B-134872, FEB. 21, 1958

B-134872: Feb 21, 1958

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S. ELECTRIC COMPANY: FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST REJECTION OF YOUR BID SUBMITTED IN RESPONSE TO NAVDOCKS SPECIFICATION NO. WHEN THE BIDS WERE OPENED AT THE APPOINTED TIME. IT IS REPORTED THAT SHORTLY AFTER THE BID OPENING. YOUR BID WAS NOT RECEIVED UNTIL 2:48 P.M. THE ENVELOPE CONTAINING YOUR BID HAD A POSTMARK INDICATING THAT IT WAS MAILED AT LYNNWOOD AT 5:00 P.M. THE DISTRICT PUBLIC WORKS OFFICE CONTACTED THE SEATTLE POST OFFICE BY TELEPHONE AND WAS ADVISED THAT ALL MAIL LEAVING THE LYNNWOOD POST OFFICE IS STAMPED 5:00 P.M. THAT MAIL NORMALLY IS PICKED UP BY TRUCK AT LYNNWOOD AT 3:30 P.M. EACH DAY BUT THAT DURING THE CHRISTMAS SEASON THERE IS AN EXTRA PICK-UP AT :20 P.M.

B-134872, FEB. 21, 1958

TO G. S. ELECTRIC COMPANY:

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST REJECTION OF YOUR BID SUBMITTED IN RESPONSE TO NAVDOCKS SPECIFICATION NO. NYB-12277/57 ISSUED BY THE DISTRICT PUBLIC WORKS OFFICE, THIRTEENTH NAVAL DISTRICT, SEATTLE, WASHINGTON, FOR AN EXTENSION TO THE APPROACH LIGHTING SYSTEM, RUNWAY 14- 32, KINGSLEY FIELD, KLAMATH FALLS, OREGON.

IN RESPONSE TO OUR REQUEST, THE DEPARTMENT OF THE NAVY HAS FURNISHED A REPORT IN THE MATTER. THE INVITATION PROVIDED THAT BIDS WOULD BE OPENED AT 2:00 P.M. DECEMBER 17, 1957, AT THE DISTRICT PUBLIC WORKS OFFICE. WHEN THE BIDS WERE OPENED AT THE APPOINTED TIME, FOUR BIDS HAD BEEN RECEIVED, RANGING FROM $12,417 TO $16,980. IT IS REPORTED THAT SHORTLY AFTER THE BID OPENING, MR. CHARLES GERARD OF YOUR COMPANY, STATED BY TELEPHONE THAT YOUR BID HAD BEEN MAILED FROM THE LYNNWOOD, WASHINGTON, POST OFFICE IN TIME TO REACH THE DISTRICT PUBLIC WORKS OFFICE PRIOR TO THE BID OPENING. HOWEVER, YOUR BID WAS NOT RECEIVED UNTIL 2:48 P.M. DECEMBER 18, 1957, THE DAY FOLLOWING THE BID OPENING. THE ENVELOPE CONTAINING YOUR BID HAD A POSTMARK INDICATING THAT IT WAS MAILED AT LYNNWOOD AT 5:00 P.M. DECEMBER 16, 1957. ON RECEIPT OF YOUR BID, THE DISTRICT PUBLIC WORKS OFFICE CONTACTED THE SEATTLE POST OFFICE BY TELEPHONE AND WAS ADVISED THAT ALL MAIL LEAVING THE LYNNWOOD POST OFFICE IS STAMPED 5:00 P.M.; THAT MAIL NORMALLY IS PICKED UP BY TRUCK AT LYNNWOOD AT 3:30 P.M. EACH DAY BUT THAT DURING THE CHRISTMAS SEASON THERE IS AN EXTRA PICK-UP AT :20 P.M.; AND THAT MAIL DEPOSITED AT THE LYNNWOOD POST OFFICE AT 5:00 P.M. DECEMBER 16 WOULD NORMALLY LEAVE THAT POST OFFICE AT 3:30 P.M. DECEMBER 17 AND NOT AT 5:20 P.M. DECEMBER 16. THEREFORE, BY LETTER DATED DECEMBER 24, 1957, AWARD WAS MADE TO TROWBRIDGE AND FLYNN ELECTRIC COMPANY ON ITS BID OF $12,417. YOUR BID WAS RETURNED TO YOU UNOPENED. THE DEPARTMENT OF THE NAVY STATES THAT THE CONTRACTOR HAS BEEN PLACING ORDERS AND PROCURING MATERIAL SINCE THE AWARD.

IT IS REPORTED FURTHER THAT THE ABOVE-MENTIONED INFORMATION AS TO POSTAL SERVICE WAS CONFIRMED BY THE SEATTLE POST OFFICE ON DECEMBER 30, 1957, BY TELEPHONE. HOWEVER, BY A LETTER DATED JANUARY 3, 1958, THE SEATTLE POSTMASTER STATED THAT THE INFORMATION FURNISHED BY TELEPHONE HAD BEEN SUPPLIED BY THE LYNNWOOD POSTMASTER AND WAS CORRECT EXCEPT THAT NORMAL TRUCK DISPATCH FROM LYNNWOOD WAS 5:20 P.M. AND THE EXTRA TOUCH DISPATCH DURING THE HOLIDAY RUSH WAS 3:30 P.M.

IN A LETTER TO YOU DATED DECEMBER 28, 1957, THE LYNNWOOD POSTMASTER STATES:

"YOUR BID MAILED DEC. 16, 1957 AT 4:30 P.M. WAS IMMEDIATELY PLACED IN SEATTLE MAIL SEPARATION IN THE SORTING CASE AND DISPATCHED AT APPROX. 5:15 P.M. UNDER NORMAL CONDITIONS THIS LETTER WOULD ARRIVE IN SEATTLE AT 6:15 P.M. WHICH WOULD BE IN TIME TO BE SORTED FOR EARLY DISPATCH OR LOCAL DELIVERY BY THE MORNING OF DEC. 17, 1957.

"THIS LETTER WAS PERSONALLY HANDED TO THE ASSISTANT POSTMASTER WITH THE EXPLANATION THAT IT WAS A BID AND IT WAS IMMEDIATELY PLACED IN THE DISPATCH CASE.'

A LETTER TO YOU DATED DECEMBER 30, 1957, FROM THE SEATTLE POSTMASTER IS AS FOLLOWS:

"THIS LETTER HAS REFERENCE TO YOUR INQUIRY RELATIVE TO A LETTER STATED TO HAVE BEEN MAILED AT LYNNWOOD, WASHINGTON 4:30 PM, DECEMBER 16, 1957.

"KINDLY BE ADVISED THAT SUCH LETTER, IF GIVEN NORMAL DISPATCH, WOULD HAVE BEEN FORWARDED FROM LYNNWOOD TO TERMINAL ANNEX POST OFFICE, SEATTLE, VIA TRUCK, DUE TO ARRIVE SEATTLE 6:30 PM., DECEMBER 16.

"THE LETTER IN QUESTION IS STATED TO HAVE BEEN ADDRESSED TO---

U.S. NAVY

PUBLIC WORKS OFFICER

NAVY SUPPLY DEPOT

BUILDING 232

SEATTLE, WASHINGTON.

"IN THE USUAL COURSE OF HANDLING SUCH LETTER WOULD HAVE BEEN DISPATCHED TO NAVAL SUPPLY DEPOT AT 7:15 AM ON DECEMBER 17. IT MUST BE EMPHASIZED THAT THE DATE INVOLVED WAS AT THE PEAK OF OUR CHRISTMAS MAILING RUSH AND DURING THAT RUSH PERIOD, NORMAL HANDLING AND DELIVERY CANNOT BE ASSURED ON ANY GIVEN PIECE OF MAIL.'

YOU STATE THAT YOUR BID WAS RETURNED TO YOU ENCLOSED IN ANOTHER ENVELOPE, BY REGISTERED MAIL, AND THAT IN OPENING THE ENVELOPE WITH SCISSORS YOU CUT THROUGH BOTH ENVELOPES, THUS OPENING YOUR BID, WHICH YOU STATE WAS IN THE AMOUNT OF $10,948.

IT NOW APPEARS THAT YOUR BID WAS MAILED AT THE LYNNWOOD POST OFFICE AT 4:30 P.M. DECEMBER 16 AND "IN THE USUAL COURSE OF HANDLING" IT WOULD HAVE BEEN DISPATCHED FROM THE SEATTLE POST OFFICE TO THE NAVAL SUPPLY DEPOT AT 7:15 A.M. DECEMBER 17 AND SHOULD HAVE BEEN RECEIVED IN TIME FOR THE BID OPENING AT 2:00 P.M. DECEMBER 17. HOWEVER, IT WAS NOT IN FACT RECEIVED UNTIL 2:48 P.M. DECEMBER 18--- MORE THAN 24 HOURS AFTER THE TIME SET FOR OPENING BIDS. AT THE TIME OF THE RETURN OF YOUR BID AND THE AWARDING OF THE CONTRACT, THE INFORMATION WHICH THE CONTRACTING OFFICER HAD BEFORE HIM --- FURNISHED BY THE SEATTLE POST OFFICE--- WAS THAT YOUR BID WAS NOT TIMELY MAILED AND NO REASON THEN APPEARED FOR QUESTIONING THE CORRECTNESS OF THE INFORMATION. IT APPEARS THAT THE CONTRACTING OFFICER ACTED IN GOOD FAITH AND THAT HE DID EVERYTHING REQUIRED OF HIM TO ASCERTAIN WHETHER THE BID WAS TIMELY MAILED.

IT IS TO BE OBSERVED FURTHER THAT THE TIME ALLOWED BY YOU FOR DELIVERY OF YOUR BID MAY WELL BE REGARDED AS INADEQUATE, CONSIDERING THE ORDINARY UNCERTAINTIES OF MAIL DELIVERY AND THE HOLIDAY MAIL RUSH REFERRED TO IN THE SEATTLE POSTMASTER'S LETTER OF DECEMBER 30, 1957. ADDENDUM NO. 1 TO THE INVITATION, FIXING DECEMBER 17, 1957, AS THE DATE FOR OPENING BIDS, WAS DATED NOVEMBER 25, 1957. THEREFORE, AMPLE TIME WAS ALLOWED FOR THE PREPARATION AND SUBMISSION OF BIDS AND IT IS BELIEVED THAT REASONABLE CAUTION WOULD HAVE REQUIRED THE MAILING OF YOUR BID CONSIDERABLY EARLIER THAN IT WAS MAILED.

THERE IS FOR CONSIDERATION, ALSO, THE REPORTED FACT THAT YOUR BID WAS OPENED ACCIDENTALLY BY YOU AFTER IT WAS RETURNED TO YOU UNOPENED. THEREFORE, IT NO LONGER WAS A SEALED BID AND COULD NOT PROPERLY BE CONSIDERED BY THE CONTRACTING OFFICER.

ON THE BASIS OF THE FACTS BEFORE US, IT IS CONCLUDED THAT THE AWARD OF THE CONTRACT TO TROWBRIDGE AND FLYNN ELECTRIC COMPANY WAS LEGALLY PROPER AT THE TIME THE ACTION WAS TAKEN AND THAT THE ACCEPTANCE OF THE LOWEST TIMELY BID AT THE TIME CONSUMMATED A VALID AND BINDING CONTRACT. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313; AMERICAN SMELTING COMPANY V. UNITED STATES, 259 U.S. 75. ACCORDINGLY, THERE IS NOT PERCEIVED ANY SOUND BASIS FOR CANCELING THE ..END :