B-136670, JULY 10, 1958, 38 COMP. GEN. 21

B-136670: Jul 10, 1958

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BIDS - LATE - POST OFFICE CANCELLATION STAMP - MAIL DELAY A SPECIFIC REQUIREMENT IN AN INVITATION WHICH MAKES LATE BIDS STAMPED BY A POSTAGE METER DEVICE ELIGIBLE FOR CONSIDERATION ONLY IF THE HOUR AND DATE OF MAILING ARE SHOWN BY A POST OFFICE CANCELLATION STAMP MAY NOT BE OVERCOME BY THE SUBMISSION OF EVIDENCE OF IMPROPER ROUTING IN THE MAILS OF A LATE BID WHICH WAS MAILED IN A METERED STAMPED ENVELOPE BUT WHICH DID NOT HAVE A POST OFFICE CANCELLATION STAMP. 1958: REFERENCE IS MADE TO A LETTER DATED JUNE 30. IT IS REPORTED THAT THE ONLY BID RECEIVED AT THE SCHEDULED OPENING TIME. - WAS THAT OF THE EICHLEAY CORPORATION OF SANTA CLARA. 836.30 WAS RECEIVED IN THE YUMA POST OFFICE AT 3:30 P.M.

B-136670, JULY 10, 1958, 38 COMP. GEN. 21

BIDS - LATE - POST OFFICE CANCELLATION STAMP - MAIL DELAY A SPECIFIC REQUIREMENT IN AN INVITATION WHICH MAKES LATE BIDS STAMPED BY A POSTAGE METER DEVICE ELIGIBLE FOR CONSIDERATION ONLY IF THE HOUR AND DATE OF MAILING ARE SHOWN BY A POST OFFICE CANCELLATION STAMP MAY NOT BE OVERCOME BY THE SUBMISSION OF EVIDENCE OF IMPROPER ROUTING IN THE MAILS OF A LATE BID WHICH WAS MAILED IN A METERED STAMPED ENVELOPE BUT WHICH DID NOT HAVE A POST OFFICE CANCELLATION STAMP.

TO THE SECRETARY OF THE INTERIOR, JULY 10, 1958:

REFERENCE IS MADE TO A LETTER DATED JUNE 30, 1958, WITH ENCLOSURES, FROM THE ADMINISTRATIVE ASSISTANT SECRETARY, REQUESTING OUR DECISION AS TO WHETHER THE LATE BID OF THE PACIFIC CRANE AND RIGGING CO. PROPERLY MAY BE CONSIDERED FOR AWARD UNDER SPECIFICATIONS NO. DC-5040 ISSUED BY THE BUREAU OF RECLAMATION ON APRIL 9, 1958, FOR THE INSTALLATION OF AN ADDITIONAL PUMPING UNIT AT THE YUMA-MESA PUMPING PLANT, GILA PROJECT, ARIZONA.

IT IS REPORTED THAT THE ONLY BID RECEIVED AT THE SCHEDULED OPENING TIME-- - 10:00 MST, MAY 22, 1958--- WAS THAT OF THE EICHLEAY CORPORATION OF SANTA CLARA, CALIFORNIA, IN THE AGGREGATE AMOUNT OF $46,763. ON THE SAME DAY, THE BID OF PACIFIC IN THE TOTAL AMOUNT OF $40,836.30 WAS RECEIVED IN THE YUMA POST OFFICE AT 3:30 P.M. IN AN ENVELOPE BEARING A METERED DATE STAMP OF MAY 21, 1958, AND INDICATING THAT IT WAS MAILED FROM PARAMOUNT, CALIFORNIA. THE ENVELOPE, HOWEVER, DID NOT BEAR A POST OFFICE CANCELLATION STAMP SHOWING THE HOUR AND DATE OF ACTUAL MAILING. THE EICHLEAY CORPORATION HAS PROTESTED AGAINST THE MAKING OF AN AWARD TO A FIRM OTHER THAN ITSELF ON THE BASIS THAT CONSIDERATION OF PACIFIC'S BID IS PRECLUDED BY THE SPECIFIC REQUIREMENTS OF PARAGRAPH 14 CONTAINED ON STANDARD FORM 22 "1INSTRUCTION TO BIDDERS.' THAT PARAGRAPH READS AS FOLLOWS:

LATE BIDS, METERED MAIL.--- NO BID OR MODIFICATION THEREOF TRANSMITTED IN A METERED ENVELOPE RECEIVED AFTER TIME SET FOR OPENING WILL BE CONSIDERED, UNLESS THE ENVELOPE IS STAMPED IN THE POST OFFICE WHERE MAILED TO SHOW THE DATE AND HOURS OF MAILING AND IT IS DETERMINED BY THE GOVERNMENT THAT NON- ARRIVAL ON TIME WAS DUE SOLELY TO DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE. IF A METERING DEVICE IS USED IN STAMPING THE ENVELOPE CONTAINING THE BID, THE BIDDER IS RESPONSIBLE FOR ASSURING THAT THE HOUR AND DATE OF POSTING ARE INDICATED ON THE ENVELOPE BY POST OFFICE CANCELLATION. THE TIME AS SHOWN BY THE POST OFFICE CANCELLATION WILL BE CONSIDERED AS THE HOUR AND DATE OF POSTING.

BY LETTER DATED MAY 23, 1958, TO THE PROCUREMENT ACTIVITY, PACIFIC STATED THAT ITS REPRESENTATIVE DELIVERED ITS BID FOR AIR MAIL SPECIAL DELIVERY TO THE LOS ANGELES INTERNATIONAL AIRPORT POST OFFICE AT 4:45 P.M. ON MAY 21, AND THAT THE POST OFFICE CLERK, MR. ROY ANDERSON, INFORMED PACIFIC'S REPRESENTATIVE THAT THE MAIL WOULD LEAVE ON A NIGHT FLIGHT TO TUSCON, ARIZONA, AND FROM THERE BE TRUCKED TO THE YUMA POST OFFICE IN TIME FOR ARRIVAL AT THE BID OPENING AT 10:00 A.M. ON MAY 22. AN ENDORSEMENT APPEARS ON THAT LETTER AS FOLLOWS:

I HAVE READ THE ABOVE AND CONCUR WITH STATEMENTS, AND AM IN FULL AGREEMENT.

(1SIGNED) R. A. SCHERER,

R. A. SCHERER,

ASSISTANT SUPERINTENDENT,

AIRPORT STATION.

IN RESPONSE TO FURTHER INQUIRY BY YOUR DEPARTMENT AS TO THE MAIL ROUTING BETWEEN LOS ANGELES AND YUMA, THE POST OFFICE DEPARTMENT REPORTED THAT THE MAIL ROUTING DESCRIBED IN PACIFIC'S LETTER WAS INCORRECT, BUT THAT THE PROPER ROUTING OF SUCH MAIL WAS FROM LOS ANGELES THROUGH PHOENIX, ARIZONA, TO YUMA AND NOT BY TRUCK DELIVERY BACK FROM TUSCON TO YUMA. THE RECORD FURTHER DISCLOSES THAT HAD THE BID BEEN PROPERLY ROUTED IT SHOULD HAVE BEEN RECEIVED IN TIME FOR THE BID OPENING IF MAILED AT THE LOS ANGELES AIRPORT POST OFFICE AT 4:45 P.M. ON MAY 21.

IN VIEW OF THE DEFINITE REQUIREMENT IN PARAGRAPH 14, QUOTED ABOVE, WE ARE OF THE OPINION THAT THE FAILURE OF PACIFIC TO HAVE ITS METERED BID ENVELOPE CANCELED BY THE POST OFFICE TO SHOW THE HOUR AND DATE OF MAILING PRECLUDES CONSIDERATION OF ITS LATE BID FOR AWARD. THE OBVIOUS EFFECT OF THAT PROVISION IS TO REQUIRE THAT THE HOUR AND DATE OF MAILING OF LATE BIDS BE SHOWN BY A POST OFFICE CANCELLATION STAMP, SO AS TO AVOID THE UNCERTAINTY AND ATTENDANT DELAYS IN ATTEMPTING TO ESTABLISH BY CONVINCING EVIDENCE THE TIME OF MAILING OF METERED MAIL. WE ARE OF THE VIEW THAT SUCH REQUIREMENT IS ENTIRELY REASONABLE AND IMPOSES NO REAL BURDEN ON ANY BIDDERS SINCE THEY ARE FULLY ADVISED OF THE RISKS OF USING METERED MAIL FOR THE TRANSMISSION OF BIDS SHORTLY BEFORE THE TIME SET FOR OPENING.

WE DO NOT REGARD THE STATEMENT OF PACIFIC, AS CONCURRED IN BY THE ASSISTANT SUPERINTENDENT, AS OVERCOMING THE DEFINITE REQUIREMENT FOR CANCELING METERED MAIL, SINCE UNDER THE INSTANT INVITATION THE ELIGIBILITY OF LATE BIDS TRANSMITTED BY METERED MAIL IS TO BE DETERMINED ONLY BY REFERENCE TO THE CANCELLATION STAMP APPEARING THEREON AND NOT BY EXTRANEOUS EVIDENCE OR SELF-SERVING STATEMENT SEEKING TO ESTABLISH THE ACTUAL DATE AND TIME OF MAILING.

SINCE THE QUESTION HERE IS NOT AS TO THE SUFFICIENCY OF EVIDENCE SUPPORTING THE ALLEGED DATE AND TIME OF MAILING, BUT INSTEAD, WHETHER THE BID AS SUBMITTED BY METERED MAIL CONFORMED TO THE INVITATION REQUIREMENT RESPECTING THE CANCELLATION OF METERED MAIL, OUR DECISION REPORTED AT 36 COMP. GEN. 370, IS CLEARLY DISTINGUISHABLE.

YOU ARE THEREFORE ADVISED THAT THE LATE BID OF THE PACIFIC CRANE AND RIGGING COMPANY SHOULD NOT BE CONSIDERED FOR AWARD.