B-152461, MAR. 5, 1964

B-152461, MAR. 5, 1964

TO COMMUNICATION SYSTEMS CORPORATION:

WE HAVE YOUR LETTER DATED FEBRUARY 25, 1964, WITH ENCLOSURE ADDRESSED TO THE PRESIDENT OF THE UNITED STATES, TAKING EXCEPTION TO OUR DECISION DATED DECEMBER 5, 1963. THE DECISION HELD THAT YOUR LOW BID ON DEPARTMENT OF THE AIR FORCE INVITATION NO. 30-635-64-8 WAS BARRED FROM CONSIDERATION FOR AWARD AS A LATE BID WHICH ARRIVED AFTER THE TIME SET FOR OPENING EVEN THOUGH IT HAD BEEN POSTED BY CERTIFIED MAIL AND DESPITE YOUR PRODUCTION OF A CERTIFICATE OF MAILING BECAUSE THE EVIDENCE OF MAILING TENDERED BY YOU FAILED TO ESTABLISH THE EXACT TIME OF DAY WHEN THE LETTER CONTAINING THE BID HAD BEEN POSTED AND, AS A CONSEQUENCE, YOU WERE UNABLE, UNDER THE STANDARDS OF PROOF ESTABLISHED BY THE TERMS OF THE INVITATION AND APPLICABLE REGULATIONS, TO PROVE CONCLUSIVELY THAT THE TARDY ARRIVAL OF YOUR BID WAS DUE SOLELY TO A DELAY IN THE NORMAL COURSE OF THE MAILS. SEE ARMED SERVICES PROCUREMENT REGULATION 2-303.2 (II).

WE HAD NOT RECEIVED A COPY OF YOUR LETTER DATED DECEMBER 11, 1963, ADDRESSED TO THE PRESIDENT, UNTIL THE ARRIVAL OF YOUR LETTER DATED FEBRUARY 25, 1964, AND WE NOW ASSUME THAT THIS LETTER REPRESENTS THE ADDITIONAL MATERIAL REFERRED TO IN YOUR TELEFAX DATED DECEMBER 11, 1963, WHICH YOU INTEND TO SUBMIT ON THE SUBJECT OF YOUR PROTEST.

THE PROVISIONS OF THE REGULATIONS APPLICABLE TO THIS CASE HAVE THE FORCE AND EFFECT OF LAW. IN VIEW THEREOF, WE MUST CONCLUDE THAT YOUR PROTEST WAS PROPERLY DENIED, AND WE KNOW OF NO ADDITIONAL COURSE OF ACTION OPEN TO YOU WHICH WOULD AFFECT THE PARTICULAR PROCUREMENT INVOLVED.

SO FAR AS FUTURE PROCUREMENTS ARE CONCERNED, A CHANGE IN THE PRESENT RULES REGARDING PROOF OF DELAY IN THE MAILS WOULD REQUIRE A CHANGE IN THE APPLICABLE PROVISIONS OF THE ARMED SERVICES PROCUREMENT REGULATION. THIS IS A MATTER WHICH IS WITHIN THE JURISDICTION OF THE SECRETARY OF DEFENSE, AND ANY SUGGESTIONS YOU MAY HAVE FOR REVISION OF EXISTING REGULATIONS SHOULD BE ADDRESSED TO HIM.