B-175483, MAY 24, 1972

B-175483, MAY 24, 1972

BID PROTEST - LATE BID - REQUIREMENTS FOR CONSIDERATION DENIAL OF PROTEST BY NAPIER CONSTRUCTION COMPANY (NAPIER) AGAINST THE REJECTION OF ITS LATE BID, AND THE AWARD OF A CONTRACT TO ANOTHER BIDDER, UNDER AN IFB ISSUED BY THE BUREAU OF LAND MANAGEMENT, PORTLAND SERVICE CENTER, FOR CONSTRUCTION OF APPROXIMATELY FIVE MILES OF ROAD IN THE IMPERIAL SAND DUNES AREA, IMPERIAL COUNTY, CALIF. LATE RECEIPT OF A BID WILL RESULT IN ITS REJECTION UNLESS THE SPECIFIC CONDITIONS SET FORTH IN FPR 1-2.303-3 ARE MET. SINCE NAPIER'S BID WAS SENT BY AIR MAIL AND NOT BY REGISTERED OR CERTIFIED MAIL AS REQUIRED BY THE FPR, THE BID WAS PROPERLY REJECTED.

TO NAPIER CONSTRUCTION COMPANY:

REFERENCE IS MADE TO YOUR LETTER AND TELEFAX DATED MARCH 17, 1972, PROTESTING THE DECISION OF THE BUREAU OF LAND MANAGEMENT, PORTLAND SERVICE CENTER, NOT TO CONSIDER YOUR LATE BID AND THE AWARDING OF A CONTRACT TO ANOTHER BIDDER UNDER INVITATION FOR BIDS (IFB) NO. P-2 196.

THE INVITATION WAS ISSUED FEBRUARY 1, 1972, FOR CONSTRUCTION OF APPROXIMATELY FIVE MILES OF ROAD IN THE IMPERIAL SAND DUNES AREA, IMPERIAL COUNTY, CALIFORNIA. BIDS WERE SCHEDULED FOR OPENING AT 2:00 P.M., FEBRUARY 23, 1972. SIXTEEN BIDS HAD BEEN RECEIVED BY BID OPENING TIME. IT IS ADMINISTRATIVELY REPORTED THAT YOUR BID WAS IN THE MAIL WHICH WAS PICKED UP FROM THE POST OFFICE BOX ON FEBRUARY 24, 1972, AND IT WAS DELIVERED TO THE PROCUREMENT OFFICE AT OR ABOUT 8:00 A.M. ON THAT DATE. THE BID, SENT VIA AIR MAIL, WAS NOT CONSIDERED AS AN ACCEPTABLE LATE BID BECAUSE IT HAD NOT BEEN MAILED BY REGISTERED OR CERTIFIED MAIL.

YOU CLAIM THAT YOUR COMPANY SHOULD NOT BE PENALIZED AND DEPRIVED OF CONSIDERATION OF ITS BID BECAUSE THE LATE RECEIPT OF THE BID WAS DIRECTLY ATTRIBUTABLE TO IMPROPER HANDLING BY POSTAL EMPLOYEES FROM TIME OF DEPOSIT AT 5:30 P.M., FEBRUARY 21, 1972, TO DELIVERY IN PORTLAND, OREGON.

THE RESPONSIBILITY FOR ASSURING THAT A BID ARRIVES IN TIME FOR A SCHEDULED BID OPENING IS UPON THE BIDDER. 35 COMP. GEN. 432, 433 (1956). LATE RECEIPT OF A BID WILL RESULT IN ITS REJECTION UNLESS SPECIFIC CONDITIONS SET FORTH IN THE FEDERAL PROCUREMENT REGULATIONS (FPR) 1-2.303- 3 ARE MET. THE INVITATION IN THE INSTANT CASE INCORPORATED THE PROVISIONS OF FPR 1-2.303-3(A) (SEE STANDARD FORM 22, INSTRUCTIONS TO BIDDERS, CLAUSE 7), WHICH CAUTIONED, IN PERTINENT PART, THAT:

"(A) BIDS *** 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 *** AND IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE; OR (3) IF SUBMITTED BY MAIL *** IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION *** ."

YOUR BID DID NOT ARRIVE AT THE PORTLAND SERVICE CENTER PRIOR TO BID OPENING, AND THEREFORE MAY ONLY BE CONSIDERED IF IT WAS FORWARDED BY REGISTERED OR CERTIFIED MAIL. OUR OFFICE IS OF THE VIEW THAT THE LANGUAGE IN THE SUBJECT SOLICITATION CONCERNING LATE BIDS IS DEFINITE AND ALL BIDDERS MUST BE HELD TO ITS TERMS. SEE 42 COMP. GEN. 255, 257 (1962); B- 173268, SEPTEMBER 22, 1971. BY FAILING TO SEND YOUR BID BY REGISTERED OR CERTIFIED MAIL YOU WAIVED YOUR RIGHT TO RELY UPON A DELAY IN THE MAILS AS A VALID JUSTIFICATION FOR THE LATE RECEIPT OF YOUR BID.

WHILE APPLICATION OF THESE PROVISIONS RELATING TO THE HANDLING OF LATE BIDS DOES RESULT IN THE FAILURE OF THE GOVERNMENT TO RECEIVE THE BENEFIT OF LOWER PRICES IN SOME CASES, SUCH PROVISIONS ARE INTENDED TO PRESERVE AND MAINTAIN THE INTEGRITY OF THE FORMAL COMPETITIVE BIDDING PROCEDURES. SINCE YOU FAILED TO UTILIZE ONE OF THE MAILING SERVICES LISTED IN FPR 1- 2.303-3(A)(1), AND SINCE THERE IS NO AUTHORITY TO WAIVE THESE REQUIREMENTS, WE MUST CONCLUDE THAT THE REJECTION OF YOUR LATE BID WAS PROPER. SEE 49 COMP. GEN. 733 (1970); B-166853, JUNE 24, 1969.

ACCORDINGLY, YOUR PROTEST IS DENIED.