B-219348.4, FEB 27, 1986, OFFICE OF GENERAL COUNSEL

B-219348.4: Feb 27, 1986

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YOU REQUESTED OUR VIEW AS TO WHETHER THE LATE BID PROVISION IN THE PROCUREMENT REGULATIONS SHOULD BE AMENDED TO EXCLUDE THE CONSIDERATION OF LATE BIDS SENT BY CERTIFIED MAIL TO ELIMINATE THE POSSIBILITY THAT BIDDERS ARE MAILING BIDS OR MODIFICATIONS AFTER BID OPENING AND USING CERTIFIED MAIL TO SHOW THAT THEY WERE MAILED BEFORE BID OPENING. WE EXPRESSED THE VIEW THAT THIS CHANGE WAS NOT NECESSARY. THAT CASE INVOLVED A PROTESTER WHO WAS THE LOW BIDDER UNDER TWO SOLICITATIONS AT THE TIME OF BID OPENING ONLY TO BE UNDERBID BY LATE BIDS SUBMITTED BY ANOTHER BIDDER. INDICATING THAT THE BID HAD BEEN SENT BY CERTIFIED MAIL MORE THAN 5 DAYS PRIOR TO BID OPENING AND WAS. WHEN CERTIFIED MAIL IS USED.

B-219348.4, FEB 27, 1986, OFFICE OF GENERAL COUNSEL

PRECIS-UNAVAILABLE

THE HONORABLE JOHN HAMMERSCHMIDT:

HOUSE OF REPRESENTATIVES

ON JANUARY 29, 1986, YOU REQUESTED OUR VIEW AS TO WHETHER THE LATE BID PROVISION IN THE PROCUREMENT REGULATIONS SHOULD BE AMENDED TO EXCLUDE THE CONSIDERATION OF LATE BIDS SENT BY CERTIFIED MAIL TO ELIMINATE THE POSSIBILITY THAT BIDDERS ARE MAILING BIDS OR MODIFICATIONS AFTER BID OPENING AND USING CERTIFIED MAIL TO SHOW THAT THEY WERE MAILED BEFORE BID OPENING.

THE PROCUREMENT REGULATIONS CURRENTLY PROVIDE FOR CONSIDERATION OF CERTAIN LATE BIDS SENT BY REGISTERED OR CERTIFIED MAIL. SEE FEDERAL ACQUISITION REGULATION (FAR), 48 C.F.R. SEC. 14.304-1 (1984). SUGGESTION THAT CERTIFIED MAIL BE ELIMINATED FROM THE PROCUREMENT REGULATIONS HAS BEEN BEFORE OUR OFFICE IN THE PAST. IN OUR DECISION IN G.F. BUSINESS EQUIPMENT, INC., B-185917, AUG. 3, 1976, 76-2 CPD PARA. 118, WE EXPRESSED THE VIEW THAT THIS CHANGE WAS NOT NECESSARY.

THAT CASE INVOLVED A PROTESTER WHO WAS THE LOW BIDDER UNDER TWO SOLICITATIONS AT THE TIME OF BID OPENING ONLY TO BE UNDERBID BY LATE BIDS SUBMITTED BY ANOTHER BIDDER. IN EACH INSTANCE, THE LATE BIDDER PRODUCED A CERTIFIED MAIL RECEIPT, AS THEN PERMITTED BY THE REGULATION, INDICATING THAT THE BID HAD BEEN SENT BY CERTIFIED MAIL MORE THAN 5 DAYS PRIOR TO BID OPENING AND WAS, THEREFORE, ELIGIBLE FOR CONSIDERATION. SINCE THE CONTRACTING AGENCY HAD CONDUCTED AN INVESTIGATION AND FOUND NO IMPROPRIETIES, WE SAW NO REASON TO QUESTION THE AWARDS. THE PROTESTER ARGUED IN THAT CASE THAT CERTIFIED MAIL PROVIDED INSUFFICIENT ASSURANCE AS TO THE DATE OF MAILING. WE REJECTED THIS ARGUMENT ON THE BASIS THAT, WHEN CERTIFIED MAIL IS USED, PROOF OF THE MAILING MUST COME FROM A CERTIFIED MAIL RECEIPT WHICH CAN ONLY BE LEGALLY OBTAINED WHEN THE ARTICLE IS SURRENDERED TO A POSTAL EMPLOYEE FOR MAILING.

HOWEVER, SUBSEQUENTLY, WE RECOGNIZED THE POSSIBILITY THAT A BIDDER USING CERTIFIED MAIL MIGHT WELL BE ABLE TO SUBVERT THE SYSTEM BY OBTAINING THE POSTMARK ON THE RECEIPT ONLY. N.Y. ENTERPRISE CAPITAL CORP., 60 COMP.GEN. 79 (1980), 80-2 CPD PARA. 392. BY THIS TIME, THE FEDERAL PROCUREMENT REGULATIONS REQUIRED POSTMARKS ON BOTH THE RECEIPT AND THE ENVELOPE (THE SO-CALLED DOUBLE BULLS-EYE RULE) AS A NECESSARY ASSURANCE AS TO THE ACTUAL DATE OF MAILING. WE AGREED WITH THE AGENCY'S REJECTION OF THE BID AS LATE, STATING THAT, IN THE ABSENCE OF THE POSTMARK ON THE ENVELOPE, AS WELL AS THE RECEIPT, THERE IS NO EVIDENCE THAT THE MAIL WAS DEPOSITED ON THE DATE STAMPED ON THE RECEIPT HELD BY THE SENDER.

LATER, AFTER THE FAR ADOPTED THE RULE THAT ACCEPTS A POSTMARK ON EITHER THE RECEIPT OR THE ENVELOPE (THE SO-CALLED SINGLE BULLS-EYE RULE) WE WROTE TO THE FAR SECRETARIAT (LETTER B-213515, JUNE 27, 1984) EXPRESSING OUR CONCERN WITH THE USE OF THIS RULE. WE SUGGESTED THAT CONSIDERATION BE GIVEN TO REQUIRING THAT, BEFORE A LATE BID SENT BY CERTIFIED MAIL BE CONSIDERED FOR AWARD, THE DATE THE BID WAS MAILED BE ESTABLISHED BY A POSTMARK AFFIXED BY THE POST OFFICE ON BOTH THE ENVELOPE CONTAINING THE BID AND THE CERTIFIED MAIL RECEIPT. WE EXPRESSED THE VIEW THAT A LESSER EVIDENTIARY STANDARD LEFT OPEN THE POSSIBILITY FOR BIDDERS TO MANIPULATE THE SYSTEM TO THEIR ADVANTAGE. SUBSEQUENTLY IN LETTER B-217933, JULY 26, 1985, TO THE FAR SECRETARIAT, WE EXPRESSED APPROVAL OF A PROPOSAL TO CHANGE THE FAR TO REQUIRE THE DOUBLE POSTMARK. WE UNDERSTAND THAT THIS CHANGE TO THE FAR IS PRESENTLY UNDER CONSIDERATION.

IF THE DOUBLE BULLS-EYE RULE IS ADOPTED, WE BELIEVE IT WOULD ADDRESS THE CONCERN OVER LATE CERTIFIED MAIL BIDS.

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