B-143772, SEPTEMBER 1, 1960, 40 COMP. GEN. 148

B-143772: Sep 1, 1960

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- WAS MAILED IN SUFFICIENT TIME TO REACH THE CONTRACTING OFFICE PRIOR TO BID OPENING DO NOT CONSTITUTE COMPETENT EVIDENCE ESTABLISHING THE TIME AND DATE OF MAILING OF THE BID. THE ONLY BIDS THAT WERE AVAILABLE AND OPENED HAD BEEN RECEIVED FROM W. AFTER THE RESULTS WERE REPORTED TO HIM. HE WAS ADVISED THAT NO BID HAD BEEN RECEIVED FROM THAT COMPANY. 674 WAS RECEIVED IN THE PROCUREMENT OFFICE MAIL ROOM. POSTAGE HAD BEEN AFFIXED TO THE ENVELOPE IN WHICH THE BID WAS RECEIVED BY METERED DEVICE AND THE POSTAGE METER STAMP BEARS THE LEGEND " ANDALUSIA ALA. HE WAS THEN ADVISED THAT HE WOULD HAVE TO SUBMIT SUBSTANTIAL EVIDENCE TO PROVE THE DATE AND HOUR OF ACTUAL MAILING. THAT IT WAS THEN READY TO BE MAILED AND WAS MAILED ON THAT DAY. 2.

B-143772, SEPTEMBER 1, 1960, 40 COMP. GEN. 148

BIDS - LATE - METERING DEVICE POSTAGE STAMPS - EVIDENCE SELF-SERVING STATEMENTS FROM A BIDDER AND HIS EMPLOYEES, AND A HEARSAY STATEMENT FROM THE BIDDER'S PROSPECTIVE SUPPLIER, THAT A LATE BID MAILED IN AN ENVELOPE WHICH BEARS A POSTAGE METER STAMP SHOWING THE DATE OF MAILING AS JUNE 11, 1960--- WAS MAILED IN SUFFICIENT TIME TO REACH THE CONTRACTING OFFICE PRIOR TO BID OPENING DO NOT CONSTITUTE COMPETENT EVIDENCE ESTABLISHING THE TIME AND DATE OF MAILING OF THE BID; THEREFORE, THE LATE BID SHOULD NOT BE CONSIDERED FOR AWARD.

TO THE SECRETARY OF THE AIR FORCE, SEPTEMBER 1, 1960:

BY LETTER DATED AUGUST 12, 1960, THE ASSISTANT DEPUTY FOR PROCUREMENT AND PRODUCTION REQUESTED A DECISION AS TO THE ACTION THAT SHOULD BE TAKEN WITH RESPECT TO THE LATE RECEIPT OF A METERED MAIL BID SUBMITTED BY ANDY ELECTRIC COMPANY IN RESPONSE TO INVITATION 108-635-60 230 ISSUED BY EGLIN AIR FORCE BASE, FLORIDA.

ON JUNE 14, 1960, AT THE 1:15 P.M. BID OPENING TIME, THE ONLY BIDS THAT WERE AVAILABLE AND OPENED HAD BEEN RECEIVED FROM W. L. BUTLER ELECTRIC CONTRACTOR AND ALABAMA ELECTRICAL CONSTRUCTION CO., INC. THEREAFTER, AT ABOUT 2:00 P.M., ON THAT DAY THE ENGINEER-ESTIMATOR FOR ANDY ELECTRIC COMPANY INQUIRED BY TELEPHONE AS TO THE RESULTS OF THE BIDDING. AFTER THE RESULTS WERE REPORTED TO HIM, HE STATED THAT AROUND NOON ON JUNE 11, 1960, HIS FIRM HAD MAILED A BID OF $19,674. HOWEVER, HE WAS ADVISED THAT NO BID HAD BEEN RECEIVED FROM THAT COMPANY.

THE NEXT DAY, JUNE 15, 1960, AT 9:00 A.M., A BID IN THE AMOUNT OF $19,674 WAS RECEIVED IN THE PROCUREMENT OFFICE MAIL ROOM. POSTAGE HAD BEEN AFFIXED TO THE ENVELOPE IN WHICH THE BID WAS RECEIVED BY METERED DEVICE AND THE POSTAGE METER STAMP BEARS THE LEGEND " ANDALUSIA ALA. JUN -60.'

THE ENGINEER-ESTIMATOR TELEPHONED AGAIN ON JUNE 15, 1960, TO INQUIRE WHETHER THE FIRM'S BID HAD ARRIVED. IN DISCUSSING THE MATTER, HE VOLUNTEERED THE INFORMATION THAT CONTRARY TO THE DATE SHOWN ON THE METER STAMP, THE BID ACTUALLY HAD BEEN MAILED ON JUNE 11, 1960. HE WAS THEN ADVISED THAT HE WOULD HAVE TO SUBMIT SUBSTANTIAL EVIDENCE TO PROVE THE DATE AND HOUR OF ACTUAL MAILING.

TO ESTABLISH THE TIME AND DATE OF MAILING, THE BIDDER SUBMITTED THE FOLLOWING EVIDENCE:

1. A STATEMENT FROM THE PRESIDENT OF THE COMPANY THAT HE SIGNED THE BID ON JUNE 11, 1960, AND THAT IT WAS THEN READY TO BE MAILED AND WAS MAILED ON THAT DAY.

2. A STATEMENT FROM THE ENGINEER-ESTIMATOR THAT THROUGH AN OVERSIGHT ON JUNE 11, 1960, HE PROCESSED THE ENVELOPE THROUGH THE POSTAGE METERING DEVICE WITHOUT CHANGING THE DATE STAMP AND THEN TURNED THE ENVELOPE OVER TO THE BOOKKEEPER TO MAIL.

3. A STATEMENT FROM THE BOOKKEEPER TO THE EFFECT THAT THE ENVELOPE WAS DEPOSITED IN A MAIL SLOT AT THE POST OFFICE BETWEEN 12:30 P.M. AND 1:00 P.M., ON JUNE 11, 1960, AND THAT NO ONE NOTICED THE MAILING BECAUSE IT WAS SATURDAY AND THE POST OFFICE WINDOWS CLOSED AT NOON.

4. A STATEMENT FROM A PROSPECTIVE SUPPLIER TO THE BIDDER THAT THE ENGINEER-ESTIMATOR TOLD HIM PRIOR TO BID OPENING TIME ON JUNE 14, 1960, THAT THE BID HAD BEEN MAILED ON JUNE 11, 1960.

THE POSTMASTER OF EGLIN AIR FORCE BASE HAD ADVISED THE PROCUREMENT OFFICE THAT MAIL POSTED IN ANDALUSIA, ALABAMA, ON JUNE 10 SHOULD HAVE REACHED THE BASE INSTALLATION BY THE NEXT MORNING AND THAT MAIL POSTED ON JUNE 11 SHOULD HAVE ARRIVED BY THE MORNING OF JUNE 13. FURTHER, THE POSTMASTER ADVISED THAT THERE IS NO EXPLANATION WHY THE ENVELOPE ARRIVED LATER.

UNDER THE TERMS OF THE INVITATION, LATE BIDS SENT BY MAIL WILL BE CONSIDERED FOR AWARD PROVIDED THE FAILURE TO ARRIVE ON TIME IS DUE SOLELY TO A DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE. ESTABLISH THAT THE BIDDER WAS NOT RESPONSIBLE FOR THE DELAY IT MUST BE SHOWN THAT THE BID WAS MAILED IN SUFFICIENT TIME TO ARRIVE BEFORE THE BID OPENING. SECTION 2-303.3 (A) (I) OF ARMED SERVICES PROCUREMENT REGULATION PROVIDES THAT, IN THE CASE OF METERED MAIL, THE DATE OF MAILING IS ESTABLISHED BY THE METERED DATE. HOWEVER, OBVIOUSLY THIS POSITION CANNOT PROPERLY BE INVOKED IN THIS CASE SINCE THE BIDDER HAS MADE A STATEMENT AGAINST INTEREST THAT THE METERED DATE IS INCORRECT. THEREFORE, THE TIME AND DATE OF MAILING MUST BE ESTABLISHED BY OTHER COMPETENT EVIDENCE.

RECENTLY, IN 40 COMP. GEN. 91, WE REVIEWED THE STANDARD OF EVIDENCE THAT IS REQUIRED TO ESTABLISH WHEN A LATE METERED MAIL BID WAS ACTUALLY MAILED. WE POINTED OUT IN THAT DECISION THAT SELF-SERVING STATEMENTS BY THE BIDDER OR ITS PERSONNEL ARE INSUFFICIENT TO ESTABLISH WHEN A BID WAS MAILED AND THAT CORROBORATION BY THE POST OFFICE OF MAILING WOULD BE NECESSARY.

THE EVIDENCE INTRODUCED IN THIS CASE TO ESTABLISH WHEN THE BIDS WERE MAILED CONSISTS ONLY OF SELF-SERVING STATEMENTS FROM THE COMPANY'S OFFICER AND EMPLOYEES, AND A HEARSAY STATEMENT FROM THE BIDDER'S PROSPECTIVE SUPPLIER WHO, BECAUSE OF THE RELATIONSHIP OF THE PARTIES, COULD NOT BE CONSIDERED TO BE DISINTERESTED. FURTHER, FROM THE STATEMENT MADE BY THE POSTMASTER IT APPEARS THAT IT WOULD HAVE BEEN POSSIBLE FOR A BID MAILED AFTER BID OPENING ON JUNE 14, TO ARRIVE ON THE MORNING OF JUNE 15, AT THE TIME THE BID HERE INVOLVED WAS ACTUALLY RECEIVED AT THE BASE. TAKING THIS INTO CONSIDERATION TOGETHER WITH THE FACT THAT THERE IS NO EXPLANATION FOR THE ALLEGED UNUSUALLY LONG DELAY IN THE MAIL, THE NECESSITY FOR VERIFICATION OF THE DATE WHEN THE BID WAS MAILED BECOMES EVEN MORE IMPORTANT.

ACCORDINGLY, WE ARE OF THE OPINION THAT THE EVIDENCE DOES NOT CONVINCINGLY ESTABLISH WHEN THE BID WAS MAILED. IN THESE CIRCUMSTANCES, WE CONCLUDE THAT THE BID OF ANDY ELECTRIC COMPANY SHOULD NOT BE CONSIDERED FOR AWARD. NOTHING HEREIN IS TO BE CONSTRUED AS SUGGESTING BAD FAITH OR IMPROPER ACTION ON THE PART OF THE COMPANY. THE RESULT REACHED IS DICTATED BY THE APPLICATION OF THE PRINCIPLES REFERRED TO.

THIS CASE POINTS UP THE UNRELIABILITY OF DATE STAMPS USED ON METERED MAIL. IT HAS BEEN OUR UNDERSTANDING THAT UNDER EXISTING PROCEDURE POSTAL EMPLOYEES CHECK THE DATE OF MAILING ON ALL METERED MAILINGS AND POSTMARK THEM IF THE DATE IS NOT CORRECT. HOWEVER, THE FACTS IN THIS MATTER DEMONSTRATE THAT THIS PROCEDURE IS NOT INFALLIBLE.

SINCE THE TIME OF MAILING IS A VITAL ISSUE IN THESE LATE BID CASES, WE THINK THAT TO AVOID ANY FUTURE UNCERTAINTY AS TO THE TIME OF MAILING, THE DATE AND HOUR SHOULD BE ESTABLISHED BY THE MOST ACCURATE, RELIABLE AND IMPARTIAL METHOD AVAILABLE. THEREFORE, WE ARE RECOMMENDING TO THE SECRETARY OF DEFENSE THAT APPROPRIATE STEPS BE TAKEN TO AMEND THE ASPR SO THAT IN FUTURE PROCUREMENTS THE INVITATION FOR BIDS WILL INCLUDE IN THE LATE BID CLAUSE AN ADDITIONAL STATEMENT THAT NO BID OR MODIFICATION SENT THROUGH THE MAIL AND BEARING A STAMP AFFIXED BY A METERING DEVICE WHICH IS RECEIVED AFTER THE BID OPENING TIME WILL BE CONSIDERED FOR AWARD UNLESS IT ALSO BEARS A POST OFFICE CANCELLATION STAMP SHOWING THE HOUR AND DATE OF POSTING.