B-153190, MAR. 31, 1964

B-153190: Mar 31, 1964

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INC.: WE HAVE RECEIVED YOUR LETTER OF FEBRUARY 19. WE SAID THAT ALTHOUGH THE LETTER IN WHICH YOUR LATE BID WAS ENCLOSED WAS POSTMARKED DECEMBER 26. IT WAS NOT SENT BY EITHER CERTIFIED OR REGISTERED MAIL. WAS NOT RECEIVED UNTIL AFTER THE TIME FIXED FOR BID OPENING. AS OPPOSED TO A CERTAIN AMOUNT OF CONFUSION THAT MIGHT BE DUE TO THE SAME SNOW AT THE SOCIAL SECURITY ADMINISTRATION AND BUILDING WHEN OUR LETTER WAS RECEIVED.'. YOU CONTEND THAT THE DELAY IN THE RECEIPT OF OUR BID MAY HAVE BEEN DUE SOLELY TO MISHANDLING OF THAT BID BY THE GOVERNMENT AFTER ITS RECEIPT AT THE SOCIAL SECURITY ADMINISTRATION. IT IS DETERMINED THAT THE LATE RECEIPT WAS DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION: PROVIDED.

B-153190, MAR. 31, 1964

TO NATIONAL STORE FIXTURE COMPANY, INC.:

WE HAVE RECEIVED YOUR LETTER OF FEBRUARY 19, 1964, IN WHICH YOU ASK FOR RECONSIDERATION OF OUR DECISION OF FEBRUARY 14, 1964. IN THAT DECISION WE HELD THAT PROCUREMENT OFFICERS PROPERLY REFUSED TO CONSIDER YOUR BID UNDER INVITATION FOR BIDS NO. SSP-64-16, ISSUED BY PROPERTY MANAGEMENT SECTION, SOCIAL SECURITY ADMINISTRATION, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, BALTIMORE, MARYLAND, FOR OPENING ON DECEMBER 27, 1963. WE SAID THAT ALTHOUGH THE LETTER IN WHICH YOUR LATE BID WAS ENCLOSED WAS POSTMARKED DECEMBER 26, 1963, AT LINTHICUM HEIGHTS, MARYLAND, IT WAS NOT SENT BY EITHER CERTIFIED OR REGISTERED MAIL, AND DUE TO WHAT APPEARS TO BE AN UNEXPLAINED DELAY IN THE MAILS, WAS NOT RECEIVED UNTIL AFTER THE TIME FIXED FOR BID OPENING. SEE FEDERAL PROCUREMENT REGULATION (FPR) 1-2.303.2 (B).

YOU NOW SAY THAT: "IT WOULD APPEAR TO US MORE LIKELY THAT THE POST OFFICE DEPARTMENT WOULD CONTINUE WITH THEIR ACTIVITIES AND DELIVERIES ON A SCHEDULED BASIS, AS OPPOSED TO A CERTAIN AMOUNT OF CONFUSION THAT MIGHT BE DUE TO THE SAME SNOW AT THE SOCIAL SECURITY ADMINISTRATION AND BUILDING WHEN OUR LETTER WAS RECEIVED.' THEREFORE, YOU CONTEND THAT THE DELAY IN THE RECEIPT OF OUR BID MAY HAVE BEEN DUE SOLELY TO MISHANDLING OF THAT BID BY THE GOVERNMENT AFTER ITS RECEIPT AT THE SOCIAL SECURITY ADMINISTRATION, AND YOU DIRECT OUR ATTENTION TO THAT SECTION OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS WHICH PROVIDES:

"LATE BIDS AND MODIFICATION OR WITHDRAWALS

A. * * * (3) IF SUBMITTED BY MAIL (OR BY TELEGRAM IF AUTHORIZED), IT IS DETERMINED 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 THE POST OFFICE SERVING IT. HOWEVER, A MODIFICATION WHICH MAKES THE TERMS OF THE OTHERWISE ACCEPTABLE BID MORE FAVORABLE TO THE GOVERNMENT WILL BE CONSIDERED AT ANY TIME IT IS RECEIVED AND MAY THEREAFTER BE ACCEPTED.'

SEE FPR 1-2.303.2 (C).

YOU CONTEND AND WE RECOGNIZE THAT UNDER THE ABOVE LATE BID CLAUSE IT IS UNNECESSARY TO SEND A BID BY REGISTERED OR CERTIFIED MAIL TO ESTABLISH MISHANDLING AT THE INSTALLATION. HOWEVER, BEFORE THE DELAY CAN BE ATTRIBUTED TO MISHANDLING AT THE INSTALLATION, TIMELY RECEIPT AT THE INSTALLATION MUST BE ESTABLISHED. UNDER THE LATE BID CLAUSE AND FPR 1- 2.303.2 (C), TIMELY RECEIPT MAY BE SHOWN ONLY BY "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 THE POST OFFICE SERVING IT.'

THE ADMINISTRATIVE AGENCY REPORTS THAT WHILE THE CENTRAL MAILROOM AT THE SOCIAL SECURITY ADMINISTRATION DOES NOT TIME-STAMP THE MAIL IT RECEIVES, MAILROOM PERSONNEL ASSERT THAT ALL MAIL RECEIVED ON FRIDAY THE 27TH WAS DELIVERED TO THE PROPERTY MANAGEMENT SECTION ON THE SAME DAY. YOUR BID WAS NOT DELIVERED TO THE PROPERTY MANAGEMENT UNTIL MONDAY, DECEMBER 30, 1963. IT THUS APPEARS THAT NOT ONLY IS THERE NO DOCUMENTARY EVIDENCE OF TIMELY RECEIPT, BUT THAT THE ONLY EVIDENCE AVAILABLE TO AND WITHIN THE CONTROL OF THE INSTALLATION INDICATES THAT THE RECEIPT OF YOUR BID AT THE INSTALLATION WAS NOT TIMELY AND THAT ITS LATE RECEIPT IN THE BID OPENING ROOM WAS NOT DUE TO MISHANDLING AT THE INSTALLATION. FOR THE FOREGOING REASONS, WE MUST REJECT YOUR CONTENTION TO THE CONTRARY.

YOU ASSERT THAT THE POSTMARK OF DECEMBER 26 ON YOUR LETTER SHOULD BE ADEQUATE PROOF THAT YOU MAILED YOUR BID IN SUFFICIENT TIME FOR IT TO HAVE BEEN RECEIVED PRIOR TO BID OPENING. THIS ASSERTION IMPLICITLY QUESTIONS THE REASONABLENESS OF THE PROVISION IN THE INVITATION WHICH PRECLUDES CONSIDERATION OF BIDS RECEIVED LATE DUE TO A DELAY IN THE MAILS, UNLESS SUCH BIDS WERE SENT BY CERTIFIED OR REGISTERED MAIL. THUS, WE MUST POINT OUT THAT IT IS NOT AS SETTLED AS YOU APPEAR TO ASSUME THAT A POSTMARK ON ORDINARY FIRST CLASS MAIL LEGALLY ESTABLISHES THE DATE OF MAILING. CF. 46 AMERICAN BAR ASSOCIATION JOURNAL 949-951; 47 AMERICAN BAR ASSOCIATION JOURNAL 371-374; AND CASES AND AUTHORITIES CITED THEREIN.

IN VIEW OF THE REASONABLENESS OF THE PROPOSITION THAT SUCH POSTMARK IS NOT CONCLUSIVE EVIDENCE OF THE DATE OF MAILING, AND OF THE ADMINISTRATIVE CONVENIENCE AND ECONOMY ACHIEVED BY EMPLOYING A RULE WHICH PLACES UPON THE BIDDER PRIMARY RESPONSIBILITY FOR TIMELY RECEIPT OF BIDS BY THE PROCURING ACTIVITY, WE CANNOT CONCLUDE THAT THE SUBJECT PROVISION DEALING WITH THE REQUIREMENT FOR CERTIFIED OR REGISTERED MAIL IS ARBITRARY OR CAPRICIOUS. IN THIS CONNECTION IT SHOULD BE BORNE IN MIND THAT BUT FOR THE SPECIAL PROVISIONS WITH RESPECT TO LATE BIDS NO BID RECEIVED AFTER THE TIME FIXED COULD RECEIVE CONSIDERATION UNDER ANY CIRCUMSTANCES. WE DO NOT THINK THAT IT IS IMPROPER OR UNREASONABLE IN MAKING EXCEPTIONS TO THIS BASIC RULE TO LIMIT THEM TO SUCH CASES AS ARE CAPABLE OF BEING ESTABLISHED BY THE MOST INCONTROVERTIBLE PROOF.

YOU HAVE ALSO TELEPHONICALLY OBJECTED TO THE ALLEGED RETURN OF YOUR UNOPENED BID PRIOR TO AWARD OF A CONTRACT FOLLOWING OUR DECISION OF FEBRUARY 14, 1964. ALTHOUGH OUR DECISIONS ARE BASED ON THE WRITTEN RECORD, AND ALTHOUGH PROOF OF THE ALLEGATION WOULD NOT INVALIDATE THE AWARD SINCE WE REMAIN OF THE OPINION THAT YOUR BID SHOULD NOT HAVE BEEN OPENED EVEN IF IT HAD NOT BEEN RETURNED, WE NOTE THAT FEDERAL PROCUREMENT REGULATION 1-2.303.7 DIRECTS THAT LATE BIDS SHALL BE HELD UNOPENED UNTIL AFTER AWARD, AND ARE BRINGING THIS TO THE ATTENTION OF THE ADMINISTRATIVE AGENCY.

Oct 29, 2020

Oct 28, 2020

Oct 27, 2020

  • Silver Investments, Inc.
    We dismiss the protest as untimely because it was filed more than 10 days after the protester knew, or should have known, the basis for its protest.
    B-419028

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