B-161928, AUG. 8, 1967

B-161928, AUG. 8, 1967

BIDS - LATE - MAIL DELAY EVIDENCE DECISION ON PROTEST OF CONSTRUCTION LTD., AGAINST CONSIDERATION OF LATE BID OF CHANEY AND HOPE, INC., UNDER INVITATION FOR CONSTRUCTION OF TRAINING RANGES AT FORT DIX. LOW BID WHICH WAS SENT BY CERTIFIED AIR MAIL BUT DID NOT ARRIVE UNTIL DAY AFTER OPENING ALTHOUGH EVIDENCE INDICATES THAT IT WAS SENT IN SUFFICIENT TIME TO HAVE REACHED PROCURING AGENCY PRIOR TO BID OPENING MAY BE CONSIDERED FOR AWARD. WITH RESPECT TO ALLEGATION THAT BID WAS UNBALANCED AS TO PRICE OF ITEM, AN UNBALANCED BID DOES NOT AFFECT RESPONSIVENESS UNDER RULE IN STAMATO V. CITY OF NEW BRUNSWICK, 90 A. 2D 34, WHICH HELD THAT AN UNBALANCED BID DOES NOT AUTOMATICALLY INVALIDATE AWARD IN ABSENCE OF COLLUSION, FRAUDULENT CONDUCT, OR IRREGULARITY THAT WOULD AFFECT AIR AND COMPETITIVE BIDDING.

TO LEON L. LEVY, ESQUIRE:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 5, 1967, WITH ENCLOSURES, PROTESTING, ON BEHALF OF CONSTRUCTION, LTD., AGAINST THE ACTION OF THE DEPARTMENT OF THE ARMY IN CONSIDERING A LATE BID SUBMITTED BY CHANEY AND HOPE, INC., ADDISON, TEXAS, IN RESPONSE TO INVITATION FOR BIDS NO. DACA51-67-B-0050, ISSUED BY THE NEW YORK DISTRICT, CORPS OF ENGINEERS, NEW YORK, NEW YORK. RECEIPT IS ALSO ACKNOWLEDGED OF A COPY OF A LETTER DATED JULY 6, 1967, TO COLONEL R. T. BATSON, DISTRICT ENGINEER, DEPARTMENT OF THE ARMY.

THE RECORD DISCLOSES THAT THE REFERRED-TO INVITATION REQUESTED BIDS -TO BE OPENED AT 11 A.M. ON JUNE 1, 1967--FOR FURNISHING ALL LABOR, MATERIALS AND PERFORMING ALL WORK REQUIRED FOR THE CONSTRUCTION OF TRAINING RANGES AT FORT DIX, NEW JERSEY; THAT AT THE DESIGNATED TIME ON JUNE 1, 1967, TWO BIDS WERE PUBLICLY OPENED AND READ, AND THE BID OF CONSTRUCTION, LTD. WAS THE THEN LOWEST AGGREGATE BID RECEIVED ON THE WORK TO BE AWARDED, NAMELY, ITEMS 1 AND 2 OF BASE BID AND ADDITIVE ITEMS 1, 2, 3 AND 4A.

HOWEVER, ON THE DAY OF THE BID OPENING, BUT AFTER BIDS HAD BEEN OPENED, A REPRESENTATIVE OF CHANEY AND HOPE, INC., TELEPHONED AN OFFICIAL OF THE ENGINEERING DIVISION, NEW YORK DISTRICT, CORPS OF ENGINEERS, AND INFORMED HIM, AMONG OTHER THINGS, THAT THE CORPORATION HAD MAILED ITS BID FOR THE PROJECT AT THE LOVE FIELD TERMINAL POST OFFICE AT DALLAS, TEXAS, AT ABOUT 1 P.M. ON MAY 31, 1967. THE TELEPHONE CALL WAS CONFIRMED BY LETTER DATED JUNE 1, 1967, WHICH FURNISHED A PHOTOSTAT COPY OF A CERTIFIED MAIL RECEIPT. THE BID OF CHANEY AND HOPE, INC., WAS RECEIVED BY CERTIFIED AIRMAIL IN THE CONTRACTING OFFICE AT 8:43 A.M. ON JUNE 2, 1967. THE CANCELLATION STAMP ON THE ENVELOPE, IN WHICH THE BID WAS ENCLOSED, SHOWS IT WAS MAILED DURING THE AFTERNOON OF MAY 31, 1967, AT DALLAS, TEXAS.

THE CONDITIONS UNDER WHICH LATE BIDS MAY BE CONSIDERED WERE SET FORTH IN THE INVITATION FOR BIDS UNDER PARAGRAPH 7/A) OF THE INSTRUCTIONS TO BIDDERS (CONSTRUCTION CONTRACT) STANDARD FORM 22 JUNE 1964 EDITION, WHICH PERMITS CONSIDERATION OF A LATE BID WHEN IT IS RECEIVED BY CERTIFIED MAIL BEFORE AWARD 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. UNDER PARAGRAPH 7/C) THE TIME OF MAILING OF A BID BY CERTIFIED MAIL MAY BE ESTABLISHED BY "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, WITH APPROPRIATE WRITTEN VERIFICATION OF SUCH ENTRY FROM THE POST OFFICE STATION OF MAILING, IN WHICH CASE THE TIME OF MAILING SHALL BE THE TIME SHOWN IN THE TRY.' SIMILAR AND ADDITIONAL PROVISIONS CONCERNING THE HANDLING OF LATE BIDS ARE SET FORTH IN PARAGRAPH 2-303 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), AND IN ACCORDANCE WITH PARAGRAPH 2-303.6 THEREOF CHANEY WAS ADVISED BY THE NEW YORK DISTRICT, CORPS OF ENGINEERS, OF THE REQUIREMENTS FOR ESTABLISHING THE TIME WHEN ITS BID WAS MAILED. BY LETTER DATED JUNE 7, 1967, CHANEY FORWARDED TO THE PROCUREMENT OFFICE THE ORIGINAL MAIL RECEIPT FOR ITS CERTIFIED LETTER SHOWING A MAILING TIME OF "1305," MAY 31, 1967, AS INITIALED BY THE APPROPRIATE LOVE FIELD TERMINAL STATION POSTAL EMPLOYEE, TOGETHER WITH A LETTER DATED JUNE 7, 1967, ADDRESSED TO CHANEY AND HOPE, INC., FROM THE CLERK IN CHARGE, UNITED STATES POST OFFICE, LOVE FIELD TERMINAL, DALLAS, TEXAS, WHICH READS AS FOLLOWS:

"THIS IS TO VERIFY THAT TIME NOTATION INDICATING RECEIPT OF CERTIFIED ARTICLE NO. 795054 AT :05 P.M. WAS MARKED ON THE RECEIPT FOR CERTIFIED MAIL BY THIS STATION.'

ASPR 2-303.3/C) PROVIDES THAT 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 THE ACTIVITY. IN A LETTER DATED JUNE 9, 1967, THE ACTING POSTMASTER, NEW YORK GENERAL POST OFFICE, NEW YORK, NEW YORK, ADVISED THE PROCURING ACTIVITY THAT A CERTIFIED AIRMAIL LETTER POSTMARKED "MAY 31 (PM)" AT ,DALLAS TX/AMF)" SHOULD BE DELIVERED TO THE PROCUREMENT OFFICE, NEW YORK DISTRICT, CORPS OF ENGINEERS, PRIOR TO 11 A.M., JUNE 1, 1967. THE ACTING POSTMASTER STATED THIS CONCLUSION WAS BASED ON INFORMATION RECEIVED FROM A POST OFFICE OFFICIAL IN DALLAS, TEXAS, THAT "DISPATCH IN NORMAL COURSE WOULD LEAVE DALLAS AT 5:00 P.M. DAY OF MAILING.'

BY LETTER DATED JUNE 7, 1967, CHANEY AND HOPE, INC., SUBMITTED TO THE PROCUREMENT ACTIVITY A COPY OF A LETTER DATED JUNE 2, 1967, WHICH IT RECEIVED FROM THE POSTMASTER, UNITED STATES POST OFFICE, DALLAS, TEXAS, READING AS FOLLOWS:

"THE CERTIFIED ARTICLE YOU MAILED ON MAY 31, 1967, ADDRESSED TO CORPS OF ENGINEERS, 111 EAST 16TH STREET, NEW YORK, NEW YORK, WAS ACCEPTED AT OUR LOVE FIELD TERMINAL STATION AT 1:05 P.M. THIS ARTICLE SHOULD HAVE GONE FORWARD OVER AMERICAN FLIGHT 292 DEPARTING DALLAS AT 5:00 P.M. AND SCHEDULED TO ARRIVE AT J. F. KENNEDY AIRPORT AT 8:58 P.M. ON THE DATE OF MAILING.

"A TELEPHONE CALL HAS BEEN MADE TO THE SUPERINTENDENT, COOPER STATION, NEW YORK, NEW YORK, TO ESTABLISH THE APPROXIMATE HOUR OF DELIVERY. I AM INFORMED THAT MAIL FOR THE CORPS OF ENGINEERS WOULD NORMALLY BE DELIVERED AT 9:00 A.M. IF THIS MAIL HAD BEEN APPROPRIATELY HANDLED IN ALL RESPECTS, YOU COULD EXPECT THE ARTICLE TO BE IN THE HANDS OF THE ADDRESSEE PRIOR TO THE 11:00 A.M. OPENING TIME ON JUNE 1, 1967.'

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

BY LETTER DATED JUNE 30, 1967, YOU FORWARDED A PHOTOSTATIC COPY OF AN UNDATED WRITTEN STATEMENT, EXECUTED BY C. M. WINDHAM, A POSTAL CLERK AT THE LOVE FIELD TERMINAL STATION, DALLAS, TEXAS, WHICH YOU STATE WAS GIVEN TO ONE OF YOUR LEGAL ASSOCIATES ON JUNE 26, 1967. IN THE REFERRED-TO STATEMENT, C. M. WINDHAM STATES THAT HE "DID NOT PUT THE FIGURE -1305- ON RECEIPT NUMBER 795054.' YOU STATE THAT THE ONLY TWO CLERKS ON DUTY AT THE LOVE FIELD TERMINAL STATION ON MAY 31, 1967, WERE C. M. WINDHAM AND HOWARD DILORD AND THAT SINCE THE FIRST INITIAL ON THE CERTIFIED MAIL RECEIPT IS "C," IT IS EVIDENT THAT SUCH INITIALS ARE NOT THOSE OF HOWARD DILORD. A LETTER DATED JULY 6, 1967, TO THE PROCURING ACTIVITY, YOU STATE THAT YOU HAD LEARNED THAT CHANEY AND HOPE, INC., SUBMITTED TO THE ACTIVITY AN AFFIDAVIT DATED JULY 3, 1967, EXECUTED BY C. M. WINDHAM, IN WHICH HE STATES HE DID PLACE THE FIGURE "1305" AND HIS INITIALS ON CERTIFIED MAIL RECEIPT NO. 795054. IN VIEW OF THE CONFLICTING STATEMENTS MADE BY C. M. WINDHAM, YOU SUGGEST THAT WE REQUEST THE FEDERAL BUREAU OF INVESTIGATION TO EXAMINE THE ORIGINAL CERTIFIED MAIL RECEIPT FOR THE PURPOSE OF DETERMINING WHETHER C. M. WINDHAM ACTUALLY INITIALED THAT RECEIPT AND ACTUALLY AFFIXED THE TIME OF MAILING IN HIS OWN HANDWRITING. HOWEVER, THE FEDERAL BUREAU OF INVESTIGATION ADVISED US INFORMALLY THAT IT WOULD NOT BE FEASIBLE FOR IT TO PERFORM AN ANALYSIS OF C. M. WINDHAM'S HANDWRITING AT THIS TIME. SINCE THE BUREAU SUGGESTED THAT WE HAVE THE POST OFFICE DEPARTMENT PERFORM THE NECESSARY ANALYSIS OF C. M. WINDHAM'S HANDWRITING, WE CONTACTED THAT DEPARTMENT AND IT AGREED TO COMPARE THE HANDWRITING ON THE CERTIFIED MAIL RECEIPT WITH OTHER DOCUMENTS EXECUTED BY C. M. WINDHAM.

IN A REPORT DATED AUGUST 2, 1967, THE CHIEF POSTAL INSPECTOR ADVISED OUR OFFICE AS FOLLOWS:

"AN EXAMINATION OF THE QUESTIONED WRITING AND COMPARISON WITH HANDWRITING SPECIMENS OF C. M. WINDHAM OBTAINED BY POSTAL INSPECTOR R. H. ROBINSON, FORT WORTH, TEXAS, HAS RESULTED IN THE CONCLUSION THE INITIALS AND TIME APPEARING BELOW THE POSTMARK STAMP ON CERTIFIED MAIL RECEIPT NO. 795054 WAS WRITTEN BY C. M. WINDHAM.'

SINCE THE HANDWRITING EXPERT OF THE POST OFFICE DEPARTMENT HAS FOUND AND DETERMINED THAT THE INITIALS AND TIME APPEARING BELOW THE POSTMARK STAMP ON CERTIFIED MAIL RECEIPT NO. 795054 WERE WRITTEN BY C. M. WINDHAM, WE HAVE NO ALTERNATIVE BUT TO ACCEPT THE TIME ENTERED ON SUCH RECEIPT AS THE ACTUAL TIME THE BID OF CHANEY AND HOPE, INC. WAS MAILED. SINCE THE POST OFFICE DEPARTMENT HAD ADVISED THAT, BASED ON THE TIME SHOWN ON SUCH RECEIPT, THE BID ENVELOPE OF CHANEY AND HOPE, INC. WAS MAILED IN SUFFICIENT TIME TO HAVE REACHED THE PROCURING ACTIVITY PRIOR TO THE BID OPENING TIME ON JUNE 1, 1967, WE FIND NO LEGAL BASIS FOR OBJECTING TO THE ACTION OF THE PROCURING ACTIVITY IN OPENING THE BID OF CHANEY AND HOPE, INC., AND CONSIDERING SUCH BID FOR AWARD.

IN A LETTER DATED JUNE 27, 1967, TO THE PROCURING ACTIVITY, YOU STATE ANOTHER OBJECTION TO THE CONSIDERATION OF THE BID OF CHANEY AND HOPE, INC., FOR AWARD. YOU STATE THAT CHANEY'S "BASE BID IS UNBALANCED AS TO PRICE FOR ITEM NO. 2" AND THAT FOR THIS REASON THE BID OF THE CORPORATION SHOULD BE DECLARED NONRESPONSIVE TO THE INVITATION FOR BIDS. WE CANNOT AGREE SINCE UNBALANCED BIDS DO NOT AFFECT THE RESPONSIVENESS OF THE BID. SEE FRANK STAMATO AND CO. V. CITY OF NEW BRUNSWICK, 90 A. 2D, 34, 36, WHEREIN THE COURT HELD AS FOLLOWS:

"AN UNBALANCED BID COMPREHENDS A BID BASED ON NOMINAL PRICES FOR SOME WORK AND ENHANCED PRICES FOR OTHER WORK. THE MERE FACT THAT A BIDDER HAS SUBMITTED AN UNBALANCED BID, DOES NOT AUTOMATICALLY OPERATE TO INVALIDATE AN AWARD OF THE CONTRACT TO SUCH BIDDER. THERE MUST BE PROOF OF COLLUSION OR OF FRAUDULENT CONDUCT ON THE PART OF SUCH BIDDER AND THE CITY OR ITS ENGINEER OR OTHER AGENT, OR PROOF OF OTHER IRREGULARITY OF SUCH SUBSTANTIAL NATURE AS WILL OPERATE TO AFFECT FAIR AND COMPETITIVE BIDDING.'

SEE ALSO, WALTER V. MCCLELLAN, 99 N.Y. SUPP. 78, 84; AND PHIFER V. CITY OF BAYONNE, 146 A. 463, 465; 38 COMP. GEN. 572, 574.