B-152858, JAN. 28, 1964

B-152858, JAN. 28, 1964

TO REA INTERNATIONAL CORPORATION:

REFERENCE IS MADE TO YOUR TELEGRAM OF NOVEMBER 8, 1963, PROTESTING AGAINST THE ACTION OF THE GENERAL SERVICES ADMINISTRATION, WASHINGTON, D.C., IN REJECTING YOUR LATE BID SUBMITTED IN RESPONSE TO INVITATION NO. FPNMV-F-29707-A-11-5-63, COVERING THE FURNISHING OF FOUR SINGLE-ENGINE AIRCRAFT TO BE EXPORTED TO MEGADISCIO, SOMALI REPUBLIC, UNDER THE AID PROGRAM.

THE INVITATION REQUESTED BIDS TO BE OPENED AT 3:00 P.M. ON NOVEMBER 5, 1963. AT THE TIME OF THE OPENING YOUR BID HAD NOT BEEN RECEIVED. IT WAS RECEIVED LATER IN THE GENERAL SERVICES ADMINISTRATION MAIL ROOM AT 3:15 P.M. ON NOVEMBER 5, 1963, AND WAS THEN TIME STAMPED IN THE BID OPENING ROOM DESIGNATED IN THE INVITATION AT 4:31 P.M. THE SAME DAY. THE ENVELOPE IN WHICH THE BID OF YOUR FIRM WAS MAILED AIR MAIL SPECIAL DELIVERY SHOWS THAT IT WAS METER STAMPED AT NEW YORK, NEW YORK, ON NOVEMBER 4, 1963.

WHILE YOUR BID APPEARS TO HAVE BEEN TIMELY MAILED IT WAS NOT SENT EITHER BY REGISTERED OR CERTIFIED MAIL AS REQUIRED BY THE TERMS OF THE INVITATION AS A PREREQUISITE TO ITS CONSIDERATION IN THE EVENT OF LATE RECEIPT. INSTEAD IT WAS SENT BY AIR MAIL SPECIAL DELIVERY, A METHOD OF MAILING NOT INCLUDED IN THE PROVISIONS RELATING TO THE CONSIDERATION OF LATE BIDS.

YOU CONTEND THAT THE PROCUREMENT OFFICER ERRED IN REFUSING TO CONSIDER YOUR BID SINCE THE DELAY IN RECEIPT THEREOF IN THE BID ROOM AFTER THE OPENING TIME FIXED BY THE INVITATION WAS DUE SOLELY TO THE MISHANDLING OF THE MAIL BY POSTAL EMPLOYEES, AND NOT TO ANY FAULT OR NEGLIGENCE ON THE PART OF YOUR FIRM. YOU STATE THAT SINCE THE POST OFFICE DEPARTMENT IS PART OF THE SAME GOVERNMENT AS THE GENERAL SERVICES ADMINISTRATION, YOUR BID SHOULD BE REGARDED AS BEING MISHANDLED BY THE GOVERNMENT WITHIN THE MEANING OF SECTION 3 OF ARTICLE 1 OF GSA FORM 1424A.

ON PAGE 6 OF THE INVITATION THERE APPEARS THE FOLLOWING CLAUSE REGARDING LATE BIDS:

"LATE BIDS: SEE THE SPECIAL PROVISION NO. 1 ENTITLED "LATE BIDS AND MODIFICATIONS OR WITHDRAWALS" SET FORTH IN GSA FORM 1424A, NOVEMBER 1962 EDITION, WHICH PROVIDES THAT LATE BIDS AND MODIFICATIONS OR WITHDRAWALS THAT ARE SENT THROUGH THE MAIL WILL BE CONSIDERED ONLY IF SENT BY REGISTERED MAIL OR BY CERTIFIED MAIL FOR WHICH A POSTMARKED RECEIPT HAS BEEN OBTAINED, AS EXPRESSED IN SUCH PROVISION.'

SECTION (A) OF ARTICLE 1 OF GSA FORM 1424A REFERRED TO ABOVE PROVIDES AS FOLLOWS:

"LATE BIDS AND MODIFICATIONS OR WITHDRAWALS

THE FOLLOWING PROVISIONS SHALL BE SUBSTITUTED FOR PARAGRAPH 4 OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS ON THE BACK OF STANDARD FORM 33, OCTOBER 1957 EDITION:

"LATE BIDS AND MODIFICATIONS OR WITHDRAWALS - (A) BIDS AND MODIFICATIONS OR WITHDRAWALS THEREOF RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS AFTER THE EXACT TIME SET FOR OPENING OF BIDS WILL NOT BE CONSIDERED UNLESS: (1) THEY ARE RECEIVED BEFORE AWARD IS MADE; AND EITHER (2) THEY ARE SENT BY REGISTERED MAIL OR BY CERTIFIED MAIL FOR WHICH AN OFFICIAL DATED POST OFFICE STAMP (POSTMARK) ON THE ORIGINAL RECEIPT FOR CERTIFIED MAIL HAS BEEN OBTAINED OR BY TELEGRAPH IF AUTHORIZED, AND IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO DELAY IN THE MAILS, OR DELAY BY THE TELEGRAPH COMPANY, FOR WHICH THE BIDDER WAS NOT RESPONSIBLE; OR (3) IF SUBMITTED BY MAIL (OR BY TELEGRAPH IF AUTHORIZED), IT IS DETERMINED THAT THE LATE RECEIPT WAS DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION IS ESTABLISHED UPON EXAMINATION OF AN APPROPRIATE DATE OF TIME STAMP (OF 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.'

THE FAILURE TO CONSIDER YOUR CORPORATION'S BID IS BASED UPON THE FACT THAT YOUR BID WAS NOT RECEIVED IN THE GSA MAIL ROOM UNTIL AFTER THE TIME SET FOR OPENING OF BIDS, NAMELY, 3:15 P.M. ON NOVEMBER 5, 1963, AS EVIDENCED BY A TIME STAMP TO THAT EFFECT, AND BY A BID OPENING ROOM DATE STAMP, READING "1963 NOV 5 PM 4:31" ON AN ENVELOPE BEARING YOUR COMPANY'S RETURN ADDRESS. THIS ENVELOPE BORE A POSTAGE METER IMPRINT INDICATING IT HAD BEEN MAILED AT NEW YORK, NEW YORK, ON NOVEMBER 4, 1963. ALSO, YOUR BID WAS NOT SENT BY REGISTERED OR CERTIFIED MAIL AS REQUIRED BY THE QUOTED TERMS OF THE INVITATION AS A PREREQUISITE TO ITS CONSIDERATION IN THE EVENT OF LATE RECEIPT. FURTHERMORE, YOUR BID MAY NOT BE REGARDED AS BEING MISHANDLED WITHIN THE MEANING OF SECTION 3 OF ARTICLE 1 OF GSA FORM 1424A SINCE SUCH SECTION COVERS BIDS WHICH ARE MISHANDLED BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION. ANY MISHANDLING, IF ANY, OF YOUR BID BY THE GOVERNMENT (POST OFFICE EMPLOYEES) OCCURRED PRIOR TO ITS RECEIPT AT THE GOVERNMENT INSTALLATION, GSA MAILROOM.

THE LANGUAGE OF THE CLAUSE "LATE BIDS AND MODIFICATIONS OR WITHDRAWALS" WHICH WAS INCLUDED IN THIS INVITATION IS IDENTICAL WITH, AND REQUIRED TO BE INCLUDED BY, SUBSECTION 1-2.201 (A) (23) OF THE FEDERAL PROCUREMENT REGULATIONS. THIS LANGUAGE IS INTENDED TO IMPLEMENT THE REQUIREMENTS OF SUBSECTION 1-2.303-2 OF THE REGULATIONS WHICH PROVIDED AS FOLLOWS:

"SEC. 1-2.303-2 CONSIDERATION FOR AWARD.

A LATE BID SHALL BE CONSIDERED FOR AWARD ONLY IF:

(A) IT IS RECEIVED BEFORE AWARD; AND EITHER

(B) IT WAS SENT BY REGISTERED MAIL OR BY CERTIFIED MAIL FOR WHICH AN OFFICIAL DATED POST OFFICE STAMP (POSTMARK) ON THE ORIGINAL RECEIPT FOR CERTIFIED MAIL HAS BEEN OBTAINED, OR BY TELEGRAPH IF AUTHORIZED, AND IT IS DETERMINED THAT THE LATENESS WAS DUE SOLELY TO A DELAY IN THE MAILS (BASED ON EVIDENCE PURSUANT TO SEC. 1-2.303-3), OR TO A DELAY BY THE TELEGRAPH COMPANY, FOR WHICH THE BIDDER WAS NOT RESPONSIBLE; OR

(C) IF SUBMITTED BY MAIL (OR BY TELEGRAM WHERE AUTHORIZED), IT WAS RECEIVED AT THE GOVERNMENT INSTALLATION IN SUFFICIENT TIME TO BE RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION BY THE TIME SET FOR OPENING AND, EXCEPT FOR DELAY DUE TO MISHANDLING ON THE PART OF THE GOVERNMENT AT THE INSTALLATION, WOULD HAVE BEEN RECEIVED ON TIME AT THE OFFICE DESIGNATED. THE ONLY EVIDENCE ACCEPTABLE TO ESTABLISH TIMELY RECEIPT AT THE GOVERNMENT INSTALLATION IS THAT WHICH CAN BE 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.'

THE PROVISIONS OF SUBSECTION (C) ABOVE ARE CLEARLY INTENDED TO APPLY TO BIDS SUBMITTED BY MAIL WITHOUT POSTAL REGISTRATION OR CERTIFICATION. UNDER THIS REGULATION A BIDDER WHO ELECTS TO USE THE POSTAL SERVICE FOR DELIVERY OF HIS BID WITHOUT REGISTRATION OR CERTIFICATION ASSUMES THE RISK OF LATE DELIVERY TO THE GOVERNMENT INSTALLATION SPECIFIED IN THE INVITATION, AND IS PUT ON NOTICE THAT THE DATE AND TIME OF DELIVERY TO SUCH INSTALLATION WILL BE ESTABLISHED BY THE RECORDS OF SUCH INSTALLATION. WHILE THIS REGULATION MAY RESULT IN THE FAILURE OF THE GOVERNMENT TO RECEIVE THE BENEFIT OF LOWER BIDS WHICH, SOLELY BECAUSE OF DELAY IN THE MAILS' ARE RECEIVED AFTER BID OPENING, ITS ADOPTION HAS BEEN DETERMINED TO BE NECESSARY TO THE ORDERLY AND TIMELY PROCUREMENT OF SUPPLIES AND SERVICES BY THE GOVERNMENT.

THE PROVISIONS OF SUBSECTION (A) (3) OF THE "LATE BIDS AND MODIFICATIONS OR WITHDRAWALS" CLAUSE IN THIS INVITATION MUST THEREFORE BE CONSTRUED AS NOTICE TO ALL BIDDERS THAT THEIR ELECTION TO SUBMIT BIDS BY UNREGISTERED OR UNCERTIFIED MAIL WOULD NECESSARILY RESULT IN REJECTION OF THE BID IN THE EVENT IT SHOULD NOT BE DELIVERED TO THE AGENCY IN WASHINGTON UNTIL AFTER THE DATE AND TIME SET FOR BID OPENING. THEREFORE, IT APPEARS THAT THE ACTION OF THE AGENCY IN REJECTING YOUR BID IS NOT SUBJECT TO QUESTION BY THIS OFFICE.