B-162453, OCT. 20, 1967

B-162453, OCT. 20, 1967

BIDS - LATE DECISION TO METRO METALS, INC. PROTESTING AGAINST REJECTION OF LATE BID BY NAVAL FACILITIES ENGINEERING COMMAND, CHARLESTON, S.C. A LOW BIDDER WHO AIRMAILED A BID IN TIME TO HAVE BEEN RECEIVED PRIOR TO BID OPENING AND WHO TRANSMITTED A TELEGRAPHIC MODIFICATION WHICH WAS RECEIVED PRIOR TO BID OPENING MAY NOT HAVE THE LATE BID CONSIDERED ON THE BASIS OF THE TELEGRAPHIC MODIFICATION. SINCE THE LATE BID WAS SENT BY REGULAR AIRMAIL RATHER THAN BY REGISTERED OR CERTIFIED MAIL AS SPECIFIED IN THE INSTRUCTIONS TO BIDDERS, THE EVIDENCE OF DELAY IN THE POST OFFICE MAY NOT BE CONSIDERED. THEREFORE, THE BID WAS PROPERLY REJECTED.

TO METRO METALS, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM AND LETTERS DATED SEPTEMBER 11 AND OCTOBER 5, 1967, WITH ENCLOSURES, PROTESTING AGAINST THE ACTION OF THE SOUTHEAST DIVISION, NAVAL FACILITIES ENGINEERING COMMAND, CHARLESTON, SOUTH CAROLINA, IN REJECTING YOUR LATE BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. N62467-67-B-0672.

THE INVITATION FOR BIDS ISSUED ON AUGUST 7, 1967, PROVIDED THAT BIDS WERE TO BE OPENED AT 2:30 P.M., SEPTEMBER 7, 1967. AT THE TIME OF THE BID OPENING ON SEPTEMBER 7, YOUR BID HAD NOT BEEN RECEIVED. HOWEVER, A BID ENVELOPE WAS RECEIVED FROM YOUR FIRM BY THE SOUTHEAST DIVISION, NAVAL FACILITIES ENGINEERING COMMAND, AT 9:21 A.M., ON SEPTEMBER 8, 1967, THE DAY AFTER BID OPENING. THE BID ENVELOPE WAS MAILED VIA REGULAR AIRMAIL FROM MIAMI, FLORIDA, AND WAS POSTMARKED SEPTEMBER 6, 1967, P.M. ALSO YOU POINT OUT THAT A TELEGRAPHIC MODIFICATION OF THE BID WAS RECEIVED IN THE SOUTHEAST DIVISION ON SEPTEMBER 7, 1967, PRIOR TO THE TIME SET FOR OPENING OF BIDS. SINCE YOUR BID ENVELOPE WAS NOT SENT BY REGISTERED OR CERTIFIED MAIL AS REQUIRED BY PARAGRAPH 7 OF THE INSTRUCTIONS TO BIDDERS OF THE INVITATION, AND SINCE IT WAS CLEAR THAT THE LATE RECEIPT WAS NOT THE RESULT OF MISHANDLING BY THE GOVERNMENT AFTER ITS RECEIPT, THE PROCUREMENT OFFICE CONCLUDED THAT THE BID WAS NOT FOR CONSIDERATION.

YOU STATE THAT THE PRESIDENT OF YOUR FIRM PERSONALLY MAILED THE BID AT THE SOUTH MIAMI, FLORIDA POST OFFICE AT 10:00 A.M., ON SEPTEMBER 6, 1967, THAT THE POST OFFICE HAS ADVISED YOU THAT THE MAIL CONTAINING YOUR BID WAS PICKED UP FROM THE LOCAL POST OFFICE AND TAKEN TO THE BISCAYNE ANNEX POST OFFICE AT 10:30 A.M., ON SEPTEMBER 6, 1967; AND THAT THE MAIL WAS PROCESSED THROUGH THE BISCAYNE ANNEX AND LEFT MIAMI, FLORIDA, AT 3:35 P.M., THAT SAME DAY BY AIRLINE AND ARRIVED AT JACKSONVILLE, FLORIDA AT 5:36 P.M., ON SEPTEMBER 6, 1967. YOU ALSO STATE THAT A POST OFFICE OFFICIAL HAS ADVISED YOU THAT SINCE THE MAIL CONTAINING YOUR BID ARRIVED IN JACKSONVILLE, FLORIDA AT 5:36 P.M., ON SEPTEMBER 6, 1967, YOUR BID SHOULD HAVE BEEN DELIVERED IN CHARLESTON, SOUTH CAROLINA, PRIOR TO THE OPENING OF BIDS AT 2:30 P.M., ON SEPTEMBER 7, 1967. YOU ALLEGE THAT A LETTER CONFIRMING YOUR TELEGRAPHIC BID MODIFICATION WAS MAILED VIA REGULAR MAIL AT 5:05 P.M. ON SEPTEMBER 7, 1967, AND THAT SUCH LETTER WAS RECEIVED BY THE COMMANDING OFFICER, NAVAL FACILITIES ENGINEERING COMMAND, CHARLESTON, SOUTH CAROLINA, THE NEXT DAY, WHICH YOU STATE, INDICATES THAT YOUR AIRMAILED BID SHOULD HAVE BEEN RECEIVED WITHIN 1 DAY AFTER MAILING. YOU ALSO CONTEND THAT SINCE THE BID WAS OUT OF YOUR CONTROL FOR ALMOST A DAY AND SINCE YOUR TELEGRAPHIC BID MODIFICATION WAS RECEIVED BY THE BID OPENING OFFICER PRIOR TO THE TIME SET FOR OPENING OF BIDS, THE RECEIPT OF THE TELEGRAPHIC MODIFICATION, PRIOR TO THE BID OPENING, MEETS THE REQUIREMENTS NECESSARY FOR A TIMELY BID. IN THIS REGARD, IT IS STATED THAT THE TELEGRAPHIC MODIFICATION, UNDER THE CIRCUMSTANCES WHERE THE MAILED BID CAN BE SHOWN TO BE NO LONGER IN THE CONTROL OF THE BIDDER, ,HOLDS THE DOOR OPEN" UNTIL THE MAILED BID IS RECEIVED.

THE FIRST QUESTION FOR CONSIDERATION IS WHETHER THE BID COULD BE CONSIDERED ON THE BASIS OF THE TELEGRAPHIC MODIFICATION WHICH YOU ADVISE WAS RECEIVED BY THE PROCUREMENT OFFICE PRIOR TO THE TIME SET FOR OPENING OF BIDS. IN THIS CONNECTION, CLAUSE 5 OF THE INSTRUCTIONS TO BIDDERS (CONSTRUCTION CONTRACT) WHICH WAS ATTACHED TO THE INVITATION PROVIDES IN PART: "* * * UNLESS SPECIFICALLY AUTHORIZED IN THE INVITATION FOR BIDS, TELEGRAPHIC BIDS WILL NOT BE CONSIDERED.'

WE HAVE HELD THAT WHERE AN INVITATION PRECLUDES THE CONSIDERATION OF TELEGRAPHIC BIDS, ANY SUCH BIDS SHOULD BE DISREGARDED. SEE 40 COMP. GEN. 279. CONSEQUENTLY, WE FIND THAT THE BID COULD NOT BE CONSIDERED ON THE BASIS THAT THE TELEGRAPHIC MODIFICATION MAY HAVE BEEN RECEIVED BY THE PROCUREMENT OFFICE BEFORE BID OPENING.

THE NEXT QUESTION FOR CONSIDERATION IS WHETHER THE BID COULD BE CONSIDERED ON THE BASIS OF A STATEMENT FROM A POST OFFICE OFFICIAL WHICH INDICATES THAT YOUR FIRM'S BID WAS POSTED IN SUFFICIENT TIME TO HAVE BEEN DELIVERED TO THE PROCUREMENT OFFICE BEFORE BID OPENING. CLAUSE 7 (A) OF THE INSTRUCTIONS TO BIDDERS PROVIDES IN PART: "/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; * * *.' THIS CLAUSE IS SUBSTANTIALLY THE SAME AS SECTION 2-303.2 OF THE ARMED SERVICES PROCURMENT REGULATION WHICH WAS PROMULGATED PURSUANT TO 10 U.S.C. 2202 AND HAS THE FORCE AND EFFECT OF LAW. SEE PUBLIC UTILITIES COMMISSION OF CALIFORNIA V. UNITED STATES, 355 U.S. 534, 542; G.L. CHRISTIAN AND ASSOCIATES V. UNITED STATES, 312 F.2D 418, CERTIORARI DENIED 375 U.S. 954. IN THESE CIRCUMSTANCES, THE RULE WHICH PERMITS THE WAIVER OF MINOR INFORMALITIES OR IRREGULARITIES IN BIDS IS NOT FOR APPLICATION.

IN 42 COMP. GEN. 255, THE QUESTION PRESENTED TO OUR OFFICE WAS WHETHER A LATE BID SENT BY A METHOD OF MAILING NOT INCLUDED IN THE INVITATION, WHERE IT WAS SHOWN THAT THE LATENESS WAS DUE TO A DELAY IN THE MAILS, COULD BE CONSIDERED. THE CLAUSE REGARDING CONSIDERATION OF LATE BIDS CONTAINED IN THE INVITATION THERE INVOLVED WAS SUBSTANTIALLY THE SAME AS CLAUSE 7 (A), QUOTED ABOVE, OF THE INSTANT INVITATION. THE FACTS IN 42 COMP. GEN. 255 SHOW THAT THE BIDDER POSTED HIS BID BY A "CERTIFICATE OF MAILING," A METHOD FOR MAILING WHICH WAS NOT INCLUDED IN THE LATE BID PROVISION. THE BIDDER ARGUED THAT HIS BID SHOULD BE CONSIDERED SINCE ITS LATENESS WAS DUE TO A DELAY BY POST OFFICE EMPLOYEES. WE HELD AS FOLLOWS: "* * * WHILE IT MAY BE THAT THE MAIL SERVICE YOU ELECTED TO USE COULD HAVE BEEN AUTHORIZED AS ADEQUATE TO SATISFY THE INTENT AND PURPOSE OF THE SUBJECT PROVISION OF THE INVITATION, THE FACT REMAINS THAT IT WAS NOT LISTED THEREIN NOR IN THE CONTROLLING REGULATION. IT IS ALSO CLEAR FROM THE POSTAL MANUAL THAT THE -CERTIFICATE OF MAILING- METHOD OF POSTING AN ARTICLE IN THE MAIL DIFFERS MATERIALLY FROM -CERTIFIED MAIL,- IN THAT IN THE LATTER CASE THE ARTICLE MAILED IS STAMPED BY THE RECEIVING POSTAL EMPLOYEE WITH AN IDENTIFYING NUMBER CORRESPONDING TO THE NUMBERED RECEIPT ISSUED FOR IT, WHEREAS A CERTIFICATE OF MAILING IS ISSUED WITHOUT ANY CORRESPONDING OFFICIAL IDENTIFICATION ON THE ARTICLE COVERED BY .'

THE BID IN THE INSTANT CASE WAS SENT BY REGULAR AIRMAIL. IT IS OUR VIEW THAT REGULAR AIRMAIL DIFFERS FROM POSTING EITHER BY REGISTERED OR CERTIFIED MAIL. THE POSTAL MANUAL INDICATES THAT IF THE METHOD OF MAILING IS BY EITHER CERTIFIED MAIL OR REGISTERED MAIL, THE ARTICLE MAILED WILL HAVE AN IDENTIFYING NUMBER CORRESPONDING TO THE NUMBERED RECEIPT ISSUED FOR IT. IF THE METHOD OF MAILING IS BY REGULAR AIRMAIL, THERE WILL BE NO NUMBERED RECEIPT ISSUED. WE HAVE HELD THAT A BID SENT BY AIRMAIL-SPECIAL DELIVERY DID NOT MEET THE PREREQUISITE IN THE INVITATION FOR CONSIDERATION AS A LATE BID--- THAT IS, THAT IT BE SENT BY REGISTERED OR CERTIFIED MAIL. SEE B-158580, APRIL 14, 1966.

IN THESE CIRCUMSTANCES, WE FIND NO BASIS TO QUESTION THE ADMINISTRATIVE DETERMINATION THAT THE BID WAS AN UNACCEPTABLE LATE BID WHICH COULD NOT BE CONSIDERED UNDER THE INVITATION. YOUR PROTEST IS THEREFORE DENIED.