B-160896, FEB. 27, 1967

B-160896, FEB. 27, 1967

TO MARKETING CENTER, VETERANS ADMINISTRATION:

YOUR LETTER OF FEBRUARY 13, 1967, FILE REFERENCE 134J, REQUESTS A DECISION AS TO WHETHER THE LATE BID OF G. A. BRAUN, INC., SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. N3-55-67, DATED JANUARY 3, 1967, MAY BE CONSIDERED FOR AWARD OF A CONTRACT.

THE SUBJECT INVITATION REQUESTED BIDS FOR FURNISHING COMBINATION WASHER- EXTRACTORS AND SET THE TIME FOR BID OPENING AT 2 P.M. ON FEBRUARY 2, 1967. PARAGRAPH 6 OF THE STANDARD FORM 33-A, BIDDING INSTRUCTIONS, TERMS, AND CONDITIONS (SUPPLY CONTRACT), MADE A PART OF THE INVITATION, PROVIDES THAT IN ORDER FOR BIDS TO BE CONSIDERED THEY MUST BE RECEIVED ON OR BEFORE THE TIME SPECIFIED FOR THE OPENING OF THE BIDS. AN EXCEPTION THERETO IS THAT BIDS SENT BY EITHER REGISTERED OR CERTIFIED MAIL WILL BE CONSIDERED IF RECEIVED PRIOR TO AWARD AND IT IS DETERMINED BY THE GOVERNMENT THAT THE FAILURE TO ARRIVE ON TIME WAS DUE SOLELY TO DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE.

YOU STATE THAT THE BID OF BRAUN WAS RECEIVED AT THE VETERANS ADMINISTRATION MARKETING CENTER AT HINES, ILLINOIS, ON FEBRUARY 3, 1967. YOU FURTHER STATE THAT WHILE THE BID APPEARS TO HAVE BEEN TIMELY MAILED (FEBRUARY 1, 1967) IT WAS NOT SENT BY EITHER REGISTERED OR CERTIFIED MAIL BUT RATHER WAS POSTED UNDER A "CERTIFICATE OF MAILING.' BY LETTER DATED FEBRUARY 3, 1967, YOU ADVISED BRAUN THAT ITS LATE BID COULD NOT BE CONSIDERED SINCE IT WAS NEITHER REGISTERED NOR CERTIFIED AS REQUIRED BY THE ABOVE-CITED PARAGRAPH 6 OF THE INVITATION.

IN LETTER DATED FEBRUARY 6, 1967, BRAUM CONTENDS THAT THE "CERTIFICATE OF MAILING" METHOD OF MAILING COMPLIES WITH THE PROVISIONS OF PARAGRAPH 6. IN ADDITION, BRAUN ALLEGES THAT UNDER SECTION 6.5 OF MILITARY SPECIFICATION MIL-W-43001B, MADE A PART OF THE INVITATION, THE BRAUN WASHER-EXTRACTORS WOULD BE THE ONLY ONES UNDER ITEM 1 THAT WOULD COMPLY. THAT CLAUSE PROVIDES AS FOLLOWS:

"6.5 SUCCESSFUL COMMERCIAL OPERATION.--- INVITATION FOR BIDS SHOULD SPECIFY THAT NO ITEM OF EQUIPMENT WILL BE ACCEPTABLE UNLESS THE MANUFACTURER HAS HAD EQUIPMENT OF APPROXIMATELY THE SAME TYPE AND DESIGN AS THAT SPECIFIED OPERATING SUCCESSFULLY IN A COMMERCIAL OR INSTITUTIONAL LAUNDRY OR LAUNDRIES FOR AT LEAST 1 YEAR. EQUIPMENT INSTALLED FOR TEST PURPOSES IN A MANUFACTURER'S PLANT OR LABORATORY SHALL NOT COME WITHIN THE CATEGORY OF SUCCESSFUL COMMERCIAL OPERATION.'

WE DO NOT AGREE WITH THE CONTENTION OF BRAUN THAT THE METHOD OF MAILING OF ITS BID COMPLIES WITH THE PROVISIONS OF PARAGRAPH 6. IN OUR DECISION OF NOVEMBER 21, 1962, B-150124, 42 COMP. GEN. 255, INVOLVING A SIMILAR SITUATION, WE HELD THAT THE REQUIREMENT IN AN INVITATION THAT BIDS BE POSTED EITHER BY REGISTERED OR CERTIFIED MAIL AS A PREREQUISITE TO CONSIDERATION OF A LATE BID MAY NOT BE WAIVED AND, THEREFORE, THE REJECTION OF A LATE BID POSTED UNDER A "CERTIFICATE OF ILING," A METHOD NOT INCLUDED IN THE INVITATION, WAS PROPER EVEN THOUGH THE BID WAS TIMELY MAILED AND THE DELAYED RECEIPT WAS DUE TO MISHANDLING BY POSTAL EMPLOYEES. WHAT WAS STATED IN THAT DECISION IS EQUALLY APPLICABLE HERE. ACCORDINGLY, THE LATE BID OF BRAUN MAY NOT BE CONSIDERED FOR AWARD.

THE CONTENTION OF BRAUN THAT ITS EQUIPMENT UNDER ITEM 1 IS THE ONLY EQUIPMENT THAT COMPLIES WITH THE SPECIFICATIONS IS WITHOUT MERIT. SECTION 6.2 (R) OF THE MILITARY SPECIFICATION PROVIDES THAT THE PROCUREMENT DOCUMENTS SHOULD INCLUDE, WHEN APPLICABLE, THE SUCCESSFUL COMMERCIAL OPERATION CLAUSE AS CONTAINED IN SECTION 6.5 OF THE MILITARY SPECIFICATION. SINCE, AS STATED BY YOU, THE CLAUSE WAS NOT CONSIDERED AS APPLICABLE AND, THEREFORE, WAS NOT INCLUDED IN THE INVITATION IT SEEMS OBVIOUS THAT THE EQUIPMENT FURNISHED UNDER THE CONTRACT NEED NOT COMPLY WITH SUCH PROVISIONS. IN VIEW THEREOF, THE PROTEST OF BRAUN IN THIS REGARD IS DENIED.