B-161556, JUN. 29, 1967

B-161556, JUN. 29, 1967

TO KROWDER INDUSTRIES:

REFERENCE IS MADE TO YOUR LETTER OF MAY 17, 1967, PROTESTING AGAINST THE ACTION OF THE UNITED STATES NAVY PURCHASING OFFICE, WASHINGTON, D.C., IN REJECTING YOUR LATE BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. N00600-67-B-1199, COVERING THE FURNISHING OF ONE VIDICON TELEVISION FILM CHAIN.

THE INVITATION FOR BIDS WAS ISSUED ON APRIL 28, 1967, AND PROVIDED THAT BIDS WERE TO BE OPENED AT 10:30 A.M., MAY 15, 1967. IT IS REPORTED THAT IN RESPONSE TO YOUR LETTER OF MAY 5, 1967, A COPY OF THE INVITATION FOR BIDS WAS MAILED TO YOUR FIRM ON MAY 10, 1967. AT THE TIME OF THE BID OPENING ON MAY 15 YOUR BID HAD NOT BEEN RECEIVED. HOWEVER, A BID ENVELOPE WAS RECEIVED FROM YOUR FIRM BY THE NAVY PURCHASING OFFICE MAILROOM AT 4:15 P.M., THE DAY OF BID OPENING. THE BID ENVELOPE WAS MAILED VIA REGULAR MAIL FROM PHILADELPHIA, PENNSYLVANIA, AND WAS POSTMARKED MAY 14, 1967, P.M. IT IS REPORTED ALSO THAT A TELEGRAPHIC MODIFICATION OF YOUR BID WAS RECEIVED IN THE NAVY PURCHASING OFFICE MAILROOM AT 2:46 P.M. ON MAY 15, 1967. SINCE YOUR BID ENVELOPE WAS NOT SENT BY REGISTERED OR CERTIFIED MAIL AS REQUIRED BY THE INVITATION FOR BIDS, AND THE LATENESS WAS NOT THE RESULT OF MISHANDLING BY THE GOVERNMENT AFTER RECEIPT, YOUR FIRM WAS NOTIFIED BY LETTER DATED MAY 16, 1967, FROM THE PROCUREMENT OFFICE, THAT YOUR BID WAS NOT FOR CONSIDERATION AND THAT THE BID ENVELOPE WOULD BE HELD UNOPENED AND RETURNED AFTER THE AWARD HAD BEEN MADE.

YOU CONTEND THAT THERE ARE SUFFICIENT GROUNDS FOR OUR OFFICE TO HOLD THAT THE LATE RECEIPT OF YOUR BID ENVELOPE AND THE LACK OF REGISTRATION OR CERTIFICATION BY THE POST OFFICE WERE NOT THE FAULT OF YOUR FIRM AND, THEREFORE, YOUR BID SHOULD BE CONSIDERED FOR AWARD. YOU STATE THAT YOU RECEIVED A COPY OF THE INVITATION FOR BIDS ON SATURDAY MORNING, MAY 13, 1967; THAT ONE OF YOUR REPRESENTATIVES HANDED THE COMPLETED BID TO THE DRIVER OF A MAIL TRUCK ABOUT 3:15 P.M. ON SUNDAY, MAY 14, 1967; THAT THE DRIVER STATED THAT YOUR BID WOULD BE PROCESSED IN THE PHILADELPHIA POST OFFICE BY 6:00 P.M.; AND THAT YOUR REPRESENTATIVE WAS OF THE OPINION THERE WAS SUFFICIENT TIME FOR YOUR BID TO REACH THE NAVY PURCHASING OFFICE BEFORE THE BID OPENING. YOU STATE THAT YOU WERE UNABLE TO HAVE YOUR BID CERTIFIED OR REGISTERED BECAUSE NO POST OFFICE FACILITIES FOR CERTIFICATION OR REGISTRATION WERE OPEN AFTER 12 NOON ON SATURDAY. YOU CONTEND THAT HAD THE NAVY PURCHASING OFFICE NOT DELAYED SENDING YOU A COPY OF THE INVITATION FOR BIDS, YOUR BID COULD HAVE BEEN CERTIFIED OR REGISTERED AND MAILED AT AN EARLIER DATE; AND THAT IF, BY THE DATE STAMP ON YOUR BID ENVELOPE OR A STATEMENT FROM THE POST OFFICE, IT IS SHOWN THAT YOUR BID WAS PLACED IN THE MAIL IN PHILADELPHIA, PENNSYLVANIA, ON SUNDAY, MAY 14, 1967, THE REASON AND PURPOSE FOR THE CERTIFICATION OR REGISTRATION WOULD BE NEGATED.

PARAGRAPH 8 OF THE INVITATION INSTRUCTIONS AND CONDITIONS PROVIDED THAT OFFERS AND MODIFICATIONS OF OFFERS RECEIVED AFTER THE EXACT HOUR AND DATE SPECIFIED FOR RECEIPT WOULD NOT BE CONSIDERED UNLESS: (1) THEY WERE RECEIVED BEFORE AWARD WAS MADE, AND (2) THEY WERE SENT BY REGISTERED OR BY CERTIFIED MAIL AND IT CAN BE DETERMINED THAT LATE RECEIPT WAS DUE SOLELY TO DELAY IN THE MAILS FOR WHICH THE OFFEROR WAS NOT RESPONSIBLE, OR (3) IF SUBMITTED BY MAIL, IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION. TELEGRAPHIC OFFERS AS SUCH WERE NOT AUTHORIZED BY THE INVITATION, INSTEAD,PARAGRAPH 5 (B) OF THE INSTRUCTIONS AND CONDITIONS PROVIDED THAT OFFERS MIGHT BE MODIFIED BY TELEGRAPHIC NOTICE PROVIDED SUCH NOTICE WAS RECEIVED PRIOR TO THE HOUR AND DATE SPECIFIED FOR RECEIPT OF OFFERS. THE PROVISIONS OF PARAGRAPH 8 OF THE INSTRUCTIONS AND CONDITIONS ARE IN ACCORD WITH THE PROVISION OF PARAGRAPH 2-303.2 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) WHICH PROVIDE IN PERTINENT 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.' THE CONDITIONS SET FORTH IN PARAGRAPH 8 OF THE INSTRUCTIONS AND CONDITIONS AND ASPR 2 303.2 CONSTITUTE MANDATORY DIRECTIONS TO THE PROCUREMENT AGENCY WHICH MAY NOT BE WAIVED IN INDIVIDUAL CASES.

AS TO THE REASON FOR YOUR FAILURE TO HAVE YOUR BID SENT BY CERTIFIED OR REGISTERED MAIL, THE FACT THAT THE POST OFFICE WAS CLOSED AT THE TIME YOU MAILED YOUR BID IS NOT A SUFFICIENT BASIS FOR WAIVING THE MANDATORY REQUIREMENT. WHILE IT IS REGRETTED THAT YOUR FIRM DID NOT RECEIVE A COPY OF THE INVITATION FOR BIDS AT AN EARLIER DATE, SINCE IT APPEARS THAT PROPER PROCEDURES WERE FOLLOWED BY THE PURCHASING ACTIVITY, SUCH FACT WOULD NOT AFFECT THE VALIDITY OF THE PROCUREMENT. 34 COMP. GEN. 684.

IN THE LIGHT OF THE FACTS AND THE REGULATIONS DISCUSSED ABOVE, IT APPEARS THAT THE ACTION OF THE AGENCY IN REFUSING TO OPEN YOUR LATE BID ENVELOPE IS NOT SUBJECT TO QUESTION BY THIS OFFICE. SEE 42 COMP. GEN. 255.