B-158053, DEC. 14, 1965, 45 COMP. GEN. 337

B-158053, DEC. 14, 1965, 45 COMP. GEN. 337

BIDS - LATE - PROCESSING AND DELIVERY BY GOVERNMENT A LATE BID FORWARDED BY CERTIFIED MAIL, WHICH BUT FOR A 3-DAY DELAY IN THE MAILS COULD HAVE REACHED THE CONTRACT POST OFFICE, LOCATED APPROXIMATELY ONE-FIFTH OF A MILE FROM THE BID OPENING OFFICE, 5 MINUTES BEFORE THE TIME SCHEDULED FOR THE OPENING OF BIDS, AN INSUFFICIENT LENGTH OF TIME FOR THE PROCESSING AND DELIVERY OF THE BID, MAY NOT QUALIFY FOR CONSIDERATION AS A LATE BID TIMELY MAILED, PARAGRAPH 2-303 OF THE ARMED SERVICES PROCUREMENT REGULATION AND THE INVITATION FOR BIDS REQUIRING BIDS TO BE RECEIVED IN THE OFFICE DESIGNATED NOT LATER THAN THE EXACT TIME SET FOR THE BID OPENING, AND PROVIDING THAT TO WARRANT CONSIDERATION OF A MAILED BID RECEIVED AFTER BID OPENING BUT PRIOR TO AWARD, A BIDDER MUST ESTABLISH USE OF REGISTERED OR CERTIFIED MAIL AND THAT FAILURE OF TIMELY ARRIVAL WAS DUE TO DELAY IN THE MAILS, OR HAVING TIMELY ARRIVED, THE BID WAS MISHANDLED AT THE INSTALLATION, AND IT IS NOT SUFFICIENT TO ESTABLISH BUT FOR THE MAIL DELAY A BID WOULD HAVE TIMELY ARRIVED, BUT A BIDDER MUST ALSO PROVE THAT HIS BID WOULD HAVE ARRIVED SUFFICIENTLY EARLY TO BE DELIVERED ON TIME TO THE DESIGNATED OFFICE UNDER NORMAL CIRCUMSTANCES.

TO RONALD TOOL AND MANUFACTURING COMPANY, DECEMBER 14, 1965:

REFERENCE IS MADE TO YOUR PROTEST OF NOVEMBER 2, 1965, AND SUBSEQUENT CORRESPONDENCE, COPIES OF WHICH HAVE BEEN FURNISHED TO THIS OFFICE BY SENATOR WILLIAMS, SENATOR CASE, AND CONGRESSWOMAN DWYER, AGAINST THE DECISION OF THE DEFENSE SUPPLY AGENCY (DSA) NOT TO CONSIDER A BID SUBMITTED BY YOU UNDER INVITATION FOR BIDS (IFB) NO. DS 4-66-1406, ISSUED SEPTEMBER 15, 1965, BY THE DEFENSE GENERAL SUPPLY CENTER (DGSC), RICHMOND, VIRGINIA.

THE IFB SOLICITED BIDS TO FURNISH 12,000 PACKAGES OF SPLICE SETS FOR DELIVERY F.O.B. DESTINATION TO FIVE DESIGNATED LOCATIONS AND STIPULATED THAT BIDS WOULD BE OPENED BY 2:30 P.M., EASTERN STANDARD TIME, ON OCTOBER 15, 1965. BIDDERS WERE INSTRUCTED TO ADDRESS THEIR BIDS TO THE DIRECTORATE OF PROCUREMENT AND PRODUCTION, DEFENSE GENERAL SUPPLY CENTER, RICHMOND.

ARTICLES 3 (A) AND 6 OF THE BIDDING INSTRUCTIONS, TERMS AND CONDITIONS (SUPPLY CONTRACT), STANDARD FORM 33A READ AS FOLLOWS:

3. SUBMISSION OF BIDS.--- (A) BIDS AND MODIFICATIONS THEREOF SHALL BE ENCLOSED IN SEALED ENVELOPES, ADDRESSED TO THE OFFICE SPECIFIED IN THE INVITATION FOR BIDS, WITH THE NAME AND ADDRESS OF THE BIDDER, THE DATE AND HOUR OF OPENING, AND THE INVITATION NUMBER ON THE FACE OF THE ENVELOPE. TELEGRAPHIC BIDS WILL NOT BE CONSIDERED UNLESS AUTHORIZED BY THE INVITATION; HOWEVER, BIDS MAY BE MODIFIED BY TELEGRAPHIC NOTICE, SUBJECT TO PARAGRAPH 6, BELOW.

6. 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 TELEGRAM IF AUTHORIZED), IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION: PROVIDED, THAT TIMELY RECEIPT AT SUCH INSTALLATION IS 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 OF THE POST OFFICE SERVING IT. HOWEVER, A MODIFICATION WHICH MAKES THE TERMS OF THE OTHERWISE SUCCESSFUL BID MORE FAVORABLE TO THE GOVERNMENT WILL BE CONSIDERED AT ANY TIME IT IS RECEIVED AND MAY THEREAFTER BE ACCEPTED.

(B) BIDDERS USING CERTIFIED MAIL ARE CAUTIONED TO OBTAIN A RECEIPT FOR CERTIFIED MAIL SHOWING A LEGIBLE, DATED POSTMARK AND TO RETAIN SUCH RECEIPT AGAINST THE CHANCE THAT IT WILL BE REQUIRED AS EVIDENCE THAT A LATE BID WAS TIMELY MAILED.

(C) THE TIME OF MAILING OF LATE BIDS SUBMITTED BY REGISTERED OR CERTIFIED MAIL SHALL BE DEEMED TO BE THE LAST MINUTE OF THE DATE SHOWN IN THE POSTMARK ON THE REGISTERED MAIL RECEIPT OR REGISTERED MAIL WRAPPER OR ON THE RECEIPT FOR CERTIFIED MAIL UNLESS THE BIDDER FURNISHES EVIDENCE FROM THE POST OFFICE STATION OF MAILING WHICH ESTABLISHES AN EARLIER TIME. THE CASE OF CERTIFIED MAIL, THE ONLY ACCEPTABLE EVIDENCE IS AS FOLLOWS:

(1) WHERE THE RECEIPT FOR CERTIFIED MAIL IDENTIFIES THE POST OFFICE STATION OF MAILING, EVIDENCE FURNISHED BY THE BIDDER WHICH ESTABLISHES THAT THE BUSINESS DAY OF THAT STATION ENDED AT AN EARLIER TIME, IN WHICH CASE THE TIME OF MAILING SHALL BE DEEMED TO BE THE LAST MINUTE OF THE BUSINESS DAY OF THAT STATION; OR

(2) AN ENTRY IN INK ON THE RECEIPT FOR CERTIFIED MAIL SHOWING THE TIME OF MAILING AND THE INITIALS OF THE POSTAL EMPLOYEE RECEIVING THE ITEM AND MAKING THE ENTRY, WITH APPROPRIATE WRITTEN VERIFICATION OF SUCH ENTRY FROM THE POST OFFICE STATION OF MAILING, IN WHICH CASE THE TIME OF MAILING SHALL BE THE TIME SHOWN IN THE ENTRY. IF THE POSTMARK ON THE ORIGINAL RECEIPT FOR CERTIFIED MAIL DOES NOT SHOW A DATE, THE BID SHALL NOT BE CONSIDERED.

ON FRIDAY, OCTOBER 15, THE TWO BIDS WHICH HAD BEEN TIMELY RECEIVED WERE OPENED AS SCHEDULED. ON MONDAY, OCTOBER 18, THERE WAS RECEIVED AT 12:21 P.M., AT THE DGSC MAIL ROOM, A BID FROM YOUR COMPANY WHICH HAD BEEN ENTERED ON THE REGISTER OF CERTIFIED MAIL AT THE DGSC CONTRACT POST OFFICE ON THE SAME DATE BEFORE 11:10 A.M. POSTMARKS ON THE BID ENVELOPE SHOWED THAT IT HAD BEEN MAILED IN NEW JERSEY (CITY ILLEGIBLE) IN THE AFTERNOON OF OCTOBER 14, THE DAY PRECEDING THE SCHEDULED BID OPENING.

AT THE REQUEST OF THE CONTRACTING OFFICER, YOUR COMPANY FORWARDED TO DGSC THE CERTIFIED MAIL RECEIPT BEARING A CRANFORD, NEW JERSEY, POSTMARK DATED OCTOBER 14, BUT NO TIME, AND A STATEMENT FROM THE CRANFORD POSTMASTER THAT THE BUSINESS HOURS AT SUCH POST OFFICE TERMINATE AT 5:00 P.M., MONDAY TO FRIDAY, INCLUSIVE. INQUIRY OF POSTAL OFFICIALS AT THE RICHMOND POST OFFICE, WHICH SERVES THE DGSC, DISCLOSED THAT UNDER NORMAL CIRCUMSTANCES A LETTER SO MAILED BY 5:00 P.M. AT CRANFORD WOULD HAVE ARRIVED AT THE RICHMOND POST OFFICE AT 11:45 A.M. THE NEXT DAY AND WOULD HAVE BEEN PLACED ON A TRUCK LEAVING THE RICHMOND POST OFFICE AT 1:30 P.M. AND SCHEDULED TO ARRIVE AT :25 P.M. AT THE CONTRACT POST OFFICE AT THE DGSC. FROM OFFICIALS AT THE CONTRACT POST OFFICE, IT WAS ASCERTAINED THAT THE LETTER WOULD HAVE BEEN SORTED, ENTERED ON A POSTAL REGISTER, AND DELIVERED TO THE DGSC MAIL DISTRIBUTION SERVICE, WHERE IT WOULD BE ENTERED ON ANOTHER REGISTER AND THEN IMMEDIATELY DELIVERED TO THE BID CLERK IN THE PROCUREMENT DIVISION BID SECTION. THE TIME REQUIRED FOR SUCH OPERATIONS, IT IS STATED, VARIES BUT IS NEVER LESS THAN 5 MINUTES. ACCORDINGLY, ON THE BASIS THAT THE BID COULD NOT HAVE BEEN DELIVERED IN TIME FOR THE BID OPENING EVEN UNDER NORMAL CONDITIONS, YOU WERE ADVISED BY THE CONTRACTING OFFICER, IN A LETTER DATED NOVEMBER 1, THAT YOUR LATE BID WOULD NOT BE CONSIDERED FOR AWARD BUT WOULD BE HELD UNOPENED UNTIL AFTER AWARD BEFORE ITS RETURN TO YOU.

IN A TELEPHONE CONVERSATION OF NOVEMBER 2, CONFIRMED BY A LETTER OF THE SAME DATE, YOU PROTESTED THE ACTION OF THE CONTRACTING OFFICER. BY LETTER OF NOVEMBER 12, ANOTHER CONTRACTING OFFICER ADVISED YOU OF THE INFORMATION OBTAINED FROM THE POSTAL OFFICIALS OF BOTH THE RICHMOND AND THE DGSC CONTRACT POST OFFICES AND AGAIN DENIED THE PROTEST STATING THAT THE BID, AS MAILED, WOULD NOT HAVE BEEN TIMELY DELIVERED TO THE BID OPENING OFFICE, THE DGSC POST OFFICE BEING SOME DISTANCE THEREFROM. IN THIS CONNECTION, IT IS OUR UNDERSTANDING THAT THE BUILDING WHICH HOUSES THE CONTRACT POST OFFICE IS APPROXIMATELY ONE FIFTH OF A MILE FROM THE BUILDING IN WHICH THE DIRECTORATE OF PROCUREMENT AND PRODUCTION IS LOCATED.

YOU CONTEND THAT SINCE YOUR BID COULD HAVE REACHED THE DGSC AT 2:25 P.M., 5 MINUTES PRIOR TO THE SCHEDULED BID OPENING, IT WAS TIMELY MAILED AS CONTEMPLATED BY THE IFB. ADDITIONALLY, YOU QUESTION WHY YOUR PROTEST WAS REVIEWED BY A CONTRACTING OFFICER AND NOT A HIGHER DSA OFFICIAL; WHY THE BID OPENING COULD NOT BE SCHEDULED LATER THAN 2:30 P.M. TO ALLOW FOR ANY BIDS IN THE LAST MAIL PICKUP; OR WHY THE POST OFFICE (PRESUMABLY THE DGSC CONTRACT POST OFFICE) WAS NOT CHECKED FOR BIDS BEFORE THE BID OPENING.

IT IS THE POSITION OF DSA THAT THE BID, THOUGH ACTUALLY DELAYED IN THE MAILS, WOULD NOT UNDER NORMAL CIRCUMSTANCES HAVE TIMELY REACHED THE BID OPENING OFFICE, THE 5 MINUTES BETWEEN THE TIME OF ARRIVAL OF THE BID AT THE DGSC POST OFFICE AND THE SCHEDULED TIME OF BID OPENING BEING CONSIDERED BY DSA AS INSUFFICIENT TO PERMIT THE NECESSARY PROCESSING OF THE MAIL AT THE POST OFFICE AND DELIVERY TO THE DESIGNATED OFFICE OF DIRECTORATE OF PROCUREMENT AND PRODUCTION. ACCORDINGLY, DSA RECOMMENDS THAT THE PROTEST BE DENIED.

THE CONSIDERATION OF LATE MAILED BIDS ON THE PROCUREMENT IN QUESTION IS GOVERNED NOT ONLY BY THE TERMS OF THE IFB BUT BY THE PROVISIONS OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), ISSUED IN IMPLEMENTATION OF THE APPLICABLE PROCUREMENT STATUTE AND HAVING THE FULL FORCE AND EFFECT OF LAW. ASPR 2-303.1 PROVIDES THAT A BID RECEIVED IN THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS AFTER THE EXACT TIME SET FOR BID OPENING IS A LATE BID EVEN THOUGH IT MAY BE RECEIVED ONLY 1 OR 2 MINUTES LATE. ASPR 2- 303.2 READS IN PART, AS FOLLOWS:

2-303.2 CONSIDERATION FOR AWARD. A LATE BID SHALL BE CONSIDERED FOR AWARD ONLY IF:

(I) IT IS RECEIVED BEFORE AWARD; AND EITHER

(II) 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 2-303.3), OR TO A DELAY BY THE TELEGRAPH COMPANY FOR WHICH THE BIDDER WAS NOT RESPONSIBLE; OR

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

ASPR 2-303.3 INCLUDES THE FOLLOWING PROVISIONS RELATING TO LATE BIDS TRANSMITTED BY CERTIFIED MAIL:

(B) CERTIFIED MAIL. THE TIME OF MAILING OF A LATE BID MAILED BY CERTIFIED MAIL FOR WHICH A POSTMARKED RECEIPT FOR CERTIFIED MAIL WAS OBTAINED SHALL BE DEEMED TO BE THE LAST MINUTE OF THE DATE SHOWN IN THE POSTMARK ON SUCH RECEIPT, EXCEPT WHERE (I) THE RECEIPT FOR CERTIFIED MAIL IDENTIFIES THE POST OFFICE STATION OF MAILING AND THE BIDDER FURNISHES EVIDENCE FROM SUCH STATION THAT THE BUSINESS DAY OF THAT STATION ENDED AT AN EARLIER TIME, IN WHICH CASE THE TIME OF MAILING SHALL BE DEEMED TO BE THE LAST MINUTE OF THE BUSINESS DAY OF THAT STATION; OR (II) AN ENTRY IN INK ON THE RECEIPT FOR CERTIFIED MAIL, SHOWING THE TIME OF MAILING AND THE INITIALS OF THE POSTAL EMPLOYEE RECEIVING THE ITEM AND MAKING THE ENTRY, IS APPROPRIATELY VERIFIED IN WRITING BY THE POST OFFICE STATION OF MAILING, IN WHICH CASE THE TIME OF MAILING SHALL BE THE TIME SHOWN IN THE ENTRY. IF THE POSTMARK DOES NOT SHOW A DATE, THE BID SHALL BE DEEMED TO HAVE BEEN MAILED TOO LATE.

(C) DELIVERY TIME. INFORMATION CONCERNING THE NORMAL TIME FOR MAIL DELIVERY SHALL BE OBTAINED BY THE PURCHASING ACTIVITY FROM THE POSTMASTER, SUPERINTENDENT OF MAILS, OR A DULY AUTHORIZED REPRESENTATIVE FOR THAT PURPOSE, OF THE POST OFFICE SERVING THAT ACTIVITY. WHEN TIME PERMITS, SUCH INFORMATION SHALL BE OBTAINED IN WRITING.

ASPR 2-303.6 PROVIDES FOR WRITTEN NOTIFICATION TO LATE BIDDERS BY THE CONTRACTING OFFICER OR HIS AUTHORIZED REPRESENTATIVE WHEN AVAILABLE EVIDENCE INDICATES A LATE BID CANNOT BE CONSIDERED. IN THE CASE OF ANY LATE BID TRANSMITTED BY CERTIFIED MAIL, HOWEVER, THE BIDDER WILL BE REQUESTED TO FURNISH THE ORIGINAL POSTMARKED MAIL RECEIPT AND EVIDENCE OF TIME OF MAILING. ASPR 2-303.7 REQUIRES THAT LATE BIDS WHICH ARE NOT CONSIDERED FOR AWARD SHALL BE HELD UNOPENED UNTIL AFTER AWARD AND THEN RETURNED TO THE BIDDER UNLESS OTHERWISE DISPOSED OF PURSUANT TO REQUEST OF, OR AGREEMENT BY, THE BIDDER.

ASPR 2-407.9 REQUIRES THAT THE CONTRACTING OFFICERS CONSIDER ALL PROTESTS AGAINST AWARD, WHETHER BEFORE OR AFTER AWARD, AND NOTIFY THE PROTESTER IN WRITING OF THE FINAL DECISION ON A WRITTEN PROTEST. HOWEVER, CONTRACTING OFFICERS MAY OBTAIN THE VIEWS OF OUR OFFICE ON PROTESTS BEFORE AWARD.

UNDER THE PROVISIONS OF ASPR 2-303 AND THE LANGUAGE QUOTED ABOVE FROM THE IFB, BIDS WERE REQUIRED TO BE RECEIVED IN THE OFFICE DESIGNATED IN THE IFB NOT LATER THAN THE EXACT TIME SET FOR BID OPENING. TO WARRANT CONSIDERATION OF A MAILED BID RECEIVED AT SUCH OFFICE AFTER BID OPENING BUT PRIOR TO AWARD, A BIDDER WAS REQUIRED TO ESTABLISH EITHER THAT HE HAD USED REGISTERED OR CERTIFIED MAIL AND THE FAILURE OF THE BID TO ARRIVE TIMELY AT THE DESIGNATED OFFICE WAS DUE SOLELY TO A DELAY IN THE MAILS OR THAT THE BID ACTUALLY HAD ARRIVED AT THE GOVERNMENT INSTALLATION BEFORE THE SPECIFIED BID OPENING TIME AND BUT FOR MISHANDLING BY THE GOVERNMENT AT THE INSTALLATION IT WOULD HAVE TIMELY ARRIVED AT THE DESIGNATED OFFICE. IT IS NOT SUFFICIENT UNDER SUCH PROVISIONS THAT THE BIDDER ESTABLISH THAT A BID DELAYED IN THE MAIL COULD HAVE ARRIVED AT THE GOVERNMENT INSTALLATION BEFORE BID OPENING TIME. HE MUST ALSO PROVE THAT SUCH BID COULD HAVE ARRIVED SUFFICIENTLY EARLY TO ASSURE ITS TIMELY DELIVERY UNDER NORMAL CIRCUMSTANCES TO THE DESIGNATED BID OPENING OFFICE, IN THIS CASE THE DIRECTORATE OF PROCUREMENT AND PRODUCTION. THE FACTS SET FORTH SHOW THAT EVEN WITHOUT A DELAY IN THE MAIL YOUR BID, MAILED AT 5:00 P.M.FROM CRANFORD, NEW JERSEY, ON THURSDAY, OCTOBER 14, WOULD NOT HAVE ARRIVED AT THE DGSC UNTIL 2:25 P.M. ON FRIDAY, OCTOBER 15, AND CERTAINLY NOT AT THE DIRECTORATE OF PROCUREMENT AND PRODUCTION AT THE DGSC BY THE 2:30 P.M. BID OPENING TIME. ACCORDINGLY YOUR BID DOES NOT QUALIFY FOR CONSIDERATION AS A LATE BID THAT WAS TIMELY MAILED.

AS TO THE PROVISIONS RELATING TO MISHANDLING AT THE GOVERNMENT INSTALLATION, IT WILL BE NOTED THAT SUCH EXCEPTION APPLIES ONLY WHEN THE LATE BID HAD ACTUALLY ARRIVED AT THE GOVERNMENT INSTALLATION BEFORE THE SPECIFIED TIME OF BID OPENING IN SUFFICIENT TIME TO ASSURE ITS TIMELY DELIVERY TO THE DESIGNATED OFFICE. SINCE YOUR BID DID NOT ARRIVE AT THE DGSC UNTIL 3 DAYS AFTER THE SCHEDULED TIME OF BID OPENING, IT DOES NOT COME WITHIN THE EXCEPTION. IN ANY EVENT, IT IS TO BE NOTED THAT THERE IS NO EVIDENCE OF ANY MISHANDLING OF THE BID BY THE DGSC.

CONCERNING THE FACT THAT THE DECISION ON YOUR PROTEST AGAINST THE CONTRACTING OFFICER'S DECISION TO DISREGARD YOUR BID WAS SIGNED BY ANOTHER CONTRACTING OFFICER, IT IS TO BE NOTED THAT SUCH ACTION WAS PROPER UNDER THE PROVISIONS OF ASPR 2-407.9.

REGARDING YOUR ASSERTION THAT THE BID OPENING SHOULD HAVE BEEN SCHEDULED LATER TO ALLOW FOR THE LAST MAIL PICKUP, IT MAY WELL BE THAT SUCH PROCEDURE WOULD HAVE BEEN FEASIBLE AND APPROPRIATE. HOWEVER, IT WAS WITHIN THE DISCRETION OF DSA TO FIX THE TIME OF BID OPENING AND ONCE SUCH TIME WAS ESTABLISHED IT BECAME THE RESPONSIBILITY OF ALL BIDDERS TO SEE THAT THEIR BIDS WERE RECEIVED AT THE TIME AND PLACE DESIGNATED IN THE IFB FOR BID OPENING. IN THIS CONNECTION, WE HAVE HELD THAT THE FACT THAT THE MAIL SERVICE TO A DESIGNATED PLACE MIGHT NOT BE AS GOOD AS SOME MIGHT DESIRE WILL NOT RELIEVE ANY BIDDER OF THE RESPONSIBILITY FOR MAILING HIS BID IN TIME TO BE RECEIVED AT THE DESIGNATED PLACE PRIOR TO THE SCHEDULED OPENING. B-151683, JUNE 27, 1963.

WITH RESPECT TO YOUR CONTENTION THAT THE PROCURING ACTIVITY SHOULD HAVE CHECKED THE DGSC POST OFFICE BEFORE THE 2:30 P.M. BID OPENING TO ASCERTAIN WHETHER ANY BIDS WERE INCLUDED IN THE MAIL DELIVERY TO SUCH POST OFFICE AT 2:25 P.M., IT APPEARS UNLIKELY THAT THE MAIL COULD HAVE BEEN SORTED SOON ENOUGH TO LOCATE ANY SUCH BIDS BY 2:30 P.M. IN ANY EVENT, BOTH THE IFB AND THE APPLICABLE PROCUREMENT REGULATION REQUIRED THE PHYSICAL RECEIPT OF THE BID AT THE DIRECTORATE OF PROCUREMENT AND PRODUCTION BY 2:30 P.M., AND ITS RECEIPT AT THE DGSC POST OFFICE THEREFORE WOULD NOT MEET SUCH REQUIREMENT.

FOR THE REASONS STATED, WE FIND NO LEGAL BASIS TO QUESTION THE ACTION OF THE PROCURING ACTIVITY. ACCORDINGLY, WE MUST CONCUR WITH THE RECOMMENDATION OF DSA THAT YOUR BID MAY NOT BE CONSIDERED FOR AWARD.