B-165617, MAR. 3, 1969

B-165617, MAR. 3, 1969

TO TELECTRO SYSTEMS CORPORATION:

REFERENCE IS MADE TO YOUR TELEGRAM OF DECEMBER 5, 1968, AND LETTER OF DECEMBER 9, 1968, IN WHICH YOU PROTESTED AGAINST THE REJECTION OF YOUR BID UNDER INVITATION FOR BIDS (IFB) NO. F34601-69-B-0124, ISSUED BY THE OKLAHOMA CITY AIR MATERIEL AREA (OCAMA) AS THE SECOND STEP OF A TWO-STEP PROCUREMENT. SINCE YOUR BID WAS RECEIVED BY THE PROCURING ACTIVITY ON OCTOBER 21, 1968, THREE DAYS AFTER THE BID OPENING DATE OF OCTOBER 18, 1968, AND AS IT WAS NOT SENT BY EITHER REGISTERED OR CERTIFIED MAIL, YOUR BID WAS REJECTED PURSUANT TO PROVISION NO. 8 OF THE IFB, LATE OFFERS AND MODIFICATIONS OR WITHDRAWALS, QUOTED AS FOLLOWS:

"8. LATE OFFERS AND MODIFICATIONS OR WITHDRAWALS. (THIS PARAGRAPH APPLIES TO ALL ADVERTISED SOLICITATIONS. IN THE CASE OF DEPARTMENT OF DEFENSE NEGOTIATED SOLICITATIONS, IT SHALL ALSO APPLY TO LATE OFFERS AND MODIFICATIONS (OTHER THAN THE NORMAL REVISIONS OF OFFERS BY SELECTED OFFERORS DURING THE USUAL CONDUCT OF NEGOTIATIONS WITH SUCH OFFERORS) BUT NOT TO WITHDRAWALS OF OFFERS. UNLESS OTHERWISE PROVIDED, THIS PARAGRAPH DOES NOT APPLY TO NEGOTIATED SOLICITATIONS ISSUED BY CIVILIAN AGENCIES.)

"/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. HOWEVER, A MODIFICATION OF AN OFFER WHICH MAKES THE TERMS OF THE OTHERWISE SUCCESSFUL OFFER MORE FAVORABLE TO THE GOVERNMENT WILL BE CONSIDERED AT ANY TIME IT IS RECEIVED AND MAY THEREAFTER BE ACCEPTED.

"/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.'

ALTHOUGH YOU HAVE SUBMITTED AFFIDAVITS FROM POST OFFICE PERSONNEL IN AN ATTEMPT TO ESTABLISH THAT YOUR BID PACKAGE WAS MAILED IN SUFFICIENT TIME TO ARRIVE AT THE PROCURING ACTIVITY PRIOR TO THE DATE SET FOR BID OPENING, SECTION 8 (A) (2) REQUIRED THAT YOUR BID BE SENT BY REGISTERED OR CERTIFIED MAIL AS A CONDITION PRECEDENT TO THE CONSIDERATION OF ANY EVIDENCE OF MAIL DELAY. THIS PROVISION RESTATES THE REQUIREMENTS SET FORTH IN ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-303.2, AND ACCORDINGLY, MAY NOT BE WAIVED. 42 COMP. GEN. 255.

THE QUOTED PROVISIONS CONSTITUTED NOTICE TO BIDDERS THAT IN THE EVENT THEY FAILED TO UTILIZE REGISTERED OR CERTIFIED MAIL FOR THEIR BIDS, THEY WOULD ASSUME THE RISK OF LATE DELIVERY TO THE SPECIFIED GOVERNMENT PROCURING ACTIVITY UNLESS (1) A TIME STAMP OR OTHER DOCUMENTARY EVIDENCE WITHIN THE POSSESSION OF THE GOVERNMENT OR THE POST OFFICE SERVING IT INDICATED THAT THEIR BIDS WERE TIMELY RECEIVED AT THE GOVERNMENT INSTALLATION, AND (2) GOVERNMENT MISHANDLING AFTER SUCH RECEIPT WAS THE SOLE REASON FOR THE LATE RECEIPT AT THE SPECIFIED PROCURING ACTIVITY. THE TIME STAMP OF THE OKLAHOMA CITY POST OFFICE ON YOUR BID PACKAGE INDICATES THAT IT WAS NOT RECEIVED THERE UNTIL 4 P.M. ON THE BID OPENING DATE, WHICH WAS SEVERAL HOURS AFTER THE TIME SET FOR THE OPENING, AND ITS LATE RECEIPT THEREFORE CANNOT BE ATTRIBUTED TO MISHANDLING AT THE AIR FORCE INSTALLATION. ON THIS RECORD WE CANNOT CONSIDER THE PROCURING ACTIVITY'S DECISION TO REJECT YOUR BID TO HAVE BEEN IMPROPER.

EVEN THOUGH THE STRICT ENFORCEMENT OF THESE PROVISIONS MAY CAUSE THE GOVERNMENT TO FORFEIT THE BENEFIT OF LOWER BIDS, THEY HAVE BEEN STRICTLY ENFORCED SINCE THEIR ADOPTION MORE THAN SIX YEARS AGO, AND WE BELIEVE SUCH ENFORCEMENT TO BE NECESSARY IN ORDER TO ENSURE THAT ALL BIDDERS COMPETE ON AN EQUAL BASIS AND TO PREVENT THE POSSIBILITY OF FRAUD.