B-152962, JAN. 21, 1964

B-152962, JAN. 21, 1964

TO ADAMS ENGINEERING COMPANY, INCORPORATED:

WE REFER TO YOUR TELEGRAM, DATED NOVEMBER 25, 1963, PROTESTING THE AWARD OF A CONTRACT PURSUANT TO INVITATION FOR BIDS NO. 189-146-64. WE ARE INFORMED THAT AN AWARD WILL NOT BE MADE UNTIL THE MATTER OF YOUR PROTEST IS RESOLVED BY THIS OFFICE.

THE ABOVE INVITATION WAS ISSUED BY THE PURCHASING DEPARTMENT, NAVAL SUPPLY CENTER, NORFOLK, VIRGINIA, ON OCTOBER 4, 1963, FOR THE PROCUREMENT OF STATED QUANTITIES OF ALUMINUM JOINER DOORS, LISTED AND DESCRIBED ON PAGE 2 OF THE INVITATION. PAGE 9 OF THE INVITATION PROVIDED AS FOLLOWS:

"CAUTION TO BIDDERS - LATE BIDS: SEE THE SPECIAL PROVISION ENTITLED "LATE BIDS AND MODIFICATIONS OR WITHDRAWALS" WHICH PROVIDES THAT LATE BIDS AND MODIFICATIONS OR WITHDRAWALS THEREOF SENT THROUGH THE MAILS WILL BE CONSIDERED ONLY IF SENT BY REGISTERED MAIL, OR BY CERTIFIED MAIL FOR WHICH A POSTMARKED RECEIPT HAS BEEN OBTAINED, AS SPECIFIED IN SUCH PROVISION. (APRIL 1962).'

SECTION 48 OF THE "ADDITIONAL GENERAL PROVISIONS" OF THIS INVITATION PROVIDED:

"LATE BIDS AND MODIFICATIONS OR WITHDRAWALS. 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: (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 IF AUTHORIZED; AND (C) IT IS DETERMINED BY THE GOVERNMENT THAT LATE RECEIPT WAS DUE SOLELY TO EITHER (I) DELAY IN THE MAILS, OR DELAY BY THE TELEGRAPH COMPANY IF TELEGRAPHIC BIDS ARE AUTHORIZED, FOR WHICH THE BIDDER WAS NOT RESPONSIBLE OR (II) MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION. * * *"

CLAUSE 4 OF THE "TERMS AND CONDITIONS OF THE INVITATION FOR BIDS" PROVIDED:

"4. LATE BIDS.--- BIDS AND MODIFICATIONS OR WITHDRAWALS THEREOF RECEIVED AFTER THE TIME ACT FOR OPENING WILL NOT BE CONSIDERED, UNLESS THEY ARE RECEIVED BEFORE THE AWARD IS MADE, AND IT IS DETERMINED BY THE GOVERNMENT THAT FAILURE TO ARRIVE ON TIME WAS DUE SOLELY TO DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE.'

BIDS WERE OPENED ON NOVEMBER 13, 1963. ON NOVEMBER 15, 1963, THE MAIL SECTION OF THE NAVAL SUPPLY CENTER, NORFOLK, VIRGINIA, RECEIVED AN ENVELOPE FROM YOU CONTAINING YOUR BID WHICH IS STAMPED AS FOLLOWS: BY THE POST OFFICE,"NORTH MIAMI BEACH, FLA., NOV. 12, 1963, 12:30 P.M.; " BY THE PROCURING ACTIVITY,"RECEIVED, MAIL SECTION, NAVAL SUPPLY CENTER, NORFOLK, VIRGINIA, NOVEMBER 15, 1963, 8:00 A.M.' AND "RECEIVED, PURCHASING DEPARTMENT, NAVAL SUPPLY CENTER, NOVEMBER 15, 1963, 8:30 A.M.' YOUR ENVELOPE IS ALSO MARKED "VIA AIR MAIL" AND THERE IS NO INDICATION THAT YOUR BID WAS SENT BY CERTIFIED OR REGISTERED MAIL. ON NOVEMBER 18, 1963, THE PROCURING ACTIVITY ADVISED YOU THAT YOUR BID WOULD NOT BE CONSIDERED. ON NOVEMBER 22, 1963, YOU REQUESTED THE PROCURING ACTIVITY TO RECONSIDER THIS ACTION AND ON NOVEMBER 25, 1963, YOU DIRECTED YOUR TELEGRAM TO THIS OFFICE ALLEGING THAT YOUR LATE MAILED BID SHOULD CONSIDERED SINCE DELAY BY THE POST OFFICE CAUSED YOUR BID TO ARRIVE AFTER BID OPENING.

ARMED SERVICES PROCUREMENT REGULATION SEC. 2-303.2/III) PROVIDES:

" * * * 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 AT SUCH INSTALLATION (IF READILY AVAILABLE) WITHIN THE CONTROL OF SUCH INSTALLATION OR OF THE POST OFFICE SERVING IT.'

THERE IS NO EVIDENCE THAT YOUR BID WAS RECEIVED AT THE GOVERNMENT INSTALLATION BEFORE BID OPENING. THE RECORD IS CLEAR THAT YOUR BID WAS SENT BY AIR MAIL; THAT YOUR BID WAS STAMPED BY THE PROCURING ACTIVITY TWO DAYS AFTER BID OPENING; AND THERE IS NO INDICATION THAT YOUR BID WAS SENT BY CERTIFIED OR REGISTERED MAIL. IN THESE CIRCUMSTANCES WHILE YOUR TELEGRAM OF NOVEMBER 25, 1963, ALLEGES THAT YOUR BID WAS LATE BECAUSE OF DELAY BY THE POST OFFICE SUCH MATTER IS NOT FOR CONSIDERATION IN ASCERTAINING WHETHER YOUR LATE BID MAY BE CONSIDERED FOR AN AWARD AND YOUR BID MUST BE REJECTED. IN THIS REGARD CLAUSE 4 OF THE "TERMS AND CONDITIONS OF THE INVITATION FOR BIDS" HAS BEEN SPECIFICALLY QUALIFIED BY PAGE 9 OF THIS INVITATION AND CLAUSE 48 OF THE ,ADDITIONAL GENERAL CONDITIONS" OF THIS INVITATION TO PROVIDE THAT A DELAY IN THE MAILS MAY BE TAKEN INTO CONSIDERATION IN ASCERTAINING WHETHER A LATE MAILED BID MAY BE CONSIDERED FOR AWARD ONLY IF SUCH BID WAS PROPERLY DISPATCHED BY REGISTERED OR CERTIFIED MAIL, FOR WHICH AN OFFICIAL POST OFFICE STAMP (POSTMARK) ON THE ORIGINAL RECEIPT FOR CERTIFIED MAIL HAS BEEN OBTAINED. THIS LANGUAGE IS CONSISTENT WITH RECENT DECISIONS BY OUR OFFICE AND REQUIRED BY RECENT REPOSTULATIONS OF REGULATIONS CONCERNING THE CONSIDERATION OF LATE BIDS. SEE B 150124, NOVEMBER 21, 1962, 42 COMP. GEN. 255; B-150514, MARCH 22, 1963, 42 COMP. GEN. -; ARMED SERVICES PROCUREMENT REGULATION SEC. 2-303.2 IN CONNECTION WITH ARMED SERVICES PROCUREMENT REGULATION SECS. 2-201/A) (XXV), AND 2-201/A) (XXVII). FOR THE FOREGOING REASONS YOUR PROTEST IS DENIED.