B-182980, APR 3, 1975

B-182980: Apr 3, 1975

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WAS PROPERLY FOR CONSIDERATION. SINCE 5-DAY REQUIREMENT IN LATE BID PROVISION IN SOLICITATION IS NOT FOR APPLICATION WHERE LATE RECEIPT BY CONTRACTING OFFICER WAS DUE TO MISHANDLING AFTER RECEIPT AT GOVERNMENT INSTALLATION. ADVISED OUR OFFICE THAT IN VIEW OF THE URGENCY OF THE PROCUREMENT THE CONTRACTING ACTIVITY WAS AUTHORIZED TO MAKE AN AWARD WHILE THE PROTEST WAS PENDING AS PROVIDED UNDER ARMED SERVICES PROCUREMENT REGULATION (ASPR) SEC. 2-407.8(B)(2) (1974 ED.). THREE BIDS WERE OPENED AS SCHEDULED AT 3:00 P.M. THE APPARENT LOW BID AT THAT TIME WAS FROM TRAVIS. WHICH WAS LOWER THAN THE TRAVIS BID. MCCOTTER'S BID WAS INITIALLY RECEIVED AT THE ANDREWS AIR FORCE BASE POST OFFICE. RECEIPT WAS EVIDENCED BY A "RETURN RECEIPT REQUEST" SIGNED AND DATED BY THE ANDREWS POST OFFICE ON DECEMBER 26.

B-182980, APR 3, 1975

BID SENT BY CERTIFIED MAIL LESS THAN 5 DAYS BEFORE BID OPENING AND RECEIVED AT BASE POST OFFICE DAY BEFORE BID OPENING, BUT RECEIVED BY CONTRACTING OFFICER AFTER BID OPENING BECAUSE REDUCED POST OFFICE STAFF FAILED TO FOLLOW NORMAL DISTRIBUTION PROCEDURES, WAS PROPERLY FOR CONSIDERATION, SINCE 5-DAY REQUIREMENT IN LATE BID PROVISION IN SOLICITATION IS NOT FOR APPLICATION WHERE LATE RECEIPT BY CONTRACTING OFFICER WAS DUE TO MISHANDLING AFTER RECEIPT AT GOVERNMENT INSTALLATION.

WILLIAM B. TRAVIS CORPORATION:

THE WASHINGTON AREA PROCUREMENT CENTER, DEPARTMENT OF THE AIR FORCE, ISSUED INVITATION FOR BIDS F49642-75-09036 ON NOVEMBER 27, 1974, FOR A CUSTOMER OPERATED BASE PARTS STORE. BY LETTER DATED DECEMBER 30, 1974, WILLIAM B. TRAVIS CORPORATION (TRAVIS) PROTESTED TO OUR OFFICE AGAINST THE CONTRACTING OFFICER ACCEPTING A LATE BID SUBMITTED BY MCCOTTER MOTORS, INC. (MCCOTTER). BY LETTER DATED JANUARY 31, 1975, THE CHIEF, CONTRACT MANAGEMENT DIVISION, DIRECTORATE, PROCUREMENT POLICY, DEPARTMENT OF THE AIR FORCE, ADVISED OUR OFFICE THAT IN VIEW OF THE URGENCY OF THE PROCUREMENT THE CONTRACTING ACTIVITY WAS AUTHORIZED TO MAKE AN AWARD WHILE THE PROTEST WAS PENDING AS PROVIDED UNDER ARMED SERVICES PROCUREMENT REGULATION (ASPR) SEC. 2-407.8(B)(2) (1974 ED.).

THREE BIDS WERE OPENED AS SCHEDULED AT 3:00 P.M. ON DECEMBER 27, 1974. THE APPARENT LOW BID AT THAT TIME WAS FROM TRAVIS. ON DECEMBER 30, THE CONTRACTING OFFICER RECEIVED A LATE BID FROM MCCOTTER, WHICH WAS LOWER THAN THE TRAVIS BID. MCCOTTER'S BID WAS INITIALLY RECEIVED AT THE ANDREWS AIR FORCE BASE POST OFFICE. RECEIPT WAS EVIDENCED BY A "RETURN RECEIPT REQUEST" SIGNED AND DATED BY THE ANDREWS POST OFFICE ON DECEMBER 26, 1974. A COPY OF THE RECEIPT WAS SUBMITTED BY MCCOTTER TO THE CONTRACTING OFFICER. THE BID WAS DELIVERED BY CERTIFIED MAIL POSTMARKED DECEMBER 23, 1974.

THE ANDREWS POST OFFICE ADVISED THE CONTRACTING OFFICER THAT THE BID SHOULD HAVE BEEN PLACED IN THE PROCUREMENT CENTER'S DISTRIBUTION BOX DURING THE MORNING OF DECEMBER 27, 1974, AND DELIVERED TO THE PROCUREMENT CENTER BY NOON ON THAT DATE, 3 HOURS BEFORE BID OPENING. HOWEVER, ONLY A SKELETON CREW WAS WORKING DUE TO THE CHRISTMAS SEASON AND NO ONE REMOVED THE CERTIFIED MAIL FROM THE SAFE IN WHICH IT WAS KEPT AT NIGHT TO PLACE IT IN THE DISTRIBUTION BOXES. THE CONTRACTING OFFICER FOUND THAT THE MCCOTTER BID WOULD HAVE BEEN RECEIVED BY HIM ON TIME IF THE GOVERNMENT HAD NOT MISHANDLED THE BID AFTER IT WAS RECEIVED BY ANDREWS AIR FORCE BASE.

THE TRAVIS PROTEST DOES NOT DISAGREE WITH THE FACTS AS PRESENTED IN THE CONTRACTING OFFICER'S STATEMENT. RATHER, IT CONTENDS THAT SINCE THE MCCOTTER BID WAS SENT BY CERTIFIED MAIL LESS THAN 5 DAYS PRIOR TO THE DATE SPECIFIED FOR RECEIPT OF BIDS, IT DOES NOT FALL WITHIN SECTION C 21(A)(I) OF THE SOLICITATION, WHICH ALLOWS FOR CONSIDERATION OF CERTAIN LATE BIDS. ON THE OTHER HAND, THE CONTRACTING OFFICER FOUND THAT HE WAS REQUIRED TO CONSIDER THE MCCOTTER BID PURSUANT TO SECTION C 21(A)(II) OF THE SOLICITATION.

SECTION C 21(A) OF THE SOLICITATION, PROHIBITING CONSIDERATION OF LATE BIDS SUBJECT TO CERTAIN EXCEPTIONS CONTAINED THEREIN, IS REQUIRED LANGUAGE FOR ALL ADVERTISED PROCUREMENTS PURSUANT TO ASPR SEC. 7-2002.2 (1974 ED.). SECTION C 21(A) PROVIDES:

"(A) ANY BID RECEIVED AT THE OFFICE DESIGNATED IN THE 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 THE 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."

ESSENTIALLY, TRAVIS CONTENDS THAT UNDER THE QUOTED PROVISION, FAILURE TO MEET THE 5-DAY MAILING REQUIREMENT OF SECTION 21(A)(I) PRECLUDES A FINDING THAT LATE RECEIPT OF A BID WAS DUE SOLELY TO MISHANDLING BY THE GOVERNMENT UNDER SECTION 21(A)(II), AND THEREFORE THE LATE BID MAY NOT BE CONSIDERED. HOWEVER, THE "EITHER *** OR" LANGUAGE OF THE PROVISION CLEARLY PROVIDES ALTERNATIVE BASES UPON WHICH A LATE BID WILL BE CONSIDERED. THUS, WE HAVE HELD THAT A LATE BID WAS PROPERLY CONSIDERED UNDER THE PREDECESSOR ASPR LATE BID PROVISIONS, WHICH INCLUDED AN EXCEPTION FOR REGISTERED OR CERTIFIED MAIL POSTMARKED PRIOR TO BID OPENING, ON THE BASIS THAT LATE RECEIPT WAS DUE SOLELY TO GOVERNMENT MISHANDLING, DESPITE SUBMISSION OF THE LATE BID BY OTHER THAN REGISTERED OR CERTIFIED MAIL. B-170471, JANUARY 11, 1971.

THE REVISION OF THE LATE BID PROVISION TO INCLUDE A REQUIREMENT THAT CERTIFIED OR REGISTERED MAIL BE SENT AT LEAST 5 CALENDAR DAYS BEFORE THE SPECIFIED BID OPENING WAS INTENDED TO ELIMINATE THE DIFFICULTY OF OBTAINING SUBSTANTIATING INFORMATION FROM THE POSTAL SERVICE AS TO THE NORMAL TIME FOR DELIVERY AND TO AVOID THE ADMINISTRATIVE EFFORT, TIME AND CONFUSION PREVIOUSLY ASSOCIATED WITH SUCH LATE BIDS. MATTER OF FRIEDEN CONSTRUCTION COMPANY, 53 COMP. GEN. 767 (1974). THE EXCEPTION FOR GOVERNMENT MISHANDLING OF LATE BIDS AFTER RECEIPT AT A GOVERNMENT INSTALLATION IS UNAFFECTED BY THE REVISION.

ACCORDINGLY, THE MCCOTTER BID WAS PROPERLY FOR CONSIDERATION FOR AWARD. THEREFORE, THE PROTEST IS DENIED.