B-156101, MAR. 25, 1965

B-156101, MAR. 25, 1965

TO HERCULES POWDER COMPANY, INC.:

YOUR LETTER OF FEBRUARY 5, 1965, PROTESTS AWARD OF A CONTRACT TO ANY BIDDER OTHER THAN YOU UNDER INVITATION FOR BIDS NO. 197-175-65, ISSUED NOVEMBER 10, 1964, BY THE UNITED STATES NAVAL ORDNANCE PLANT, LOUISVILLE, KENTUCKY.

THE IFB, WHICH SOLICITED BIDS TO FURNISH EXPLOSIVE DRIVERS, STIPULATED THAT BIDS WOULD BE OPENED AT 1:30 P.M., EASTERN STANDARD TIME, ON DECEMBER 2, 1964. PARAGRAPH 50 OF THE ADDITIONAL GENERAL PROVISIONS (NAVSANDA FORM 111) OF THE IFB READS AS FOLLOWS:

"50. LATE BIDS AND MODIFICATIONS OR WITHDRAWALS (AUG. 1963)

PARAGRAPH 4 OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS ON THE BACK OF STANDARD FORM 30 (OCTOBER 1957 EDITION), IF INCORPORATED HEREIN, IS HEREBY DELETED AND SUPERSEDED BY THE FOLLOWING:

"LATE BIDS AND MODIFICATIONS OR WITHDRAWALS (AUG. 1963)

(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:

(I) THEY ARE RECEIVED BEFORE AWARD IS MADE; AND EITHER

(II) THEY ARE SENT BY REGISTERED MAIL, OR BY CERTIFIED MAIL FOR WHICH AN OFFICIAL DATED POST OFFICE STAMP (POSTMARK) ON THE ORIGINAL RECEIPT FOR CERTIFIED MAIL HAS BEEN OBTAINED, OR BY TELEGRAPH IF AUTHORIZED; AND IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO DELAY IN THE MAILS, OR DELAY BY THE TELEGRAPH COMPANY, FOR WHICH THE BIDDER WAS NOT RESPONSIBLE; OR

(III) IF SUBMITTED BY MAIL (OR BY TELEGRAM IF AUTHORIZED), IT IS DETERMINED BY THE GOVERNMENT 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 OR AN APPROPRIATE DATE OR TIME STAMP (IF ANY) OF SUCH INSTALLATION, OR OF OTHER DOCUMENTARY EVIDENCE OF RECEIPT AT SUCH INSTALLATION (IF READILY AVAILABLE) WITHIN THE CONTROL OF SUCH INSTALLATION OR OF THE POST OFFICE SERVING IT.

HOWEVER, A MODIFICATION WHICH MAKES THE TERMS OF THE OTHERWISE SUCCESSFUL BID MORE FAVORABLE TO THE GOVERNMENT WILL BE CONSIDERED AT ANY TIME IT IS RECEIVED AND MAY THEREAFTER BE ACCEPTED.

"/B) BIDDERS USING CERTIFIED MAIL ARE CAUTIONED TO OBTAIN A LEGIBLY POSTMARKED, DATED RECEIPT FOR CERTIFIED MAIL AND RETAIN IT AGAINST THE CHANCE THAT THE POSTMARK THEREON WILL BE REQUIRED AS EVIDENCE THAT A LATE BID WAS TIMELY MAILED. IF THE POSTMARK ON SUCH RECEIPT, OR ON THE REGISTERED MAIL WRAPPER, SHOWS THE HOUR OF MAILING AS WELL AS THE DATE, THE TIME OF MAILING SHALL BE ESTABLISHED ACCORDINGLY; IF IT SHOWS THE DATE BUT NOT THE HOUR, THE TIME OF MAILING SHALL BE DEEMED TO BE THE LAST MINUTE OF THE DATE SHOWN; UNLESS THE BIDDER FURNISHES EVIDENCE FROM THE POST OFFICE OF MAILING WHICH, (I) IN THE CASE OF REGISTERED MAIL, ESTABLISHES AN EARLIER TIME; OR (II) IN THE CASE OF CERTIFIED MAIL, WHERE THE RECEIPT FOR CERTIFIED MAIL IDENTIFIES THE POST OFFICE STATION OF MAILING, ESTABLISHES THAT THE BUSINESS DAY OF THAT STATION ENDED AT AN EARLIER TIME, IN WHICH CASE, THE TIME OF MAILING SHALL BE DEEMED TO BE THE LAST MINUTE OF THE BUSINESS DAY OF THAT STATION. IF ANY SUCH RECEIPT FOR CERTIFIED MAIL DOES NOT SHOW THE DATE, THE BID SHALL NOT BE CONSIDERED.'

UPON OPENING OF THE BIDS AT THE SCHEDULED TIME, YOUR BID OF $29.66 PER UNIT WAS LOW. SUBSEQUENTLY, ON THE SAME DAY, THERE WERE RECEIVED BY THE CONTRACTING OFFICER THREE LATE MAILED BIDS AS FOLLOWS:

ARLIND COMPANY

FAIRFIELD, NEW JERSEY $21.37 PER UNIT

(P.O. BOX 842, W. CALDWELL, N.J.)

MINE SAFETY APPLIANCE CO.

PITTSBURGH, PENNSYLVANIA 25.26 PER UNIT

UNIDYNAMICS, PHOENIX DIVISION

UNIVERSAL MATCH CORPORATION

GOODYEAR, ARIZONA 30.58 PER UNIT

SINCE YOUR PROTEST IS CONCERNED WITH ONLY THE TWO LOWER BIDS, THE UNIDYNAMICS BID WILL NOT BE DISCUSSED.

BOTH THE ARLIND AND MINE SAFETY BIDS BORE POSTMARKS INDICATING THAT THEY HAD BEEN MAILED ON DECEMBER 1, 1964, VIA AIRMAIL SPECIAL DELIVERY, AND ADDITIONAL POSTMARKS INDICATING THAT THEY HAD BEEN RECEIVED AT THE LOUISVILLE, KENTUCKY, POST OFFICE ON DECEMBER 2. IN ADDITION, EACH BID ENVELOPE REFLECTED ON ITS FACE THE DATE AND TIME SCHEDULED FOR BID OPENING. ARLIND HAD USED REGISTERED MAIL, AND MINE SAFETY HAD USED CERTIFIED MAIL.

PURSUANT TO THE TERMS OF THE IFB QUOTED ABOVE, WHICH ARE BASED ON ARMED SERVICES PROCUREMENT REGULATION 2-303, THE CONTRACTING OFFICER COMMUNICATED WITH THE BIDDERS PRIOR TO OPENING THEIR BIDS TO OBTAIN THE NECESSARY EVIDENCE REGARDING TIMELY MAILING. ARLIND FURNISHED A REGISTERED MAIL RECEIPT POSTMARKED DECEMBER 1, 1964, FROM THE WEST CALDWELL BRANCH OF THE CALDWELL, NEW JERSEY, POST OFFICE, TOGETHER WITH A STATEMENT FROM THE ASSISTANT SUPERINTENDENT OF THAT POST OFFICE INDICATING THAT THE ARTICLE HAD BEEN MAILED THERE BEFORE 5:00 P.M. ON DECEMBER 1. THE POSTMASTER AT LOUISVILLE, KENTUCKY, FURNISHED A STATEMENT TO THE CONTRACTING OFFICER THAT THE ARLIND BID SHOULD HAVE BEEN DELIVERED TO THE BID OPENING OFFICE PRIOR TO THE 1:30 P.M. BID OPENING ON DECEMBER 2.

MINE SAFETY FURNISHED A PHOTOSTATIC COPY OF A CERTIFIED MAIL RECEIPT BEARING A DECEMBER 1, 1964, POSTMARK FROM PITTSBURGH, PENNSYLVANIA, BUT NO TIME OF MAILING. ALSO, MINE SAFETY FURNISHED A STATEMENT FROM THE POSTMASTER AT PITTSBURGH THAT THE ARTICLE AHD BEEN RECEIVED AT THE MAIN OFFICE OF THE PITTSBURGH POST OFFICE AT 4:00 P.M., DECEMBER 1, AND SHOULD HAVE BEEN DISPATCHED BY AIR FROM PITTSBURGH AT 11:05 P.M., DECEMBER 1, THUS INSURING ARRIVAL AT THE LOUISVILLE POST OFFICE IN TIME TO BE DELIVERED TO THE BID OPENING OFFICE BEFORE THE SCHEDULED BID OPENING TIME. THE POSTMASTER AT LOUISVILLE HAS FURNISHED A STATEMENT TO THE CONTRACTING OFFICER THAT BASED ON THE :00 P.M., DECEMBER 1, MAILING TIME AT PITTSBURGH THE BID WOULD HAVE REACHED LOUISVILLE BY 4:35 A.M., DECEMBER 2, IN TIME TO EFFECT DELIVERY TO THE CONTRACTING OFFICER BY THE BID OPENING TIME.

IT IS YOUR POSITION THAT NOTWITHSTANDING THE STATEMENTS OF THE POST OFFICE OFFICIALS THE BIDS COULD NOT HAVE BEEN EXPECTED TO REACH THE BID OPENING OFFICE IN TIME UNDER "NORMAL" CONDITIONS OF HANDLING, AS DISTINGUISHED FROM PERFECT HANDLING. ACCORDINGLY, YOU URGE THAT BOTH BIDS BE DISREGARDED IN MAKING THE AWARD UNDER THE IFB.

ASPR 2-303.3, WHICH GOVERNS THE CONSIDERATION OF LATE MAILED BIDS, IS A VALID REGULATION ISSUED IN IMPLEMENTATION OF APPLICABLE PROCUREMENT STATUTES. AS SUCH IT IS BINDING UPON OUR OFFICE, AS WELL AS UPON THE CONTRACTING AGENCY. IT READS AS FOLLOWS:

"2-303.3 MAILED BIDS

"/A) REGISTERED MAIL. THE TIME OF MAILING OF A LATE BID MAILED BY REGISTERED MAIL MAY BE DETERMINED BY THE DATE IN THE POSTMARK ON THE REGISTERED MAIL RECEIPT OR REGISTERED MAIL WRAPPER. THE TIME OF MAILING SHALL BE DEEMED TO BE THE LAST MINUTE OF THE DATE SHOWN IN SUCH POSTMARK UNLESS THE BIDDER FURNISHES EVIDENCE FROM THE POST OFFICE STATION OF MAILING WHICH ESTABLISHES AN EARLIER TIME. SUCH EVIDENCE, IF APPROPRIATELY VERIFIED IN WRITING BY THE POST OFFICE STATION OF MAILING, MAY CONSIST OF AN ENTRY IN INK ON THE REGISTERED MAIL RECEIPT SHOWING THE TIME OF MAILING AND THE INITIALS OF THE POSTAL EMPLOYEE RECEIVING THE ITEM AND MAKING THE ENTRY. IF THE POSTMARK DOES NOT SHOW A DATE, THE BID SHALL BE DEEMED TO HAVE BEEN MAILED TOO LATE UNLESS THE BIDDER FURNISHES EVIDENCE FROM THE POST OFFICE STATION OF MAILING WHICH ESTABLISHES TIMELY MAILING.

"/B) CERTIFIED MAIL. THE TIME OF MAILING OF A LATE BID MAILED BY CERTIFIED MAIL FOR WHICH A POSTMARKED RECEIPT FOR CERTIFIED MAIL WAS OBTAINED SHALL BE DEEMED TO BE THE LAST MINUTE OF THE DATE SHOWN IN THE POSTMARK ON SUCH RECEIPT, EXCEPT WHERE (I) THE RECEIPT FOR CERTIFIED MAIL IDENTIFIES THE POST OFFICE STATION OF MAILING AND THE BIDDER FURNISHES EVIDENCE FROM SUCH STATION THAT THE BUSINESS DAY OF THAT STATION ENDED AT AN EARLIER TIME, IN WHICH CASE THE TIME OF MAILING SHALL BE DEEMED TO BE THE LAST MINUTE OF THE BUSINESS DAY OF THAT STATION; OR (II) AN ENTRY IN INK ON THE RECEIPT FOR CERTIFIED MAIL, SHOWING THE TIME OF MAILING AND THE INITIALS OF THE POSTAL EMPLOYEE RECEIVING THE ITEM AND MAKING THE ENTRY, IS APPROPRIATELY VERIFIED IN WRITING BY THE POST OFFICE STATION OF MAILING, IN WHICH CASE THE TIME OF MAILING SHALL BE THE TIME SHOWN IN THE ENTRY. IF THE POSTMARK DOES NOT SHOW A DATE, THE BID SHALL BE DEEMED TO HAVE BEEN MAILED TOO LATE.

"/C) DELIVERY TIME. INFORMATION CONCERNING THE NORMAL TIME FOR MAIL DELIVERY SHALL BE OBTAINED BY THE PURCHASING ACTIVITY FROM THE POSTMASTER, SUPERINTENDENT OF MAILS, OR A DULY AUTHORIZED REPRESENTATIVE FOR THAT PURPOSE, OF THE POST OFFICE SERVING THAT ACTIVITY. WHEN TIME PERMITS, SUCH INFORMATION SHALL BE OBTAINED IN WRITING.'

UNDER THE TERMS OF THE IFB AND ASPR 2-303.3, THE ARLIND AND MINE SAFETY BIDS HAVING BEEN TRANSMITTED BY REGISTERED MAIL AND BY CERTIFIED MAIL (FOR WHICH A RECEIPT WAS OBTAINED), RESPECTIVELY, ARE FOR CONSIDERATION PROVIDED THAT THE APPLICABLE EVIDENTIARY REQUIREMENTS AS TO TIMELY MAILING AND NORMAL TIME FOR DELIVERY HAVE BEEN MET.

WHILE ARLIND'S BID DOES NOT REFLECT THE TIME OF MAILING, THE EVIDENCE FURNISHED BY ARLIND THAT THE BID WAS MAILED PRIOR TO 5:00 P.M., DECEMBER 1, MUST BE ACCEPTED UNDER ASPR 2-303.3 (A) TO ESTABLISH THE TIME OF MAILING. SIMILARLY, THE STATEMENT OF THE LOUISVILLE POSTMASTER THAT A BID SO MAILED SHOULD HAVE BEEN DELIVERED TO THE BID OFFICE PRIOR TO THE SCHEDULED BID OPENING TIME OF 1:30 P.M., DECEMBER 2, MEETS THE REQUIREMENTS OF ASPR 2-303.3 (C). ACCORDINGLY, THE ARLIND BID MUST BE REGARDED AS A TIMELY MAILED BID, THE LATE RECEIPT OF WHICH WAS DUE TO NO FAULT OF ARLIND. THE ARLIND BID, THEREFORE, MUST BE CONSIDERED IN MAKING THE AWARD UNDER THE IFB.

AS FOR THE MINE SAFETY BID, THE CERTIFIED MAIL RECEIPT DOES NOT SHOW THE HOUR OF MAILING. THEREFORE, UNDER ASPR 2-303.3 (B), THE TIME OF MAILING MUST BE DEEMED TO BE THE LAST MINUTE OF THE DATE OF MAILING, OR 11:59 P.M., DECEMBER 1, IN THE ABSENCE OF A TIME NOTATION ON THE RECEIPT OR EVIDENCE OF AN EARLIER CLOSING HOUR FOR THE PITTSBURGH MAIN POST OFFICE. WHILE THE POSTMASTER AT PITTSBURGH HAS FURNISHED A STATEMENT THAT THE BID WAS RECEIVED AT THAT POST OFFICE AT ,APPROXIMATELY" 4:00 P.M., THE BASIS FOR THAT STATEMENT IS NOT FURNISHED, AND THE BID THEREFORE SHOULD NOT BE CONSIDERED UNLESS THE TIME OF MAILING IS ESTABLISHED BY SUCH EVIDENCE AS IS REQUIRED BY THE CITED REGULATION. WE ARE ADVISING THE DEPARTMENT OF THE NAVY TO THAT EFFECT.