B-151607, JUN. 28, 1963

B-151607, JUN. 28, 1963

TO ELECTRO NEUTRONICS, INC.:

WE HAVE RECEIVED YOUR LETTER DATED JUNE 13, 1963, AND PREVIOUS CORRESPONDENCE, WHICH PROTESTS THE AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS NO. 600-558-63-S, BY THE NAVY PURCHASING OFFICE, WASHINGTON, D.C.

THE RECORD ESTABLISHES THAT YOUR SECRETARY DELIVERED AN ENVELOPE CONTAINING YOUR BID TO THE BERKELEY, CALIFORNIA, POST OFFICE STATION AT 5:30 P.M. ON MARCH 26, 1963. ALTHOUGH THIS ENVELOPE HAD AFFIXED TO IT SUFFICIENT POSTAGE TO PAY FOR BOTH "CERTIFIED" AND "AIRMAIL" ENDORSEMENTS, IT WAS NOT SO ENDORSED, AND THE SECRETARY DELIVERING IT TO THE POST OFFICE DID NOT REQUEST SUCH ENDORSEMENT. WITHIN AN HOUR, YOU ATTEMPTED TO RECOVER THE ENVELOPE, BUT WERE TOLD BY AN EMPLOYEE OF THE POST OFFICE STATION THAT IT ALREADY HAD BEEN SENT TO THE MAIN OFFICE. THE EMPLOYEE OFFERED TO CONTACT THE MAIN OFFICE AND REQUEST THAT IT BE RECOVERED FROM THE ORDINARY MAIL AND ENDORSED AS DESIRED. THE ENVELOPE WAS NOT RECOVERED, AND DID NOT REACH THE BID OPENING ROOM UNTIL APRIL 1, 1963, FOUR DAYS AFTER BID OPENING.

THE DEPARTMENT OF THE NAVY REPORTS THAT YOUR BID HAS NOT BEEN CONSIDERED IN THE EVALUATION OF BIDS BECAUSE OF THE LANGUAGE FOUND IN ASPR 2-201 (A) (XXV), AND PAGE 4 OF THE INVITATION, WHICH PROVIDE IN RELEVANT PART AS FOLLOWS:

"BIDS * * * RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS AFTER THE EXACT TIME SET FOR OPENING OF BIDS WILL NOT BE CONSIDERED UNLESS: * * * (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 * * * AND (C) IT IS DETERMINED BY THE GOVERNMENT THAT LATE RECEIPT WAS DUE SOLELY TO * * * DELAY IN THE MAILS *

SEE ALSO ASPR 2-303.2 (II) AND (III.

THE POST OFFICE REPORTS THAT YOUR BID WOULD HAVE BEEN TIMELY RECEIVED IF THE POST OFFICE EMPLOYEE HAD RECOVERED THE ENVELOPE AND ENDORSED IT "CERTIFIED" AND "AIRMAIL," AND THAT ITS EMPLOYEE DID NOT MAKE A SUFFICIENTLY DILIGENT ATTEMPT TO RECOVER THE ENVELOPE. UNDER THE SPECIFICATIONS AND ASPR, THE FACT THAT THE BID WAS DELAYED IN THE MAILS, IN THE SENSE THAT AN AIRMAIL ENDORSEMENT WAS NOT PLACED ON THE ENVELOPE, DOES NOT REMOVE ITS DISABILITY AS TO CONSIDERATION FOR AWARD. SEE 42 COMP. GEN. - , B-150124, DATED NOVEMBER 21, 1963. THE SAME LANGUAGE OF THE INVITATION AND THE REGULATION ALSO UNEQUIVOCALLY REQUIRES THAT YOUR BID, THE LATENESS OF WHICH DOES NOT APPEAR TO HAVE BEEN CAUSED BY ANY MISHANDLING AT THE GOVERNMENT INSTALLATION, MUST HAVE BEEN MAILED BY CERTIFIED OR REGISTERED MAIL TO BE CONSIDERED FOR AWARD.

ONE OF THE PURPOSES OF THE STRICTNESS OF THIS RULE IS TO PLACE UPON THE BIDDER PRIMARY RESPONSIBILITY FOR TIMELY RECEIPT OF BIDS BY THE PROCURING ACTIVITY. IT SHOULD BE NOTED THAT YOU COULD AND WOULD HAVE DISCHARGED THIS RESPONSIBILITY IF YOUR COMPANY HAD NOT IN THE FIRST INSTANCE NEGLECTED TO REQUEST THE POSTAL EMPLOYEE TO PROPERLY ENDORSE THE ENVELOPE CONTAINING YOUR BID AS ,AIRMAIL" AND "CERTIFIED MAIL.' AT THE VERY LEAST, IT WOULD APPEAR THAT YOU COULD HAVE FOLLOWED UP THE POSTAL EMPLOYEE'S OFFER TO RECOVER YOUR BID AND HAVE DEMANDED THAT YOU BE GIVEN A RECEIPT FOR CERTIFIED MAIL UPON THE RECOVERY AND ENDORSEMENT OF THE ENVELOPE. SEE B-150514, DATED MARCH 22, 1963.

UNDER THE CIRCUMSTANCES SET FORTH ABOVE, WE FIND NO LEGAL OBJECTION TO THE DEPARTMENT OF THE NAVY'S REFUSAL TO CONSIDER YOUR LATE BID IN THE EVALUATION OF BIDS.