. THE CONTRACTING OFFICER CONDUCTED AN INVESTIGATION OF THE CIRCUMSTANCES INVOLVED IN ACCORDANCE WITH PARAGRAPH 2-303 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) TO DETERMINE IF DERO'S BID COULD BE CONSIDERED AS A LATE ACCEPTABLE BID. SUBSEQUENTLY, THE CONTRACTING OFFICER "DETERMINED THAT THE BID OF DERO WAS MAILED ON TIME AND COULD BE CONSIDERED FOR AWARD." DERO'S BID WAS OPENED ON JUNE 22, 1970, AND RECORDED ON THE BID ABSTRACT IN THE AMOUNT OF $190 PER UNIT, THEREBY SUPPLANTING YOUR FIRM AS THE LOW BIDDER FOR THE PURPOSES OF AWARD.

THE COVER SHEET TO THE SOLICITATION ENTITLED "INFORMATION TO BIDDERS/OFFERORS" CAUTIONED PROSPECTIVE BIDDERS AS FOLLOWS:

"(A) OFFERS AND MODIFICATIONS OF 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; *** .

"(B) OFFERORS 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 OFFER WAS TIMELY MAILED." ASPR 2.303(C) AND (D) PROVIDE, IN PERTINENT PART, AS FOLLOWS:

"(C) CERTIFIED MAIL. THE TIME OF MAILING OF A LATE BID, MAILED BY CERTIFIED MAIL FOR WHICH A POSTMARKED RECEIPT FOR CERTIFIED MAIL WAS OBTAINED SHALL BE DEEMED TO BE THE LAST MINUTE OF THE DATE SHOWN IN THE POSTMARK ON SUCH RECEIPT, EXCEPT WHERE (I) THE RECEIPT FOR CERTIFIED MAIL IDENTIFIES THE POST OFFICE STATION OF MAILING AND THE BIDDER FURNISHES EVIDENCE FROM SUCH STATION THAT THE BUSINESS DAY OF THAT STATION ENDED AT AN EARLIER TIME, IN WHICH CASE THE TIME OF MAILING SHALL BE DEEMED TO BE THE LAST MINUTE OF THE BUSINESS DAY OF THAT STATION; OR (II) AN ENTRY IN INK ON THE RECEIPT FOR CERTIFIED MAIL, SHOWING THE TIME OF MAILING AND THE INITIALS OF THE POSTAL EMPLOYEE RECEIVING THE ITEM AND MAKING THE ENTRY, IS APPROPRIATELY VERIFIED IN WRITING BY THE POST OFFICE STATION OF MAILING, IN WHICH CASE THE TIME OF MAILING SHALL BE THE TIME SHOWN IN THE ENTRY. IF THE POSTMARK DOES NOT SHOW A DATE, THE BID SHALL BE DEEMED TO HAVE BEEN MAILED TOO LATE.

"(D) DELIVERY TIME. INFORMATION CONCERNING THE NORMAL TIME FOR MAIL DELIVERY SHALL BE OBTAINED BY THE PROCURING ACTIVITY FROM THE POSTMASTER, SUPERINTENDENT OF MAILS, OR A DULY AUTHORIZED REPRESENTATIVE FOR THAT PURPOSE, OF THE POST OFFICE SERVING THAT ACTIVITY. WHEN TIME PERMITS, SUCH INFORMATION SHALL BE OBTAINED IN WRITING."

WE BELIEVE THAT THE EVIDENCE SUBMITTED FROM THE SOURCES REQUIRED BY THE REGULATIONS SHOWS THAT DERO'S BID WAS MAILED IN SUFFICIENT TIME TO HAVE BEEN DELIVERED TO THE BID OPENING SITE IN TIME FOR THE SCHEDULED BID OPENING. DERO FURNISHED A DULY EXECUTED RECEIPT FOR CERTIFIED MAIL WITH AN OFFICIAL DATED POSTMARK OF JUNE 16, 1970, BEARING THE TIME "1650." ADDITION, DERO SUBMITTED THE FOLLOWING STATEMENT OF J. GORDON THOMSON, POSTMASTER OF HUNTINGTON, NEW YORK:

"THIS IS TO VERIFY THAT THIS ARTICLE CERTIFIED #891782 WAS REC'D AT THE HUNTINGTON POST OFFICE JUNE 16, 1970 AT 1650, WHICH IS 4:50 P.M." THE "RECORD OF LATE SOLICITATION" FORM COMPLETED BY NPO CONTRACTING OFFICIALS UNDER THE SECTION ENTITLED "INFORMATION FROM LOCAL POST OFFICE" STATES:

"MR. DONOVAN OF THE WASHINGTON POST OFFICE (WPO) ADVISED ON 6/22/70 THAT TAKING 4:50 P.M., ** 6/16/70 AS THE TIME/DATE OF MAILING, THIS BID SHOULD HAVE BEEN RECEIVED IN THE WPO AT 5:05 A.M., 6/17/70; THEREFORE, BID WAS MAILED ON TIME (BID OPENED AT 10:30 A.M., ON 6/18/70) AND WILL BE CONSIDERED FOR AWARD WITH OTHER BIDS RECEIVED. *** ."

IN VIEW OF THE FOREGOING, WE FIND THAT THE LATE RECEIPT OF DERO'S BID WAS DUE SOLELY TO A DELAY IN THE MAILS FOR WHICH DERO WAS NOT RESPONSIBLE, AND THE ACTION OF THE CONTRACTING OFFICER IN CONSIDERING SUCH BID FOR AWARD WAS PROPER. SEE B-168670, FEBRUARY 24, 1970; B 162355, MARCH 8, 1968; AND B-157505, NOVEMBER 3, 1965.