B-152527, JAN. 8, 1964

B-152527, JAN. 8, 1964

TO STEER, STRAUSS AND ADAIR:

WE REFER TO YOUR LETTER OF DECEMBER 7, 1963, STATING OBJECTIONS TO OUR DECISION B-152527, DATED DECEMBER 4, 1963, RELATIVE TO KECO INDUSTRIES' LATE BID UNDER INVITATION FOR BIDS NO. 44-600-64-10 ISSUED AT LANGLEY AIR FORCE BASE, VIRGINIA.

IN OUR DECISION OF DECEMBER 4, 1963 WE CONCLUDED (CITING 40 COMP. GEN. 91; ID. 148) THAT KECO'S CERTIFICATE OF MAILING AND ITS OWN STAMP METER OFFERED NO INDEPENDENT PROOF THAT THE KECO BID WAS TIMELY MAILED. THESE CITED DECISIONS WE STATED THE RULE THAT THE TIME OF ACTUAL MAILING MUST BE ESTABLISHED BY SOURCES OTHER THAN THE BIDDER HIMSELF. THIS RULE IS PRIMARILY DESIGNED TO PRESERVE THE BIDDING PUBLIC'S FAITH IN THE INTEGRITY OF THE GOVERNMENT'S BIDDING SYSTEM. IT WAS NOT OUR INTENTION TO QUESTION KECO'S INTEGRITY OR MOTIVES.

MORE TO THE POINT OF YOUR OBJECTION, YOU QUESTION WHY THE KECO CERTIFICATE OF MAILING WAS NOT CONSIDERED TO BE PROPER EVIDENCE OF A TIMELY BID MAILING, SINCE THE POSTAL REGULATIONS PROVIDE THAT THE CERTIFICATE OF MAILING IS ISSUED TO EVIDENCE A MAILING.

AS YOU RECALL, THE LANGLEY INSTALLATION FAILED TO STAMP INCOMING BIDS. WHILE THIS MADE IT VIRTUALLY IMPOSSIBLE TO ESTABLISH EXACTLY WHEN BIDS DID ARRIVE AT THE LANGLEY INSTALLATION, WE COULD NOT JUSTIFIABLY CONCLUDE THAT ALL CASES OF BID LATENESS SHOULD HAVE BEEN ATTRIBUTED TO MISHANDLING AT THAT INSTALLATION. ADMITTEDLY, THIS IS NOT WHAT YOU CONTENDED. YOU CONTENDED THAT IF THE KECO LATE BID WAS TIMELY MAILED, THEN PRESUMABLY IT WAS RECEIVED IN TIME TO ARRIVE AT THE BID OPENING AT LANGLEY, AND THAT THE LATENESS MUST HAVE BEEN CAUSED BY MISHANDLING AT THE INSTALLATION. WE DID NOT DISAGREE WITH YOUR APPROACH. HOWEVER, NORMALLY THE MATTER OF TIMELY MAILING IS PERTINENT TO A DETERMINATION OF WHETHER A LATE BID MAY BE CONSIDERED FOR AWARD, BECAUSE OF DELAY IN THE MAILS. IN THIS CONNECTION, THE REGULATION (ASPR 2-303.2) REQUIRES THAT THE LATE BID MUST HAVE BEEN SENT BY CERTIFIED OR REGISTERED MAIL IN ORDER TO BE CONSIDERED; AND WE HAVE HELD THAT A CERTIFICATE OF MAILING DOES NOT SATISFY THIS REQUIREMENT, SINCE THE CERTIFICATE OF MAILING DOES NOT SHOW THAT ANY PARTICULAR PIECE OF MAIL WAS SENT. B-150124, DATED NOVEMBER 21, 1962.

SINCE YOU ATTEMPTED TO ESTABLISH A MISHANDLING AT THE INSTALLATION BY SHOWING THAT THE KECO BID WAS TIMELY MAILED, IT SEEMED CLEAR TO US THAT THE STANDARD OF PROOF NECESSARY TO SUPPORT KECO'S TIMELY MAILING FOR THE SECONDARY PURPOSE OF ESTABLISHING BID MISHANDLING AT THE INSTALLATION, SHOULD BE THE SAME AS THE STANDARD OF PROOF REQUIRED TO ESTABLISH TIMELY MAILING FOR PURPOSE OF MAIL DELAY, NAMELY, PROOF BASED ON A CERTIFIED OR REGISTERED RECEIPT. THAT IS WHY WE DID NOT CONSIDER THE CERTIFICATE OF MAILING TO BE SATISFACTORY PROOF.

CERTAINLY WE UNDERSTAND KECO'S DISAPPOINTMENT WITH OUR DETERMINATION THAT ITS LATE BID WAS NOT PROPERLY FOR CONSIDERATION. HOWEVER, WE BELIEVE, FOR THE REASONS STATED, THAT CONSIDERATION OF KECO'S LATE BID WOULD HAVE CONSTITUTED AN UNWARRANTED DEPARTURE FROM THE RULES AND REGULATIONS GOVERNING THE CONSIDERATION OF LATE BIDS. ACCORDINGLY, WE REAFFIRM OUR PRIOR DECISION.