B-135796, MAY 13, 1958, 37 COMP. GEN. 750

B-135796, MAY 13, 1958, 37 COMP. GEN. 750

BIDS - LATE - MAIL DELAY - POSTAGE METER STAMPS EVIDENCE WHICH DOES NOT EXPLAIN THE REASON FOR DELAY IN THE RECEIPT OF A LATE BID, WHICH WAS MAILED IN AN ENVELOPE BEARING A POSTAGE METER STAMP SHOWING THE DATE BUT NOT THE ACTUAL TIME OF MAILING AND WHICH DOES NOT CONCLUSIVELY ESTABLISH THE TIME OF MAILING, DOES NOT OVERCOME THE PRESUMPTION THAT THE BID WAS MAILED ON THE LAST MINUTE OF THE DAY OF DEPOSIT AS PROVIDED IN THE LATE BID DETERMINATION SECTION 2.302.1 OF THE ARMED SERVICES PROCUREMENT REGULATION, AND, THEREFORE, SINCE A BID MAILED ON THE LAST MINUTE OF THE DAY COULD NOT HAVE BEEN DELIVERED BEFORE OPENING IN THE NORMAL COURSE OF THE MAILS, IT MAY NOT BE CONSIDERED FOR AWARD.

TO CAPTAIN R. A. WILLIAMS, DEPARTMENT OF THE NAVY, MAY 13, 1958:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 21, 1958, FILE REFERENCE R.11.1 L4-11 L4/NT4-12, WITH ENCLOSURES, FORWARDING THE PROTEST OF THE ELECTRONICS DIVISION OF VAN NORMAN INDUSTRIES, INC., MANCHESTER, NEW HAMPSHIRE, AGAINST THE CONTRACTING OFFICER'S PROPOSED CONSIDERATION OF THE LATE BID OF THE MODEL ENGINEERING AND MANUFACTURING COMPANY, INC., HUNTINGTON, INDIANA, SUBMITTED IN RESPONSE TO INVITATION NO. IFB-383 573- 58, ISSUED BY THE AVIATION SUPPLY OFFICE, PHILADELPHIA, PENNSYLVANIA.

IT IS REPORTED THAT THE INVITATION, AS AMENDED, FIXED THE TIME OF OPENING AS 10 A.M., MARCH 21, 1958, AND THAT AT 1 P.M. ON THAT DATE A SEALED STANDARD-FORM BID ENVELOPE, MAILED BY THE MODEL ENGINEERING AND MANUFACTURING COMPANY, INC., WAS DELIVERED TO THE AVIATION SUPPLY OFFICE. THE ENVELOPE IS MARKED " SPECIAL DELIVERY," " AIRMAIL" AND " SPECIAL HANDLING.' POSTAGE WAS AFFIXED BY METERED DEVICE AND THE POSTAGE METER STAMP BEARS THE WORDS " HUNTINGTON IND. MAR 20 -58.' THERE IS NO INDICATION ON THE ENVELOPE, HOWEVER, AS TO THE HOUR OF MAILING. THE ENVELOPE ALSO SHOWS A POST OFFICE STAMP READING PHILADELPHIA, PA., FRANKFORD STA. MARCH 21, 1958, 12:30 P.M.

IN HIS REPORT OF APRIL 15, 1958, THE CONTRACTING OFFICER STATES THAT IN ACCORDANCE WITH ARMED SERVICES PROCUREMENT REGULATION 2 302.1,"1DETERMINATIONS CONCERNING LATE BIDS," IN THE ABSENCE OF A SHOWING AS TO THE HOUR OF MAILING, THE MAILING TIME OF THE BID OF THE MODEL ENGINEERING AND MANUFACTURING COMPANY, INC., WAS CONSIDERED TO BE 11:59 P.M. ON MARCH 20, 1958, AND THAT THE GENERAL POST OFFICE AT PHILADELPHIA, PENNSYLVANIA, ADVISED HIM THAT IF SUCH BID HAD BEEN MAILED AT 11:59 P.M. ON MARCH 20, 1958, IT WOULD NOT HAVE BEEN DELIVERED TO THE AVIATION SUPPLY OFFICE IN THE NORMAL COURSE OF THE MAILS UNTIL THE AFTERNOON OF MARCH 21, 1958, OR AFTER THE TIME SET FOR THE BID OPENING. IT IS ALSO STATED THAT ON OR ABOUT MARCH 24, 1958, A REPRESENTATIVE OF THE MODEL ENGINEERING AND MANUFACTURING COMPANY, INC., TELEPHONED THE CONTRACTING OFFICER INQUIRING AS TO WHY THE NAME OF THE CORPORATION DID NOT APPEAR ON THE ABSTRACT OF BIDS RECEIVED IN RESPONSE TO INVITATION NO. IFB-383-573-58; THAT THE REPRESENTATIVE WAS INFORMED THAT ON THE BASIS OF THE EXISTING REGULATION WITH RESPECT TO POSTAGE-METERED BIDS, SUCH BID WAS TREATED AS A LATE BID AND NOT OPENED; THAT THE REPRESENTATIVE CONTENDED THAT THE CORPORATION'S BID HAD BEEN MAILED IN TIME TO ARRIVE AT THE AVIATION SUPPLY OFFICE PRIOR TO THE TIME SET FOR OPENING OF BIDS; AND THAT THE REPRESENTATIVE OBTAINED A WRITTEN STATEMENT DATED MARCH 24, 1958, FROM THE POSTMASTER, FORT WAYNE, INDIANA, INDICATING THAT THE CORPORATION'S BID WAS HANDLED AT HIS OFFICE BY DISTRIBUTION CLERK J. CUSTANCE PRIOR TO HIS COMPLETION OF DUTY AT 3:30 P.M. ON EITHER WEDNESDAY, MARCH 19 OR THURSDAY, MARCH 20, 1958. IT IS ALSO REPORTED THAT BY LETTER OF MARCH 28, 1958, A PHOTOSTATIC COPY OF THE ENVELOPE, IN WHICH THE BID OF THE MODEL ENGINEERING AND MANUFACTURING COMPANY, INC., WAS MAILED, WAS FORWARDED TO THE POSTMASTER, FORT WAYNE, INDIANA, FOR THE PURPOSE OF DETERMINING WHETHER THE PIECE OF MAIL REFERRED TO IN HIS LETTER OF MARCH 24, 1958, WAS IN FACT THE BID OF THE MODEL ENGINEERING AND MANUFACTURING COMPANY, INC., AND THAT SUCH OFFICIAL RETURNED THE LETTER WITH A WRITTEN STATEMENT THEREON TO THE EFFECT THAT THE ENVELOPE HANDLED BY DISTRIBUTION CLERK J. CUSTANCE ON THE 19TH OR 20TH OF MARCH IS BELIEVED TO BE THE BID IN QUESTION. THE STATEMENT ON THE BOTTOM OF SUCH LETTER WAS JOINTLY SIGNED BY THE ASSISTANT SUPERINTENDENT OF MAILS ON BEHALF OF THE POSTMASTER AT FORT WAYNE, INDIANA, AND BY DISTRIBUTION CLERK J. CUSTANCE, AT THAT OFFICE.

THE CONTRACTING OFFICER STATES THAT HE HAS BEEN ADVISED BY THE GENERAL POST OFFICE IN PHILADELPHIA, PENNSYLVANIA, THAT A BID MAILED AT HUNTINGTON, INDIANA, AT 3:30 P.M. ON MARCH 20, 1958, BY "1AIRMAIL SPECIAL DELIVERY" SHOULD HAVE ARRIVED IN PHILADELPHIA, PENNSYLVANIA, AT 10:10 P.M. OF THE SAME DAY AND SHOULD HAVE BEEN DELIVERED TO THE AVIATION SUPPLY OFFICE PRIOR TO 10 A.M. ON MARCH 21, 1958--- THE TIME SET FOR OPENING OF THE BIDS. HE ALSO STATES THAT BASED ON THE STATEMENT BY PERSONNEL OF THE FORT WAYNE POST OFFICE IT IS HIS OPINION THAT THE BID OF THE MODEL ENGINEERING AND MANUFACTURING COMPANY, INC., WAS MAILED IN TIME TO ARRIVE AT THE AVIATION SUPPLY OFFICE BEFORE THE TIME FIXED FOR OPENING OF THE BIDS AND THE FAILURE TO ARRIVE AT SUCH TIME AS DUE SOLELY TO A DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE. UPON THE BASIS OF SUCH OPINION, THE CONTRACTING OFFICER RECOMMENDS THAT THE BID OF THE MODEL ENGINEERING AND MANUFACTURING COMPANY, INC., BE CONSIDERED FOR AWARD.

BY LETTER DATED APRIL 10, 1958, THE ELECTRONICS DIVISION OF VAN NORMAN INDUSTRIES, INC., THE LOW BIDDER AT THE TIME THE BIDS WERE OPENED, PROTESTED THE PROPOSED ACCEPTANCE OF THE BID OF THE MODEL ENGINEERING AND MANUFACTURING COMPANY, INC. THE CORPORATION STATED THAT ITS PROTEST WAS BASED ON THE PROVISIONS OF ARMED SERVICES PROCUREMENT REGULATION 2-302.1, WHICH IT CONTENDS LEAVES THE CONTRACTING OFFICER NO DISCRETION ON THE QUESTION AS TO WHETHER A METERED STAMP THAT DOES NOT SHOW THE HOUR OF MAILING, WAS OR WAS NOT MAILED ON TIME, BUT MUST BE CONSIDERED AS HAVING BEEN MAILED AT 11:59 P.M. ON THE DATE SHOWN ON THE STAMP. IT ALSO CONTENDED THAT THE STATEMENT OF THE PERSONNEL OF THE FORT WAYNE POST OFFICE IS NOT SUFFICIENTLY DEFINITE FOR THE CONTRACTING OFFICER TO DETERMINE THAT THE BID IN QUESTION WAS MAILED IN TIME TO ARRIVE AT THE AVIATION SUPPLY OFFICE BY THE TIME SPECIFIED FOR OPENING OF THE BIDS.

PARAGRAPH 4 OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS PROVIDES:

4. LATE BIDS.--- BIDS AND MODIFICATIONS OR WITHDRAWALS THEREOF RECEIVED AFTER THE TIME SET FOR OPENING WILL NOT BE CONSIDERED, UNLESS THEY ARE RECEIVED BEFORE THE AWARD IS MADE, AND IT IS DETERMINED BY THE GOVERNMENT THAT FAILURE TO ARRIVE ON TIME WAS DUE SOLELY TO DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE.

IN HIS REPORT OF APRIL 15, 1958, IN WHICH HE RECOMMENDED THAT THE BID OF THE MODEL ENGINEERING AND MANUFACTURING COMPANY, INC., BE CONSIDERED FOR AWARD WITH THE OTHER BIDS RECEIVED IN RESPONSE TO THE INVITATION, THE CONTRACTING OFFICER STATES HE BELIEVES SUCH ACTION WOULD BE PROPER IN VIEW OF OUR HOLDING IN A DECISION DATED NOVEMBER 2, 1956, B-129643, 36 COMP. GEN. 370.

WE ARE OF THE OPINION THAT THE EVIDENCE IN THE PRESENT CASE IS INSUFFICIENT TO ESTABLISH THAT THE BID ENVELOPE WAS MAILED IN TIME BY THE MODEL ENGINEERING AND MANUFACTURING COMPANY, INC., TO REACH THE AVIATION SUPPLY OFFICE BEFORE THE TIME SET FOR THE OPENING OF BIDS.

THE CIRCUMSTANCES IN THE PRESENT CASE DIFFER IN SEVERAL MATERIAL RESPECTS FROM THOSE CONSIDERED IN OUR DECISION OF NOVEMBER 2, 1956. IN THAT CASE THE POST OFFICE FROM WHICH THE BID IN QUESTION WAS MAILED ON SEPTEMBER 25, 1956, REPORTED THAT THE DELAY IN MAILS WAS CAUSED BY CANCELLATION OF AIRMAIL FLIGHTS ON THAT DATE AND THAT SUCH BID PROBABLY WAS DISPATCHED BY SURFACE MEANS. ALSO, IN THAT CASE THE PARCEL POST CLERK WHO HANDLED THE BID ENVELOPE IN QUESTION WAS DEFINITE IN HIS AFFIDAVIT AS TO THE DATE AND APPROXIMATE TIME ON WHICH HE HANDLED THAT PIECE OF MAIL. HE WAS DEFINITE ALSO AS TO HIS RECOLLECTION OF THE RECEIPT OF SUCH ENVELOPE BECAUSE OF A CONVERSATION HE HAD WITH THE BIDDER'S EMPLOYEE WHO, HE STATED, EXPLAINED TO HIM THE IMPORTANCE OF THE MAILING AND REQUESTED VERIFICATION OF THE CORRECTNESS OF THE POSTAGE WHICH HAD BEEN AFFIXED TO THE ENVELOPE TO COVER FIRST CLASS, AIRMAIL, SPECIAL DELIVERY HANDLING. IN THE PRESENT CASE NO EXPLANATION HAS BEEN FURNISHED AS TO WHAT MIGHT HAVE CAUSED THE DELAY IN RECEIPT OF THE BID OF THE MODEL ENGINEERING AND MANUFACTURING COMPANY, INC. IN ADDITION, THE DISTRIBUTION MAIL CLERK AT THE FORT WAYNE POST OFFICE SEEMS TO BE UNCERTAIN IN HIS STATEMENT AS TO THE DATE ON WHICH HE HANDLED THE LATE BID AND EVEN AS TO WHETHER HE HANDLED IT AT ALL. MERELY SAYS HE BELIEVES HE HANDLED THE BID ENVELOPE IN QUESTION ON EITHER MARCH 19 OR MARCH 20. FOR THESE REASONS, WE CONSIDER THAT THE CIRCUMSTANCES IN THE PRESENT CASE DO NOT JUSTIFY A DETERMINATION THAT THE LATE BID WAS IN FACT TIMELY MAILED.

ACCORDINGLY, YOU ARE ADVISED THAT WE WOULD NOT BE WARRANTED IN AUTHORIZING THE CONSIDERATION OF THE BID OF THE MODEL ENGINEERING AND MANUFACTURING COMPANY, INC.

THE PAPERS, WITH THE EXCEPTION OF THE PROTESTING BIDDER'S LETTER AND THE CONTRACTING OFFICER'S STATEMENT OF FACTS, ARE RETURNED AS REQUESTED.