B-154240, JUN. 1, 1964

B-154240: Jun 1, 1964

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THAT LATE BIDS TIMELY SENT BY REGISTERED MAIL AND RECEIVED BEFORE AWARD MAY BE CONSIDERED IF IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO A DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE. FIVE BIDS WERE RECEIVED PRIOR TO THE TIME SET FOR BID OPENING ON APRIL 10. THERE WAS RECEIVED IN THE FHA MAILROOM AT 6:50 A.M. CARRYING A NOTATION THAT BIDS WERE TO BE OPENED 11:00 A.M. YOU NOTIFIED THE BIDDER THAT SINCE HIS BID WAS RECEIVED AFTER THE TIME SET FOR BID OPENING. THE BIDDER ADVISED YOUR OFFICE BY TELEPHONE THAT HE HAD DIRECTED THE ALAMOGORDO POST OFFICE TO TRANSMIT HIS BID BY AIRMAIL AND THAT HAD SUCH SERVICE BEEN USED THE BID WOULD HAVE ARRIVED AT THE BID OPENING OFFICE PRIOR TO THE TIME SET FOR BID OPENING.

B-154240, JUN. 1, 1964

TO MR. OSBORNE KOERNER:

YOUR LETTER OF MAY 18, 1964, REQUESTS OUR DECISION WHETHER IN MAKING AN AWARD UNDER INVITATION FOR BIDS NO. 6798, ISSUED MARCH 27, 1964, THE LATE MAILED BID OF MR. LEROY HIGHTOWER OF ALAMOGORDO, NEW MEXICO, SHOULD BE OPENED AND CONSIDERED OR SHOULD BE ELIMINATED FROM CONSIDERATION.

THE INVITATION, WHICH SOLICITED BIDS FOR LAWN-MAINTENANCE AND SECURITY SERVICES AT THIRTY-SIX FEDERAL HOUSING ADMINISTRATION (FHA) PROPERTIES IN ROSWELL, NEW MEXICO, STATED THAT BIDS WOULD BE OPENED AT 11:00 A.M., EASTERN STANDARD TIME, APRIL 10, 1964, AT THE FHA PROCUREMENT AND PROPERTY SECTION OFFICE, 1001 VERMONT AVENUE, N.W., ROOM 400, WASHINGTON, D.C.

PARAGRAPH 11 OF THE TERMS AND CONDITIONS OF THE INVITATION PROVIDES, IN PERTINENT PART, THAT LATE BIDS TIMELY SENT BY REGISTERED MAIL AND RECEIVED BEFORE AWARD MAY BE CONSIDERED IF IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO A DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE. SUBPARAGRAPH (C) PROVIDES THAT THE TIME OF MAILING OF LATE BIDS SUBMITTED BY REGISTERED MAIL SHALL BE DEEMED TO BE THE LAST MINUTE OF THE DATE SHOWN IN THE POSTMARK ON THE REGISTERED MAIL RECEIPT OR REGISTERED MAIL WRAPPER UNLESS THE BIDDER FURNISHES EVIDENCE FROM THE POST OFFICE STATION OF MAILING WHICH ESTABLISHES AN EARLIER TIME.

FIVE BIDS WERE RECEIVED PRIOR TO THE TIME SET FOR BID OPENING ON APRIL 10, A FRIDAY. ON THE FOLLOWING MONDAY, APRIL 13, 1964, THERE WAS RECEIVED IN THE FHA MAILROOM AT 6:50 A.M., EASTERN STANDARD TIME, THE BID OF MR. HIGHTOWER, WHICH HAD BEEN TRANSMITTED BY FIRST-CLASS REGISTERED MAIL. THE BID ENVELOPE, CARRYING A NOTATION THAT BIDS WERE TO BE OPENED 11:00 A.M., EST, APRIL 10, 1964, ALSO BORE POSTMARKS SHOWING THAT IT HAD BEEN DISPATCHED FROM ALAMOGORDO ON APRIL 8 AND HAD ARRIVED IN THE REGISTRY DIVISION OF THE WASHINGTON, D.C. POST OFFICE ON APRIL 10.

BY LETTER DATED APRIL 14, 1964, YOU NOTIFIED THE BIDDER THAT SINCE HIS BID WAS RECEIVED AFTER THE TIME SET FOR BID OPENING, IT COULD NOT BE CONSIDERED FOR AWARD. ON APRIL 22, 1964, THE BIDDER ADVISED YOUR OFFICE BY TELEPHONE THAT HE HAD DIRECTED THE ALAMOGORDO POST OFFICE TO TRANSMIT HIS BID BY AIRMAIL AND THAT HAD SUCH SERVICE BEEN USED THE BID WOULD HAVE ARRIVED AT THE BID OPENING OFFICE PRIOR TO THE TIME SET FOR BID OPENING.

ON APRIL 22, YOU WERE ALSO ADVISED IN A TELEGRAM BY THE ASSISTANT POSTMASTER AT ALAMOGORDO THAT THE BIDDER HAD MAILED HIS BID SHORTLY AFTER 9:00 A.M. ON APRIL 8 WITH INSTRUCTIONS FOR TRANSMISSION BY AIRMAIL BUT THAT THE CLERK WHO REGISTERED THE LETTER SENT IT BY ORDINARY MAIL. THE RECORD INDICATES THAT YOU THEREAFTER TELEPHONED THE WASHINGTON, D.C. POST OFFICE AND WERE ADVISED THAT A BID SENT AS ORDINARY FIRST-CLASS MAIL FROM ALAMOGORDO AT 9:15 A.M. ON APRIL 8 COULD NOT HAVE ARRIVED IN THE WASHINGTON POST OFFICE UNTIL 4:15 P.M., APRIL 10, WHICH WAS SUBSEQUENT TO THE TIME SET FOR BID OPENING. THIS INFORMATION WAS CONFIRMED IN A LETTER ADDRESSED TO YOU ON APRIL 24 BY THE POSTMASTER AT THE WASHINGTON, D.C. POST OFFICE.

THE BIDDER HAS FURNISHED TWO LETTERS ADDRESSED TO HIM BY THE ASSISTANT POSTMASTER AT ALAMOGORDO. ONE LETTER, DATED APRIL 22, CONTAINS THE SAME INFORMATION REGARDING THE MAILING OF THE BID AS IS CONTAINED IN THE TELEGRAM OF THE SAME DATE TO YOU. THE OTHER LETTER, DATED APRIL 30, STATES THAT AIRMAIL DEPOSITED IN THE ALAMOGORDO POST OFFICE BEFORE NOON ON APRIL 8 SHOULD HAVE BEEN IN WASHINGTON, D.C.,BY APRIL 9.

THE BIDDER HAS ALSO FURNISHED A COPY OF HIS ALLEGED PENCILLED INSTRUCTIONS TO THE ALAMOGORDO POST OFFICE DIRECTING THE USE OF REGISTERED AIRMAIL.

ALTHOUGH THE BID ENVELOPE CARRIES NO NOTATION BY THE ALAMOGORDO POST OFFICE AS TO THE HOUR OF MAILING, THE STATEMENT OF THE ASSISTANT POSTMASTER AT THAT POST OFFICE, IN HIS LETTER OF APRIL 22 TO THE BIDDER, REGARDING THE MAILING OF THE BID IS ACCEPTABLE UNDER THE INVITATION PROVISIONS AND THE APPLICABLE FEDERAL PROCUREMENT REGULATIONS TO ESTABLISH THE TIME OF MAILING. ACCORDINGLY, THE BID SHOULD BE REGARDED AS HAVING BEEN MAILED SHORTLY AFTER 9:00 A.M. ON APRIL 8. REGARDED AS HAVING BEEN MAILED SHORTLY AFTER 9:00 A.M. ON APRIL 8.

AS TO WHETHER THE BIDDER ENDEAVORED TO HAVE THE BID SENT BY AIRMAIL, THE COPY OF THE PURPORTED PENCILLED INSTRUCTIONS TO THE POST OFFICE, STANDING ALONE, IS NOT SUFFICIENT TO ESTABLISH SUCH FACT. HOWEVER, THE STATEMENT OF THE ASSISTANT POSTMASTER AT THE ALAMOGORDO POST OFFICE, IN BOTH HIS TELEGRAM OF APRIL 22 TO YOU AND IN HIS LETTER OF THE SAME DATE TO THE BIDDER, THAT THE BID LETTER WAS MAILED WITH INSTRUCTIONS FOR SENDING BY AIRMAIL, BUT THE POSTAL CLERK WHO REGISTERED THE LETTER SENT IT BY ORDINARY MAIL, MUST BE GIVEN CREDENCE IN THE ABSENCE OF EVIDENCE TO THE CONTRARY. ACCORDINGLY, IT APPEARS THAT THE BIDDER INTENDED TO USE AIRMAIL AND GAVE THE POST OFFICE INSTRUCTIONS TO THAT EFFECT AND THAT USE OF ONLY FIRST-CLASS MAIL WAS OCCASIONED BY AN ERROR ON THE PART OF THE POST OFFICE WHICH WAS BEYOND THE CONTROL OF THE BIDDER.

IN VIEW OF THE FOREGOING, THE FAILURE OF THE ALAMOGORDO POST OFFICE TO TRANSMIT THE BID BY AIRMAIL, WHICH WOULD HAVE EFFECTED DELIVERY OF THE BID AT THE BID OPENING OFFICE PRIOR TO THE TIME SET FOR BID OPENING, MUST BE REGARDED AS A DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE. THEREFORE, THE BID, WHICH WAS SENT BY REGISTERED MAIL, IS PROPERLY FOR CONSIDERATION FOR AWARD UNDER THE TERMS OF THE INVITATION AND THE REGULATIONS AS A TIMELY MAILED LATE BID.