B-126418, JAN. 20, 1956

B-126418, JAN. 20, 1956

TO THE HONORABLE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO LETTER DATED JANUARY 4, 1956, FROM THE DEPUTY CHIEF, BUREAU OF YARDS AND DOCKS, REGARDING THE QUESTION OF WHETHER AN AWARD UNDER SPECIFICATION NO. 51292 PROPERLY MAY BE MADE TO THE STAR IRON AND STEEL COMPANY ON THE BASIS OF ITS BID SUBMITTED IN RESPONSE THERETO.

BIDS UPON SPECIFICATION NO. 51292, FOR TWO FIFTY-TON PORTAL CRANES AT THE NAVAL SHIPYARD, BOSTON, MASSACHUSETTS, WERE SCHEDULED FOR OPENING AND WERE OPENED AT 3:00 P.M. EST. DECEMBER 21, 1955, IN THE BUREAU OF YARDS AND DOCKS, WASHINGTON 25, D.C. EIGHT BIDS WERE RECEIVED AND OPENED AT THE DESIGNATED TIME. ALSO, AT THE TIME OF THE OPENING THE BUREAU HAD RECEIVED A TELEGRAM FROM THE STAR IRON AND STEEL COMPANY STATING THAT IT HAD SENT A BID BY AIR MAIL WHICH SHOULD ARRIVE IN TIME FOR THE OPENING. THIS TELEGRAM WAS READ TO THE BIDDERS PRESENT AND THEY WERE ADVISED THAT UPON RECEIPT OF STAR'S BID THE BUREAU WOULD DETERMINE WHETHER THE BID HAD BEEN MAILED ON TIME TO HAVE BEEN RECEIVED PRIOR TO THE BID OPENING. DECEMBER 21, 1955, AT 10:00 A.M., AN AIR MAIL, SPECIAL DELIVERY, REGISTERED LETTER NO. 45970, FROM STAR IRON AND STEEL COMPANY, WAS RECEIVED IN THE CONTRACT ADMINISTRATION BRANCH OF THE BUREAU. THE POSTMARKS ON THE ENVELOPE SHOWED THAT IT WAS MAILED AT TACOMA, WASHINGTON, ON DECEMBER 19, 1955, AND WAS RECEIVED BY THE WASHINGTON, D.C., REGISTRY DIVISION ON DECEMBER 20, 1955.

IT IS REPORTED THAT, SINCE THE POSTMARKS ON THE LETTER DID NOT INDICATE THE EXACT TIME WHEN THE BID WAS MAILED, THE BUREAU CONTACTED NAVY REPRESENTATIVES IN TACOMA AND REQUESTED THEM TO INVESTIGATE AND ESTABLISH THE MAILING TIME; THAT THE NAVY REPRESENTATIVES REPORTED THAT THE TACOMA POST OFFICE HAD STATED AND VERIFIED IN WRITING THAT STAR'S BID WAS MAILED SHORTLY AFTER 10:00 A.M. ON DECEMBER 19, 1955. THE BUREAU THEN CONTACTED THE WASHINGTON, D.C., POSTMASTER AND WAS ADVISED THAT A REGISTERED AIR MAIL, SPECIAL DELIVERY LETTER, DEPOSITED AT THE TACOMA, WASHINGTON, POST OFFICE, PRIOR TO 12:00 NOON ON DECEMBER 19, SHOULD HAVE BEEN RECEIVED IN THE BUREAU OF YARDS AND DOCKS BEFORE 3:00 P.M. ON DECEMBER 20, 1955. VIEW OF SUCH INFORMATION, THE BID WAS OPENED IN THE PRESENCE OF THREE GOVERNMENT WITNESSES, TWO OF WHOM HAD WITNESSED THE ORIGINAL BID OPENING. THE STAR BID TURNED OUT TO BE THE LOWEST BID. ALSO, A LETTER OF DECEMBER 21, 1955, FROM THE ACTING POSTMASTER, TACOMA, WASHINGTON, CERTIFYING THAT "REGISTERED ARTICLE NO. 45970, SENDER STAR IRON AND STEEL CO., TACOMA, WASHINGTON; ADDRESSEE CHIEF, BUREAU OF YARDS AND DOCKS, NAVY DEPARTMENT, WASHINGTON 25, D.C., WAS MAILED TO THIS OFFICE SHORTLY AFTER 10:00 A.M. ON DECEMBER 19, 1955," WAS SUBMITTED TO THE ASSISTANT POSTMASTER GENERAL, BUREAU OF TRANSPORTATION, REQUESTING WHETHER THE LETTER, WHICH WAS SENT AIR MAIL, SPECIAL DELIVERY, WOULD NORMALLY HAVE BEEN DELIVERED IN THE BUREAU OF YARDS AND DOCKS ANNEX BEFORE 3:00 P.M. ON DECEMBER 20, 1955. THE DIRECTOR, DIVISION OF AIR TRANSPORTATION, ADVISED THAT UNDER THE AIR MAIL SCHEDULES IN EFFECT ON DECEMBER 19, 1955, THE LETTER SHOULD HAVE ARRIVED IN WASHINGTON, D.C., AND HAVE BEEN DELIVERED TO THE ADDRESSEE PRIOR TO THE BID OPENING TIME.

INDUSTRIAL BROWNHOIST CORPORATION, THE LOW BIDDER AT THE TIME OF THE OPENING, HAS PROTESTED THE CONSIDERATION OF STAR'S BID ON THE FOLLOWING BASES:

1. THE FAILURE OF STAR'S BID TO ARRIVE ON TIME WAS NOT DUE SOLELY TO A DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE WITHIN THE MEANING OF SECTION 2-302, ASPR.

2. STAR'S BID DOES NOT COMPLY WITH THE REQUIREMENT OF SECTION 2 302, ASPR, SINCE THE LETTER DOES NOT SHOW THE EXACT DATE AND HOUR OF MAILING.

3. THERE WAS NO COMPLIANCE WITH THE REQUIREMENT OF THE ARMED SERVICES PROCUREMENT ACT AND SECTION 2-401, ASPR, THAT ALL BIDS SHALL BE PUBLICLY OPENED.

PARAGRAPH 2-302 OF THE ARMED SERVICES PROCUREMENT REGULATIONS, PROVIDES AS FOLLOWS:

"TIME OF SUBMISSION. BIDS SHALL BE SUBMITTED IN SUFFICIENT TIME TO REACH THE DESIGNATED OFFICE PRIOR TO THE TIME FIXED FOR OPENING. BIDS RECEIVED AFTER THE TIME FIXED FOR OPENING ARE LATE BIDS; AND THE EXACT DATE AND HOUR OF MAILING SUCH BIDS, AS SHOWN BY THE CANCELLATION STAMP OR BY THE STAMP OF AN APPROVED METERING DEVICE SHALL BE RECORDED. SUCH LATE BIDS SHALL BE CONSIDERED PROVIDED THEY ARE RECEIVED BEFORE THE AWARD HAS BEEN MADE AND PROVIDED THE FAILURE TO ARRIVE ON TIME WAS DUE SOLELY TO A DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE; OTHERWISE, LATE BIDS SHALL NOT BE CONSIDERED BUT SHALL BE HELD UNOPENED UNTIL THE TIME OF AWARD AND THEN RETURNED TO THE BIDDER, UNLESS OTHER DISPOSITION IS REQUESTED OR AGREED TO BY THE BIDDER.'

INDUSTRIAL BROWNHOIST CONTENDS THAT IN DETERMINING THE NORMAL TIME REQUIRED FOR DELIVERY THERE MUST BE TAKEN INTO CONSIDERATION THE PRE CHRISTMAS LOAD ON THE MAILS AND, TAKING SUCH FACT INTO CONSIDERATION, IT IS CLEAR THAT THERE WAS NO "DELAY" IN THE MAILS AND THAT THE FAILURE OF THE BID TO ARRIVE ON TIME WAS DUE SOLELY TO STAR'S OWN NEGLIGENCE IN NOT MAKING A TIMELY MAILING.

THE DEPUTY CHIEF, BUREAU OF YARDS AND DOCKS IS OF THE OPINION THAT, IN DETERMINING WHETHER LATE BIDS WERE MAILED ON TIME AND MAY BE CONSIDERED, THE CONTRACTING AGENCIES CAN ONLY LOOK TO THE DEFINITIVE STATEMENTS OF THE POSTAL AUTHORITIES AS TO WHEN SUCH BIDS SHOULD HAVE ARRIVED IN THE NORMAL COURSE OF REGULAR MAIL SERVICE; THAT THEY CANNOT LOOK BEHIND SUCH STATEMENTS TO SPECULATE UPON THE POSSIBLE EFFECTS OF FLOODS, SEVERE WINTER WEATHER, THE CHRISTMAS SEASON OR OTHER FACTORS WHICH MAY OR MAY NOT HAVE SOME EFFECT ON MAIL DELIVERIES; THAT THE TIME OF REGULAR DELIVERY SHOULD BE FIXED BY REFERENCE TO THE REGULAR SCHEDULES AS REPORTED BY THE POST OFFICE; AND THAT TO APPLY ANY OTHER STANDARD WOULD PLACE SIGNIFICANT ADMINISTRATIVE BURDENS BOTH UPON THE CONTRACTING AGENCY AND THE POST OFFICE, WOULD DELAY AWARDS UNREASONABLY, AND WOULD NOT BE LIKELY TO RESULT IN DEFINITE CONCLUSIONS. WE AGREE WITH THESE VIEWS AND BELIEVE THAT TO TAKE OTHER FACTORS INTO CONSIDERATION WOULD ONLY RESULT IN CONFUSION AND UNCERTAINTY.

WITH RESPECT TO BROWNHOIST'S SECOND CONTENTION, WHILE THE BID DOES NOT SHOW THE HOUR OF MAILING, IT DOES SHOW THAT IT WAS MAILED IN TACOMA, WASHINGTON, ON DECEMBER 19, AND WAS RECEIVED IN WASHINGTON, D.C., ON DECEMBER 20. THE ACTING POSTMASTER AT TACOMA HAS CERTIFIED THAT THE LETTER WAS MAILED "SHORTLY AFTER 10:00 A.M. ON DECEMBER 19, 1955.' SUCH EVIDENCE, WE BELIEVE, REASONABLY ESTABLISHES THE TIME OF MAILING. PARAGRAPH 2-302, ASPR, DOES NOT PRECLUDE THE ESTABLISHMENT OF THE TIME OF MAILING BY OTHER EVIDENCES WHERE THE CANCELLATION STAMP DOES NOT SHOW THE EXACT TIME OF MAILING, ALTHOUGH, IN THE CASE OF A LETTER SENT BY ORDINARY OR AIR MAIL, THE POSTAL CANCELLATION STAMP MAY BE THE ONLY BASIS OF ASCERTAINING THE TIME OF MAILING.

WITH RESPECT TO THE THIRD CONTENTION OF INDUSTRIAL BROWNHOIST THAT STAR'S BID SHOULD NOT BE CONSIDERED BECAUSE IT WAS NOT OPENED PUBLICLY, IT IS REPORTED AND THE SIGNATURES ON THE ABSTRACT OF BIDS SHOW THAT STAR'S BID WAS OPENED IN THE PRESENCE OF THREE GOVERNMENT WITNESSES IN ACCORDANCE WITH USUAL PROCEDURES. WHILE INDIVIDUAL BIDDERS WERE NOT EXPRESSLY INVITED TO WITNESS THE OPENING OF THE LATE BID, THEY HAD BEEN SPECIFICALLY ADVISED THAT SUCH A BID WOULD BE RECEIVED AND WERE ON NOTICE THAT IT WOULD BE OPENED IF DETERMINED TO HAVE BEEN TIMELY MAILED. ALSO, THERE IS NO INDICATION OF FRAUD OR WRONGDOING.

THE PURPOSE OF THE STATUTORY LAWS REQUIRING ADVERTISING FOR BIDS IN THE PROCUREMENT OF SUPPLIES FOR PUBLIC USE IS TO AFFORD TO ALL PARTIES WHO MIGHT BE INTERESTED A FAIR AND EQUAL OPPORTUNITY TO COMPLETE FOR THE BUSINESS OF SUPPLYING THE NEEDS OF THE GOVERNMENT AND TO SECURE TO THE UNITED STATES THE BENEFIT OF FREE AND OPEN COMPETITION. IT CONSISTENTLY HAS BEEN HELD THAT THESE LAWS PRIMARILY ARE FOR THE BENEFIT OF THE UNITED STATES AND NOT INDIVIDUAL BIDDERS. SEE O-BRIEN V. CARNEY, ET AL., 6 F.SUPP. 761.

IN THE CIRCUMSTANCES, SINCE IT APPEARS THAT STAR'S BID WAS MAILED IN TIME TO HAVE BEEN RECEIVED PRIOR TO THE OPENING AND THERE APPEARS TO BE NO QUESTION OF FAVORITISM OR THE POSSIBILITY THAT STAR SECURED AN UNFAIR ADVANTAGE OVER OTHER BIDDERS, THE BID OF STAR IRON AND STEEL COMPANY PROPERLY MAY BE CONSIDERED FOR AWARD ALONG WITH THE OTHER BIDS.

THE BID AND THE ENVELOPE IN WHICH IT WAS CONTAINED ARE RETURNED.