B-181645, SEP 12, 1974

B-181645: Sep 12, 1974

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WHERE APPARENT LOW BID WAS RECEIVED AFTER BID OPENING BUT PRIOR TO AWARD. RECORD INDICATES THAT IT WAS MAILED 7 DAYS PRIOR TO BID OPENING BY CERTIFIED MAIL WITH RECEIPT CORROBORATING MAILING DATE. BID WAS ELIGIBLE FOR CONSIDERATION UNDER LATE BID PROVISIONS OF ASPR CURRENTLY IN EFFECT. PROTEST AGAINST SIZE STATUS OF ANOTHER BIDDER UNDER TOTAL SMALL BUSINESS SET-ASIDE DENIED SINCE SBA RULED AFFIRMATIVELY ON ELIGIBILITY OF FIRM AND SUCH DETERMINATIONS ARE CONCLUSIVE. INVITATION FOR BIDS (IFB) M00264-74-B-0076 WAS ISSUED MAY 16. BIDS WERE OPENED ON JUNE 17. WHICH WAS DATED JUNE 10. WHEN THE RECEIPT WAS TENDERED TO THE QUANTICO POST OFFICE. THE BID WAS POST-MARKED AT FREDERICKSBURG. WHITE OAK WAS REQUESTED TO CONFIRM.

B-181645, SEP 12, 1974

1. WHERE APPARENT LOW BID WAS RECEIVED AFTER BID OPENING BUT PRIOR TO AWARD, AND RECORD INDICATES THAT IT WAS MAILED 7 DAYS PRIOR TO BID OPENING BY CERTIFIED MAIL WITH RECEIPT CORROBORATING MAILING DATE, BID WAS ELIGIBLE FOR CONSIDERATION UNDER LATE BID PROVISIONS OF ASPR CURRENTLY IN EFFECT, NOTWITHSTANDING NEGLIGENCE IN DELIVERY BY POSTAL SERVICE. 2. PROTEST AGAINST SIZE STATUS OF ANOTHER BIDDER UNDER TOTAL SMALL BUSINESS SET-ASIDE DENIED SINCE SBA RULED AFFIRMATIVELY ON ELIGIBILITY OF FIRM AND SUCH DETERMINATIONS ARE CONCLUSIVE.

GEMINI FOOD SERVICES, INC;

INVITATION FOR BIDS (IFB) M00264-74-B-0076 WAS ISSUED MAY 16, 1974, BY THE MARINE CORPS BASE, QUANTICO, VIRGINIA, AS A TOTAL SMALL BUSINESS SET- ASIDE FOR THE COLLECTION AND DISPOSAL OF TRASH AND REFUSE.

BIDS WERE OPENED ON JUNE 17, 1974, EVIDENCING SUBMISSIONS FROM GEMINI AND TRIANGLE DUMFRIES QUANTICO TRASH COMPANY, INC. (TRIANGLE).

THE RECORD STATES THAT AT APPROXIMATELY 4:00 P.M. ON THE SAME DATE, THE CONTRACTING OFFICER RECEIVED A TELEPHONE CALL FROM THE OWNER OF WHITE OAK DISPOSAL SERVICE, REQUESTING INFORMATION ON THE IFB, AND STATING THAT WHITE OAK'S BID HAD BEEN MAILED ON JUNE 10, 1974, FROM FALMOUTH, VIRGINIA, AND A CERTIFIED MAIL RECEIPT HAD BEEN ISSUED TO CORROBORATE THE ALLEGED MAILING DATE. ON JUNE 18, WHITE OAK HAD DELIVERED TO THE CONTRACTING OFFICER THE ORIGINAL RECEIPT FOR CERTIFIED MAIL, WHICH WAS DATED JUNE 10, 1974. WHEN THE RECEIPT WAS TENDERED TO THE QUANTICO POST OFFICE, POSTAL OFFICIALS ADVISED THAT THE BID ENVELOPE HAD JUST BEEN RECEIVED IN THE MORNING MAIL, AND THE BID WAS POST-MARKED AT FREDERICKSBURG, VIRGINIA, ON JUNE 17, 1974. FOLLWING AN INVESTIGATION WITH COGNIZANT POSTAL SERVICE PERSONNEL, WHITE OAK WAS REQUESTED TO CONFIRM, AND DID CONFIRM, ITS APPARENT LOW BID.

GEMINI HAS PROTESTED TO OUR OFFICE THAT THE LATE RECEIPT OF WHITE OAK'S BID IS ATTRIBUTABLE TO THE FACT THAT NOTWITHSTANDING ITS MAILING IN SUFFICIENT TIME TO BE RECEIVED PRIOR TO BID OPENING, THE BID WAS HELD AT THE POST OFFICE FOR LACK OF SUFFICIENT POSTAGE, AND WAS TRANSMITTED TO THE PROCURING ACTIVITY ONLY AFTER ADDITIONAL POSTAGE WAS TENDERED. AS A CONSEQUENCE, GEMINI MAINTAINS THAT THE LATE RECEIPT CANNOT BE ATTRIBUTED SOLELY TO GOVERNMENT MISHANDLING AFTER RECEIPT SO AS TO ENABLE IT TO BE CONSIDERED UNDER VARIOUS CITED PROVISIONS OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). IT IS FURTHER SUBMITTED BY GEMINI'S COUNSEL THAT THE U.S. POSTAL SERVICE IS AN AGENT OF THE SENDER AND THE SENDER MUST THEREFORE SUFFER THE CONSEQUENCES OF ANY DERELICTION OF ITS AGENT. IT IS CONTENDED THAT THE DATE ON THE CERTIFIED MAIL RECEIPT PRESUPPOSES THAT POSTAGE WAS PREPAID, BUT THAT IN THE INSTANT CASE THE POSTAL SERVICE WAS UNDER NO OBLIGATION TO TRANSMIT THE ITEM UNTIL JUNE 17, AT WHICH TIME THE REQUIRED POSTAGE WAS PAID.

GEMINI FURTHER REQUESTED THE PROCURING ACTIVITY TO CONDUCT AN INVESTIGATION TO DETERMINE WHETHER TRIANGLE QUALIFIED AS A SMALL BUSINESS SO AS TO BE ELIGIBLE FOR THIS PROCUREMENT.

THE RECORD INCLUDES COPIES OF TWO LETTERS FROM THE FREDERICKSBURG POSTMASTER DATED JUNE 18 AND JULY 29, 1974, ADVISING THAT THE BID WAS MAILED AT THE FALMOUTH BRANCH POST OFFICE BY CERTIFIED MAIL ON JUNE 10, 1974; THAT THE POSTAGE WAS FULLY PREPAID; THAT THE ACTING SUPERINTENDENT AT THE FALMOUTH BRANCH, WHO WORKS EVERY MONDAY, STIPULATED THAT ALTHOUGH THE BID WAS PRESENTED FOR MAILING AT THE COSE OF BUSINESS ON MONDAY, JUNE 10, BECAUSE OF A RUSH AT CLOSING TIME, HE FAILED TO PUT THE PROPER POSTAGE ON THE LETTER AND INSTEAD PLACED IT IN A DRAWER AND FORGOT ABOUT IT; THAT UPON COMING TO WORK ON MONDAY, JUNE 17, HE DISCOVERED THE ITEM IN HIS DRAWER AND IMPRINTED THE METERED POSTAGE DATED JUNE 17, 1974.

DEFENSE PROCUREMENT CIRCULAR (DPC) #110, MAY 30, 1973, AMENDED THE LATE BID PROVISIONS OF THE ASPR TO STATE, IN PERTINENT PART:

"LATE BIDS, MODIFICATIONS OF BIDS OR WITHDRAWAL OF BIDS (1973 JUL)

(A) ANY BID RECEIVED AT THE OFFICE DESIGNATED IN TE SOLICITATION AFTER THE EXACT TIME SPECIFIED FOR RECEIPT WILL NOT BE CONSIDERED UNLESS IT IS RECEIVED BEFORE AWARD IS MADE AND EITHER:

(I) IT WAS SENT BY REGISTERED OR CERTIFIED MAIL NOT LATER THAN THE FIFTH CALENDAR DAY PRIOR TO THE DATE SPECIFIED FOR RECEIPT OF BIDS (E.G., A BID SUBMITTED IN RESPONSE TO A SOLICITATION REQUIRING RECEIPT OF BIDS BY THE 20TH OF THE MONTH MUST HAVE BEEN MAILED BY THE 15TH OR EARLIER); OR,

(II) IT WAS SENT BY MAIL (OR TELEGRAM IF AUTHORIZED) AND IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION."

IN VIEW OF THE FACT THAT SUBPARAGRAPHS (I) AND (II) ARE STATED IN THE ALTERNATIVE, IT IS NOT NECESSARY TO ESTABLISH THAT THE LATENESS WAS DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION IF THE REQUIREMENTS OF (I) ARE FULFILLED: NAMELY, THAT THE BID WAS SENT BY REGISTERED OR CERTIFIED MAIL NOT LATER THAN THE FIFTH CALENDAR DAY PRIOR TO THE DATE SPECIFIED FOR RECEIPT OF BIDS. PARAGRAPH (C)(I) FURTHER PROVIDES THAT THE CERTIFIED MAIL RECEIPT MAY CONSTITUTE ACCEPTABLE EVIDENCE TO ESTABLISH THE MAILING DATE OF CERTIFIED MAIL.

IN VIEW THEREOF, AND OF THE FACTS THAT THE RECORD EVIDENCES A RECEIPT SHOWING A MAILING ON JUNE 10 AND THAT POSTAGE WAS PREPAID, WE MUST CONCLUDE THAT WHITE OAK'S LATE BID WAS CLEARLY ELIGIBLE FOR CONSIDERATION UNDER THE REFERENCED PROVISIONS.

WITH REGARD TO THE ISSUE OF TRIANGLE'S SIZE STATUS, THE RECORD REVEALS THAT PURSUANT TO GEMINI'S REQUEST, THE MATTER WAS FORWARDED TO THE SMALL BUSINESS ADMINISTRATION'S (SBA) REGIONAL OFFICE IN PHILADELPHIA WHICH REVIEWED THE MATTER AND REPORTED BY LETTER OF AUGUST 1, 1974, THAT TRIANGLE QUALIFIED AS A SMALL BUSINESS UNDER APPLICABLE STANDARDS. HAVE HELD THAT IT IS THE DUTY OF THE SBA, RATHER THAN OUR OFFICE, TO DETERMINE WHETHER A CONCERN IS A SMALL BUSINESS FOR PURPOSES OF A PARTICULAR PROCUREMENT, AND THAT SBA'S DETERMINATION IS CONCLUSIVE ON THE PROCUREMENT AGENCY INVOLVED. B-180705, MARCH 28, 1974.

ACCORDINGLY, THE PROTEST IS DENIED.