B-168723, MAR. 9, 1970

B-168723, MAR. 9, 1970

BIDS LATE--POSTMARKS BID RECEIVED DAY AFTER BID OPENING, HAVING BEEN SENT BY CERTIFIED MAIL BUT POSTMARK SHOWING TIME OF DATE AND MAILING WAS ILLEGIBLE AND EVIDENCE SUBMITTED TO ESTABLISH TIMELY MAILING OF LATE OFFER LACKED OFFICIAL DATED POSTMARK ON CERTIFIED MAIL RECEIPT, WAS PROPERLY REJECTED SINCE BID SENT BY CERTIFIED MAIL WHEN NOT SUPPORTED BY RECEIPT FOR CERTIFIED MAIL PROPERLY STAMPED WITH POSTMARK CANNOT BE CONSIDERED AS ACCEPTABLE LATE BID, EVEN THOUGH BACK OF CERTIFIED MAIL RECEIPT CONTAINED HANDWRITTEN DATE, TIME OF MAILING AND INITIALS OF POSTAL EMPLOYEE ON DUTY AT TIME OF MAILING (POSTAL FACILITIES BEING CLOSED AT TIME OF MAILING) TO EVIDENCE IT WAS MAILED IN SUFFICIENT TIME TO HAVE BEEN RECEIVED BEFORE BID OPENING TIME. SEE COMP. GEN. DECS. CITED.

TO MCGUIRE, WOODS & BATTLE:

THIS CONCERNS YOUR PROTEST BY TELEGRAM AND LETTER DATED DECEMBER 30, 1969, ON BEHALF OF NATURAL GAS COMPANY OF VIRGINIA, AGAINST THE REFUSAL OF THE GENERAL SERVICES ADMINISTRATION TO CONSIDER YOUR CLIENT'S LATE BID SUBMITTED IN CONNECTION WITH SOLICITATION NO. WA-B9 R-2102-10-21-69.

SOLICITATION NO. WA-B9-R-2102-10-21-69, WAS ISSUED ON SEPTEMBER 30, 1969, BY THE GSA, WASHINGTON, D.C; REGIONAL OFFICE, FOR A FEDERAL SUPPLY SCHEDULE CONTRACT COVERING FSC CLASSES 6505 AND 6830, MEDICINAL, COMPRESSED, AND LIQUEFIED GASES FOR THE PERIOD DECEMBER 1, 1969, OR DATE OF AWARD IF LATER, THROUGH NOVEMBER 30, 1970. BIDS WERE REQUIRED TO BE SUBMITTED BY 10:00 A.M; EDT, ON OCTOBER 21, 1969, AND BID OPENING WAS HELD ON THAT DATE. AT 9:45 A.M; ON OCTOBER 22, 1969, THE BID OF NATURAL GAS COMPANY WAS RECEIVED AT THE WASHINGTON, D.C; REGIONAL OFFICE. THE BID ENVELOPE SHOWED THAT IT HAD BEEN SENT CERTIFIED MAIL AND BORE A CERTIFIED MAIL STICKER NUMBER 052772. HOWEVER, THE POSTMARKS INDICATING THE TIME AND DATE OF MAILING WERE ILLEGIBLE.

GSA BY LETTER DATED OCTOBER 23, 1969, REQUESTED THE NATURAL GAS COMPANY TO FURNISH THE NECESSARY EVIDENCE TO ASCERTAIN WHETHER THEIR BID COULD BE CONSIDERED FOR AWARD. THAT LETTER SPECIFICALLY ADVISED THAT THE ORIGINAL POSTMARKED RECEIPT FOR CERTIFIED MAIL MUST BE FURNISHED AND WAS THE ONLY ACCEPTABLE EVIDENCE TO ESTABLISH THE DATE AND TIME OF MAILING. BY LETTER DATED OCTOBER 24, 1969, THE POSTMASTER AT RICHMOND, VIRGINIA, FORWARDED A COPY OF THE FIRST PAGE OF THE SOLICITATION WITH THE RECEIPT FOR CERTIFIED MAIL SUPERIMPOSED ON IT, THE RECEIPT FOR THE ENVELOPE CONTAINING NATURAL GAS COMPANY'S BID, AND THE POST OFFICE DEPARTMENT FORM 3811 WHICH WAS RETURNED TO THE NATURAL GAS COMPANY UPON DELIVERY OF THE BID ENVELOPE. THE POSTMASTER, J. G. MIZELL, ALSO ADVISED IN HIS LETTER THAT THE BID ENVELOPE WAS DEPOSITED AT HIS POST OFFICE AT APPROXIMATELY 8:15 P.M; OCTOBER 19, 1969, AND SHOULD HAVE BEEN RECEIVED BY GSA ON THE MORNING OF OCTOBER 20, 1969.

NATURAL GAS COMPANY, BY LETTER OF NOVEMBER 17, 1969, FORWARDED THE ORIGINAL RECEIPT FOR CERTIFIED MAIL FOR THE BID ENVELOPE. THAT RECEIPT DID NOT CONTAIN A POSTMARK, ALTHOUGH THE BACK CONTAINED A HANDWRITTEN DATE AND TIME OF MAILING AND THE INITIALS OF THE POSTAL EMPLOYEE ON DUTY AT THAT TIME. INASMUCH AS THE ORIGINAL RECEIPT FOR CERTIFIED MAIL DID NOT CONTAIN A POSTMARK, GSA FELT PRECLUDED FROM CONSIDERING THE BID BY NATURAL GAS COMPANY. MR. R. C. WILLIAMSON, PRESIDENT OF NATURAL GAS COMPANY, ADVISED US THAT BECAUSE IT WAS SUNDAY THE POSTAL ACCEPTANCE WINDOWS WERE NOT OPEN AND A POSTMARK COULD NOT BE OBTAINED. THEREFORE, HE HAD THE POSTAL EMPLOYEE ON DUTY WRITE AND INITIAL THE TIME AND DATE OF MAILING ON THE BACK OF THE RECEIPT. IN VIEW OF THESE CIRCUMSTANCES, YOU BELIEVE GSA ACTED IMPROPERLY IN REFUSING TO CONSIDER THE BID BY NATURAL GAS COMPANY.

IF THE POSTAL EMPLOYEE INITIALING THE RECEIPT FOR CERTIFIED MAIL OBTAINED BY THE NATURAL GAS COMPANY HAD THE AUTHORITY TO RECEIVE CERTIFIED MAIL FROM POST OFFICE PATRONS AND TO ISSUE RECEIPTS FOR SUCH MAIL, WE BELIEVE THE ACTIONS OF THAT EMPLOYEE WOULD IN FACT HAVE CONSTITUTED THE OFFICIAL DATED POST OFFICE STAMP (POSTMARK) ON THE ORIGINAL RECEIPT FOR CERTIFIED MAIL AS REQUIRED BY PARAGRAPH 8 OF STANDARD FORM 33A OF THE SOLICITATION AND FEDERAL PROCUREMENT REGULATIONS (FPR) 1-2.303-3. CF. 46 COMP. GEN. 85, 88 (1966). HOWEVER, THE LETTER OF DECEMBER 5, 1969, FROM J. G. MIZELL, POSTMASTER, TO THE NATURAL GAS COMPANY, STATED IN PART:

"THERE IS NO PROVISION FOR POSTMARKING POD FORM 3800, RECEIPT FOR CERTIFIED MAIL, WHEN THE POST OFFICE ACCEPTANCE WINDOWS ARE CLOSED. SINCE THIS PARTICULAR LETTER WAS MAILED ON SUNDAY WHEN NO WINDOW SERVICE WAS PROVIDED, OFFICIAL POSTMARK COULD NOT HAVE BEEN INDICATED ON THE RECEIPT FORM."

WE CONCLUDE FROM THE QUOTED STATEMENT THAT A RECEIPT FOR CERTIFIED MAIL CAN BE POSTMARKED ONLY WHEN THE POST OFFICE ACCEPTANCE WINDOWS ARE OPEN, THAT THE POSTAL EMPLOYEE WHO DATED AND INITIALED THE RECEIPT HAD NO AUTHORITY TO DO SO AS A SUBSTITUTE FOR THE POSTMASTER, AND THEREFORE, THAT THE RECEIPT IN QUESTION WAS NOT POSTMARKED AS REQUIRED UNDER THE STANDARD FORM AND THE REGULATION. THIS OFFICE BELIEVES THE PROVISIONS ALLOWING CONSIDERATION OF LATE BIDS MUST BE STRICTLY FOLLOWED AND WE HAVE CONSISTENTLY APPROVED REJECTION OF LATE BIDS UNACCOMPANIED BY THE REQUIRED POSTMARK. SEE B-167288, JULY 17, 1969. AND WE HAVE SPECIFICALLY HELD THAT THE FACT THAT THE APPROPRIATE POSTAL FACILITIES WERE CLOSED WHEN A BID WAS MAILED DID NOT JUSTIFY WAIVING OF THE CONDITIONS FOR CONSIDERATION OF LATE BIDS, B-161556, JUNE 29, 1967.

ACCORDINGLY, WE BELIEVE THE CONTRACTING OFFICER PROPERLY REFUSED TO CONSIDER THE LATE BID BY NATURAL GAS COMPANY AND YOUR PROTEST IS DENIED.