B-172674, JUN 10, 1971

B-172674, JUN 10, 1971

BID PROTEST - LATE OFFER - USE OF REGULAR MAIL DENIAL OF PROTEST OF MIRAJ SPECIALTIES MANUFACTURING CORP., AGAINST REJECTION OF ITS BID UNDER IFB ISSUED BY DEFENSE SUPPLY AGENCY FOR ELECTRICAL BRUSH SETS. PROTESTANT'S BID, POSTMARKED APRIL 6, 1971, HACKENSACK, NEW JERSEY, WAS RECEIVED BY PROCURING AGENCY IN RICHMOND, VA., APRIL 15, 1971, TWO DAYS AFTER SCHEDULED BID OPENING. AS PROTESTANT USED REGULAR MAIL, RATHER THAN REGISTERED OR CERTIFIED, THE RISK OF LATE DELIVERY WAS ASSUMED AND THE OFFER WAS PROPERLY REJECTED UNDER APPLICABLE PROVISIONS OF THE SOLICITATION.

TO MIRAJ SPECIALTIES MANUFACTURING CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR TELEFAX DATED APRIL 21, 1971, PROTESTING THE REJECTION OF YOUR BID UNDER INVITATION FOR BIDS NO. DSA400- 71-B-5069, ISSUED BY THE DEFENSE SUPPLY AGENCY, RICHMOND, VIRGINIA.

THE INVITATION ISSUED MARCH 24, 1971, AND OPENED AS SCHEDULED APRIL 13, 1971, REQUESTED BIDS FOR A QUANTITY OF ELECTRICAL BRUSH SETS. SEVEN BIDS WERE RECEIVED BY THE TIME OF BID OPENING. APPLIED SCIENTIFIC PRODUCTION AND RESEARCH SUBMITTED A LOW UNIT PRICE OF $1.42.

ON APRIL 15, 1971, A SEALED BID WAS RECEIVED AT THE DEFENSE GENERAL SUPPLY CENTER MAIL ROOM FROM YOUR COMPANY. THE MARKINGS ON THE BID ENVELOPE SHOWED THAT IT WAS SENT BY REGULAR MAIL AND POSTMARKED APRIL 6, 1971, HACKENSACK, NEW JERSEY. THE TIME STAMP ON THE ENVELOPE SHOWS THAT THE OFFICE DESIGNATED FOR THE RECEIPT OF THE BIDS, THE DIRECTORATE OF PROCUREMENT AND PRODUCTION, RECEIVED THE BID AT 9:15 A.M. ON APRIL 15, 1971. BY TELEPHONE ON APRIL 16, 1971, YOU WERE ADVISED BY THE CONTRACTING OFFICER THAT YOUR BID HAD BEEN RECEIVED ON THE PRECEDING DAY AND THAT IT COULD NOT BE CONSIDERED FOR AWARD.

IT IS YOUR CONTENTION GENERALLY THAT THE APRIL 6, 1971, POSTMARKED DATE FROM HACKENSACK, NEW JERSEY, IS EVIDENCE THAT YOUR BID SHOULD HAVE BEEN DELIVERED BEFORE THE APRIL 13, 1971, BID CLOSING DATE.

THE GOVERNING CONDITIONS IN THE INVITATION ARE CONTAINED IN ARTICLE 8 OF THE "SOLICITATION INSTRUCTIONS AND CONDITIONS," ENTITLED "LATE OFFERS AND MODIFICATIONS OR WITHDRAWALS," WHICH PROVIDES:

"(A) OFFERS *** 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 *** 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."

BASED ON THIS PROVISION, WE HAVE TAKEN THE POSITION THAT THE BIDDER WHO ELECTS TO USE OTHER THAN REGISTERED OR CERTIFIED MAIL WHEN USING THE POSTAL SERVICE FOR DELIVERY OF HIS BID ASSUMES THE RISK OF LATE MAIL DELIVERY TO THE GOVERNMENT INSTALLATION SPECIFIED IN THE INVITATION. 168107, DECEMBER 18, 1969.

SINCE YOUR BID WAS SENT BY REGULAR MAIL RATHER THAN BY REGISTERED OR CERTIFIED MAIL, IT CAN BE CONSIDERED UNDER THE PERTINENT SOLICITATION PROVISION ONLY IF LATE RECEIPT WAS DUE TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION. THE EVIDENCE OF RECORD CLEARLY SHOWS THAT THE DELAY WAS IN THE MAILS PRIOR TO RECEIPT OF THE BID AT THE SUPPLY CENTER IN RICHMOND. IN THE CIRCUMSTANCES YOUR BID WAS PROPERLY NOT CONSIDERED FOR AWARD. NOTWITHSTANDING THE FAILURE OF THE GOVERNMENT IN SOME CASES TO RECEIVE THE BENEFIT OF MORE ADVANTAGEOUS BIDS WHICH ARE RECEIVED AFTER BID OPENING, WE BELIEVE THAT THE RULE APPLIED HERE IS NECESSARY TO PRESERVE AND MAINTAIN THE INTEGRITY OF THE FORMAL COMPETITIVE BIDDING PROCEDURES.