B-173583, SEP 29, 1971

B-173583, SEP 29, 1971

BID PROTEST - LATE BID - REGISTERED MAIL DECISION DENYING PROTEST AGAINST REJECTION OF A LATE BID IN RESPONSE TO AN IFB ISSUED BY THE NAVAL AIR ENGINEERING CENTER, PHILADELPHIA, PA. WHILE PROTESTANT AND THE GENERAL PUBLIC MAY NOT BE AWARE OF THE NEW ESTABLISHED PRACTICE FOR HANDLING REGISTERED MAIL, I.E., ONE FLIGHT PER DAY FROM FORT WORTH, TEXAS, TO PHILADELPHIA, PA., FOR SECURITY REASONS, THE TIMELY MAILING OF A BID IS INDISPENSABLE TO ITS CONSIDERATION. THEREFORE, WHERE THE REGISTERED MAIL POSTMARK INDICATES ONLY THAT THE BID ENVELOPE WAS MAILED SOMETIME BEFORE 5 P.M. ON MAY 20, 1971, CLEARLY INSUFFICIENT TIME TO REACH THE BID OPENING LOCATION BY THE TIME SET FOR BID OPENING, IT CANNOT BE REGARDED AS AN ACCEPTABLE LATE BID.

TO MCGOWN, GODFREY, DECKER, MC MACKIN, SHIPMAN AND MCCLANE:

REFERENCE IS MADE TO YOUR LETTER OF JULY 12, 1971, PROTESTING ON BEHALF OF HOWELL INSTRUMENTS, INC. (HOWELL), FORT WORTH, TEXAS, THE REJECTION OF ITS BID IN RESPONSE TO INVITATION FOR BIDS (IFB) N00156-71 B-0272, ISSUED BY THE NAVAL AIR ENGINEERING CENTER (NAEC), PHILADELPHIA, PENNSYLVANIA.

BIDS IN RESPONSE TO THE SOLICITATION WERE TO BE OPENED AT NAEC, PHILADELPHIA, PENNSYLVANIA, 1 P.M., MAY 20, 1971, HOWELL'S BID WAS RECEIVED AT 10:46 A.M. ON MAY 21, 1971, ONE DAY AFTER THE BID OPENING DATE AND WAS DETERMINED BY THE CONTRACTING OFFICER TO BE AN UNACCEPTABLE LATE BID. THE BID WAS RETURNED UNOPENED TO HOWELL TOGETHER WITH THE DETERMINATION OF LATENESS. AWARD OF A CONTRACT UNDER THE SUBJECT IFB WAS MADE BEFORE RECEIPT OF YOUR PROTEST.

PARAGRAPH 8 OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS OF THE INSTANT IFB DEALING WITH LATE OFFERS STATES, IN PERTINENT PART, THAT:

"(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 AND IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO DELAY IN THE MAILS FOR WHICH THE OFFEROR WAS NOT RESPONSIBLE; *** "

SEE, ALSO, ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2 303.3(A)(1).

YOU CONTEND HOWELL'S BID WAS LATE BECAUSE THERE WAS A DELAY IN THE MAIL FOR WHICH IT WAS NOT RESPONSIBLE. YOU HAVE ADVISED US THAT HOWELL'S BID WAS DEPOSITED AT THE ARLINGTON HEIGHTS POSTAL STATION, FORT WORTH, TEXAS, MAY 19, 1971, AND THAT THE BID WAS SENT REGISTERED AIRMAIL. YOU STATE THAT ALTHOUGH THE BID WAS DEPOSITED IN THE MAIL MAY 19, 1971, IT DID NOT LEAVE FOR PHILADELPHIA UNTIL MAY 20, 1971, BECAUSE, UNKNOWN TO HOWELL OR THE GENERAL PUBLIC, RECENTLY REDESIGNED FLIGHT SCHEDULES MADE NECESSARY BY SECURITY CONSIDERATIONS RESULTED IN REGISTERED MAIL BEING DISPATCHED TO PHILADELPHIA ONLY ONCE A DAY. IN THIS REGARD THE POSTMASTER AT FORT WORTH STATED IN A LETTER DATED JUNE 7, 1971, THAT:

"DUE TO NECESSARY SECURITY PRECAUTIONS, OUR OFFICE DISPATCHES REGISTERS TO PHILADELPHIA, PENNSYLVANIA, ONLY ONCE A DAY. EVEN IF REGISTERED LETTER NO. 314095 HAD BEEN DEPOSITED AT THE ARLINGTON HEIGHTS STATION AT 8:30 A.M. ON THE MORNING OF MAY 19, 1971, IT WOULD NOT HAVE BEEN DISPATCHED BY OUR OFFICE TO PHILADELPHIA, PENNSYLVANIA, UNTIL THE FLIGHT OF MAY 20, 1971. OUR SINGLE-FLIGHT POLICY OF REGISTERS IS NOT KNOWN TO THE GENERAL PUBLIC. CONSEQUENTLY, THE FAILURE OF REGISTERED LETTER NO. 314095 TO REACH PHILADELPHIA, PENNSYLVANIA, BY 1 P.M. ON MAY 20, 1971, IS ATTRIBUTABLE TO OUR SINGLE FLIGHT POLICY REGRETABLY NECESSITATED BY SECURITY CONSIDERATIONS."

OUR OFFICE HAS BEEN ADVISED BY UNITED STATES POSTAL SERVICE OFFICIALS THAT FOR THE PAST SEVERAL MONTHS A NEW PROGRAM HAS BEEN IN EFFECT WHEREBY REGISTERED AND CERTIFIED AIRMAIL LETTERS ARE CONSOLIDATED FOR DISPATCH AND TRANSPORTED ON CERTAIN FLIGHTS SO THEY MAY BE TRANSPORTED VIA AIR TERMINALS THAT CAN PROVIDE GUARD SERVICE WHILE THE MAIL IS AT THE TERMINAL. POSTAL OFFICIALS STATE THAT THE PROGRAM WAS INSTITUTED SO AS TO REDUCE THE NUMBER OF THEFTS OF THIS TYPE OF MAIL AT AIRPORT TERMINALS. WERE FURTHER ADVISED THAT THE GENERAL PUBLIC AND MANY POSTAL EMPLOYEES HAVE NOT BEEN MADE AWARE OF THIS NEW PROGRAM.

WE ARE UNABLE TO SUBSCRIBE TO YOUR CONTENTION THAT HOWELL'S BID WAS EXCUSABLY LATE DUE TO A DELAY IN THE MAIL AND THAT THE BID SHOULD HAVE BEEN CONSIDERED FOR AWARD. THE POSTAL SERVICE'S ADVICE CLEARLY ESTABLISHES THAT EXTRA SECURITY PRECAUTIONS ARE NOW TAKEN WITH CERTIFIED AND REGISTERED AIRMAIL AND THESE PRECAUTIONS ARE NOW A PART OF THE NORMAL AND ESTABLISHED PRACTICE FOR HANDLING THIS TYPE OF MAIL.

IT IS CLEAR THAT THE NORMAL PRACTICE FOR DISPATCHING REGISTERED MAIL AT THE FORT WORTH POST OFFICE WAS TO SEND IT OUT ONCE A DAY IN THE MORNING AND THAT THE LETTER IN QUESTION WAS HANDLED IN THE NORMAL MANNER IN THAT IT WAS DISPATCHED THE MORNING OF MAY 20, 1971 - THE EARLIEST POSSIBLE TIME AFTER IT WAS DEPOSITED AT THE POSTAL STATION MAY 19, 1971. FURTHER, THE REGISTERED MAIL POSTMARK AND THE POSTMASTER'S LETTER INDICATE ONLY THAT THE BID ENVELOPE WAS MAILED SOMETIME BEFORE 5 P.M. ON MAY 19, 1971. THERE IS NOTHING IN THE POSTMASTER'S LETTER OR ELSEWHERE IN THE RECORD FURNISHED US TO INDICATE THAT A LETTER MAILED AT THE END OF THE WORK DAY ON MAY 19 WOULD HAVE BEEN TIMELY DELIVERED TO PHILADELPHIA EVEN IF THE NEW REGISTERED MAIL PROCEDURE WERE NOT IN EFFECT WHEN THE ENVELOPE WAS MAILED.

THE TIMELY MAILING OF A BID BY A BIDDER IS INDISPENSABLE TO ITS CONSIDERATION UNDER ANY CIRCUMSTANCES. SINCE THE SOLE REASON FOR THE LATE RECEIPT OF HOWELL'S BID WAS ITS FAILURE TO MAIL IT IN SUFFICIENT TIME TO BE RECEIVED IN DUE COURSE, IT COULD NOT BE REGARDED AS AN ACCEPTABLE LATE BID. SEE 35 COMP. GEN. 432 (1956); 37 ID. 35 (1957).

ALTHOUGH THE HOWELL BID ENVELOPE WAS APPARENTLY RETURNED TO YOU PRIOR TO AWARD CONTRARY TO THE REQUIREMENTS OF ASPR 2-303.7, THIS DEPARTURE FROM REGULATORY REQUIREMENTS DID NOT SERVE TO INVALIDATE THE AWARD MADE NOR DID IT HAVE ANY BEARING ON THE PROPRIETY OF THE REJECTION OF THE HOWELL BID AS INEXCUSABLY LATE.

ACCORDINGLY, WE FIND NO LEGAL OBJECTION TO THE DETERMINATION THAT YOUR BID WAS LATE AND THEREFORE COULD NOT BE CONSIDERED.