B-153763, APR. 7, 1964

B-153763, APR. 7, 1964

TO QUARTERMASTER GENERAL OF THE MARINE CORPS:

REFERENCE IS MADE TO YOUR LETTER DATED MARCH 17, 1964, REQUESTING DECISION WHETHER THE LATE BID OF THE CLARK EQUIPMENT COMPANY SUBMITTED PURSUANT TO INVITATION FOR BIDS NO. 85 MAY BE OPENED AND CONSIDERED FOR ACCEPTANCE UNDER ARMED SERVICES PROCUREMENT REGULATION 2-303.

THE INVITATION, WHICH WAS ISSUED ON JANUARY 31, 1964, BY HEADQUARTERS, UNITED STATES MARINE CORPS, REQUESTED BIDS TO FURNISH STATED QUANTITIES OF FORK LIFT TRUCKS FOR DELIVERY TO SEVERAL DESTINATIONS IN THE UNITED STATES. THE PLACE OF BID OPENING WAS SPECIFIED AS ROOM 4102, NAVY ANNEX, ARLINGTON, VIRGINIA, AND THE TIME OF BID OPENING WAS SPECIFIED AS 10:00 A.M., EASTERN STANDARD TIME, MARCH 3, 1964.

PARAGRAPH 4 OF THE ADDITIONS AND CHANGES TO TERMS AND CONDITIONS OF THE INVITATION FOR BIDS READS AS FOLLOWS:

"4. THE FOLLOWING SUPERSEDES PARAGRAPHS 3 AND 4 OF THE TERMS AND CONDITIONS OF THE INVITATION:

LATE BIDS AND MODIFICATIONS OR WITHDRAWALS: (AUG. 1963)

(A) BIDS AND MODIFICATIONS OR WITHDRAWALS THEREOF RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS AFTER THE EXACT TIME SET FOR OPENING OF BIDS WILL NOT BE CONSIDERED UNLESS:

(I) THEY ARE RECEIVED BEFORE AWARD IS MADE; AND EITHER

(II) 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 BIDDER WAS NOT RESPONSIBLE; OR

(III) IF SUBMITTED BY MAIL (OR BY TELEGRAM IF AUTHORIZED), IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO MISHANDLING 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 AT SUCH INSTALLATION (IF READILY AVAILABLE) WITHIN THE CONTROL OF SUCH INSTALLATION OR OF THE POST OFFICE SERVING IT.

THE BID OF THE CLARK EQUIPMENT COMPANY, WHICH THE COMPANY REPORTS WAS MAILED VIA AIR MAIL, BETWEEN MIDNIGHT FEBRUARY 29, 1964, AND 12:15 A.M., MARCH 1, 1964, WAS RECEIVED AT MARINE CORPS HEADQUARTERS AT 11:10 A.M., MARCH 3, 1964. IT BEARS A METERED STAMP DATED FEBRUARY 28, 1964, AND A POSTMARK "MAR 1 P.M. 1964" FROM BATTLE CREEK, MICHIGAN.

THE RECORD INDICATES THAT UNDER NORMAL CIRCUMSTANCES A LETTER SENT BY AIR MAIL FROM BATTLE CREEK BEARING A MARCH 1, 1964 (P.M.), POSTMARK WOULD HAVE BEEN DELIVERED TO THE MARINE CORPS HEADQUARTERS AT ARLINGTON ANNEX BY 7:00 A.M., MARCH 3, 1964. HOWEVER, THE BID IN QUESTION WAS NOT SENT BY REGISTERED OR CERTIFIED MAIL.

CLARK EQUIPMENT COMPANY STATES THAT SINCE THE POST OFFICE IN BATTLE CREEK WAS NOT OPEN FOR THE RECEIPT OF REGISTERED AND CERTIFIED MAIL AFTER 12:30 P.M. ON SATURDAY, FEBRUARY 29, 1964, IT WAS IMPOSSIBLE TO USE CERTIFIED OR REGISTERED MAIL UNLESS MAILING WAS DELAYED UNTIL MONDAY, MARCH 2, 1964, WHICH WOULD HAVE BEEN TOO LATE FOR TIMELY DELIVERY. ACCORDINGLY, THE BIDDER REQUESTS THAT THE REQUIREMENT FOR THE USE OF CERTIFIED OR REGISTERED MAIL AS A PREREQUISITE TO CONSIDERATION OF TIMELY MAILED LATE BID BE WAIVED AS A MINOR INFORMALITY OR IRREGULARITY, AND THAT AWARD BE MADE TO IT, SINCE IT ASSERTS THAT ITS BID IS MUCH LOWER (APPROXIMATELY $152,000) THAN THE ONLY OTHER BID RECEIVED.

THE INVITATION PROVISION GOVERNING CONSIDERATION OF LATE BIDS IS BASED ON ARMED SERVICES PROCUREMENT REGULATION 2-303, A STATUTORY REGULATION PROMULGATED PURSUANT TO 10 U.S.C. 2202, WHICH HAS THE FORCE AND EFFECT OF LAW. SEE PUBLIC UTILITIES COMMISSION OF CALIFORNIA V. UNITED STATES, 355 U.S. 534, 542; G. L. CHRISTIAN AND ASSOCIATES V. UNITED STATES, CT.CL. 1963, 312 F.2D 418, REARGUMENT DENIED 320 F.2D 345. IN THESE CIRCUMSTANCES THE RULE WHICH PERMITS WAIVER OF MINOR INFORMALITIES OR IRREGULARITIES IS NOT FOR APPLICATION.

BY THE TERMS OF BOTH THE INVITATION AND ASPR 2-303, ONLY THOSE LATE MAILED BIDS WHICH WERE TIMELY MAILED BY REGISTERED MAIL OR BY CERTIFIED MAIL FOR WHICH A POSTMARKED RECEIPT HAS BEEN OBTAINED MAY BE CONSIDERED. A BID OTHERWISE MAILED WHICH ARRIVED AT THE PROCURING INSTALLATION AFTER THE TIME FIXED FOR BID OPENING BUT BEFORE AWARD MAY BE CONSIDERED FOR AWARD ONLY IF IT WAS RECEIVED AT SUCH INSTALLATION IN GOOD TIME BUT WAS NOT DELIVERED TO THE DESIGNATED BID OPENING OFFICE SOLELY BY REASON OF MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE INSTALLATION, BUT THIS CONDITION IS NOT APPLICABLE IN THIS INSTANCE. UNDER THE REGULATION, A BIDDER WHO FAILS TO USE EITHER REGISTERED OR CERTIFIED MAIL, EVEN THOUGH HE MAILS HIS BID IN AMPLE TIME TO PERMIT DELIVERY TO ITS DESTINATION AT THE REQUIRED TIME IN THE ORDINARY COURSE OF THE MAILS, ASSUMES THE RISK OF REJECTION OF HIS BID DUE TO DELAY IN THE MAILS.

SINCE CLARK EQUIPMENT COMPANY DID NOT USE REGISTERED OR CERTIFIED MAIL, A PREREQUISITE TO CONSIDERATION OF A LATE BID THAT WAS TIMELY MAILED, AND SINCE THERE IS NO AUTHORITY TO WAIVE SUCH REQUIREMENT EVEN WHEN SUCH ACTION MAY BE TO THE ADVANTAGE OF THE GOVERNMENT, THE BID CANNOT BE CONSIDERED FOR AWARD. SEE 42 COMP. GEN. 255; B-153422, FEBRUARY 11, 1964. ACCORDINGLY, THE BID SHOULD BE REJECTED.

WE BELIEVE, HOWEVER, THAT CONSIDERATION SHOULD BE GIVEN TO READVERTISING THE PROCUREMENT OR SOLICITING COMPETITIVE PROPOSALS, BECAUSE OF THE FACT THAT ONLY ONE TIMELY BID WAS RECEIVED AND BECAUSE OF THE SUBSTANTIAL DIFFERENCE ALLEGED TO EXIST BETWEEN THAT BID AND THE LATE BID.

THE ENCLOSURES FORWARDED WITH YOUR LETTER AND THE COPY OF THE INVITATION SUBSEQUENTLY TRANSMITTED ARE RETURNED.