B-171376, JAN 29, 1971

B-171376, JAN 29, 1971

BID PROTEST - LATE BID DECISION DENYING PROTEST BY SILVER STATE OIL CO., AGAINST REJECTION OF ITS BID IN RESPONSE TO IFB FOR FUEL OIL AND MOTOR GASOLINE ISSUED BY THE DEFENSE FUEL SUPPLY CENTER. A BID RECEIVED AFTER BID OPENING NOT DUE TO A DELAY IN THE MAILS, BUT TO PROTESTANT'S FAILURE TO MAIL IT IN SUFFICIENT TIME TO HAVE BEEN RECEIVED IN DUE COURSE (WHICH IS CONFIRMED BY THE POSTMASTERS AT THE PLACES OF ORIGIN AND DESTINATION) WAS PROPERLY REJECTED.

TO SILVER STATE OIL CO.:

REFERENCE IS MADE TO YOUR PROTEST WHICH WAS REFERRED TO OUR OFFICE BY THE HONORABLE HOWARD W. CANNON, UNITED STATES SENATE, AGAINST THE REJECTION OF YOUR FIRM'S BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS (IFB) NO. DSA600-70-B-0007, ISSUED BY THE DEFENSE FUEL SUPPLY CENTER (DFSC), CAMERON STATION, ALEXANDRIA, VIRGINIA.

THE IFB, ISSUED ON MAY 26, 1970, SOLICITED BIDS FOR FUEL OIL AND MOTOR GASOLINE TO BE SUPPLIED TO DFSC REGION 7 FOR THE ORDERING PERIOD OF NOVEMBER 1, 1970, THROUGH OCTOBER 31, 1971. BIDS WERE OPENED AS SCHEDULED ON JUNE 30, 1970, AT 1 P.M. LOCAL TIME, ALEXANDRIA, VIRGINIA. ON THE FOLLOWING DAY, JULY 1, 1970, AT 8:30 A.M., E.D.T., YOUR BID WAS RECEIVED AT THE PROCURING ACTIVITY IN AN AIR MAIL SPECIAL DELIVERY ENVELOPE BEARING A CERTIFIED MAIL LABEL NO. 656957 AND POSTMARKED "VICTORVILLE, CALIFORNIA, JE (JUNE) 29 1 P.M." BY LETTER DATED JULY 1, 1970, DFSC ADVISED YOUR FIRM THAT ITS LATE BID COULD NOT BE CONSIDERED FOR AWARD UNLESS EVIDENCE WAS SUBMITTED WHICH WOULD PROVE THAT THE LATE RECEIPT OF THE BID BY THE PROCURING ACTIVITY WAS DUE SOLELY TO A DELAY IN THE MAIL FOR WHICH YOUR FIRM WAS NOT RESPONSIBLE.

PARAGRAPH 8 OF THE IFB'S INSTRUCTIONS AND CONDITIONS CAUTIONS PROSPECTIVE BIDDERS 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. ***

"(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.

"(C) THE TIME OF MAILING OF LATE OFFERS SUBMITTED BY REGISTERED OR CERTIFIED MAIL SHALL BE DEEMED TO BE THE LAST MINUTE OF THE DATE SHOWN IN THE POSTMARK ON THE REGISTERED MAIL RECEIPT OR REGISTERED MAIL WRAPPER OR ON THE RECEIPT FOR CERTIFIED MAIL UNLESS THE OFFEROR FURNISHES EVIDENCE FROM THE POST OFFICE STATION OF MAILING WHICH ESTABLISHES AN EARLIER TIME. IN THE CASE OF CERTIFIED MAIL, THE ONLY ACCEPTABLE EVIDENCE IS AS FOLLOWS: (1) WHERE THE RECEIPT FOR CERTIFIED MAIL IDENTIFIES THE POST OFFICE STATION OF MAILING, EVIDENCE FURNISHED BY THE OFFEROR WHICH ESTABLISHES 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 (2) 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, WITH APPROPRIATE WRITTEN VERIFICATION OF SUCH ENTRY FROM THE POST OFFICE STATION OF MAILING, IN WHICH CASE THE TIME OF MAILING SHALL BE THE TIME SHOWN IN THE ENTRY. IF THE POSTMARK ON THE ORIGINAL RECEIPT FOR CERTIFIED MAIL DOES NOT SHOW A DATE, THE OFFER SHALL NOT BE CONSIDERED."

THE EVIDENCE SUBMITTED FROM THE SOURCES REQUIRED BY THE IFB REVEALS THAT YOUR BID WAS NOT MAILED IN SUFFICIENT TIME TO HAVE BEEN DELIVERED TIMELY FOR THE SCHEDULED BID OPENING. IN THIS REGARD, THE POSTMASTER OF VICTORVILLE, CALIFORNIA, IN A STATEMENT OF JULY 3, 1970, ADVISED THAT YOUR FIRM'S BID "WAS DISPATCHED FROM THIS POST OFFICE BY STAR ROUTE #92362 - VICTORVILLE - SAN BERNARDINO, CALIF. WHICH WAS SCHEDULED TO DEPART AT 7:00 P.M. JUNE 29, 1970." IN A REPORT DATED JULY 10, 1970, THE SUPERINTENDENT OF MAILS, ALEXANDRIA, VIRGINIA, STATED THAT YOUR BID MAILED UNDER THE CONDITIONS AND TIMES OF MAILING DESCRIBED BY THE POSTMASTER OF VICTORVILLE, CALIFORNIA, SHOULD HAVE ARRIVED AT DFSC AT 2:22 P.M. ON JUNE 30, 1970, OR 1 HOUR AND 22 MINUTES SUBSEQUENT TO THE TIME SET FOR BID OPENING. THIS ARRIVAL TIME WAS CONFIRMED BY THE POSTMASTER OF ALEXANDRIA, VIRGINIA, WHO, IN A LETTER TO DFSC OF DECEMBER 4, 1970, STATED:

"THIS WILL CONFIRM OUR CONVERSATION OF DECEMBER 2 (WEDNESDAY) AND ADVISES THAT A CERTIFIED AIRMAIL, SPECIAL DELIVERY, FLAT ARRIVING AT THE AIRMAIL FIELD, WASHINGTON, D.C. AT 9:39 A.M. WOULD BE RECEIVED AT THIS OFFICE ON THE NEXT AVAILABLE RECEIPT OF MAIL - 11:30 A.M. FROM THE AIRMAIL FIELD.

"THE DISPATCH FROM THIS OFFICE TO THE DEFENSE FUEL SUPPLY CENTER IS MADE AT 1:30 P.M. AND IS DUE TO ARRIVE AT DEFENSE FUEL SUPPLY AT 2:22 P.M. THIS WOULD BE THE EARLIEST POSSIBLE ARRIVAL TIME AT DEFENSE FUEL SUPPLY OF MAILS ARRIVING AT THE AIRMAIL FIELD, WASHINGTON, D.C. AT 9:30 A.M."

WE NOTE THAT THE DECEMBER 4 LETTER WAS ADDRESSED TO LATER EVIDENCE SUBMITTED BY THE POSTMASTER OF VICTORVILLE, CALIFORNIA, THAT THE PROPER ROUTING OF YOUR BID WOULD HAVE RESULTED IN ITS ARRIVAL AT AIRMAIL FIELD, WASHINGTON, D.C., AT 9:39 A.M., ON JUNE 30, 1970.

IN VIEW OF THE FOREGOING, WE FIND THAT THE LATE RECEIPT OF YOUR FIRM'S BID WAS NOT DUE TO A DELAY IN THE MAILS, BUT TO YOUR FAILURE TO MAIL IT IN SUFFICIENT TIME TO HAVE BEEN RECEIVED IN DUE COURSE. IN THESE CIRCUMSTANCES, THE FAILURE OF THE PROCURING ACTIVITY TO CONSIDER YOUR LATE BID FOR AWARD UNDER THE IFB WAS PROPER. SEE 46 COMP. GEN. 85, 89 (1966); 37 COMP. GEN. 35 (1957); B-161692, AUGUST 9, 1967.

ACCORDINGLY, YOUR PROTEST IS DENIED.