B-157204, AUG. 20, 1965

B-157204, AUG. 20, 1965

TO THE SECRETARY OF THE ARMY:

BY LETTER DATED AUGUST 6, 1965, THE DIRECTOR OF PROCUREMENT AND PRODUCTION, UNITED STATES ARMY MATERIEL COMMAND, FORWARDED FOR OUR CONSIDERATION THE PROTEST OF A. G. SCHOONMAKER CO., INC., AGAINST THE AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS NO. AMC (T/-11-184-65-161 (A) ON THE BASIS THAT ITS BID WAS EXCUSABLY LATE BECAUSE OF MISHANDLING IN THE MAIL.

THE INVITATION DATED APRIL 5, 1965, AS AMENDED, FIXED THE DATE AND HOUR OF OPENING OF BIDS AS 10 A.M., C.D.S.T., MAY 27, 1965, AT THE U.S. ARMY MOBILITY EQUIPMENT CENTER, ST. LOUIS, MISSOURI. NOTE 6 ON PAGE 5 OF THE INVITATION CONTAINS THE FOLLOWING PROVISION WITH RESPECT TO LATE BIDS:

"CAUTION TO BIDDERS-LATE BIDS: SEE THE SPECIAL PROVISION ENTITLED "LATE BIDS AND MODIFICATIONS OR WITHDRAWALS" 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. * * *"

PAGE 11 OF THE INVITATION PROVIDES:

"/A) BIDS * * * RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS AFTER THE EXACT TIME SET FOR OPENING OF BIDS WILL NOT BE CONSIDERED UNLESS:

"/11) 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, * * * AND IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO DELAY IN THE MAILS, * * * FOR WHICH THE BIDDER WAS NOT RESPONSIBLE; OR"

AN ENVELOPE, BEARING A CERTIFIED MAIL STAMP AND NUMBER, RETURN RECEIPT REQUESTED, WAS RECEIVED FROM SCHOONMAKER AT THE PROCUREMENT OFFICE'S MAIL ROOM AT 2:45 P.M., MAY 28, 1965. THE ENVELOPE CONTAINED A METERED POSTAGE STICKER BEARING THE MILL VALLEY (CALIFORNIA) POST OFFICE CANCELLATION STAMP DATED MAY 25, 1965, AND 80 CENTS IN POSTAGE. IT FURTHER BORE INFORMATION AS TO THE INVITATION NUMBER, DATE AND HOUR OF BID OPENING, AND A BRIEF DESCRIPTION OF THE INVITATION ITEM. PREVIOUS TO THE LATE RECEIPT OF THE BID, A TELEGRAM WAS RECEIVED FROM SCHOONMAKER REDUCING ITS BID PRICE BY $2,000 PER UNIT. THIS TELEGRAM WAS DISPATCHED FROM SAUSALITO, CALIFORNIA, ON MAY 26, 1965, AND REFERENCED THE INVITATION NUMBER, ITEM PRICES TO BE REDUCED, AND DATE AND TIME OF BID OPENING. IT IS REPORTED THAT THE PROCUREMENT OFFICE DID NOT RECEIVE THE TELEGRAM UNTIL 11:30 .M., MAY 27, 1965, ALTHOUGH THE TELEGRAM REACHED THE MESSAGE CENTER AT 8:35 A.M. ON MAY 27.

SCHOONMAKER CONTENDS THAT THE DELAY IN RECEIPT OF ITS BID WAS THE FAULT OF THE MILL VALLEY POST OFFICE RATHER THAN ITSELF, IN THAT THE POST OFFICE ERRONEOUSLY TRANSMITTED THE BID ENVELOPE BY CERTIFIED FIRST CLASS MAIL RATHER THAN BY CERTIFIED AIR MAIL AS REQUESTED BY THE BIDDER'S EMPLOYEE. IN THIS CONNECTION, IT HAS BEEN ESTABLISHED THAT HAD THE BID ENVELOPE BEEN TRANSMITTED BY CERTIFIED AIR MAIL, IT WOULD HAVE ARRIVED AT THE PROCUREMENT AGENCY PRIOR TO BID OPENING.

THE FILE CONTAINS CONFLICTING STATEMENTS RESPECTING THE CIRCUMSTANCES INVOLVED IN THE MAILING OF THE BID ENVELOPE. THE PROTESTANT CONTENDS THAT ITS EMPLOYEE REQUESTED THE POSTAL CLERK TO SEND THE ENVELOPE BY CERTIFIED MAIL. THIS CONTENTION IS SUPPORTED BY AN AFFIDAVIT OF ITS EMPLOYEE (ROSSI) WHO MAILED THE ENVELOPE, AND BY A LETTER DATED MAY 28, 1965, FROM THE POSTMASTER AT MILL VALLEY WHO STATED THAT: "DUE TO A MISUNDERSTANDING BY THE ACCEPTING WINDOW CLERK THE SUBJECT BID WAS DISPATCHED BY REGULAR MAIL ALTHOUGH THE SENDER * * * REQUESTED THAT AIR MAIL BE USED.' HOWEVER, ON JUNE 2, 1965, THE POSTMASTER FORWARDED THE FOLLOWING STATEMENT FROM THE POSTAL WINDOW CLERK (PROVINES):

"SHORTLY BEFORE CLOSING TIME (5:00 P.M.) ON TUESDAY, MAY 25, 1965 SOMEONE CAME TO THE WINDOW AND MAILED A LARGE ENVELOPE WHICH WAS TO BE CERTIFIED. TO THE BEST OF MY RECOLLECTION THE MAILER DID NOT SPECIFY HOW THE ENVELOPE WAS TO BE MAILED. I HAD TO SEND IT FIRST CLASS MAIL BECAUSE IT WAS CERTIFIED. THE ONLY THING I CAN RECALL IS THAT THE POSTAGE ON THE SUBJECT PACKAGE WAS ?50, CERTIFICATION, ?20 AND RETURN RECEIPT REQUESTED, ?10.'

FURTHER, ON JUNE 12, 1965, THE POSTMASTER ADVISED THE PROCUREMENT OFFICE THAT THE ABOVE-QUOTED EXTRACT FROM HIS LETTER OF MAY 28 REQUIRED CLARIFICATION AND A MORE CONCISE DESCRIPTION OF THE FACTS. HE STATED THAT:

"MR. HALSEY LYONS, VICE PRESIDENT AND MR. CARL MOELLER, A SALES REPRESENTATIVE OF SCHOONMAKER CO. APPEARED AT THIS OFFICE ON MAY 28TH AFTER RECEIVING NOTICE FROM THE U.S. ARMY MOBILITY AND EQUIPMENT CENTER THAT THEIR BID (CERT. MAIL NO. 514384) HAD NOT BEEN RECEIVED IN TIME FOR THE MAY 27TH, 10:00 A.M. OPENING. BOTH MR. LYONS AND MR. MOELLER STATED THAT IT WAS THEIR INTENTION ON THIS OCCASION TO SEND THE BID BY AIR MAIL AND HAD IN FACT INSTRUCTED THEIR MAILING PEOPLE THAT THE BID WAS TO BE SENT BY AIR MAIL. ON MAY 25TH MR. JOHN ROSSI ON BEHALF OF THE SCHOONMAKER CO. PRESENTED CERTIFIED MAIL NO. 514384 FOR MAILING AT OUR OFFICE. WHILE MR. LYONS AND MOELLER WERE IN MY OFFICE I ASKED MR. PROVINES, THE WINDOW CLERK ON DUTY ON MAY 25TH IF HE HAD GIVEN INSTRUCTIONS TO SEND THE CERTIFIED MAIL BY AIR MAIL. MR. PROVINES REMEMBERED THAT PARTICULAR PIECE OF CERTIFIED MAIL AND THE FACT THAT IT WAS MAILED CLOSE TO CLOSING TIME AT APPROXIMATELY :45 P.M. AND THAT A RETURN RECEIPT HAD BEEN REQUESTED BUT CLAIMS THAT HE HAD BEEN GIVEN NO INSTRUCTIONS BY THE MAILER (MR. ROSSI) THAT AIR MAIL BE USED.

"ALSO DURING MR. LYONS AND MOELLER'S VISIT THEY MENTIONED THAT WRITTEN INSTRUCTIONS HAD BEEN ISSUED TO MR. ROSSI INSTRUCTING HIM THAT THE BID BE SENT BY AIR MAIL. MR. PROVINES STATES THAT NO WRITTEN INSTRUCTIONS WERE WITH THE PIECE OF MAIL WHEN PRESENTED FOR MAILING AT HIS WINDOW.'

IT APPEARS THAT THE 80 CENTS POSTAGE APPEARING ON THE BID ENVELOPE (WEIGHING 10 OUNCES) CONSISTED OF 50 CENTS FOR FIRST CLASS MAIL, CERTIFIED MAIL FEE OF 20 CENTS, AND 10 CENTS FOR RETURN RECEIPT. HAD CERTIFIED AIR MAIL SERVICE BEEN REQUESTED AND PAID FOR, THE POSTAGE WOULD HAVE AMOUNTED TO $1.10. IT IS ESTABLISHED THAT THE BID ENVELOPE WAS TIMELY DISPATCHED AND DELIVERED BY REGULAR FIRST CLASS MAIL.

THE EVIDENCE FURNISHED IN THIS CASE TO ESTABLISH THAT THE DELAYED RECEIPT OF THE BID ENVELOPE WAS CAUSED BY THE ERROR OF THE POST OFFICE IN FAILING TO DISPATCH THE ENVELOPE BY CERTIFIED AIR MAIL CONSISTS MAINLY OF SELF- SERVING STATEMENTS FROM OFFICERS AND EMPLOYEES OF THE BIDDER. THE STATEMENTS OF THE POSTMASTER AND THE POSTAL CLERK CAST CONSIDERABLE DOUBT UPON THE BIDDER'S VERSION OF THE FACTS AND REASONABLY MAY BE VIEWED AS ESTABLISHING THAT THE BIDDER'S EMPLOYEE FAILED TO REQUEST CERTIFIED AIR MAIL SERVICE. CERTAINLY, THE BIDDER IS CHARGEABLE WITH THE RESPONSIBILITY OF ASSURING THAT THE PROPER CLASS OF MAIL SERVICE WAS BOTH REQUESTED AND PAID FOR. WE HAVE TAKEN THE POSITION THAT A HIGH STANDARD OF EVIDENCE IS REQUIRED TO SUPPORT A CONTENTION THAT THE LATE RECEIPT WAS DUE SOLELY TO DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE. 37 COMP. GEN. 750; 40 ID. 91; ID. 148. THIS IS SO BECAUSE THE BIDDER HAS THE PRIMARY RESPONSIBILITY FOR THE TIMELY RECEIPT OF HIS BID BY THE PROCUREMENT OFFICE, AND THIS BURDEN MAY NOT BE SHIFTED TO THE GOVERNMENT ON THE BASIS OF SELF-SERVING STATEMENTS. CF. 42 COMP. GEN. 255. UPON REVIEW, SCHOONMAKER HAS NOT MET THIS STANDARD OF EVIDENCE.

WHILE THE BIDDER'S TELEGRAPHIC BID MODIFICATION MAY HAVE BEEN TIMELY RECEIVED, IT WAS INEFFECTUAL TO ESTABLISH THE TIMELINESS OF THE BID OR THE ACTUAL CIRCUMSTANCES INVOLVED IN THE MAILING OF THE BID ENVELOPE.

ACCORDINGLY, WE ARE OF THE OPINION THAT THE EVIDENCE OF RECORD DOES NOT CONVINCINGLY ESTABLISH THAT THE DELAYED RECEIPT OF THE BID ENVELOPE WAS WITHOUT THE FAULT OF SCHOONMAKER. IN THESE CIRCUMSTANCES, WE CONCLUDE THAT THE LATE BID OF SCHOONMAKER SHOULD NOT BE CONSIDERED FOR AWARD. HOWEVER, NOTHING HEREIN IS TO BE CONSTRUED AS SUGGESTING BAD FAITH OR IMPROPER ACTION ON THE PART OF SCHOONMAKER, RATHER, THE RESULT REACHED HEREIN IS DICTATED SOLELY BY APPLICATION OF THE PRINCIPLES SET OUT ABOVE.