B-151751, OCT. 14, 1963

B-151751, OCT. 14, 1963

TO LING ELECTRONICS DIVISION, LING-TEMCO-VOUGHT, INCORPORATED:

BY LETTER OF JUNE 10, 1963, WITH ENCLOSURES, YOU PROTEST THE AWARD MADE TO MB ELECTRONICS, A DIVISION OF TEXTRON ELECTRONICS, INC., UNDER INVITATION FOR BIDS NO. SC-31-A, ISSUED BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, GODDARD SPACE FLIGHT CENTER, GREENBELT, MARYLAND.

THE INVITATION CALLED FOR TWO VIBRATION EXCITER SYSTEMS, AND THE TIME OF BID OPENING WAS SET AT 10:00 A.M., (E.S.T.), ON MAY 28, 1963. THE ADDRESS OF THE ISSUING OFFICE SHOWN ON THE FACE OF THE INVITATION WAS 4811 LAWRENCE STREET, HYATTSVILLE, MARYLAND. ON PAGE 2 OF THE INVITATION BIDDERS WERE INSTRUCTED TO ADDRESS BID ENVELOPES TO "4809 LAWRENCE STREET, HYATTSVILLE, MARYLAND.' IT IS REPORTED, HOWEVER, THAT PROSPECTIVE BIDDERS WERE PROVIDED WITH LABELS TO BE AFFIXED TO THE BID ENVELOPES, WHICH SHOWED THE ADDRESS OF THE BID OFFICE TO BE "GREENBELT, MARYLAND," (THE GREENBELT ADDRESS IS REPORTED TO BE THE NEW, CORRECT ADDRESS.) AT 10:00 A.M., MAY 28, 1963, THE TIME SCHEDULED FOR BID OPENING, TWO ENVELOPES WERE IN THE BID ROOM AT 4811 LAWRENCE STREET:ONE FROM LING ELECTRONICS DIVISION AND ONE FROM MB ELECTRONICS. IT APPEARS THAT A REPRESENTATIVE OF MB ELECTRONICS HAD BEEN IN THE BID ROOM EARLIER AND HAD LEFT THE MB ENVELOPE. AT THAT TIME HE HAD EXPLAINED TO MISS R. RUSSELL, A BID OFFICER, THAT THE ENVELOPE ONLY CONTAINED DATA TO ACCOMPANY THE BID, AND THAT THE MB BID HAD BEEN MAILED ON MAY 24, 1963 FROM NEW HAVEN, CONNECTICUT. THE MB REPRESENTATIVE THEN STATED THAT HE WOULD BE BACK BY 3:00 P.M. TO ATTEND THE BID OPENING. (IT APPEARS THAT THE REPRESENTATIVE HAD BEEN UNDER THE MISTAKEN BELIEF THAT THE OPENING HAD BEEN SET FOR 3:00 P.M.; AND THAT AT THAT TIME, MISS RUSSELL HAD NOT KNOWN THE TIME OF BID OPENING.)

A FEW MINUTES PRIOR TO 10:00 A.M., MR. A. G. BOLTON, CONTRACT SPECIALIST, ARRIVED TO CONDUCT THE BID OPENING. TWO REPRESENTATIVES FROM YOUR FIRM WERE PRESENT. AT 10:00 A.M. THE TWO BID ENVELOPES WERE OPENED, AND YOUR BID WAS NOTED. THE MB ENVELOPE, AS THE MB REPRESENTATIVE HAD PREVIOUSLY INDICATED, MERELY CONTAINED BID DATA, NOT THE BID ITSELF. SINCE MB HAD INDICATED THAT ITS BID HAD BEEN MAILED ON MAY 24TH, MR. BOLTON CALLED THE MAIL ROOM AT LAWRENCE STREET TO INQUIRE WHETHER THE MB BID ENVELOPE HAD BEEN RECEIVED. THE MAIL CLERK (MR. T. CUTICCHIA) RESPONDED IN THE NEGATIVE, BUT MR. BOLTON WENT TO THE MAIL ROOM TO CHECK THE MATTER HIMSELF.

MR. BOLTON REPORTS THAT UPON CHECKING THE MAIL IN THE MAIL ROOM HE SAW A BID ENVELOPE FROM MB WHICH HAD BEEN OPENED BY THE MAIL CLERK, AND THAT THE ENVELOPE CONTAINED THE MB BID. MR. BOLTON STATES THAT IN ACCORDANCE WITH HIS REQUEST, THE MAIL CLERK STAPLED THE ENVELOPE SHUT AND WROTE ACROSS THE FACE OF THE ENVELOPE "SC-31-A OPENED FOR ID T. CUTICCHIA; " AND THAT HE THEN TOOK THE ENVELOPE AND RETURNED IT TO THE BID ROOM. IT IS REPORTED THAT MR. BOLTON RETURNED TO THE BID ROOM WITH THE MB BID AT APPROXIMATELY 10:15 A.M.MISS RUSSELL THEN OPENED THE MB BID.

THE MB ELECTRONICS BID LABEL STATES THE FOLLOWING PRINTED ADDRESS: "NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, GODDARD SPACE FLIGHT CENTER, 4811 LAWRENCE STREET, HYATTSVILLE, MARYLAND, ATTN: MR. ALAN BOLTON, BUYER.' HOWEVER, THE 4811 LAWRENCE STREET AND HYATTSVILLE, MARYLAND PORTION OF THE ADDRESS IS CROSSED OUT AND THE PENCILLED NOTATIONS "GREENBELT, MD.' AND "242.1" ARE INSERTED ON THE LABEL. THE BID ENVELOPE BEARS A METERED TIME STAMP FROM NEW HAVEN, CONNECTICUT, DATED MAY 24, 1963. IN ADDITION, THE LAST PAGE OF THE COVER LETTER TO THE MB BID BEARS THE STAMPED NOTATION "RECEIVED 1963 MAY 28 A.M. 10:07 FACILITIES SUPPORT BRANCH P AND S DIVISION.'

THE CONTRACTING OFFICER, AFTER INVESTIGATING THE MATTER, REPORTS THAT THE POSTMAN AT THE HYATTSVILLE POST OFFICE (MR. PAUL MORRIS) REMEMBERS DELIVERING THE MB BID ENVELOPE INITIALLY--- AND ERRONEOUSLY- - TO THE GODDARD SPACE FLIGHT CENTER JACKSON STREET MAIL ROOM, WHICH IS LOCATED ABOUT TWO BLOCKS AWAY FROM THE LAWRENCE STREET MAIL ROOM, APPARENTLY ON MAY 27, 1963. HE FURTHER REPORTS THAT THE POSTMAN WAS THEN TOLD THAT THE ENVELOPE SHOULD BE FORWARDED TO THE GREENBELT MAIL ROOM (THE CONTRACTING OFFICER STATES THAT THE JACKSON MAIL ROOM SHOULD HAVE ACCEPTED THE ENVELOPE); WHEREUPON THE POSTMAN CROSSED OUT THE PRINTED STREET ADDRESS AND WROTE "GREENBELT, MD., " AND THE BID ENVELOPE WAS THEN RECEIVED AT GREENBELT, APPARENTLY ON MAY 28. MR. D. MOORE OF THE GREENBELT MAIL ROOM (GSFC CENTRAL MAIL ROOM) STATES THAT HE WROTE "242.1" ON THE ENVELOPE TO INDICATE, BY ORGANIZATIONAL CODE, THAT THE ENVELOPE SHOULD BE DELIVERED TO THE LAWRENCE STREET MAIL ROOM FOR MR. ALAN BOLTON; AND THAT THE ENVELOPE WAS THEN DELIVERED, UNOPENED, ON THE MORNING DELIVERY OF MAY 28 TO LAWRENCE STREET, WHERE MR. CUTICCHIA OPENED THE BID ENVELOPE. IN SUMMARY, THE CONTRACTING OFFICER STATES THAT THE INVITATION INCORRECTLY STATED AN ADDRESS NO LONGER USED FOR MAILING PURPOSES, THE POST OFFICE INCORRECTLY DELIVERED THE ENVELOPE TO THE GSFC JACKSON STREET MAIL ROOM ON MAY 27, THE JACKSON STREET MAIL CLERK IMPROPERLY REFUSED TO ACCEPT THE ENVELOPE, AND THE LAWRENCE STREET MAIL CLERK, WHO WAS A SUBSTITUTE CLERK FOR THE DAY AND UNFAMILIAR WITH THE REGULATIONS GOVERNING THE OPENING OF UNIDENTIFIED MAIL, THEN OPENED THE BID.

AWARD WAS MADE TO MB ELECTRONICS ON JUNE 4, 1963.

YOU STATE THAT WHEN THE MB ENVELOPE AND BID WERE FIRST PRESENTED IN THE BID ROOM BY MR. BOLTON, THE ENVELOPE BORE ONLY THE METERED MAIL STAMP OF MB AND A NOTATION ON THE FRONT STATING IT HAD BEEN OPENED FOR IDENTIFICATION; BUT NEITHER THE ENVELOPE NOR THE MB BID BORE ANY TIME OR DATE OF OPENING. YOU MAINTAIN THAT AT THAT TIME, THE ENVELOPE DID NOT BEAR THE PENCILLED NOTATIONS ,GREENBELT, MD.' AND "242.1," AND THE BID DID NOT CONTAIN THE 10:07 A.M. TIME STAMP.

WE HAVE RECEIVED STATEMENTS FROM MR. CUTICCHIA AND MR. D. D. MOORE WITH REGARD TO THIS MATTER. MR. CUTICCHIA STATES AS FOLLOWS:

"ON THE DAY IN QUESTION, I WAS ACTING FOR THE REGULAR MAIL CLERK, MR. ROY MITCHUM, WHO WAS ABSENT. AS ACTING MAIL CLERK, IT WAS MY RESPONSIBILITY TO OPEN AND SORT INCOMING MAIL. WHILE OPENING THE MAIL, I DISCOVERED THAT A BID (IFB SC 37A) WAS ENCLOSED IN AN ENVELOPE THAT WAS NOT MARKED TO INDICATE THAT IT CONTAINED A BID. I IMMEDIATELY REPLACED THE BID IN THE ENVELOPE, STAPLED THE ENVELOPE AND ANNOTATED IT TO THE EFFECT THAT I HAD OPENED IT IN ERROR AND SIGNED MY NAME THEREON. I THEN PLACED THE ENVELOPE IN THE BID BOX. LATER THE SAME DAY, MR. ALAN BOLTON OPENED THE BID BOX AND THEN ASKED ME IF I HAD OPENED THE ENVELOPE. I ANSWERED IN THE AFFIRMATIVE. IT SHOULD NOTEAT THIS POINT THAT THE ENVELOPE CONTAINED THE BID SUBMITTED BY MB ELECTRONICS AND WAS OPENED AS A RESULT OF FAILURE ON THE PART OF MB ELECTRONICS TO AFFIX THE RETURN MAIL STICKER TO THE ENVELOPE IDENTIFYING THE ENVELOPE AS AN IFB.'

MR. D. D. MOORE STATES AS FOLLOWS:

"THE OUTSIDE OF THE ENVELOPE CONTAINING THIS BID DID NOT IN ANY WAY INDICATE THAT THIS WAS A COMMUNICATION FROM A COMPANY SUBMITTING A BID. FOR THIS REASON, THE ENVELOPE WAS NOT TIME STAMPED IN THE MAIL ROOM, AS IS CUSTOMARILY DONE IN THE CASE OF BIDS.

"THE LETTER WAS DELIVERED BY THE GSFC MAIL ROOM TO THE FACILITIES SUPPORT BRANCH, LOCATED AT LAWRENCE STREET, AND WAS TIME STAMPED BY THE MAIL CLERK THERE AT 10:07 A.M. ON MAY 28, 1963.

"ACCORDING TO THE MAIL SCHEDULE IN EFFECT ON MAY 28, THE ENVELOPE IN QUESTION WOULD HAVE HAD TO HAVE BEEN DELIVERED ON THE 8:05 MAIL TRIP FROM GODDARD TO LAWRENCE STREET IN ORDER TO HAVE BEEN PROCESSED AND TIME STAMPED BY 10:07. SINCE WE RECEIVE MAIL ONLY TWICE DAILY FROM THE GREENBELT POST OFFICE--- AT 8:15 A.M. AND 4:15 P.M.--- I WOULD SAY THAT THE BID IN QUESTION WAS RECEIVED IN THE MAIL ROOM ON MAY 27, 1963, AT APPROXIMATELY 4:15 P.M. THE "CODE 242.1" WAS WRITTEN ON THE ENVELOPE BY THIS OFFICE PRIOR TO FORWARDING TO MR. BOLTON'S ATTENTION AT LAWRENCE STREET.'

WITH REGARD TO LATE BIDS, PAR. 3 OF THE TERMS AND CONDITIONS OF THE INVITATION PROVIDES AS FOLLOWS:

"LATE BIDS AND MODIFICATIONS OR WITHDRAWALS (FPR CIRC. 28, OCT. 1962).--

(A) BIDS AND MODIFICATIONS OR WITHDRAWALS THEREOF RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS AFTER THE EXACT TIME SET FOR OPENING OF BIDS WILL NOT BE CONSIDERED UNLESS: (1) THEY ARE RECEIVED BEFORE AWARD IS MADE; AND EITHER (2) THEY ARE SENT BY REGISTERED MAIL * * * : OR (3) IF SUBMITTED BY MAIL (OR BY TELEGRAM IF AUTHORIZED), IT IS DETERMINED THAT THE LATE RECEIPT WAS DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION: PROVIDED, THAT TIMELY, RECEIPT AT SUCH INSTALLATION IS ESTABLISHED UPON EXAMINATION OF AN APPROPRIATE DATE OR TIME STAMP (IF ANY) OF SUCH INSTALLATION, OR OF OTHER DOCUMENTARY EVIDENCE OF RECEIPT (IF READILY AVAILABLE) WITHIN THE CONTROL OF SUCH INSTALLATION OR THE POST OFFICE SERVING IT.'

IT IS TO BE NOTED THAT A LATE BID MAY BE CONSIDERED IF LATE RECEIPT IS DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AT THE INSTALLATION. BUT APART FROM ESTABLISHING MISHANDLING, IT IS NECESSARY TO ESTABLISH, EITHER BY A DATE OR TIME STAMP OR BY "OTHER DOCUMENTARY EVIDENCE OF RECEIPT,"THAT THE LATE BID WAS TIMELY RECEIVED AT THE INSTALLATION. YOU QUESTION WHETHER THE EVIDENCE IN THIS CASE ESTABLISHES TIMELY RECEIPT AT THE INSTALLATION.

WE THINK THE HARD CORE OF THE EVIDENCE ESTABLISHES THAT THE MB BID ENVELOPE WAS RECEIVED AT THE GSFC CENTRAL MAIL ROOM ON MAY 27, AND WAS FORWARDED FROM THERE TO THE FACILITIES SUPPORT BRANCH (LAWRENCE STREET) BY MR. D. D. MOORE ON MAY 27. IN THIS CONNECTION, MR. MOORE STATES THAT HE WROTE "242.1" ON THE ENVELOPE TO SIGNIFY THE INSTALLATION DESIGNATION FOR THE FACILITIES SUPPORT BRANCH, PRIOR TO FORWARDING THE ENVELOPE. THE MB BID ENVELOPE WAS ADDRESSED IN ACCORDANCE WITH THE INSTRUCTIONS IN THE INVITATION. THE FACT THAT THE INVITATION STATED AN "INCORRECT" ADDRESS INITIATED A CHAIN OF EVENTS AT THE INSTALLATION WHICH CLEARLY CONSTITUTED A MISHANDLING BY THE GOVERNMENT WITHIN THE MEANING OF THE LATE BID CLAUSE OF THE INVITATION, AND RESULTED IN THE BID'S BEING LATE.

BUT IT IS YOUR CONTENTION THAT THE MB BID WAS NOT PROPERLY FOR CONSIDERATION BECAUSE OF THE CIRCUMSTANCES OF ITS INTRODUCTION AT THE BID OPENING. YOU SAY THAT THE MB BID DID NOT CONTAIN ANY STAMP MARKING WHEN IT WAS INTRODUCED IN THE BID ROOM AND THAT THE BID ENVELOPE DID NOT CONTAIN THE PENCIL MARKINGS "GREENBELT, MD.' AND "242.1.' YOU CONTEND THAT THE ABSENCE OF ANY INSTALLATION MARKINGS ON THE BID OR THE BID ENVELOPE COUPLED WITH THE PRIOR OPENING OF THE BID ENVELOPE, SHOULD HAVE PROHIBITED THE LATE BID FROM BEING CONSIDERED.

MR. CUTICCHIA, THE MAIL CLERK, DOES NOT SPECIFICALLY STATE THAT HE STAMPED THE MB BID WHEN HE OPENED THE ENVELOPE. HOWEVER, IT IS REASONABLE TO ASSUME THAT THE MAIL CLERK DID STAMP THE BID AS INCOMING MAIL. AND MR. D. D. MOORE STATES THAT HE WROTE "242.1" ON THE BID ENVELOPE. ON THE BASIS OF THIS EVIDENCE, WE CANNOT CONCLUDE THAT THE MB BID BORE NO STAMP MARKING OF 10:07 A.M., MAY 28, OR THAT THE ENVELOPE WAS WITHOUT THE "GREENBELT, MD., 242.1" MARKING, MERELY FROM A GENERAL RECOLLECTION OF YOUR REPRESENTATIVES AT THE BID OPENING THAT NO SUCH MARKINGS WERE CONTAINED ON THE BID AND BID ENVELOPE.

WITH REGARD TO THE OPENING OF THE MB BID ENVELOPE PRIOR TO THE BID OPENING, THE PERTINENT REGULATION, NASA PR 2-401 (B) (SUBSTANTIALLY SIMILAR TO THE CITED ASPR 2-401 (B) ( PROVIDES IN PART AS FOLLOWS:

"/B) PRIOR TO BID OPENING, UNIDENTIFIED BIDS MAY BE OPENED SOLELY FOR THE PURPOSE OF IDENTIFICATION AND THEN ONLY BY A CONTRACTING OFFICER OR A REPRESENTATIVE SPECIFICALLY AUTHORIZED BY A CONTRACTING OFFICER TO OPEN BIDS. WHEN SUCH A REPRESENTATIVE IS DESIGNATED, THE CONTRACTING OFFICER SHALL NEVERTHELESS REMAIN RESPONSIBLE FOR ACTION TAKEN. IF A SEALED BID IS OPENED BY MISTAKE, THE PERSON WHO OPENS THE BID IMMEDIATELY WILL WRITE HIS SIGNATURE AND POSITION ON THE ENVELOPE AND DELIVER IT TO THE CONTRACTING OFFICER, WHO SHALL IMMEDIATELY WRITE ON THE ENVELOPE AN EXPLANATION FOR THE OPENING, THE DATE AND TIME OPENED, THE INVITATION FOR BID NUMBER, AND HIS SIGNATURE. BIDS OPENED BY MISTAKE OR FOR IDENTIFICATION PURPOSES SHALL BE RESEALED IN THE ENVELOPE AND NO INFORMATION CONTAINED THEREIN SHALL BE DISCLOSED PRIOR TO BID OPENING TIME.'

MR. CUTICCHIA RECALLS THAT HE OPENED AND RESEALED THE MB BID ENVELOPE PRIOR TO THE TIME THAT MR. BOLTON ARRIVED IN THE MAIL ROOM, WHILE MR. BOLTON STATES THAT THE MB BID ENVELOPE WAS OPEN WHEN HE NOTICED THE ENVELOPE IN THE MAIL ROOM. THE PERTINENT POINT, HOWEVER, IS THAT BOTH CUTICCHIA AND BOLTON AGREE THAT THE MB BID WAS IN THE ENVELOPE AND THAT THE ENVELOPE WAS RESEALED. WE THINK THE FACTS EVIDENCE SUBSTANTIAL COMPLIANCE WITH THE REGULATION QUOTED ABOVE.

WE CONCLUDE FROM THE RECORD THAT THE MB ELECTRONICS BID WAS PROPERLY FOR CONSIDERATION. ACCORDINGLY, YOUR PROTEST AGAINST THE AWARD IS DENIED.