B-145205, MAY 15, 1961

B-145205: May 15, 1961

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

ESQUIRE: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 1. AS A BASIS FOR YOUR PROTEST YOU STATED THAT THE NORTH ELECTRIC COMPANY WAS THE LOW BIDDER AT THE BID OPENING BUT THAT DUE TO THE FACT THAT THE CONTRACTING OFFICER CONSIDERED LATE BIDS IT WAS DETERMINED THAT THE BID OF YOUR CLIENT WAS NO LONGER THE LOW BID. THERE WAS ENCLOSED A COPY OF A LETTER DATED MARCH 6. IT IS OUR VIEW THAT THE INDICATED ROUTING VIA WASHINGTON. CAN HAVE NO DIRECT BEARING ON THE INSTANT MATTER. WOULD NOT HAVE REACHED THE OFFICE OF THE CONTRACTING OFFICER BY 2 P.M. THERE WERE ENCLOSED THE ENVELOPES OF SEVERAL AIR MAIL SPECIAL DELIVERY LETTERS CAUSED BY REPRESENTATIVES OF THE NORTH ELECTRIC COMPANY TO BE MAILED FROM CHICAGO TO MOBILE AND FROM MELBOURNE TO MOBILE.

B-145205, MAY 15, 1961

TO JAMES D. WILLIAMS, JR., ESQUIRE:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 1, 1961, WITH ENCLOSURES, AND SUBSEQUENT CORRESPONDENCE, PROTESTING ON BEHALF OF THE NORTH ELECTRIC COMPANY OF GALION, OHIO, THE AWARD OF A CONTRACT TO OTHER THAN THAT CONCERN UNDER INVITATION FOR BIDS NO. 01-601-61-737, ISSUED BY THE BROOKLEY AIR FORCE BASE, ALABAMA.

AS A BASIS FOR YOUR PROTEST YOU STATED THAT THE NORTH ELECTRIC COMPANY WAS THE LOW BIDDER AT THE BID OPENING BUT THAT DUE TO THE FACT THAT THE CONTRACTING OFFICER CONSIDERED LATE BIDS IT WAS DETERMINED THAT THE BID OF YOUR CLIENT WAS NO LONGER THE LOW BID. YOU ENCLOSED A COPY OF A LETTER DATED FEBRUARY 24, 1961, FROM THE NORTH ELECTRIC COMPANY CONTAINING "MAILING INFORMATION," AND YOU SET FORTH YOUR ESTIMATE OF THE TIME REQUIRED FOR FORWARDING OF MAIL FROM THE MOBILE POST OFFICE TO THE OFFICE OF THE CONTRACTING OFFICER. YOU THEN EXPRESSED THE VIEW THAT A MIDNIGHT MAILING FOR A BID OPENING 14 HOURS LATER CERTAINLY INDICATES NEGLIGENCE ON THE PART OF THE BIDDERS.

WITH YOUR LETTER OF MARCH 9, 1961, THERE WAS ENCLOSED A COPY OF A LETTER DATED MARCH 6, 1961, FROM THE GENERAL FOREMAN OF THE LANCASTER, PENNSYLVANIA, POST OFFICE, TRANSMITTING A SCHEDULE FOR TRANSMISSION OF MAIL FROM CHICAGO TO MOBILE VIA WASHINGTON, D.C., ON CAPITOL AIRLINES AND NATIONAL AIRLINES WHICH INVOLVED A LAYOVER AT WASHINGTON, D.C., OF MORE THAN SIX HOURS. IT IS OUR VIEW THAT THE INDICATED ROUTING VIA WASHINGTON, D.C., CAN HAVE NO DIRECT BEARING ON THE INSTANT MATTER. THERE HAS BEEN NOTED YOUR STATEMENT THAT NORMAL MAIL DELIVERY OF AIR MAIL LETTERS ENTERING THE MAILS AT CHICAGO, ILLINOIS, AND MELBOURNE, FLORIDA, AT 11:59 P.M. WOULD NOT HAVE REACHED THE OFFICE OF THE CONTRACTING OFFICER BY 2 P.M. ON THE FOLLOWING DAY.

WITH YOUR LETTER OF MARCH 30, 1961, THERE WERE ENCLOSED THE ENVELOPES OF SEVERAL AIR MAIL SPECIAL DELIVERY LETTERS CAUSED BY REPRESENTATIVES OF THE NORTH ELECTRIC COMPANY TO BE MAILED FROM CHICAGO TO MOBILE AND FROM MELBOURNE TO MOBILE, SHOWING THEREON THE HOUR AND DATE OF MAILING AS WELL AS THE HOUR OF DELIVERY AT MOBILE. BASED ON THESE AND OTHER ENCLOSURES YOU INSISTED THAT THE LATE BIDS SHOULD NOT BE CONSIDERED.

BY THE CITED INVITATION, WHICH WAS ISSUED JANUARY 19, 1961, BIDS WERE REQUESTED FOR FURNISHING AN ESTIMATED QUANTITY OF 150 MISSILE OPERATIONS INTERCOMMUNICATIONS SYSTEMS, THE BIDS TO BE OPENED AT 2 P.M., CST, ON FEBRUARY 7, 1961, AT THE BROOKLEY AIR FORCE BASE. FOUR BIDS WERE RECEIVED PRIOR TO THE BID OPENING TIME, THE LOWEST BEING THAT SUBMITTED BY NORTH ELECTRIC COMPANY AT $564,690. FIVE ADDITIONAL BIDS WERE RECEIVED AFTER THE BID OPENING AND WERE CONSIDERED BY THE CONTRACTING OFFICER AS LATE ACCEPTABLE BIDS ON THE BASIS OF INFORMATION FURNISHED BY THE MOBILE POST OFFICE. THE FOLLOWING THREE LATE BIDS WERE LOWER THAN THAT OF NORTH ELECTRIC COMPANY.

TABLE

BIDDER TOTAL AMOUNT (EST) COOK ELECTRIC COMPANY, CHICAGO, ILL. $400,500.00 ASTRONAUTICS, INC., MELBOURNE, FLA. 450,144.00 THE HALLICRAFTERS COMPANY, CHICAGO, ILL. 500,608.50

UNDER DATE OF FEBRUARY 13, 1961, A REPRESENTATIVE OF THE NORTH ELECTRIC COMPANY VISITED THE CONTRACTING OFFICE FOR THE PURPOSE OF OBTAINING INFORMATION CONCERNING THE BIDDING, ETC., AND AT THAT TIME HE WAS ADVISED AS TO THE PROCEDURE TO BE FOLLOWED IN CHECKING LATE BIDS. THE NEXT DAY THE REPRESENTATIVE AGAIN VISITED THE CONTRACTING OFFICE AND DELIVERED A LETTER OF PROTEST. THEREAFTER, THE CONTRACTING OFFICER VISITED THE MOBILE POST OFFICE AND DISCUSSED THE LATE BIDS WITH THE CHIEF OF THE AIR MAIL SECTION AND THE SUPERINTENDENT OF MAILS. THE LATTER STATED THAT THE NORMAL TIME FOR PROCESSING SUCH MAIL THROUGH THE CHICAGO POST OFFICE WOULD BE ONE HOUR WITH AN ADDITIONAL HOUR FOR DELIVERY TO THE AIRPORT AND SUBSEQUENT PROCESSING AT THE AIRPORT PRIOR TO DEPARTURE. ON THE ASSUMPTION THAT THE BIDS OF COOK ELECTRIC COMPANY AND THE HALLICRAFTER COMPANY WERE MAILED FROM CHICAGO AT 11:59 P.M. ON FEBRUARY 6, 1961, THE POST OFFICE OFFICIAL DETERMINED THAT THE FOLLOWING WOULD HAVE BEEN THE USUAL TIME SCHEDULE:

"A.TIME OF MAILING 11:59 PM, 6 FEBRUARY 1961.

B. LEAVE CHICAGO ON EASTERN AIRLINES FLIGHT NO. 925 AT 3:30 AM, 7 FEBRUARY 1961.

C. ARRIVE ATLANTA, GEORGIA AT 4:46 AM, 7 FEBRUARY 1961.

D. LEAVE ATLANTA, GEORGIA ON EASTERN AIRLINES FLIGHT NO. 589 AT 8:10 AM, 7 FEB 1961.

E. ARRIVE MOBILE AIRPORT 11:09 AM, 7 FEBRUARY 1961.

F. ARRIVE MOBILE POST OFFICE 11:45 AM, 7 FEB 1961.

G. LEAVE MOBILE POST OFFICE ON REGULARLY SCHEDULED TRIP TO BROOKLEY AF BASE AT 12:30 PM 7 FEBRUARY 1961.

H. ARRIVE BROOKLEY AF BASE AT 1:00 PM 7 FEBRUARY 1961.'

THE PROTEST CONTAINED IN THE LETTER OF FEBRUARY 14, 1961, APPEARS TO HAVE BEEN FULLY CONSIDERED BY THE CONTRACTING OFFICER. IN VIEW OF THE FACT THAT THE LATE BIDS HAD BEEN DETERMINED TO BE PROPER FOR CONSIDERATION, THE PROTEST WAS DETERMINED BY THE CONTRACTING OFFICER TO BE WITHOUT FOUNDATION AND WAS THEREFORE DISALLOWED.

THE DECISIVE QUESTION IS WHETHER THE EVIDENCE ESTABLISHES THAT THE FAILURE OF THE BIDS TO ARRIVE ON TIME WAS DUE SOLELY TO DELAYS IN THE MAILS FOR WHICH THE BIDDERS WERE NOT RESPONSIBLE. THE CONTRACTING OFFICER HAS SO FOUND AND WE ARE UNABLE TO FIND ANY PROPER BASIS FOR QUESTIONING THE CORRECTNESS OR REASONABLENESS OF SUCH FINDING. THIS IS PARTICULARLY TRUE WITH RESPECT TO THE BID OF ASTRONAUTICS, INC., WHICH, IT WILL BE NOTED, WAS ACTUALLY DELIVERED TO THE BROOKLEY AIR FORCE BASE ON THE 12:30 P.M. DELIVERY FROM THE MOBILE POST OFFICE. OUR OFFICE IS IN NO POSITION TO QUESTION THE FINDING THAT THE FAILURE OF THIS BID TO ARRIVE AT THE OFFICE OF THE CONTRACTING OFFICER PRIOR TO THE BID OPENING TIME WAS DUE TO DELAY AT THE BASE. OBVIOUSLY, THE CONTRACTING OFFICER WAS BEST QUALIFIED TO MAKE SUCH A FINDING SINCE HE WAS ON THE GROUND AND THEREFORE HAD KNOWLEDGE OF THE FACTS. THE FACTUAL SITUATION PERTAINING TO THIS BID ALONE WOULD APPEAR TO SUPPORT A DENIAL OF THE PROTEST BY THE NORTH ELECTRIC COMPANY.

WE TRANSMITTED TO THE SECRETARY OF THE AIR FORCE COPIES OF YOUR LETTERS OF MARCH 1 AND MARCH 9, 1961. RESPECTING THE ALLEGED DELIVERY TIME REFERRED TO IN YOUR FIRST LETTER THE CONTRACTING OFFICER STATED THAT FROM INFORMATION OBTAINED FROM THE POSTAL AUTHORITIES IT WAS DETERMINED THAT NORMALLY IT SHOULD TAKE ONLY 30 MINUTES TO PROCESS AIR MAIL THROUGH THE MOBILE POST OFFICE. WITH REFERENCE TO YOUR LETTER OF MARCH 9, 1961, THE CONTRACTING OFFICER STATED THAT THE USE OF THE WORD "COULD" IS MISLEADING SINCE NORTH ELECTRIC WAS NOT INFORMED THAT THE BIDS "COULD" HAVE ARRIVED PRIOR TO THE BID OPENING TIME BUT RATHER THAT UNDER NORMAL CIRCUMSTANCES THE BIDS SHOULD HAVE ARRIVED PRIOR TO THE TIME SET FOR THE BID OPENING. ALSO, APPARENTLY REFERRING TO THE THIRD PARAGRAPH ON PAGE 3 OF YOUR LETTER OF MARCH 9, THE CONTRACTING OFFICER STATED THAT "THIS MAIL" SHOULD HAVE ARRIVED AT THE MOBILE POST OFFICE AT 11:45 A.M. AND SHOULD HAVE BEEN DELIVERED TO THE BROOKLEY AIR FORCE BASE ON THE 12:30 P.M. REGULARLY SCHEDULED DELIVERY.

UPON THE BASIS OF THE FACTS BEFORE US IN THIS CASE, WE MUST CONCUR IN THE FINDINGS AND CONCLUSIONS OF THE CONTRACTING OFFICER AND, ACCORDINGLY, THE PROTEST OF THE NORTH ELECTRIC COMPANY IS DENIED.