B-156441, JUN. 23, 1965

B-156441: Jun 23, 1965

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TO WATERBURY LOCK AND SPECIALTY COMPANY: REFERENCE IS MADE TO YOUR LETTER OF MARCH 26. YOUR PROTEST WAS FORWARDED TO THIS OFFICE FOR CONSIDERATION BY REPRESENTATIVE ROBERT N. BIDS WERE REQUESTED ON 22. IT APPEARS THAT YOUR BID WAS MAILED AT MILFORD. ADDITIONAL STAMPINGS APPEARING ON THE BID ENVELOPE INDICATE (1) THAT IT WAS FIRST DELIVERED TO HEADQUARTERS. NO DATE OR TIME OF RECEIPT IS LEGIBLE. (2) THAT IT WAS RECEIVED IN MAIL AND RECORDS. (3) THAT IT WAS RECORDED AT THE BID OPENING OFFICE AT 8:32 A.M. IT WAS NOT CONSIDERED FOR AWARD. YOU HAVE PROTESTED THE FAILURE TO CONSIDER YOUR BID FOR THE STATED REASON THAT THE ENVELOPE CONTAINING THE BID SHOULD HAVE BEEN DELIVERED TO WARREN. YOUR LETTER STATES THAT "THERE IS A YELLOW FORM NO. 0TA162 THAT WAS PART OF THE BID WHICH STATES THAT THE DATE ON A METER IS ACCEPTABLE.'.

B-156441, JUN. 23, 1965

TO WATERBURY LOCK AND SPECIALTY COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 26, 1965, WITH ENCLOSURES, PROTESTING AWARD TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS NO. AMC 20- 113-65-1860 (T), ISSUED BY THE ARMY TANK-AUTOMOTIVE CENTER, WARREN, MICHIGAN. YOUR PROTEST WAS FORWARDED TO THIS OFFICE FOR CONSIDERATION BY REPRESENTATIVE ROBERT N. GIAIMO.

BIDS WERE REQUESTED ON 22,105 SETS OF TUMBLER TYPE PADLOCKS AND THE INVITATION REQUIRED THAT BIDS BE RECEIVED AT THE BID OPENING OFFICE OF THE PROCUREMENT AND PRODUCTION DIRECTORATE, ARMY TANK-AUTOMOTIVE CENTER, WARREN, MICHIGAN, BY 9:30 AM., ON MARCH 22, 1965. IT APPEARS THAT YOUR BID WAS MAILED AT MILFORD, CONNECTICUT, ON MARCH 18, 1965, AS EVIDENCED BY A METER STAMP CANCELLATION APPEARING ON THE ENVELOPE. ADDITIONAL STAMPINGS APPEARING ON THE BID ENVELOPE INDICATE (1) THAT IT WAS FIRST DELIVERED TO HEADQUARTERS, U.S. ARMY MOBILITY COMMAND, BUT NO DATE OR TIME OF RECEIPT IS LEGIBLE; (2) THAT IT WAS RECEIVED IN MAIL AND RECORDS, TANK- AUTOMOTIVE CENTER, AT 3:12 P.M., ON MARCH 22; AND (3) THAT IT WAS RECORDED AT THE BID OPENING OFFICE AT 8:32 A.M., ON MARCH 23. SINCE THE BID HAD NOT BEEN RECEIVED AT THE TIME OF BID OPENING, AND DID NOT APPEAR TO BE ENTITLED TO CONSIDERATION UNDER THE TERMS OF THE INVITATION, IT WAS NOT CONSIDERED FOR AWARD.

YOU HAVE PROTESTED THE FAILURE TO CONSIDER YOUR BID FOR THE STATED REASON THAT THE ENVELOPE CONTAINING THE BID SHOULD HAVE BEEN DELIVERED TO WARREN, MICHIGAN, IN AMPLE TIME FOR THE BID OPENING, IF IT HAD NOT BEEN DELAYED BY THE POST OFFICE. YOUR LETTER STATES THAT "THERE IS A YELLOW FORM NO. 0TA162 THAT WAS PART OF THE BID WHICH STATES THAT THE DATE ON A METER IS ACCEPTABLE.'

PAGE 3A OF THE INVITATION FOR BIDS CONTAINS THE FOLLOWING PROVISION:

"CAUTION TO BIDDERS--- LATE BIDS:

"SEE THE SPECIAL PROVISION ENTITLED "LATE BIDS AND MODIFICATIONS OR WITHDRAWALS" (PAGE 19 OF THIS IFB) WHICH PROVIDES THAT LATE BIDS AND MODIFICATIONS OR WITHDRAWALS THEREOF SENT THROUGH THE MAILS ORDINARILY WILL BE CONSIDERED ONLY IF TIMELY MAILED BY REGISTERED MAIL, OR BY CERTIFIED MAIL FOR WHICH A POSTMARKED RECEIPT HAS BEEN OBTAINED, AS SPECIFIED IN SUCH PROVISION.'

PARAGRAPH (D.) ON PAGE 19 OF THE INVITATION PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"D. LATE BIDS AND MODIFICATIONS OR WITHDRAWALS (JAN 1964)

"PARAGRAPH 4 ON REVERSE OF STANDARD FORM 33, OCT 1957 EDITION (PAGE 2 OF THIS IFB) IS HEREBY CHANGED TO READ:

"/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 OF 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.'

THE QUOTED PROVISIONS OF THE INVITATION ARE BASED ON SECTION 2-303 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), A STATUTORY REGULATION PROMULGATED PURSUANT TO 10 U.S.C. 2202, WHICH HAS THE FORCE AND EFFECT OF LAW. SEE PUBLIC UTILITIES COMMISSION OF CALIFORNIA V. UNITED STATES, 355 U.S. 534, 542; G. L. CHRISTIAN AND ASSOCIATES V. UNITED STATES, CT.CL. 1963, 312 F.2D 418, REARGUMENT DENIED 320 F.2D 345. SINCE THE BID WAS NOT SENT BY REGISTERED OR CERTIFIED MAIL, THE ONLY BASIS FOR CONSIDERING IT WOULD BE IF "THE LATE RECEIPT WAS DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION" AS PROVIDED IN SUBPARAGRAPH (A) (III) QUOTED ABOVE. IN THIS CONNECTION, IT SHOULD BE NOTED THAT OTA FORM 162 IS TITLED "IFB "CAUTION" CHECK LIST," AND THE PROVISION TO WHICH YOU REFER MERELY STATES THAT METERED MAIL, UNLESS IT HAS A POSTMARK, IS CONSIDERED TO HAVE BEEN MAILED AT 11:59 P.M., ON THE DAY IT IS METERED. THIS DOES NOT, HOWEVER, PLACE METERED MAIL IN THE SAME CATEGORY AS REGISTERED AND CERTIFIED MAIL, SO AS TO JUSTIFY CONSIDERATION UNDER "/III)" ABOVE AND SECTION 2-303.3 OF ASPR.

THE POSTMASTER AT MILFORD, CONNECTICUT, STATES THAT FIRST-CLASS MAIL DEPOSITED IN THE MILFORD POST OFFICE BEFORE 5:00 P.M., ON MARCH 18, 1965, IF HANDLED PROPERLY, WOULD HAVE REACHED ITS DESTINATION FOR DELIVERY ON SATURDAY, MARCH 20, 1965. HOWEVER, THE ARMY REPORTS THAT MAIL IS NOT PICKED UP OR DELIVERED FROM THE POST OFFICE ON SATURDAY OR SUNDAY. THE BID WOULD THEREFORE NOT HAVE BEEN DELIVERED, EVEN IF PROPERLY HANDLED, UNTIL MONDAY, MARCH 22, AND THE QUESTION FOR CONSIDERATION IS THE MANNER OF HANDLING BY THE POST OFFICE AND THE ARMY ON THAT DATE. IN THIS CONNECTION, THE REPORT FROM THE DEPARTMENT OF THE ARMY CONTAINS THE FOLLOWING STATEMENT:

"2. EVIDENCE INDICATES THAT THE BID WAS RECEIVED AT THE WARREN POST OFFICE SATURDAY, 20 MARCH 1965. SINCE THE BID WAS ORIGINALLY SENT TO THE DETROIT ARSENAL ON MARCH 22ND, THE ONLY CONCLUSION IS THAT THE BID ENVELOPE WAS MISTAKINGLY (SIC) PLACED IN A MAIL BAG INTENDED FOR THE ARSENAL RATHER THAN THE MISSILE PLANT AS ADDRESSED. THIS MUST HAVE OCCURRED WITHIN THE WARREN POST OFFICE OPERATION, AS NO MAIL SORTING IS DONE BY THE ATAC EMPLOYEES. DETROIT ARSENAL MAIL IS DELIVERED DIRECTLY BY THE WARREN POST OFFICE. ALTHOUGH THE ARSENAL TIME STAMP ON THE ENVELOPE IS NOT LEGIBLE, AN EMPLOYEE OF THE ARSENAL MAIL ROOM STATED THAT THE MAIL WAS DELIVERED ABOUT 12 NOON ON MARCH 22ND, AS THE REGULAR DELIVERY MAN WAS ON VACATION. ASSUMING THE BID ENVELOPE WAS PLACED IN THE PROPER MAIL BAG IT WOULD HAVE BEEN DELIVERED IN TIME FOR THE BID OPENING AS THE MISSILE PLANT PICKED UP MAIL AT THE WARREN POST OFFICE AT 7:30 AM. AS A RESULT OF THESE DELAYS THE BID WAS RECEIVED AT THE MISSILE PLANT AT 3:12 PM AND IMMEDIATELY TAKEN TO THE BID OPENING ROOM WHERE IT WAS TIME STAMPED AT 8:32 AM THE FOLLOWING MORNING, MARCH 23.'

THE U.S. ARMY MOBILITY COMMAND, REFERRED TO IN THE SECOND PARAGRAPH OF THIS LETTER, IS LOCATED AT THE DETROIT ARSENAL AND THE TANK AUTOMOTIVE CENTER IS LOCATED AT THE MISSILE PLANT. BOTH ARE PART OF ONE LARGE MILITARY INSTALLATION, BUT THEY ARE APPROXIMATELY FIVE MILES APART. FROM THE INFORMATION FURNISHED IN THE LAST QUOTED STATEMENT, IT SEEMS CLEAR THAT THE LATE RECEIPT OF THE BID WAS NOT DUE TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE INSTALLATION. ACCORDINGLY, WE WOULD NOT BE JUSTIFIED IN QUESTIONING THE CONTRACTING OFFICER'S FAILURE TO CONSIDER YOUR BID. SEE 42 COMP. GEN. 255.

HOWEVER, WE HAVE BEEN ADVISED BY THE DEPARTMENT OF THE ARMY THAT THE LOWEST ACCEPTABLE BID WAS CONSIDERED TO BE EXCESSIVE AND THAT IT IS PROPOSED TO WITHDRAW INVITATION FOR BIDS NO. AMC-20-113-65-1860 (T) AND READVERTISE FOR THE PADLOCKS, WHICH IS PERMISSIBLE AT THE DISCRETION OF THE CONTRACTING OFFICER, PURSUANT TO SECTION 2-404.1 (B) (VI) OF ASPR.