Government did delay delivery of your bid either in the mails or by mishandling at the Government installation.

The consideration of late mailed bids on the procurement in question is governed not only by the terms of the invitation for bids but by the provisions of the Armed Services Procurement Regulation (ASPR) issued in implementation of the applicable procurement statute and having the full force and effect of law. ASPR 2-303.1 provides that a bid received in the office designated in the invitation for bids after the exact time set for bid opening is a late bid even though it may be received only 1 or 2 minutes late. ASPR 2-303.2 reads, in part, as follows:

2-303.2 Consideration for Award. A late bid shall be considered for award only if:

(i) it is received before award; and either

(ii) it was 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 if authorized, and it is determined that the lateness was due solely to a delay in the mails (based on evidence pursuant to 2-303.3), or to a delay by the telegraph company for which the bidder was not responsible; or

(iii) if submitted by mail (or by telegram where authorized), it was received at the Government installation in sufficient time to be received at the office designated in the invitation by the time set for opening and, except for delay due to mishandling on the part of the Government at the installation, would have been received on time at the office designated. The only evidence acceptable to establish timely receipt at the Government installation is that which can be 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.

ASPR 2-303.3 includes the following provisions relating to late bids transmitted by certified mail:

(b) Certified Mail. The time of mailing of a late bid mailed by certified mail for which a postmarked Receipt for Certified Mail was obtained shall be deemed to be the last minute of the date shown in the postmark on such receipt, except where (i) the Receipt for Certified Mail identifies the post office station of mailing and the bidder furnishes evidence from such station 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, is appropriately verified in writing by the post office station of mailing, in which case the time of mailing shall be the time shown in the entry. If the postmark does not show a date, the bid shall be deemed to have been mailed too late.

(c) Delivery Time. Information concerning the normal time for mail delivery shall be obtained by the purchasing activity from the postmaster, superintendent of mails, or a duly authorized representative for that purpose, of the post office serving that activity. When time permits, such information shall be obtained in writing.

Under the provisions of ASPR 2-303.3(b), quoted above, in the absence of 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, your bid must be considered as having been mailed at the last minute of the business day of the Bush Terminal Post Office which is reported to be 5 p.m. Since the

Richmond Post Office states that a bid mailed at 5 p.m., March 17, 1966, from the Bush Terminal Post Office, Brooklyn, New York, would not arrive at the main Richmond Post Office until 11:45 a.m., March 18, 1966, or after the 10:30 a.m. bid opening time, we must conclude that your bid does not qualify for consideration as a late bid that was timely mailed. While the letter dated June 22, 1966, received by your firm from the Bush Terminal Post Office, would tend to establish that your bid was timely mailed, in view of the fact that article 6(c) of the bidding instructions provides, in effect, that in the case of certified mail the only acceptable evidence as to the time of mailing is that contained in ASPR 2-303.3 (b) and since that section does not provide for the consideration of that type of evidence, we must conclude that such letter may not be accepted as evidence of the timely mailing of your bid.

The time for opening of bids was unequivocally set forth on the first page of the invitation for bids. Each bidder is responsible for the seasonable arrival of his own bid at the designated office before the scheduled opening time. Your bid should not have been opened but should have been disregarded as a late bid. The inadvertent opening of a late bid will not alone justify disregard for the injunction of ASPR 2-404.1 against withholding award from the lowest responsible and responsive bidder without compelling reason to reject all bids and cancel the invitation. B-155568 dated January 4, 1965.

It is unfortunate that the Defense General Supply Center opened your bid and that as a result you were put to trouble and expense in securing adequate financing. We have been advised that appropriate action has been taken by DGSC to prevent the recurrence of a similar situation. However, for the reasons stated, we have no alternative but to conclude that your bid may not be considered for award.

[B-159632]

Communication Facilities-Satellite Telecommunication ServicesContracting Prior to Authorization

While satellite telecommunication services may not be provided by the Communications Satellite Corporation (COMSAT) to the Defense Communications Agency (DCA) unless and until authorization is granted by the Federal Communications Commission (FCC)—a determination that is not subject to review -there is no prohibition against DCA contracting with COMSAT for communications services under negotiation procedures in view of the urgency of the matter and the fact that FCC has recognized the special status of the Government as an "authorized user" of COMSAT facilities, has held that in the national interest COMSAT promptly would be authorized to provide service directly to the Government at just and reasonable rates, and is free to exercise its statutory authority with respect to any contract the Government may enter into with COMSAT, a contract that will include permission for assignment to one or several of the record carriers.

To Sellers, Conner & Cuneo, July 26, 1966:

By letter dated July 15, 1966, and subsequent correspondence, you protested, on behalf of ITT World Communications Inc. (ITT), against the pending award of a contract to the Communications Satellite Corporation (COMSAT) by the Defense Communications Agency (DCA), for communications services in the Pacific Ocean area via a combination of satellite and terrestrial facilities.

A request for proposals for this requirement was issued on May 2, 1966, to COMSAT, ITT, RCA Communications, Inc., Western Union International and the Hawaiian Telephone Company-all of whom are carriers within the meaning of 47 U.S.C. 153 (h). All carriers submitted proposals on May 31, 1966, and, upon evaluation, it was determined by DCA that the COMSAT proposal offered the greatest advantage to the Government and afforded the greatest assurance of providing the earliest possible service. All other competing international communications carriers were advised of this determination, and for the reasons stated it is proposed to award a Preliminary Communications Service Authorization (CSA) to COMSAT under the authority of 10 U.S.C. 2304 (a) (10) and Armed Services Procurement Regulation 3-210.2 (v). ITT's protest, as supplemented by letters dated July 21 and July 22, 1966, which is premised on advance public announcement of June 23, 1966, by the Federal Communications Commission (FCC) concerning COMSAT "authorized user" services and formal opinion by FCC dated July 21, 1966, is to the effect that until such time as COMSAT is authorized by the FCC to provide the particular services here involved to the Government, DCA is without authority to enter into a contract with COMSAT.

FCC issued its formal opinion in the matter of COMSAT “authorized user" services on July 21, 1966, and concluded that "only in unique or exceptional circumstances should non-carrier entities deal directly with ComSat." The Commission further concluded as follows:

37. We have reached the following policy conclusions:

(a) The terrestrial carriers cannot under existing law themselves be licensed to operate the space segment of the international system and therefore cannot compete effectively in furnishing satellite service to the public.

(b) ComSat is not and does not propose to be a full service carrier meeting directly the needs of the vast majority of users of international services for all classes of communication services.

(c) If ComSat were to be permitted to provide leased channel services directly to users, other than in unique or exceptional circumstances, the basic purposes of Congress in enacting the Satellite Act-reflection of the benefits of the new technology in both quality of service and charges therefor-would be frustrated.

(d) A requirement that, except in unique and extraordinary circumstances, users take service from the terrestrial carriers should not have adverse effects upon either Com Sat or the users but instead should make it possible to reduce rates for all classes of users.

38. Our ultimate conclusions are:

(a) ComSat may as a matter of law be authorized to provide service directly to non-carrier entities;

(b) ComSat is to be primarily a carrier's carrier and in ordinary circumstances users of satellite facilities should be served by the terrestrial carriers; (c) In unique and exceptional circumstances Com Sat may be authorized to provide services directly to non-carrier users; therefore, the authorization to ComSat to provide services is dependent upon the nature of the service, i.e., unique or exceptional, rather than the identity of the user. The United States Government has a special position because of its unique or national interest requirements; ComSat may be authorized to provide service directly to the Government, whenever such service is required to meet unique governmental needs or is otherwise required in the national interest, in circumstances where the Government's needs cannot be effectively met under the carrier's carrier approach.

While the Commission did not prescribe any specific procedures to implement its policy determinations quoted above, it did require that any request by COMSAT for authorization to provide service directly to any noncarrier entity should include showings by COMSAT as to:

(i) Whether the proposed service via satellite is available from terrestrial carriers, including evidence of request made therefor and the response of the carriers;

(ii) Whether the facilities to provide this service are available, and, if not, a description of the new or expanded facilities required as well as the cost thereof;

(iii) A statement showing why the circumstances involved are so unique and exceptional as to require service directly from ComSat or what the national interest requirements are that indicate that service cannot be provided under the carrier's carrier approach.

(iv) Any other facts which would indicate that the public interest would be served by a grant.

The above required information shall be set forth in support of the applications for modification of the applicable earth station and/or satellite station licenses as well as for authorization to acquire units of satellite utilization which ComSat shall file in each case in which it is requested to provide a particular service directly to any non-carrier users. Unless and until such authorizations are granted, ComSat shall not provide services to any non-carrier entity. In addition ComSat, of course, must also have an effective tariff on file before it can provide service directly to any non-carrier entity it may be authorized to serve. It is contended that unless and until the Commission authorizes COMSAT to furnish the services required by DCA award of a contract for such services would be improper and that, if awarded without the Commission's authorization, such contract would not constitute a proper charge against appropriated funds.

Preliminary to our consideration of the arguments advanced in support of the above position, we must point out that we have consistently taken the position that determinations, orders, or opinions of the Federal regulatory agencies promulgated in accord with their statutory responsibilities are not subject to review or question by our Office. 19 Comp. Gen. 555, 560. We therefore are obliged to weigh the merits of the protest in the light of the determinations and conclusions reached by the Commission in its July 21 opinion. We thus arrive at the very essence of the protest, that is, whether

an award of a contract at this time to COMSAT would, in fact, constitute a violation of the opinion or would otherwise be contrary to the grant of procurement authority vested by statute in DCA.

The conclusions reached by the Commission in its July 21 opinion did not impose any direct, specific limitations upon the existing statutory authority of DCA to contract for communications services from carriers, including COMSAT. The special status of the Government as an "authorized user" of COMSAT facilities was fully recognized by the Commission when it stated in paragraph 25 of the opinion: "We emphasize that in all cases where such national interest circumstances exist, we shall act promptly to authorize ComSat to provide service directly to the Government at just and reasonable rates." It is significant also to note that nowhere in the conclusions reached by the Commission is contracting by COMSAT with the Government limited. As a condition to providing services directly to any noncarrier entity, COMSAT is required to show the particular circumstances justifying the furnishing of such services. The "services" with which we are concerned here are satellite telecommunication "services" to be furnished to DCA beginning on April 1, 1967. While these "services" may not be provided by COMSAT to DCA unless and until authorization is granted by FCC, we find no prohibition against contracting for such services. Without attempting to authoritatively interpret the scope and intent of the Commission's opinion it is our view that it does not preclude either COMSAT or DCA from entering into a contract to provide services to the Government prior to obtaining authorization to furnish such services.

We have considered the authorities cited by you in support of the protest and we find no substantial legal basis for their application here. As stated above, DCA is authorized to contract for carrier communications services under negotiation procedures. We find nothing in the military procurement statute or its implementing regulation which would require us to question the proposed award of a contract to COMSAT under the circumstances of this case, especially in view of the reported urgency of the matter and since FCC will be free to exercise its statutory authority with respect to any such contract the Government may enter into with COMSAT. Further, we have been advised by the Department of Defense (DOD) that the contract will include a suitable assignment clause which will permit assignment of the contract at some future date to one or several of the record carriers, if they can fully meet DOD requirements.

Therefore, the protest of ITT World Communications Inc. is denied.