B-200583, OCT 20, 1980

B-200583: Oct 20, 1980

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FAILURE OF UNITED STATES POSTAL SERVICE TO DELIVER EXPRESS MAIL IN TIME IS NOT "MISHANDLING BY GOVERNMENT" WITHIN MEANING OF LATE BID CLAUSE. " WAS RECEIVED AFTER BID OPENING. ROYAL CONTENDS THAT THE LATE DELIVERY WAS CAUSED BY "NEGLECT OR OTHER CAUSES GENERATED BY THE POST OFFICE. A FEDERAL AGENCY" AND THAT UNDER APPLICABLE PROCUREMENT REGULATIONS THE LATE BID SHOULD HAVE BEEN ACCEPTED BY THE AIR FORCE. S. POSTAL SERVIDE "EXPRESS MAIL" IS NOT ONE OF THE LIMITED REGULATORY EXCEPTIONS ALLOWING FOR ACCEPTANCE OF A LATE BID. WE CONCLUDE THAT ROYAL'S BID PROPERLY WAS REJECTED. IT IS CLEAR FROM ROYAL'S INITIAL SUBMISSION THAT THIS PROTEST IS LEGALLY WITHOUT MERIT. THEREFORE WE ARE DECIDING THE MATTER WITHOUT FURTHER CASE DEVELOPMENT.

B-200583, OCT 20, 1980

DIGEST: 1. LATE BID MAY NOT BE CONSIDERED FOR AWARD EVEN THOUGH SENT BY UNITED STATES POSTAL SERVICE EXPRESS MAIL SINCE DEFENSE ACQUISITION REGULATION SEC. 7-2002.2 PERMITS CONSIDERATION OF LATE BID IN LIMITED CIRCUMSTANCES WHICH DO NOT INCLUDE EXPRESS MAIL. 2. FAILURE OF UNITED STATES POSTAL SERVICE TO DELIVER EXPRESS MAIL IN TIME IS NOT "MISHANDLING BY GOVERNMENT" WITHIN MEANING OF LATE BID CLAUSE.

WALKER'S ROYAL, INCORPORATED:

WALKER'S ROYAL, INCORPORATED, (ROYAL) PROTESTS THE REJECTION OF ITS BID UNDER INVITATION FOR BIDS NO. F02604-80-B0081 ISSUED BY THE DEPARTMENT OF THE AIR FORCE, LUKE AIR FORCE BASE, ARIZONA, FOR JANITORIAL SERVICES. THE ROYAL BID, TRANSMITTED BY U. S. POSTAL SERVICE "EXPRESS MAIL SERVICE," WAS RECEIVED AFTER BID OPENING. ROYAL CONTENDS THAT THE LATE DELIVERY WAS CAUSED BY "NEGLECT OR OTHER CAUSES GENERATED BY THE POST OFFICE, A FEDERAL AGENCY" AND THAT UNDER APPLICABLE PROCUREMENT REGULATIONS THE LATE BID SHOULD HAVE BEEN ACCEPTED BY THE AIR FORCE. BECAUSE LATE DELIVERY BY U. S. POSTAL SERVIDE "EXPRESS MAIL" IS NOT ONE OF THE LIMITED REGULATORY EXCEPTIONS ALLOWING FOR ACCEPTANCE OF A LATE BID, WE CONCLUDE THAT ROYAL'S BID PROPERLY WAS REJECTED.

IT IS CLEAR FROM ROYAL'S INITIAL SUBMISSION THAT THIS PROTEST IS LEGALLY WITHOUT MERIT. THEREFORE WE ARE DECIDING THE MATTER WITHOUT FURTHER CASE DEVELOPMENT. THE BRUNTON COMPANY, B-192243, AUGUST 29, 1978, 78-2 CPD 151; PLAZA DE LAS ARMAS, INC., B-188602, JUNE 30, 1977, 77-1 CPD 468.

THE APPLICABLE LATE BID REGULATION PROVIDES THAT:

"(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 ***; OR,

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

DEFENSE ACQUISITION REGULATION (DAR) SEC. 7-2002.2.

ROYAL'S CONTENTION THAT THE LATE DELIVERY OF ITS BID WAS CAUSED BY "THE POST OFFICE, A FEDERAL AGENCY," DOES NOT BRING THE SITUATION WITHIN THE SCOPE OF THE (A)(II) GOVERNMENT MISHANDLING EXCEPTION CITED ABOVE. MISHANDLING BY A GOVERNMENT AGENCY REFERS TO MISHANDLING AFTER RECEIPT OF THE BID IN THE PROCURING AGENCY'S LOCAL OFFICE. THE HOEDADS, B-185919, JULY 8, 1976, 76-2 CPD 21; DECILOG, INC., B-193914, FEBRUARY 5, 1979, 79-1 CPD 81. THUS, A DELAY ON THE PART OF THE POSTAL SERVICE DOES NOT CONSTITUTE "MISHANDLING BY THE GOVERNMENT." KESSEL KITCHEN EQUIPMENT CO., INC., B-189447, OCTOBER 5, 1977, 77-2 CPD 271.

OUR OFFICE HAS CONSISTENTLY HELD THAT A BIDDER HAS THE RESPONSIBILITY OF ASSURING THAT ITS BID ARRIVES AT THE PROPER TIME AND THAT RESPONSIBILITY FOR LATENESS IS BORNE BY THE BIDDER UNLESS A REGULATORY EXCEPTION EXISTS. SEE DYNAMIC'S INTERNATIONAL, B-190026, NOVEMBER 30, 1977, 77-2 CPD 426. SINCE DAR SEC. 7-2002.2 IS SPECIFIC AS TO THE CIRCUMSTANCES UNDER WHICH A LATE BID MAY BE CONSIDERED WE SEE NO BASIS FOR PROVIDING AN ADDITIONAL EXCEPTION FOR "EXPRESS MAIL SERVICE." KESSEL KITCHEN EQUIPMENT CO., INC., SUPRA. THUS, THE PROTESTER ASSUMED THE RISK OF LATE DELIVERY IN SELECTING OTHER THAN REGISTERED OR CERTIFIED MAIL. HESSE MACHINE & MFG. CO., INC., B-193984, FEBRUARY 23, 1979, 79-1 CPD 130.

THE PROTEST IS SUMMARILY DENIED.