B-173593, AUG 3, 1971
Highlights
THE PROTEST OF CLARK IS THEREFORE AFFIRMED. BIDS WERE OPENED AT 2 P.M. CLARK BROTHERS WAS LOW BIDDER WITH A BID PRICE OF $851. WAS RECEIVED FROM L. M. JOHNSON ON THE BASIS THAT THE BID WAS LATE AND NOT FOR CONSIDERATION UNDER PARAGRAPH 7 OF THE INSTRUCTIONS TO BIDDERS. THE RECORD INDICATES THAT THE JOHNSON BID WAS NOT DELIVERED TO THE FOREST SERVICE BY THE POST OFFICE UNTIL AFTER THE 2 P.M. WE HAVE BEEN ADVISED THAT JOHNSON DOES NOT HAVE A CERTIFIED MAIL RECEIPT ISSUED BY THE ORIGINATING POST OFFICE SHOWING A DATED POSTMARK. IN ORDER TO ALLOW CONSIDERATION OF A LATE BID ON THE BASIS THAT IT WAS DELAYED IN THE MAIL. IT IS NECESSARY THAT THE TIME OF MAILING BE ASCERTAINED WITH CERTAINTY IN ORDER THAT A DETERMINATION MAY BE MADE AS TO WHETHER THE LATE RECEIPT WAS DUE SOLELY TO A DELAY IN THE MAIL FOR WHICH THE BIDDER WAS NOT RESPONSIBLE.
B-173593, AUG 3, 1971
BID PROTEST - LATE BID - CERTIFIED MAIL RECEIPT CONCERNING PROTEST OF CLARK BROTHERS CONTRACTORS AGAINST AWARD OF CONTRACT UNDER IFB ISSUED BY FOREST SERVICE, MISSOULA, MONTANA, TO L. M. JOHNSON, INC. SINCE THE BIDDER CANNOT PRODUCE A RECEIPT FOR CERTIFIED MAIL, AS REQUIRED BY FPR 1-2.303-3(C), THE LATE BID OF JOHNSON MAY NOT BE CONSIDERED FOR AWARD. THE PROTEST OF CLARK IS THEREFORE AFFIRMED.
TO MR. SECRETARY:
WE REFER TO THE LETTER 6320 DATED JULY 13, 1971, FROM THE DIRECTOR OF ADMINISTRATIVE SERVICES, FOREST SERVICE, CONCERNING THE PROTEST OF CLARK BROTHERS CONTRACTORS AGAINST ANY AWARD OF A CONTRACT TO L. M. JOHNSON, INC., UNDER SOLICITATION NO. R1-71-47, ISSUED BY THE FOREST SERVICE, MISSOULA, MONTANA.
BIDS WERE OPENED AT 2 P.M. ON JUNE 4, 1971, IN THE BID OPENING ROOM IN THE FEDERAL BUILDING AT MISSOULA. CLARK BROTHERS WAS LOW BIDDER WITH A BID PRICE OF $851,830. A SHORT TIME THEREAFTER, A LATE BID OF $848,956.65, WHICH THE CONTRACTING OFFICER DECIDED SHOULD BE OPENED AND CONSIDERED FOR AWARD, WAS RECEIVED FROM L. M. JOHNSON. CLARK BROTHERS CONTESTS THIS DECISION AND ANY RESULTING AWARD TO L. M. JOHNSON ON THE BASIS THAT THE BID WAS LATE AND NOT FOR CONSIDERATION UNDER PARAGRAPH 7 OF THE INSTRUCTIONS TO BIDDERS.
THE RECORD INDICATES THAT THE JOHNSON BID WAS NOT DELIVERED TO THE FOREST SERVICE BY THE POST OFFICE UNTIL AFTER THE 2 P.M. BID OPENING. FURTHER, WE HAVE BEEN ADVISED THAT JOHNSON DOES NOT HAVE A CERTIFIED MAIL RECEIPT ISSUED BY THE ORIGINATING POST OFFICE SHOWING A DATED POSTMARK.
IN ORDER TO ALLOW CONSIDERATION OF A LATE BID ON THE BASIS THAT IT WAS DELAYED IN THE MAIL, AS OPPOSED TO HAVING BEEN MISHANDLED AFTER DELIVERY TO THE GOVERNMENT INSTALLATION INVOLVED, IT IS NECESSARY THAT THE TIME OF MAILING BE ASCERTAINED WITH CERTAINTY IN ORDER THAT A DETERMINATION MAY BE MADE AS TO WHETHER THE LATE RECEIPT WAS DUE SOLELY TO A DELAY IN THE MAIL FOR WHICH THE BIDDER WAS NOT RESPONSIBLE. THUS, SECTION 1-2.303-3(C) OF THE FEDERAL PROCUREMENT REGULATIONS (FPR) REQUIRES IN THE CASE OF BIDS SENT BY CERTIFIED MAIL THAT THE TIME OF MAILING BE DETERMINED BY THE POSTMARK PLACED ON THE BIDDER'S RECEIPT FOR CERTIFIED MAIL BY THE POST OFFICE FROM WHICH THE BID WAS MAILED AND PROVIDES FURTHER THAT A LATE BID FOR WHICH A RECEIPT NOT CONTAINING A DATED POSTMARK IS FURNISHED WILL BE CONSIDERED TO BE UNACCEPTABLE. FURTHER, PARAGRAPH 7 OF THE INVITATION INSTRUCTIONS TO BIDDERS CAUTIONED BIDDERS USING CERTIFIED MAIL TO OBTAIN SUCH A DATED RECEIPT IN THE EVENT PROOF OF TIME OF MAILING SHOULD BE REQUIRED AND STATED THAT SUCH RECEIPT WOULD CONSTITUTE "THE ONLY ACCEPTABLE EVIDENCE" OF TIMELY MAILING. FINALLY, OUR OFFICE HAS CONSISTENTLY HELD THAT THE DATED CERTIFIED MAIL RECEIPT IS A MANDATORY PREREQUISITE TO CONSIDERATION OF A BID NOT DELIVERED BY THE POSTAL SERVICE UNTIL AFTER BID OPENING. SEE B-167288, JULY 17, 1969, AND CASES CITED THEREIN.
ACCORDINGLY, SINCE THE BIDDER IS UNABLE TO PRODUCE HIS RECEIPT FOR CERTIFIED MAIL, AS REQUIRED, WE MUST CONCLUDE THAT THE LATE JOHNSON BID MAY NOT BE CONSIDERED FOR AWARD. IN VIEW OF THIS CONCLUSION, IT IS NOT NECESSARY TO CONSIDER THE OTHER GROUNDS OF THE CLARK BROTHERS PROTEST.