B-174865, FEB 25, 1972

B-174865, FEB 25, 1972

BID PROTEST - LATE BID - TELEGRAPHIC DELAY - DELAY IN MAILS DECISION DENYING PROTEST OF BAUMER FOODS, INC., AGAINST REJECTION OF ITS BID SUBMITTED UNDER AN IFB ISSUED BY THE DEFENSE PERSONNEL SUPPORT CENTER, PHILADELPHIA, PA., FOR A QUANTITY OF FRUIT JAM. AS A GENERAL RULE, THE RESPONSIBILITY FOR ASSURING THAT A BID ARRIVES ON TIME FOR OPENING IS UPON THE BIDDER. B-173268, SEPTEMBER 22, 1971. PURSUANT TO ASPR 2-303.3(A)(II), A LATE TELEGRAPHIC BID MAY NOT BE CONSIDERED IF THE DELAY WAS CAUSED BY THE TELEGRAPH COMPANY. IN ADDITION, SINCE THE WRITTEN BID WAS NOT FORWARDED BY REGISTERED OR CERTIFIED MAIL, ITS LATE SUBMISSION MAY NOT BE EXCUSED UNDER THE PROVISIONS OF ASPR 2- 303(A)(2). CONSEQUENTLY, ALTHOUGH REJECTION OF PROTESTANT'S BID MAY CAUSE THE GOVERNMENT ADDITIONAL EXPENSE, STRICT ADHERENCE TO THE REGULATIONS IS NECESSARY TO INSURE THE FUTURE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM. B-173268, SEPTEMBER 22, 1971. ACCORDINGLY, THE PROTEST MUST BE DENIED.

TO BAUMER FOODS, INC.:

REFERENCE IS MADE TO YOUR TELEFAX DATED DECEMBER 30, 1971, AND TO YOUR LETTER DATED JANUARY 10, 1972, PROTESTING AGAINST THE ACTION OF THE DEFENSE PERSONNEL SUPPORT CENTER (DPSC), PHILADELPHIA, PENNSYLVANIA, IN REJECTING YOUR LATE TELEGRAPHIC AND WRITTEN BIDS SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. DSA13H-72-B-0390, FOR THE FURNISHING OF 23 LINE ITEMS OF FRUIT JAM.

THE INVITATION SCHEDULED BIDS TO BE OPENED AT 2:00 P.M., DECEMBER 21, 1971. HOWEVER, YOUR TELEGRAPHIC BID WAS NOT RECEIVED BY THE TELECOMMUNICATIONS SECTION, DPSC, UNTIL 2:45 P.M., DECEMBER 21, 1971. FURTHER, YOUR WRITTEN BID, CONFIRMING YOUR TELEGRAPHIC BID, WAS NOT RECEIVED BY THE MAIL AND RECORDS SECTION, DPSC, UNTIL 7:30 A.M., DECEMBER 22, 1971.

YOU CONTEND THAT YOUR TELEGRAPHIC BID SHOULD BE CONSIDERED FOR AWARD SINCE IT WAS DELIVERED TO YOUR LOCAL WESTERN UNION OFFICE IN PLENTY OF TIME TO BE RECEIVED AT THE BID OPENING OFFICE PRIOR TO BID OPENING, AND DELAY IN RECEIPT OF THE BID WAS SOLELY THE FAULT OF WESTERN UNION. SUPPORT OF THIS POSITION YOU STATE THAT AN INVESTIGATION BY THE WESTERN UNION OFFICE IN METAIRIE, LOUISIANA, WHICH RECEIVED YOUR WIRE THROUGH YOUR TELEFAX MACHINE, REVEALED THAT THE MESSAGE WAS RECEIVED THERE AT 12:05 P.M., DECEMBER 20, 1971. THE INVESTIGATION EVIDENCED THAT THE WIRE WAS IMMEDIATELY SENT TO A WESTERN UNION OFFICE IN PHILADELPHIA, AND THAT THE DELAY OCCURRED BETWEEN THE WESTERN UNION OFFICE IN PHILADELPHIA AND THE GOVERNMENT TELETYPE MACHINE AT DPSC. YOU ALSO STATE THAT WESTERN UNION ORALLY ADMITTED 26 HOURS WAS AN UNUSUAL LENGTH OF TIME FOR A MESSAGE TO BE SENT FROM NEW ORLEANS TO THE ADDRESSEE IN PHILADELPHIA, AND THAT THEY THEMSELVES WERE NEGLIGENT.

THE CONTRACTING OFFICER REPORTS THAT THE CHIEF, OPERATIONS SUPPORT OFFICE, DPSC, ALSO UNDERTOOK TO INVESTIGATE THE FACTS AND CIRCUMSTANCES RELATIVE TO THE RECEIPT OF THE LATE TELEGRAPHIC BID. HIS INVESTIGATION DISCLOSED THAT THERE WAS NO MALFUNCTION WITH THE TELECOMMUNICATION RECEIVING EQUIPMENT LOCATED AT DPSC AND THAT A NORMAL VOLUME OF TRAFFIC WAS BEING RECEIVED DURING THE TIME PERIOD IN WHICH YOUR BID WAS SENT, THEREBY PRECLUDING ANY ALLEGATION OF MISHANDLING ON THE PART OF THE GOVERNMENT. SINCE THE DELAY IN RECEIPT OF YOUR TELEGRAPHIC BID WAS NOT CAUSED BY THE GOVERNMENT, THE CONTRACTING OFFICER CONSIDERED THE BID LATE AND UNACCEPTABLE.

WITH REGARD TO YOUR LATE WRITTEN BID, THE CONTRACTING OFFICER REPORTS THAT IT WAS NOT SENT BY REGISTERED OR CERTIFIED MAIL. FURTHERMORE, SINCE THIS BID ARRIVED AT DPSC AFTER THE TIME SPECIFIED FOR OPENING, THE CONTRACTING OFFICER CONCLUDED THAT THERE WAS NO BASIS FOR AN ALLEGATION THAT GOVERNMENT PERSONNEL MAY HAVE CAUSED THE LATE ARRIVAL OF THE BID AT THE BID OPENING, AND HE THEREFORE CONSIDERED THIS BID ALSO LATE AND UNACCEPTABLE.

THE DECISIONS OF THIS OFFICE HAVE CONSISTENTLY HELD THAT 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); B 173268, SEPTEMBER 22, 1971. LATE RECEIPT OF A BID WILL RESULT IN ITS REJECTION UNLESS THE SPECIFIC CONDITIONS SET FORTH IN THE INVITATION FOR BIDS AND IN THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-303 ARE MET. THE INVITATION IN THE INSTANT CASE INCORPORATED THE PROVISIONS OF ASPR 2-303, AND STATED, 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; OR (3) 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 (IF READILY AVAILABLE) WITHIN THE CONTROL OF SUCH INSTALLATION OR OF THE POST OFFICE SERVING IT. *** "

FURTHERMORE, WITH REGARD TO YOUR CONTENTION THAT YOUR TELEGRAPHIC BID WAS LATE DUE TO THE SOLE NEGLIGENCE OF WESTERN UNION, ASPR 2-303.4 STATES:

"TELEGRAPHIC BIDS. A LATE TELEGRAPHIC BID RECEIVED BEFORE AWARD SHALL NOT BE CONSIDERED FOR AWARD, REGARDLESS OF THE CAUSE OF THE LATE RECEIPT, INCLUDING DELAYS CAUSED BY THE TELEGRAPH COMPANY, EXCEPT FOR DELAYS DUE TO MISHANDLING ON THE PART OF THE GOVERNMENT IN ITS TRANSMITTAL TO THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS FOR THE RECEIPT OF BIDS, AS PROVIDED FOR BIDS SUBMITTED BY MAIL (SEE 2 303.3(A)(II))."

IN LIGHT OF THE TERMS OF THE INVITATION AND ASPR, AND SINCE YOUR TELEGRAPHIC BID WAS NOT RECEIVED BY DPSC PRIOR TO BID OPENING DUE TO THE APPARENT FAULT OF THE TELEGRAPH COMPANY, WE ARE OF THE OPINION THAT THE CONTRACTING OFFICER ACTED PROPERLY IN REFUSING TO CONSIDER THAT BID. ADDITION, SINCE YOUR WRITTEN BID DID NOT ARRIVE AT DPSC PRIOR TO BID OPENING, IT COULD ONLY BE CONSIDERED IF IT WAS FORWARDED BY REGISTERED OR CERTIFIED MAIL. BY POSTING THIS BID BY REGULAR MAIL YOU WAIVED YOUR RIGHT TO RELY UPON A DELAY IN THE MAILS AS A VALID JUSTIFICATION FOR THE LATENESS OF THE BID. THUS, WE MUST CONCLUDE THAT THE CONTRACTING OFFICER PROPERLY REFUSED TO CONSIDER THE CONTENTS OF THIS BID.

ALTHOUGH REJECTION OF YOUR BIDS MAY CAUSE THE GOVERNMENT TO FORFEIT THE BENEFIT OF A LOWER BID, AND STRICT APPLICATION OF THE REGULATIONS MAY RESULT IN THE REJECTION OF BIDS WHICH WERE PREPARED AND SUBMITTED WITHOUT INTENT OR OPPORTUNITY TO OBTAIN A COMPETITIVE ADVANTAGE, WE HAVE CONSISTENTLY HELD THAT STRICT ADHERENCE TO THE REGULATORY REQUIREMENTS IS NECESSARY, NOT ONLY TO THE ORDERLY AND TIMELY PROCUREMENT OF SUPPLIES AND SERVICES BY THE GOVERNMENT, BUT TO ENSURE THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM AS WELL. B-173268, SEPTEMBER 22, 1971.

ACCORDINGLY, YOUR PROTEST MUST BE DENIED.