B-168107, DEC. 18, 1969

B-168107, DEC. 18, 1969

BIDS--LATE--INVITATION MAILING REQUIREMENT--NONCOMPLIANCE BID RECEIVED ON AUG. 19, 1969 (BID OPENING DATE AUG. 15, 1969 AT 2:00 P.M.) WAS PROPERLY REJECTED SINCE BID ENVELOPE WAS NOT SENT BY REGISTERED OR CERTIFIED MAIL AND LATENESS WAS DETERMINED NOT RESULT OF MISHANDLING BY GOVERNMENT AFTER RECEIPT (NO DOCUMENTARY EVIDENCE OF RECEIPT ESTABLISHED EARLIER THAN 7:55 A.M; AUG. 19, AS REQUIRED) AND, WHILE BID MAY HAVE BEEN TIMELY MAILED AND DELAYED BY MISHANDLING IN POSTAL SYSTEM, PROVISIONS OF ARMED SERVICES PROCUREMENT REGULATION 2 303.2 AND PAR. 8 OF INVITATION WHICH REQUIRE USE OF REGISTERED OR CERTIFIED MAIL AS PREREQUISITE TO CONSIDERATION IN EVENT OF LATE RECEIPT, SUCH CONDITIONS CONSTITUTE MANDATORY DIRECTIONS TO PROCUREMENT AGENCY WHICH MAY NOT BE WAIVED.

TO LIBERTY AERO, INC.:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 14, 1969, WITH ENCLOSURE, PROTESTING THE REJECTION OF YOUR BID, SUBMITTED UNDER INVITATION FOR BIDS (IFB) NO. N00019-69-B-0214, ISSUED BY THE NAVAL AIR SYSTEMS COMMAND (NAVAIR), FOR THE MANUFACTURE OF 654 EJECTOR BOMB RACKS.

THE ADMINISTRATIVE RECORD SHOWS THAT THE SUBJECT IFB, AS TWICE AMENDED, INVITED SEALED BIDS TO BE OPENED AT THE U.S. NAVY PURCHASING OFFICE (NPO), WASHINGTON, D.C., ON AUGUST 15, 1969, AT 2:00 P.M. AS INDICATED BY NPO'S "RECORD OF LATE SOLICITATION," YOUR BID WAS NOT RECEIVED UNTIL THE MORNING OF AUGUST 19, 1969. NAVAIR REPORTS THAT THE METERED POSTAGE APPARENTLY STAMPED ON THE ENVELOPE BY A PITNEY-BOWES METER INDICATED TRANSMISSION BY REGULAR MAIL. ACCORDING TO THE REPORT THE METER STAMP APPEARING ON THE ENVELOPE CONTAINED NO INDICATION OF HOUR OF MAILING. SINCE YOUR BID ENVELOPE WAS NOT SENT BY REGISTERED OR CERTIFIED MAIL, AND IT WAS DETERMINED THAT THE LATENESS WAS NOT THE RESULT OF MISHANDLING BY THE GOVERNMENT AFTER RECEIPT, YOUR FIRM WAS NOTIFIED BY A LETTER FROM THE NPO, DATED AUGUST 19, 1969, THAT "YOUR BID IS BEING HELD UNOPENED AND WILL BE RETURNED AFTER AWARD HAS BEEN MADE.' IN RESPONSE TO YOUR LETTER OF AUGUST 29, 1969, NPO REITERATED THE REASONS FOR NONCONSIDERATION OF YOUR BID BY THEIR LETTER OF SEPTEMBER 9, 1969.

YOU CONTEND THAT ALTHOUGH YOUR BID ENVELOPE WAS NOT SENT BY REGISTERED OR CERTIFIED MAIL, THE LATER RECEIPT OF IT WAS THE RESULT OF MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE WASHINGTON NAVY YARD, WHERE NPO IS LOCATED. ADDITIONALLY, THE STATEMENTS OF THE FARMINGDALE POSTMASTER, NEW YORK, ENCLOSED IN YOUR PROTEST, DISCLOSE THAT: "THIS MAILING WAS ACCEPTED BY CLERK H. ZEGEL AT 8:45 ON THE MORNING OF AUGUST 14, 1969. BEING RECEIVED AT THAT TIME AT FARMINGDALE, IT WAS DISPATCHED AT 10:00 A.M. ON TRIP 7205 FOR HICKSVILLE SCF. IT ARRIVED AT HICKSVILLE SCF AT 10:30 A.M. AND SINCE THIS WAS A -WORKING- POUCH, WAS BROUGHT INTO THE SECTIONAL CENTER FOR REDISTRIBUTION. IT LEFT HICKSVILLE SCF AT 9:30 P.M. FOR GPO NEW YORK, ARRIVING THERE AT 11:00 P.M. SINCE THIS PIECE OF MAIL WOULD NOW BE IN A DIRECT POUCH FOR WASHINGTON, D.C., WHICH LEFT NEW YORK AT 11:45 P.M. ON TRAIN 191, ARRIVING AT WASHINGTON, D.C. AT 4:35 A.M., AUGUST 15, 1969. ARRIVING AT THAT HOUR, THIS MAIL WOULD HAVE BEEN READY FOR DELIVERY SOMEWHERE BETWEEN 7:00 AND 8:00 A.M. ON THE MORNING OF THE 15TH.'IT IS FELT, SINCE IT WAS NOT RECEIVED BY 2:00 P.M. ON AUGUST 15, 1969, THAT A DEFINITE DELAY OCCURRED SOMEWHERE IN THE POSTAL SYSTEM. THE ABOVE IS THE REGULAR SCHEDULING OF MAIL RECEIVED AT THIS OFFICE, AND UNDER ORDINARY CIRCUMSTANCES WOULD BE DELIVERED THE NEXT DAY.'

BASED ON THE FOREGOING, YOU CONCLUDE THAT YOUR BID SHOULD BE CONSIDERED FOR AWARD.

PARAGRAPH 8 OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS, STANDARD FORM 33A, INCORPORATED IN THE IFB, READS IN PERTINENT PART AS FOLLOWS:

"/A) OFFERS AND MODIFICATIONS OF OFFERS (OR WITHDRAWALS THEREOF, IF THIS SOLICITATION IS ADVERTISED) RECEIVED AT THE OFFICE DESIGNATED IN THE SOLICITATION AFTER THE EXACT HOUR AND DATE SPECIFIED FOR RECEIPT 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 OFFEROR 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 MISHANDING 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.'

THESE PROVISIONS OF PARAGRAPH 8 OF THE STANDARD FORM 33A ARE IN ACCORD WITH PARAGRAPH 2-303.2 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). BASED ON THESE INSTRUCTIONS AND REGULATION, IT HAS BEEN THE POSITION OF THIS OFFICE THAT A BIDDER WHO ELECTS OTHER THAN REGISTERED OR CERTIFIED MAIL WHEN USING THE POSTAL SERVICE FOR DELIVERY OF HIS BID ASSUMES THE RISK OF LATE DELIVERY TO THE GOVERNMENT INSTALLATION SPECIFIED IN THE INVITATION. SEE B-154718, SEPTEMBER 4, 1964; B-152858, JANUARY 28, 1964 AND B-165309, OCTOBER 30, 1968.

YOUR BID WAS NOT SENT BY REGISTERED OR CERTIFIED MAIL AS REQUIRED BY THE ABOVE PROVISION OF THE IFB AND ASPR 2-303.2 AS A PREREQUISITE TO ITS CONSIDERATION IN THE EVENT OF LATE RECEIPT. WHILE YOUR BID MAY HAVE BEEN TIMELY MAILED AND DELAYED BY MISHANDLING IN THE POSTAL SYSTEM, AS INDICATED BY THE STATEMENT OF THE FARMINGDALE POSTMASTER, THE CONDITIONS SET FORTH IN PARAGRAPH 8 AND ASPR 2-303.2 CONSTITUTE MANDATORY DIRECTIONS TO THE PROCUREMENT AGENCY, WHICH MAY NOT BE WAIVED IN INDIVIDUAL CASES TO EXCUSE LATE RECEIPT. SEE B-166853, JUNE 24, 1969; B-161556, JUNE 29, 1967; B-161333, JUNE 14, 1967. NOTWITHSTANDING THE FAILURE OF THE GOVERNMENT IN SOME CASES TO RECEIVE THE BENEFIT OF LOWER BIDS WHICH ARE RECEIVED AFTER BID OPENING, WE BELIEVE THAT SUCH PROVISIONS PRESERVE AND MAINTAIN THE INTEGRITY OF THE FORMAL COMPETITIVE BIDDING PROCEDURES.

AS TO THE CONTENTION THAT THE LATE RECEIPT AT THE BID OPENING OFFICE WAS DUE TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT OF THE BID AT THE GOVERNMENT INSTALLATION, THE ABOVE QUOTED REGULATION REQUIRES THAT TIMELY RECEIPT AT THE INSTALLATION BE ESTABLISHED BY A DATE OR TIME STAMP OF THE INSTALLATION OR OTHER DOCUMENTARY EVIDENCE WITHIN THE CONTROL OF SUCH INSTALLATION OR OF THE POST OFFICE SERVING IT. THE STAMP OF THE NAVY PURCHASING OFFICE MAIL ROOM SHOWS RECEIPT OF YOUR BID AT :55 A.M. ON AUGUST 19, AND THERE APPEARS TO BE NO DOCUMENTARY EVIDENCE AT THAT INSTALLATION, AND NONE HAS BEEN FURNISHED FROM THE WASHINGTON, D.C. POST OFFICE, INDICATING EARLIER RECEIPT.

IN VIEW OF THE FACTS AND REGULATIONS DISCUSSED, WE MUST CONCLUDE THAT THE REJECTION OF YOUR BID BY NPO WAS PROPER AND THAT YOUR PROTEST MUST BE DENIED.