B-145264, MAR. 22, 1961

B-145264, MAR. 22, 1961

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED MARCH 9, 1961, FROM THE CHIEF, CONTRACTS BRANCH, PROCUREMENT DIVISION, OFFICE OF THE DEPUTY CHIEF OF STAFF FOR LOGISTICS, REQUESTING OUR DECISION ON A PROTEST MADE BY THE DOTHAN MANUFACTURING COMPANY, 350 FIFTH AVENUE, NEW YORK, NEW YORK, AGAINST A POSSIBLE DISQUALIFICATION OF ITS LATE BID UNDER INVITATION NO. QM/CTM/-36-243-61-560, ISSUED JANUARY 25, 1961, BY THE MILITARY CLOTHING AND TEXTILE SUPPLY AGENCY, PHILADELPHIA QUARTERMASTER CENTER, COVERING A PROPOSED PROCUREMENT OF A TOTAL QUANTITY OF 4,398,840 PAIRS OF MEN'S COTTON DRAWERS, BOXER STYLE, CLASS 1, FOR ULTIMATE DELIVERY TO FIVE LISTED ARMY DEPOTS.

BIDS WERE SCHEDULED FOR OPENING AT 3 P.M., E.S.T., FEBRUARY 15, 1961, AND AT THE TIME OF OPENING FOUR BIDS HAD BEEN RECEIVED. AT 8 A.M., FEBRUARY 20, A BID RESPONSE ENVELOPE WAS RECEIVED AT THE MAIL AND RECORDS BRANCH OF THE PHILADELPHIA QUARTERMASTER CENTER, FROM THE DOTHAN MANUFACTURING COMPANY, AND IT WAS RECORDED AS HAVING BEEN RECEIVED IN THE BID UNIT AT 8:35 A.M., FEBRUARY 20. A 25-CENT AND A 3 CENT POSTAGE STAMP WERE AFFIXED TO THE ENVELOPE AND THEY WERE PARTIALLY OBLITERATED BY A SMUDGE OF INK. THERE IS NO INFORMATION ON THE FACE OF THE ENVELOPE TO SHOW THE CITY, DATE OR HOUR OF MAILING, SUCH AS WOULD BE SHOWN BY A POST OFFICE CANCELLATION STAMP. THE BIDDER ALLEGED THAT THE BID WAS MAILED ON FEBRUARY 13 AND THERE IS NO DISPUTE WITH RESPECT TO THE QUESTION AS TO WHETHER THE BID WOULD HAVE ARRIVED ON TIME IF MAILED ON THAT DATE. HOWEVER, THE CONTRACTING OFFICER HAS QUESTIONED THE SUFFICIENCY OF THE EVIDENCE PRESENTED BY THE BIDDER TO DEMONSTRATE THAT THE BID WAS DEPOSITED IN THE MAILS AT APPROXIMATELY 5:20 P.M., FEBRUARY 13, AS ALLEGED.

THE EVIDENCE SUBMITTED BY THE BIDDER CONSISTS OF FOUR AFFIDAVITS BY HARRY S. GROSSMAN, VICE PRESIDENT OF THE DOTHAN MANUFACTURING COMPANY, BARBARA DICKMAN, HIS SECRETARY, PHILIP HOWARD, SALES REPRESENTATIVE OF THE J. W. WOOD ELASTIC COMPANY, AND LAWRENCE TANENBAUM, PRESIDENT OF TANENBAUM TEXTILE COMPANY, INC.

MR. GROSSMAN'S AFFIDAVIT PURPORTS TO SHOW THAT THE BID WAS PREPARED IN HIS OFFICE IN THE AFTERNOON OF FEBRUARY 13, THAT HE EXECUTED THE BID DOCUMENTS AND ENCLOSED THEM IN THE BID RESPONSE ENVELOPE AT ABOUT 4 P.M., AND, AFTER HAVING FILLED IN THE RETURN ADDRESS AND OTHER DATA ON THE FACE OF THE ENVELOPE, HE HANDED THE ENVELOPE TO HIS SECRETARY WITH INSTRUCTIONS TO MAIL THE ENVELOPE ON THAT DAY.

BARBARA DICKMAN'S AFFIDAVIT IS TO THE EFFECT THAT SHE PERFORMED THE TYPING WORK IN PREPARING THE BID AND THAT SHE AFFIXED POSTAGE ON THE BID RESPONSE ENVELOPE AND DEPOSITED SAME IN A CANVAS U.S. MAIL BAG LOCATED ON THE FIRST FLOOR OF THE BUILDING AT 350 FIFTH AVENUE, AT ABOUT 5:20 P.M., FEBRUARY 13.

THE REMAINING TWO AFFIDAVITS INDICATE THAT MR. HOWARD AND MR. TANENBAUM WERE INTERESTED IN OBTAINING SUBCONTRACTS AND THAT THEY HAD INQUIRED ABOUT THE SUBMISSION OF A BID BY THE DOTHAN MANUFACTURING COMPANY ON FEBRUARY 13 AND 14. MR. HOWARD STATES THAT ON FEBRUARY 13 HE WAS ADVISED THAT A BID WOULD BE MAILED ON THAT DAY. MR. TANENBAUM STATES THAT ON FEBRUARY 14 HE WAS ADVISED THAT A BID HAD ALREADY BEEN MAILED ON THE PREVIOUS DAY. THEIR AFFIDAVITS FURTHER INDICATE THAT THEY MADE TELEPHONE CALLS ON FEBRUARY 15 AND 16, NOTIFYING THE OFFICIALS OF THE DOTHAN MANUFACTURING COMPANY THAT NO BID FROM THAT COMPANY WAS READ AT THE BID OPENING.

THE COMPTROLLER OF THE BIDDING COMPANY MADE SEVERAL TELEPHONE CALLS TO THE GOVERNMENT'S PURCHASING AGENT AND HE WAS ADVISED ON FEBRUARY 20 THAT THE BID HAD BEEN RECEIVED. IN A LETTER OF THAT DATE, HIS FIRM WAS ADVISED THAT IT SHOULD DEMONSTRATE THE DATE AND HOUR OF MAILING BY CLEAR AND CONVINCING EVIDENCE WHICH MUST INCLUDE SUBSTANTIATION BY THE POST OFFICE OF MAILING. ON FEBRUARY 21 HE TELEPHONED THE CONTRACTING OFFICER AND EXPLAINED THAT IT WOULD BE DIFFICULT TO OBTAIN POST OFFICE SUBSTANTIATION OF THE DATE AND HOUR MAILED WITHOUT PRESENTING THE BID ENVELOPE. THE CONTRACTING OFFICER INFORMED HIM THAT THE AGENCY COULD NOT RELEASE THE ENVELOPE BUT WOULD MAIL HIM A PHOTOSTAT COPY OF THE ENVELOPE.

THE RECORD DOES NOT SHOW THAT ANY ATTEMPTS WERE MADE TO OBTAIN POST OFFICE SUBSTANTIATION AS TO THE DATE AND HOUR OF MAILING. THE FOUR AFFIDAVITS WERE ENCLOSED WITH A LETTER DATED FEBRUARY 28, 1961, FROM MR. SAMUEL F. SCHWAG, ATTORNEY FOR THE DOTHAN MANUFACTURING COMPANY, CITING SECTION 2-303.3 (A) (VI) OF THE ARMED SERVICES PROCUREMENT REGULATION, AND CONTENDING THAT THE REQUIREMENT OF "SUBSTANTIATION BY THE POST OFFICE OF MAILING" RELATES ONLY TO EVIDENCE OF MAILING AND NOT TO THE TIME OF MAILING. HE STATES THAT THE FACT THAT THE BID WAS RECEIVED IS CERTAINLY EVIDENCE OF MAILING AND CONTENDS THAT THIS CASE SHOULD BE DISTINGUISHED FROM OTHER CASES IN WHICH OUR OFFICE HAS ISSUED NEGATIVE DECISIONS. REFERS TO THE FACT THAT SOME OF THE DECISIONS RELATED TO LATE BIDS SENT BY METERED MAIL ENVELOPES AND STATES THAT IT IS KNOWN THAT A MAIL METER CAN BE TAMPERED WITH. HIS LETTER FURTHER STATES THAT, WHILE SUBSTANTIATION OF THE DATE OR HOUR OF MAILING BY A POST OFFICE EMPLOYEE HAVING PERSONAL KNOWLEDGE THEREOF MAY BE THE BEST EVIDENCE, IT IS NOT THE ONLY EVIDENCE WHICH, UNDER THE REGULATIONS, MAY BE ACCEPTED. IT IS ARGUED THAT THE SURROUNDING CIRCUMSTANCES IN THIS CASE GIVE MORE CREDENCE TO A FEBRUARY 13 MAILING THAN WOULD EVEN A POST OFFICE EMPLOYEE'S STATEMENT WHICH, AFTER ALL, CAN BE MISTAKEN.

WE HAVE RECOGNIZED THE REASONABLENESS OF THE REGULATION CITED BY MR. SCHWAG INSOFAR AS IT PERMITS CONSIDERATION OF ANY LATE MAILED BID WHERE THE BID RESPONSE ENVELOPE DOES NOT CONTAIN A POST OFFICE CANCELLATION STAMP AND THE BIDDER HAS DEMONSTRATED THE DATE OR HOUR OF MAILING "BY CLEAR AND CONVINCING EVIDENCE WHICH INCLUDES SUBSTANTIATION BY THE POST OFFICE OF MAILING.'

SECTION 2-303.3, ASPR, COVERS THE SUBJECT OF MAILED BIDS WHICH ARE RECEIVED LATE AND THERE APPEARS TO BE NO MERIT TO MR. SCHWAG'S INTERPRETATION OF THE WORDS "SUBSTANTIATION BY THE POST OFFICE OF MAILING" AS REFERRING ONLY TO PROOF OF ACTUAL MAILING. THOSE WORDS ARE NOT TO BE CONSTRUED LITERALLY SINCE IT IS OBVIOUS THAT THE REGULATION WAS MEANT TO REQUIRE VERIFICATION BY A POST OFFICE OFFICIAL AS TO THE DATE OR HOUR OF MAILING AND, IF MATERIAL IN THE PARTICULAR CASE, A STATEMENT FROM THE POST OFFICE OFFICIAL AS TO THE NORMAL TIME REQUIRED FOR MAKING DELIVERY OF THE BID RESPONSE ENVELOPE TO THE POST OFFICE ADDRESS OF THE CONTRACTING AGENCY. AS STATED IN THE CONTRACTING OFFICER'S REPORT, MR. SCHWAG'S CONTENTION WOULD MAKE THE REQUIREMENT FOR SUBSTANTIATION MEANINGLESS, INASMUCH AS THE REGULATION HAS APPLICATION ONLY WHERE A LATE BID HAS BEEN RECEIVED THROUGH THE MAILS.

WE HAVE REFUSED TO ACCEPT STATEMENTS OF BIDDERS AND OTHER INTERESTED PARTIES AS SUFFICIENT TO WARRANT IN THEMSELVES THE CONSIDERATION OF LATE MAILED BIDS. THUS, IN THE CASE OF 40 COMP. GEN. 148, WHERE A STATEMENT OF A PROSPECTIVE SUPPLIER WAS FURNISHED, TOGETHER WITH AFFIDAVITS BY EMPLOYEES OF THE BIDDER, WE HELD THAT THE EVIDENCE DID NOT CONVINCINGLY ESTABLISH WHEN THE BID WAS MAILED. PRACTICALLY THE SAME TYPE OF SITUATION IS INVOLVED IN THE INSTANT CASE.

IT IS, OF COURSE, UNFORTUNATE THAT THE BID RESPONSE ENVELOPE HERE INVOLVED DOES NOT CONTAIN A POST OFFICE CANCELLATION STAMP AND IT APPEARS UNLIKELY THAT ANY POST OFFICE OFFICIAL WOULD BE IN A POSITION TO FURNISH INFORMATION AS TO THE EXACT OR APPROXIMATE TIME OF MAILING. HOWEVER, IN PROTECTION OF THE RIGHTS OF BIDDERS, IT IS NECESSARY TO ESTABLISH AND FOLLOW CERTAIN RULES CONCERNING THE MATTER OF LATE BIDS AND WE ARE OF THE OPINION THAT IT WOULD NOT BE PROPER TO CONSIDER THE INSTANT BID AS BEING ELIGIBLE FOR CONSIDERATION IN MAKING AN AWARD.

ACCORDINGLY, WE AGREE WITH THE RECOMMENDATION OF THE CONTRACTING OFFICER THAT THE PROTEST OF THE DOTHAN MANUFACTURING COMPANY BE DENIED.