B-150516, MAR. 1, 1963

B-150516, MAR. 1, 1963

TO CORNELL-DUBILIER ELECTRIC CORPORATION:

IN YOUR TELEGRAM OF DECEMBER 21, 1962, YOU PROTEST THE DEPARTMENT OF THE ARMY'S REFUSAL TO CONSIDER YOUR PROPOSAL IN NEGOTIATIONS FOR AWARD OF A CONTRACT TO BE ISSUED UNDER REQUEST FOR PROPOSALS (RFP) NO. AMC 36-039-63- 11506-81 BY THE U.S. ARMY ELECTRONICS MATERIEL AGENCY.

THE FACTS ARE NOT IN DISPUTE. THE RFP STATED THAT PROPOSALS FOR THE DEVELOPMENT AND CONSTRUCTION OF CERTAIN CAPACITORS WOULD BE RECEIVED UNTIL THE CLOSE OF BUSINESS, 5:00 P.M., NOVEMBER 21, 1962. A FEW MINUTES BEFORE 5:00 P.M., NOVEMBER 21, 1962, THE CONTRACTING OFFICER RECEIVED A TELEGRAM FROM YOU, ADVISING THAT YOUR HAND-CARRIED PROPOSAL WOULD NOT ARRIVE ON TIME, AND CONFIRMING THAT YOUR PRICE QUOTATION WAS $89,115. IN THE TELEGRAM IT WAS ALLEGED THAT YOUR DELAY RESULTED FROM A DELAY IN COMMERCIAL AIR SCHEDULES, BUT THAT YOUR REPRESENTATIVE WOULD PROCEED TO DELIVER THE PROPOSAL ON NOVEMBER 21, REGARDLESS OF THE TIME. THE HAND- CARRIED PROPOSAL WAS DELIVERED AT 7:01 P.M., AND SUBSEQUENTLY WAS REJECTED UNDER THE AUTHORITY OF ASPR 3-804.2 AS BEING A LATE PROPOSAL. PROPOSALS WERE OPENED UNTIL THE MORNING OF NOVEMBER 23, 1962.

IN REGARD TO YOUR TELEGRAM, THE DEPARTMENT REPORTS THAT THIS WAS UNACCEPTABLE AS A PROPOSAL BECAUSE IT FAILED TO STATE ACCEPTANCE OF THE TERMS AND CONDITIONS OF THE RFP. HOWEVER, WE HAVE HELD THAT A WRITTEN OFFER, SUBMITTED INFORMALLY RATHER THAN ON PROVIDED FORMS, WHICH EXPLICITLY REFERS TO THE PROCUREMENT IN QUESTION AND TO THE DATE OF OPENING MAY BE REGARDED AS AN IMPLICIT AGREEMENT TO ABIDE BY ALL PROVISIONS CONTAINED IN THE GOVERNMENT-FURNISHED FORMS. B-113920, DATED FEBRUARY 27, 1953. FURTHERMORE, SINCE THE INSTANT CASE INVOLVES A NEGOTIATED PROCUREMENT FOR THE DEVELOPMENT AND CONSTRUCTION OF EQUIPMENT LACKING DEFINED TECHNICAL SPECIFICATIONS, AND SINCE BOTH THE RFP AND THE ARMED SERVICES PROCUREMENT REGULATION ARE SILENT AS TO WHAT INFORMATION IS REQUIRED IN A TELEGRAPHIC RESPONSE TO AN RFP, WE DO NOT THINK THAT FAILURE TO EXPLICITLY AGREE TO FURNISH EQUIPMENT CONFORMING TO UNDEFINED SPECIFICATIONS WOULD NECESSARILY BE DISPOSITIVE OF THE CASE.

HOWEVER, EVEN IF THE TELEGRAM MAY BE CONSIDERED AS AN OFFER, IT CANNOT BE ACCEPTED BECAUSE THE RFP CALLED FOR THE SUBMISSION BY 5:00 P.M. OF MATERIAL INFORMATION WHICH WAS NOT FURNISHED UNTIL THE LATE ARRIVAL OF YOUR FORMAL PROPOSAL. CF. B-148548, DATED APRIL 17, 1962. BY THE VERY NATURE OF NEGOTIATION, A PROPOSAL CONTAINING ONLY THE OFFERED PRICE MUST BE CONSIDERED UNRESPONSIVE IN PROCUREMENTS FOR ITEMS WHICH CANNOT BE EVALUATED WITHOUT TECHNICAL INFORMATION AS TO DEVELOPMENT AND CONSTRUCTION.

IN REGARD TO YOUR HAND-CARRIED FORMAL PROPOSAL, THE RECORD ESTABLISHES THAT IT DID NOT ARRIVE UNTIL AFTER THE TIME SET FOR RECEIPT OF PROPOSALS. PARAGRAPH 9 (C) OF THE TERMS AND CONDITIONS OF REQUEST FOR PROPOSALS, AS AMENDED BY PROVISION "R" OF THE SCHEDULE OF THE RFP, PROVIDES AS FOLLOWS:

"* * * IN ACCORDANCE WITH 3-804 OF THE ARMED SERVICES PROCUREMENT REGULATION, PROPOSALS RECEIVED AT THE OFFICE DESIGNATED IN THE REQUEST FOR PROPOSALS AFTER THE CLOSE OF BUSINESS ON THE DATE SET FOR RECEIPT THEREOF (OR AFTER THE TIME SET FOR RECEIPT IF A PARTICULAR TIME IS SPECIFIED) WILL NOT BE CONSIDERED UNLESS:

"/A) THEY ARE RECEIVED BEFORE AWARD IS MADE;

"/B) THEY ARE SENT BY REGISTERED MAIL OR BY CERTIFIED MAIL FOR WHICH AN OFFICIAL POST OFFICE STAMP (POSTMARK) ON THE ORIGINAL RECEIPT FOR CERTIFIED MAIL HAS BEEN OBTAINED, OR BY TELEGRAPH; AND,

"/C) IT IS DETERMINED BY THE GOVERNMENT THAT LATE RECEIPT WAS DUE SOLELY TO EITHER:

"/I) DELAY OF THE MAILS, OR DELAY BY THE TELEGRAPH COMPANY FOR WHICH THE OFFEROR WAS NOT RESPONSIBLE; OR

"/II) MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION. * * *"

A LATE HAND-CARRIED PROPOSAL IS NOT LISTED AS ONE OF THE EXCEPTIONS TO THE GENERAL RULE THAT LATE PROPOSALS MAY NOT BE CONSIDERED FOR AWARD. MOREOVER, ASPR 3-804.2 STATES THAT "LATE PROPOSALS SHALL NOT BE CONSIDERED FOR AWARD, EXCEPT UNDER THE CIRCUMSTANCES SET FORTH IN 2 303 RELATING TO LATE BIDS.' THE EXCEPTIONS PROVIDED IN THE SEVERAL SUBPARAGRAPHS UNDER PARAGRAPH 2-303 GENERALLY PROVIDE THAT LATE BIDS MAYBE CONSIDERED IF THE LATENESS IS NOT THE FAULT OF THE BIDDER. HOWEVER, PARAGRAPH 2-303.5 CONTAINS THE UNEQUIVOCAL PROHIBITION THAT "A LATE HAND-CARRIED BID * * * SHALL NOT BE CONSIDERED FOR AWARD.'

FROM THE FOREGOING, WE THINK THE INTENTION OF THE ARMED SERVICES PROCUREMENT REGULATION ON THIS QUESTION IS UNDISPUTEDLY CLEAR--- LATE HAND -CARRIED PROPOSALS SHALL NOT BE CONSIDERED FOR AWARD. OUR DECISIONS HAVE SUPPORTED THE VIEW THAT LATE HAND-CARRIED BIDS SHOULD BE DISREGARDED. SEE 38 COMP. GEN. 234, AND CASES CITED THEREIN. WE KNOW OF NO STATUTE OR REGULATION WHICH PREVENTS THE APPLICATION OF THE LATE BID RULES TO NEGOTIATION, OR RESTRICTS THE DISCRETION OF THE MILITARY DEPARTMENTS IN CHOOSING TO REQUIRE THE APPLICATION OF SUCH RULES.

ACCORDINGLY, WE FIND NO LEGAL OBJECTION TO THE DEPARTMENT OF THE ARMY'S HAVING REFUSED TO CONSIDER YOUR LATE HAND-CARRIED PROPOSAL IN NEGOTIATIONS FOR THE AWARD OF A CONTRACT UNDER RFP NO. AMC-36-039-63 11506-81.