B-163315, FEB. 6, 1968

B-163315, FEB. 6, 1968

BIDS - LATE - HOLIDAY EFFECT DECISION TO C.L. GARDNER COMMUNICATION CONSTRUCTION COMPANY PROTESTING CONSIDERATION OF LATE BID OF UNITED TELECOMMUNICATIONS, INC., UNDER NAVY PROCUREMENT. A LOW BID WHICH WAS SENT CERTIFIED MAIL AND MARKED AIRMAIL BUT WHICH WAS NOT RECEIVED UNTIL THE DAY AFTER BID OPENING ALTHOUGH BY NORMAL MAIL DELIVERY IT SHOULD HAVE ARRIVED PRIOR TO BID OPENING WAS PROPERLY CONSIDERED AND FACT THAT PROTESTANT ALLEGES THAT BIDDER SHOULD HAVE ANTICIPATED DELAY DURING HOLIDAY SEASON, NORMAL TIME FOR DELIVERY RULE UNDER ASPR 2-303.3 (C) PREVAILS.

TO MR. C. L. GARNDER:

REFERENCE IS MADE TO YOUR TELEGRAM OF JANUARY 15, 1968, PROTESTING THAT THE LATE BID OF UNITED TELECOMMUNICATIONS, INC., UNDER DEPARTMENT OF THE NAVY CONTRACT N62467-68-C-0078 SHOULD NOT HAVE BEEN CONSIDERED FOR AWARD SINCE IT WAS MAILED FROM SAN DIEGO, CALIFORNIA, TO CHARLESTON, SOUTH CAROLINA, ONLY 2 DAYS BEFORE BID OPENING AND BECAUSE THE BIDDER SHOULD HAVE REALIZED THAT THE HEAVY MAIL DURING THE HOLIDAY SEASON IS NORMALLY DELAYED SO THAT THE DISPATCH OF THE BID WAS NOT TIMELY.

THE BID OPENING TIME WAS 2:30 P.M. ON JANUARY 4, 1968. THE LOW BID FROM UNITED TELECOMMUNICATIONS WAS RECEIVED AT 8:32 A.M. ON JANUARY 5, 1968. THE BID ENVELOPE WAS MARKED AIRMAIL AND CERTIFIED MAIL. THE RECEIPT FOR CERTIFIED MAIL SHOWS THAT THE BID WAS MAILED ON JANUARY 2, 1968, AT 2:35 P.M., FROM SAN DIEGO, CALIFORNIA. THE POST OFFICE AT CHARLESTON, SOUTH CAROLINA, ADVISED THE CONTRACTING OFFICE THAT THE "BID WAS MAILED IN TIME NORMALLY TO HAVE BEEN RECEIVED PRIOR TO BID OPENING TIME AND DATE.' ACCORDINGLY, THE CONTRACT UPON WHICH THE BID WAS MADE WAS AWARDED TO THE LOW BIDDER.

ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-303.2, INSOFAR AS PERTINENT, PROVIDES THAT A LATE BID SHALL BE CONSIDERED FOR AWARD IF IT IS RECEIVED BEFORE AWARD AND IT WAS SENT BY CERTIFIED MAIL FOR WHICH AN OFFICIAL DATED POST OFFICE STAMP ON THE ORIGINAL RECEIPT FOR CERTIFIED MAIL HAS BEEN OBTAINED AND IT IS DETERMINED THAT THE LATENESS WAS DUE SOLELY TO A DELAY IN THE MAILS. ASPR 2-303.3 (C) PROVIDES THAT INFORMATION CONCERNING THE NORMAL TIME FOR MAIL DELIVERY SHALL BE OBTAINED BY THE PURCHASING ACTIVITY FROM THE POST OFFICE SERVING THE ACTIVITY.

ALTHOUGH YOU SUGGEST THAT THE BIDDER SHOULD HAVE ANTICIPATED A DELAY BECAUSE OF HEAVY MAIL DURING THE HOLIDAY SEASON, WE OBSERVE THAT THE BID WAS MAILED ON JANUARY 2, OR AFTER THE HOLIDAY SEASON. IN ANY EVENT, OUR OFFICE CONSIDERS THAT UNDER THE ABOVE REFERRED-TO ASPR 2 303.3 (C), THE NORMAL TIME FOR DELIVERY PREVAILS. IN B-156101, MAY 4, 1965, IT WAS STATED:

"UNDER SUCH PROVISION (ASPR 2-303.3 (C) (, THE NORMAL TIME FOR MAIL DELIVERY IS THE DECIDING FACTOR. THERE IS NO REQUIREMENT THAT A BIDDER FURNISH EVIDENCE THAT HIS BID COULD HAVE BEEN TIMELY DELIVERED WITH ALLOWANCE FOR ABNORMAL DELAYS. ACCORDINGLY, WHILE IT IS QUESTIONABLE WHETHER THE CHRISTMAS MAIL RUSH COULD HAVE DELAYED THE DELIVERY OF AN ITEM SENT BY FIRST-CLASS MAIL MORE THAN THREE WEEKS BEFORE CHRISTMAS, SUCH FACTOR NEED NOT BE CONSIDERED UNDER THE REGULATION.'

ACCORDINGLY, IN VIEW OF THE FOREGOING, IT DOES NOT APPEAR THAT IT WAS INAPPROPRIATE FOR THE CONTRACTING OFFICE TO CONSIDER THE LATE BID OF UNITED TELECOMMUNICATIONS AND TO MAKE AN AWARD TO IT. YOUR PROTESTIS THEREFORE DENIED.