possibility that the Radiation proposal would not be accepted even if it were determined that it was not late.

It is your contention that the intent of ASPR 3-506 is to provide proof of the time of mailing and that strict application of the certified or registered mail requirement is not necessary if proof of mailing can be conclusively established by other means; that the letters furnished by the Melbourne, Florida, postmaster to the effect that the parcel containing the Radiation proposal was mishandled in the mails constitute the "receipt" called for in ASPR 3-506; that the acceptance of the Radiation proposal would not be prejudicial to other bidders, notwithstanding its lateness, because the contract to be awarded is a cost-plus-a-fixed fee (CPFF) type with no price competition; and that it would not be in the Government's best interest to reject the Radiation proposal because of initial research and development already performed by Radiation which, in addition to its substantial cost, would be "of direct and substantial benefit" in performance of the contract to be awarded in this case.

In a meeting held on June 30, 1966, between Mr. O. W. Hudson, attorney for Radiation, Incorporated, and members of this Office, Mr. Hudson pointed out, in addition to the points raised in your letter, that the printed language contained at the top of the RFQ form specified that it was a request for information and that quotations furnished were not offers. Mr. Hudson explained that quoters could withdraw their quotations at any time and that acceptance of a quotation by the Government with no negotiation would not result in a binding contract. Mr. Hudson maintained that the quotation was therefore not a "proposal" in the normal sense of the word since no binding obligations were created by its submission, and that the late proposal provisions contained in ASPR 3-506 should not apply to it. Mr. Hudson also pointed out that the printed language at the top of the RFQ form contained the following statement, "The Government reserves the right to consider quotations or modifications thereof received after the date indicated should such action be in the interest of the Government." It is Mr. Hudson's position that this statement is broader than the one contained in ASPR 3-506 (a) to the effect that exceptions to the late proposal provisions can only be authorized by the Secretary concerned and only when consideration of a late proposal is of "extreme importance" to the Government, and that it should be controlling in the instant case because the RFQ provides that in the event of an inconsistency between provisions of the RFQ, provisions contained in the schedule, which is where the quoted statement appeared, take precedence over provisions incorporated elsewhere in the RFQ, as was the ASPR late proposal provision.

ASPR 3-506 is set out below in its entirety.

3-506 Late Proposals and Modifications.

(a) Proposals which are received in the office designated in the requests for proposals after the time specified for their submission are "Late Proposals." Late proposals shall not be considered for award, except under the circumstances set forth in 2-303 relating to late bids or where only one proposal is received. (For the purpose of applying the late bid rules to late proposals, unless a specific time for receipt of proposals is stated in the request for proposals, the time for such receipt shall be deemed to be the time for close of business of the office designated for receipt of proposals on the date stated in the request for proposals.) Notwithstanding the provisions of 1-109, exceptions may be authorized only by the Secretary concerned, and only where consideration of a late proposal is of extreme importance to the Government, as for example where it offers some important technical or scientific breakthrough. To determine the possible existence of such extreme importance, notwithstanding 2-303.7, all late proposals shall be opened prior to award and if not considered for award shall be returned to the offeror.

(b) In the exceptional circumstance where the Secretary concerned authorizes an exception from (a) above, the contracting officer shall resolicit all firms (including late offerors) which have submitted proposals and are determined to be capable of meeting current requirements. Such resolicitation shall specify a date for submission of new proposals and include the "Late Proposals" provision set forth in (d) below.

(c) The normal revisions of proposals by selected offerors occurring during the usual conduct of negotiations with such offerors are not to be considered as late proposals but shall be handled in accordance with 3-805.1(b).

(d) Written requests for proposals shall contain the following provisions: LATE PROPOSALS (JAN. 1964)

(a) Proposals and modifications received at the office designated in the request for proposals after the close of business on the date set for receipt thereof (or after the time set for receipt if a particular time is specified) 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; and it is determined by the Government that late receipt was due solely to delay in the mails, or delay by the telegraph company, for which offeror was not responsible; or

(iii) if submitted by mail or telegram, 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.

(b) Offerors using certified mail are cautioned to obtain a Receipt for Certified Mail showing a legible, dated postmark and to retain such receipt against the chance that it will be required as evidence that a late proposal was timely mailed.

(c) The time of mailing of late proposals submitted by registered or certified mail shall be deemed to be the last minute of the date shown in the postmark on the registered mail receipt or registered mail wrapper or on the Receipt for Certified Mail unless the offeror furnishes evidence from the post office station of mailing which establishes an earlier time. In the case of certified mail, the only acceptable evidence is as follows: (1) where the Receipt for Certified Mail identifies the post office station of mailing evidence furnished by the offeror which establishes that the business day of that station ended at an earlier time, in which case the time of mailing shall be deemed to be the last minute of the business day of that station; or (ii) an entry in ink on the Receipt for Certified Mail showing the time of mailing and the initials of the postal employee receiving the item and making the entry, with appropriate written verification of such entry from the post office station of mailing, in which case the time of mailing shall be the time shown in the entry. If the

postmark on the original Receipt for Certified Mail does not show a date, the offer shall not be considered.

(e) Offerors submitting late proposals or modifications shall be notified in accordance with 2-303.6, except that the notices provided for therein shall be appropriately modified to relate to the request for proposals and the proposal or modifications thereunder.

(f) The provisions of paragraphs (a) through (c) above are also applicable to late quotations. In the case of a request for quotations, the provision set forth in (d) above will be appropriately modified.

(g) Modifications of proposals (other than the normal revisions of proposals by selected offerors during the usual conduct of negotiations with such offerors) which are received in the office designated in the requests for proposals after the time specified for submission of proposals are "late modifications." Late modifications shall be subject to the rules applicable to late proposals set forth in this paragraph. However, a modification received from an otherwise successful offeror which is favorable to the Government shall be considered at any time that such modification is received. The provisions of this paragraph are also applicable to late modifications to quotations.

(h) The provisions of this paragraph apply only to purchases in excess of $2,500.

Subsection (a), of the above-quoted section applies the late bid rules contained in ASPR 2-303 to late proposals. As a general rule, this Office has held that the ASPR language concerning late bids and late proposals is mandatory and that any deviation from the requirements, particularly the failure to use registered or certified mail in the case of a bid or proposal delayed in the mail and received after the time set in the solicitation, renders the bid or proposal late and therefore not for consideration. 42 Comp. Gen. 255, B-156505, May 24, 1965, and cases cited therein. The reason for this rule is that the ASPR has the force and effect of law, B-155119, December 1, 1964. It is true, as you suggest, that the intent of ASPR 3-506 is to provide proof of the time of mailing. However, the certified or registered mail requirement is reasonable and necessary because it constitutes a higher degree of proof than a postmark, which has limited evidentiary value. See B-153190, March 31, 1964. Similarly, the receipt specified in the regulation is the Receipt for Certified Mail on which the date or the date and time of mailing are stamped by the post office employees and which is retained by the sender of an article sent by certified mail in the event it becomes necessary to establish time of mailing. While the letters from the Melbourne, Florida, postmaster tend to establish timely mailing, they do not constitute the "receipt" contemplated by ASPR.

Although price is not as great a factor in cost-plus-a-fixed fee contracts as it is in other forms of Government procurement, it still must be considered by the contracting officer in making an award, and since no exception is granted by ASPR 3-506 for CPFF contracts, it therefore applies to CPFF contracts in the same manner that it applies to other methods of procurement. Additionally, even in cases with little or no price competition, there is still the necessity for establishing reasonable cut-off dates for the submission of pro

posals or quotations. Also, in the absence of the type of exception contemplated by ASPR 3-506(a), benefit to the Government is not for consideration in a case where a proposal does not meet the ASPR requirements, and therefore the possible benefits to be gained from the initial research and development performed by Radiation cannot be considered.

We cannot agree with Mr. Hudson's contention that ASPR late proposal provisions should not apply in a case where no binding obligations are created by the submission of a quotation. The form which was used in this solicitation and which contained the language question by Mr. Hudson was Standard Form 18 (SF 18), which is the only standard form prescribed for use by ASPR in situations where the use of a request for quotations rather than a request for proposals is warranted. ASPR 16-201 is headed "Request for Quotation (Standard Form 18)." ASPR 16-201.2 states that Standard Form 18 is authorized for use where a cost reimbursement contract is contemplated and explains that, "A quotation submitted on this form is not to be construed as an offer which can be accepted by the Government to form a binding contract." While a case can be made for the proposition that there is no need to apply late proposal requirements to a mere request for information, ASPR 3-506 (f) specifically provides that the late proposal provisions are applicable to late quotations. In view of the mandatory nature of the ASPR late proposal provisions discussed above, we see no alternative to application of subsection (f) to the instant case.

Likewise, we cannot agree that the Government reservation of the right to consider late quotations when determined to be in the Government's interest set out in SF 18 is any broader than the one set out in subsection (a) of ASPR 3-506, as maintained by Mr. Hudson. On the contrary, it is our opinion that the two statements are compatible, with the ASPR statement setting forth the conditions for determining when consideration of a late proposal is in the Government's interest with more particularity than is contained in SF 18. In other words, ASPR 3-506 reserves the same right reserved by SF 18, but more closely defines what the Government's interest is and how to determine when and how the right should be exercised. For the same reason it is our opinion that the fact that ASPR provides for resolicitation when it is determined that acceptance of a late proposal is in the Government's interest, while no similar provision is contained in SF 18, does not render the two provisions inconsistent.

Accordingly, since it was administratively determined that consideration of the Radiation proposal was not of such extreme im

portance to the Government that it warranted the granting of an exception to the late proposal requirements in accordance with ASPR 3-506(a), we must concur with the contracting officer's finding that it was a late quotation. Your protest therefore must be denied.

[B-156082]

Buy American Act-Applicability-Leases

The Buy American Act, dated March 3, 1933, as amended, designed to accord preferential treatment in Government procurement to domestic manufacturers, producers, and contractors, the leasing of vehicles by the Post Office Department pursuant to 39 U.S.C. 2006 is subject to the act, the use of the word "purchase" rather than "acquire" not excluding the applicability of the act to leases, the legislative history although failing to mention leases evidencing congressional intent that available American-made products be used whether obtained by purchase or lease; however, only future lease agreements need apply the prohibition against purchase of foreign manufactured articles where those of domestic manufacture are available.

To the Postmaster General, July 20, 1966:

Reference is made to your letter dated May 27, 1966, requesting our decision concerning the applicability of the Buy American Act to the leasing of vehicles used by the Post Office Department in the city delivery service. You state that pursuant to 39 U.S.C. 2006, the Post Office Department leases vehicles for terms up to 4 years for use in the city delivery service. Such vehicles are leased from nonsupervisory postal employees, as expressly permitted by 39 U.S.C. 2008, and also from private persons. Heretofore, in the award of such contracts, the Department has not believed that the Buy American Act is applicable. However, you state that you have been informally advised that the General Services Administration and the Department of Defense believe that the act is applicable to the leasing of vehicles. This Office has not previously considered the question whether the Buy American Act is applicable to the leasing of equipment.

The act of March 3, 1933, 47 Stat. 1520, as amended, 41 U.S.C. 10a to 10d, was designed to accord preferential treatment to domestic manufacturers and producers in the procurement of articles, materials or supplies by Federal departments and agencies, as well as by contractors with such departments and agencies.

Section 10a of the Buy American Act provides in part as follows: Notwithstanding any other provision of law, and unless the head of the department or independent establishment concerned shall determine it to be inconsistent with the public interest, or the cost to be unreasonable, only such unmanufactured articles, materials, and supplies as have been mined or produced in the United States, and only such manufactured articles, materials, and sup