B-166881, SEPTEMBER 22, 1969, 49 COMP. GEN. 191

B-166881, SEPTEMBER 22, 1969, 49 COMP. GEN. 191

BIDS -- LATE -- PROCESSING AND DELIVERY BY GOVERNMENT A BID FORWARDED BY CERTIFIED MAIL THAT REACHED AN AIR FORCE BASE BRANCH POST OFFICE IN TIME TO BE RECEIVED IN THE BID OPENING ROOM BEFORE THE OPENING OF BIDS IF THE BID HAD BEEN FORWARDED BY REGULAR MAIL, BUT WHICH WAS NOT TIMELY RECEIVED DUE TO THE SPECIAL ADMINISTRATIVE HANDLING REQUIRED FOR CERTIFIED MAIL IS NEVERTHELESS A LATE BID AND THE LATENESS MAY NOT BE WAIVED ON THE BASIS IT WAS DUE TO A DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE, AS IT IS NOT ENOUGH THAT THE BID WAS RECEIVED AT THE BRANCH POST OFFICE BEFORE BID OPENING TIME, THE SENDER SHOULD HAVE ALLOWED SUFFICIENT TIME FOR IT TO REACH THE BID ROOM BEFORE BID OPENING TIME. THE FACT THAT THE FORM OF MAIL USED IS NOT AS FAST AS EXPECTED, OR IS SLOWER THAN OTHER TYPES OF MAIL, PROVIDES NO BASIS FOR ENLARGING THE EXCEPTION TO THE REQUIREMENT FOR THE TIMELY SUBMISSION OF BIDS. BIDS -- LATE -- SPECIAL DELIVERY SERVICE THE REJECTION OF A LATE BID THAT HAD BEEN FORWARDED BY CERTIFIED MAIL TO AN AIR FORCE BASE LOCATED 13 MILES FROM THE NEAREST POST OFFICE IS NOT AFFECTED BY THE FACT THE BID HAD BEEN HANDLED AIRMAIL SPECIAL DELIVERY. THE SPECIAL DELIVERY SERVICE CEASED AT THE POST OFFICE IN THE NEIGHBORING TOWN IN ACCORDANCE WITH THE POSTAL REGULATION LIMITING SPECIAL DELIVERY SERVICE TO WITHIN A 1-MILE PERIMETER. BIDS -- LATE -- OPENING OF BID EFFECT THE ERRONEOUS OPENING OF A LATE BID DOES NOT JUSTIFY DISREGARDING THE REQUIREMENT THAT A CONTRACT AWARD BE MADE TO THE LOWEST, RESPONSIBLE AND RESPONSIVE BIDDER UNLESS COMPELLING REASONS EXIST TO REJECT ALL BIDS. THEREFORE, A BID RECEIVED AND OPENED AFTER THE SCHEDULED BID OPENING TIME UNDER THE ERRONEOUS ASSUMPTION THE LATENESS WAS DUE TO A DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE, PROPERLY WAS REJECTED PURSUANT TO PARAGRAPH 2-303.1 OF THE ARMED SERVICES PROCUREMENT REGULATION.

TO DACONICS, INC., SEPTEMBER 22, 1969:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 2, 1969, PROTESTING THE AWARD OF A CONTRACT TO A COMPANY OTHER THAN YOUR FIRM UNDER INVITATION FOR BIDS NO. F34650-69-B-0106, ISSUED BY THE DEPARTMENT OF THE AIR FORCE, TINKER AIR FORCE BASE, OKLAHOMA. RECEIPT IS ALSO ACHNOWLEDGED OF YOUR LETTER DATED AUGUST 15, 1969.

THE INVITATION ISSUED JANUARY 3, 1969, REQUESTED BIDS FOR A DATA PROCESSOR, AND RELATED EQUIPMENT ON A BRAND NAME OR EQUAL BASIS. AT THE SCHEDULED BID OPENING TIME, 2 P.M., C.S.T., ON FEBRUARY 4, 1969, THE ONLY BID RECEIVED, FROM HEWLETT-PACKARD CORPORATION, WAS OPENED.

ON FEBRUARY 5, 1969, AT 12:52 P.M., A SEALED BID FROM YOUR COMPANY WAS RECEIVED IN THE BASE PROCUREMENT DIVISION. THE MARKINGS ON THE BID ENVELOPE SHOWED THAT IT WAS SENT AIRMAIL SPECIAL DELIVERY BY CERTIFIED MAIL AND POSTMARKED SUNNYVALE, CALIFORNIA. ON FEBRUARY 7, 1969, YOU WERE NOTIFIED THAT SINCE YOUR BID WAS RECEIVED AFTER THE SCHEDULED OPENING, IT COULD NOT BE CONSIDERED FOR AWARD UNLESS YOU ESTABLISHED THAT THE LATE RECEIPT WAS DUE TO DELAY IN THE MAIL FOR WHICH YOU WERE NOT RESPONSIBLE. IN RESPONSE TO THE NOTIFICATION, YOU FURNISHED A COPY OF CERTIFIED MAIL RECEIPT NO. 204826 BEARING A POSTMARK "SUNNYVALE, CA USPO FEB 3, 1969" ABOVE WHICH THE TIME "4:15" WAS HANDWRITTEN. IN ADDITION THE SUNNYVALE SUPERINTENDENT OF MAILS VERIFIED THAT THE BID PACKAGE WAS MAILED IN SUFFICIENT TIME TO BE TRANSPORTED BY TRUCK FROM SUNNYVALE TO THE SAN FRANCISCO POST OFFICE AT THE AIRPORT, PROCESSED AND SENT ON THE 1:30 A.M., FEBRUARY 4, 1969, FLIGHT TO OKLAHOMA CITY, WITH SCHEDULED ARRIVAL AT 7:45 A.M. ON THE DAY OF BID OPENING. FROM THE FOREGOING, THE CONTRACTING OFFICER DETERMINED THAT THE FAILURE OF THE BID TO ARRIVE PRIOR TO OPENING WAS DUE SOLELY TO A DELAY IN THE MAIL FOR WHICH THE BIDDER WAS NOT RESPONSIBLE AND THAT THE BID SHOULD, THEREFORE, BE CONSIDERED. YOUR LOW BID WAS THEN OPENED AND RECORDED AND DURING EVALUATION YOUR FIRM WAS REQUESTED TO FURNISH ADDITIONAL INFORMATION.

THE ADMINISTRATIVE REPORT STATES THAT THE MATTER WAS THEN SUBMITTED TO THE JUDGE ADVOCATE GENERAL'S OFFICE (JAG) FOR REVIEW PRIOR TO RELEASE. THE JAG VIEW WAS THAT MORE SPECIFIC INFORMATION SHOULD BE REQUIRED OF THE OKLAHOMA CITY POST OFFICE AND THE TINKER AIR FORCE BASE POST OFFICE AS TO THE NORMAL TIME OF MAIL DELIVERY. THE EVIDENCE PRESCRIBED IN ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-303.3 PERTAINS TO THE ESTABLISHMENT OF THE TIME OF MAILING AND OBTAINING INFORMATION CONCERNING THE NORMAL TIME FOR MAIL DELIVERY. BY LETTER DATED APRIL 14, 1969, THE OKLAHOMA CITY POSTMASTER SUBMITTED THE FOLLOWING:

AIRMAIL ARRIVING AT THE WILL ROGERS WORLD AIRPORT AT 7:45 AM IS PICKED UP AT 8:40 AM ARRIVING AT THE MAIN POST OFFICE AT 9:05 AM FOR PROCESSING. THIS MAIL WOULD BE DISPATCHED TO TINKER AIR FORCE BASE BRANCH POST OFFICE LEAVING THE MAIN OFFICE AT 12:50 PM AND ARRIVING AT THE BRANCH POST OFFICE AT 1:10 PM. BY LETTER DATED APRIL 16, 1969, THE ADMINISTRATIVE COMMUNICATIONS BRANCH FURNISHED THE SCHEDULES SHOWING PICK-UP AND DELIVERY TIMES FOR BOTH CERTIFIED AND REGULAR OR AIRMAIL AS FOLLOWS: CERTIFIED MAIL ARRIVES AT TAFB BRANCH POST OFFICE 1310 PICKED UP BY OCBACS MESSENGER AT 1345 ARRIVES AT OCBACS FOR PROCESSING

1500 DELIVERED TO PROCUREMENT 1530 REGULAR MAIL OR AIRMAIL ARRIVES AT TAFB BRANCH POST OFFICE 1310 PICKED UP BY OCBACD MESSENGER AT 1320 ARRIVES AT OCBACM FOR PROCESSING 1330 DELIVERED TO OCBACD

1345 BACD DELIVERS TO PROCUREMENT 1350 THE ABOVE INFORMATION SHOWED THAT EVEN IF YOUR BID HAD ARRIVED AT THE TINKER AIR FORCE BASE BRANCH POST OFFICE AT 1:10 P.M. ON THE DAY OF BID OPENING, IT WOULD NOT HAVE BEEN DELIVERED TO THE PROCUREMENT MAIL ROOM BEFORE 3:30 P.M. THEREFORE, THE CONTRACTING OFFICER DETERMINED THAT YOUR BID WAS NOT MAILED IN SUFFICIENT TIME TO ARRIVE AT OPENING TIME, 2:00 P.M., FEBRUARY 4, 1969, AND WAS NONRESPONSIVE UNDER THE PROVISIONS OF ASPR 2-303.1.

IT IS YOUR CONTENTION THAT THE DELAY IN RECEIPT OF YOUR BID WAS DIRECTLY ATTRIBUTABLE TO IMPROPER HANDLING BY THE POST OFFICE SINCE SPECIAL DELIVERY MAIL GOING TO TINKER AIR FORCE BASE IS PROCESSED IN THE SAME MANNER AS REGULAR MAIL. YOU ALSO NOTE THE TIME DIFFERENTIAL IN DELIVERY OF REGULAR AND CERTIFIED MAIL BETWEEN THE TINKER BASE POST OFFICE AND THE BASE PROCUREMENT DIVISION.

INFORMATION FURNISHED BY THE OKLAHOMA CITY POSTMASTER INDICATES THAT AIRMAIL ARRIVING AT WILL ROGERS WORLD AIRPORT AT 7:45 A.M. WOULD NORMALLY BE DISPATCHED ON A REGULAR DELIVERY TO THE TINKER BRANCH POST OFFICE AT 12:50 P.M. AND ARRIVE THERE AT 13:10 P.M. SPECIAL DELIVERY CERTIFIED MAIL IS ALSO DISPATCHED ON THE REGULAR DELIVERY. ADDITIONAL INFORMATION FURNISHED STATES THAT AFTER INTERCEPTION AT THE POUCH OR SACK OPENING UNIT AND PASSING THROUGH THE SPECIAL DELIVERY SECTION TO THE MILITARY DISTRIBUTION UNIT, A CERTIFIED SPECIAL DELIVERY ARTICLE IS WITHHELD FROM NORMAL SEPARATION, AS IS ALL ACCOUNTABLE MAIL, AND DISPATCHED TO THE SUPERINTENDENT AT THE BRANCH POST OFFICE AT TINKER AIR FORCE BASE AND THE NEXT SCHEDULED DISPATCH. IN THIS INSTANCE, YOUR BID NORMALLY WOULD HAVE ARRIVE AT THE BRANCH POST OFFICE AT 13:10 P.M. SPECIAL DELIVERY MAIL ADDRESSED TO TINKER AIR FORCE BASE IS EXPEDITED ONLY TO THE EXTENT THAT IT RECEIVES SPECIAL DELIVERY HANDLING FROM THE TIME IT IS MAILED UNTIL IT IS TAKEN TO THE MILITARY DISTRIBUTION UNIT AT THE MAIN POST OFFICE.

AS TO THE ORDER OF PROCESSING IN THE BRANCH POST OFFICE, ALL REGISTERED AND CERTIFIED MAIL MUST BE DATED STAMPED AND ENTERED ON POSTAL BILLS FOR EACH ACTIVITY CONCERNED. DUE TO THE VOLUME OF SUCH MAIL RECEIVED AT TINKER AIR FORCE BASE, THIS PROCEDURE REQUIRES ADDITIONAL TIME TO PROCESS. NORMALLY, SUCH ACCOUNTABLE MAIL IS READY TO BE PICKED UP BY MESSENGER NOT LATER THAN 1 HOUR AFTER RECEIPT. IN THIS INSTANCE, THE MESSENGER ASSIGNED TO THE DOCUMENT SECURITY SECTION PICKED UP SUCH MAIL AT 13:45 P.M. FOR DELIVERY TO OCBACS IN BUILDING 3001C FOR PROPER PROCESSING AND FINAL DELIVERY TO THE ADDRESSEE USING FORM 12 (AF FORM) AS THE DELIVERY RECEIPT. THIS PROCESS IS REPORTED TO TAKE SO MUCH LONGER THAN PROCESSING REGULAR OR SPECIAL DELIVERY MAIL THAT SPECIAL DELIVERY CERTIFIED, OR REGISTERED MAIL RECEIVED FROM BRANCH POST OFFICE AT 13:45 P.M. WILL NORMALLY BE DELIVERED TO THE PROCUREMENT SECTION AT 15:30 P.M.

ASPR 2-303.2 PROVIDES THAT 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.

SINCE YOUR BID WAS DELIVERED LATE BY THE MAIN POST OFFICE TO THE TINKER BRANCH POST OFFICE, SECTION (III) ABOVE IS NOT APPLICABLE. THE QUESTION PRESENTED THEREFORE IS WHETHER THE LATE RECEIPT CAN BE SAID TO BE DUE SOLELY TO A DELAY IN THE MAILS AS CONTEMPLATED BY SECTION (II). UNDER EXISTING PROCEDURES THE BID WOULD HAVE ARRIVED LATE AT THE BID ROOM EVEN WITHOUT ANY DELAY IN THE MAILS. IN THIS CONNECTION, IT IS NOT ENOUGH THAT THE BID SHOULD HAVE BEEN RECEIVED FROM THE MAIN POST OFFICE AT THE BRANCH POST OFFICE BEFORE BID OPENING TIME. THE SENDER HAS TO ALLOW SUFFICIENT TIME FOR IT TO REACH THE BID ROOM BY THE BID OPENING TIME. B-157770, DECEMBER 13, 1965. FURTHER, IT WAS OBSERVED IN B-149288, JULY 31, 1962, THAT ALL MAIL TO MILITARY INSTALLATIONS WHICH IS MARKED SPECIAL DELIVERY AND FOR WHICH A FEE FOR SPECIAL DELIVERY IS PAID IS NOT IN FACT DELIVERED SPECIALLY. IN THIS INSTANCE, TINKER AIR FORCE BASE IS 13 MILES FROM OKLAHOMA CITY, OKLAHOMA, CLEARLY OUTSIDE THE DELIVERY PERIMETER OF 1 MILE REQUIRING SPECIAL DELIVERY SERVICE AS PRESCRIBED UNDER PART 166 OF THE POSTAL MANUAL.

IN OUR JUDGMENT THE APPLICABLE REGULATION, PREVIOUSLY QUOTED, REQUIRES THAT A LATE BID MAY BE CONSIDERED ONLY IF IT WAS SENT BY THE PROPER FORM OF MAIL IN TIME TO BE RECEIVED WITHIN THE DEADLINE IN THE ORDINARY COURSE OF THE MAILS. THE FACT THAT THE FORM OF MAIL USED IS NOT AS FAST AS MIGHT BE EXPECTED OR SLOWER THAN OTHER TYPES OF MAIL PROVIDES NO BASIS FOR ENLARGING THE EXCEPTION TO THE REQUIREMENT FOR TIMELY SUBMISSION OF BIDS. IN GENERAL IT IS THE BIDDERS ABSOLUTE RESPONSIBILITY TO SEE THAT HIS BID IS RECEIVED AT THE PLACE OF THE OPENING ON OR BEFORE THE TIME SPECIFIED IN THE INVITATION. AN EXCEPTION IS PERMITTED ONLY IN THOSE CASES WHERE DESPITE THE BIDDER'S DILIGENCE IN UTILIZING THE PROPER FORM OF MAIL AND PROMPTNESS IN DISPATCHING THE BID CONSIDERING THAT FORM OF MAIL, THE BID IS LATE SOLELY BY VIRTUE OF A DELAY IN THE MAILS FOR WHICH THE BIDDER IS NOT RESPONSIBLE. IN THIS CASE IT WAS DETERMINED THAT YOUR BID WAS NOT MAILED ON TIME TO BE TIMELY DELIVERED IN THE ORDINARY COURSE OF THE FORM OF MAIL UTILIZED.

IN YOUR LETTER YOU ALSO STATE THAT UNDUE PRESSURE WAS APPLIED IN AN EFFORT TO AWARD THE CONTRACT TO HEWLETT-PACKARD. IN THIS REGARD THE CONTRACTING OFFICER REQUESTED THE TECHNICAL INFORMATION IN EVALUATING YOUR BID TO DETERMINE IF YOU WERE OFFERING AN ITEM EQUIVALENT IN ALL MATERIAL RESPECTS TO THE NAMED BRAND. IT IS REGRETTABLE THAT YOU WERE SUBJECTED TO FURNISHING THIS ADDITIONAL INFORMATION INASMUCH AS YOUR BID SHOULD NOT HAVE BEEN OPENED BUT DISREGARDED AS A LATE BID. THE ERRONEOUS OPENING OF A LATE BID, HOWEVER, WILL NOT ALONE JUSTIFY DISREGARDING THE REQUIREMENT THAT AWARD BE MADE TO THE LOWEST RESPONSIBLE AND RESPONSIVE BIDDER UNLESS COMPELLING REASONS EXIST TO REJECT ALL BIDS. B-155568 DATED JANUARY 4, 1965.

ACCORDINGLY, YOUR PROTEST IS DENIED.