B-170471, JAN 11, 1971

B-170471: Jan 11, 1971

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

ARMY ELECTRONICS COMMAND TO ANY OTHER BIDDER WERE SUCH THAT BOXTON BELL'S BID WAS SUBJECT TO UNDUE DELAY IN DELIVERY ATTRIBUTABLE TO THE PROCEDURES THEN EXISTING. THE PICKUP AND DISTRIBUTION PROCEDURES IN EFFECT WHEN THE BOXTON-BELL BID WAS RECEIVED PROVIDED FOR TWO MAIL PICKUPS. SECRETARY: REFERENCE IS MADE TO A LETTER FROM THE ASSISTANT GENERAL COUNSEL. THE INVITATION WAS ISSUED ON MARCH 31. THE PRINCIPAL ITEM OF WHICH WAS A QUANTITY OF NIGHT VISION SIGHTS. EIGHTY-NINE FIRMS WERE SOLICITED AND 16 BIDS WERE RECEIVED BY THE BID OPENING DATE AND TIME. THE BIDS WERE OPENED AS SCHEDULED AND AT APPROXIMATELY 2:30 P.M. WAS DELIVERED TO THE BID ROOM BY FORT MONMOUTH MAIL PERSONNEL. THE FIRST POSTAL STAMP ON THE MAILING ENVELOPE IS THAT OF THE GREENPOINT STATION.

B-170471, JAN 11, 1971

BID PROTEST - LATE BID LETTER ADVISING THAT THE MAIL HANDLING PROCEDURES AT FORT MONMOUTH, NEW JERSEY RESULTING IN A PROTEST BY BOXTON-BELL, INC., AGAINST THE AWARD OF AN ADVERTISED CONTRACT FOR NIGHT VISION SIGHTS ISSUED BY U.S. ARMY ELECTRONICS COMMAND TO ANY OTHER BIDDER WERE SUCH THAT BOXTON BELL'S BID WAS SUBJECT TO UNDUE DELAY IN DELIVERY ATTRIBUTABLE TO THE PROCEDURES THEN EXISTING. THE PICKUP AND DISTRIBUTION PROCEDURES IN EFFECT WHEN THE BOXTON-BELL BID WAS RECEIVED PROVIDED FOR TWO MAIL PICKUPS, ONE AT 8:30 A.M., AND ONE AT 1:30 P.M. MAIL PICKED UP AT 8:30 A.M. REACHED THE PROCUREMENT OFFICE AT 10:00 A.M.; AT 1:30 P.M., 2:30 P.M. THEREFORE A BID ARRIVING AFTER 8:30 (AS BOXTON-BELL'S DID) WOULD NOT ARRIVE AT THE PROCUREMENT OFFICE UNTIL 2:30 P.M. (AFTER THE 2:00 BID OPENING IN THIS CASE). SUCH DELAY MUST BE CONSIDERED MISHANDLING OF MAIL IN GOVERNMENT HANDS AND WOULD PROVIDE A BASIS UPON WHICH THE BID, ORIGINALLY DISCARDED AS LATE, SHOULD BE CONSIDERED.

TO MR. SECRETARY:

REFERENCE IS MADE TO A LETTER FROM THE ASSISTANT GENERAL COUNSEL, ARMY MATERIEL COMMAND, DATED OCTOBER 9, 1970, AMCGC-P, FURNISHING A REPORT ON THE PROTEST OF BOXTON-BEEL, INC., AGAINST AN AWARD TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS NO. DAAB07-70-B-0322 ISSUED BY THE PROCUREMENT DIVISION, U.S. ARMY ELECTRONICS COMMAND (ECOM), FORT MONMOUTH, NEW JERSEY.

THE INVITATION WAS ISSUED ON MARCH 31, 1970, THE PRINCIPAL ITEM OF WHICH WAS A QUANTITY OF NIGHT VISION SIGHTS, AN/PVS-2A (LESS IMAGE INTENSIFIER ASSEMBLY, MANUAL AND BATTERY). EIGHTY-NINE FIRMS WERE SOLICITED AND 16 BIDS WERE RECEIVED BY THE BID OPENING DATE AND TIME, 2:00 P.M., EDST, APRIL 30, 1970.

THE BIDS WERE OPENED AS SCHEDULED AND AT APPROXIMATELY 2:30 P.M. ON APRIL 30, AFTER ALL THE BIDS HAD BEEN READ, A SEALED BID FROM BOXTON BEEL, INC., WAS DELIVERED TO THE BID ROOM BY FORT MONMOUTH MAIL PERSONNEL. THE FIRST POSTAL STAMP ON THE MAILING ENVELOPE IS THAT OF THE GREENPOINT STATION, BROOKLYN, NEW YORK, AND SHOWS THE DATE AND TIME AS 'APR 29 P.M. 1970." THE OTHER POSTAL STAMP ON THE ENVELOPE IS BY THE FORT MONMOUTH BRANCH OF RED BANK, NEW JERSEY, POST OFFICE AND SHOWS THE DATE AND TIME AS "APR 30 A.M. 19709" THE ELECTRONICS COMMAND, PROCUREMENT AND PRODUCTION DIRECTORATE, TIME AND DATE STAMP SHOWS RECEIPT OF THE ENVELOPE AT THE DIRECTORATE AT APPROXIMATELY 2:30 P.M. ON APRIL 30. THE ENVELOPE ALSO BEARS THE TYPEWRITTEN DESIGNATION "SPECIAL DELIVERY-REGISTERED-RETURN RECEIPT REQUESTED" AND HAD BEEN STAMPED "SPECIAL DELIVERY" SEVERAL TIMES. THE ENVELOPE DOES NOT BEAR A REGISTERED MAIL NUMBER AND THERE IS NO RECORD THAT IT WAS ENTERED IN THE REGISTRY FOR SUCH MAIL.

THE CONTRACTING OFFICER REQUESTED A LEGAL OPINION FROM THE FORT MONMOUTH PROCUREMENT LAW DIVISION AS TO WHETHER THE BID FROM BOXTON BEEL COULD BE OPENED AND CONSIDERED UNDER THE LATE OFFERS PROVISION (PARAGRAPH 8, STANDARD FORM 33A) OF THE IFB. THE LEGAL DETERMINATION WAS THAT THE BID WAS A LATE BID AND SHOULD BE TREATED AS SUCH IN ACCORDANCE WITH THE PERTINENT PROVISIONS OF THE ARMED SERVICES PROCUREMENT REGULATION. THE CONTRACTING OFFICER THEREAFTER ADVISED BOXTON-BEEL THAT ITS BID WAS A LATE BID AND COULD NOT BE CONSIDERED FOR AWARD. AFTER ITS PROTEST TO THE CONTRACTING OFFICER OF HIS ACTION WAS DENIED, BOXTON-BEEL PROTESTED TO THIS OFFICE BY LETTER DATED JULY 24, 1970. THE ONLY QUESTION FOR RESOLUTION HERE IS WHETHER THE LATE RECEIPT OF THE BID SHOULD BE CONSIDERED AS BEING DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE FORT MONMOUTH BRANCH POST OFFICE WITHIN THE MEANING OF SUBPARAGRAPH (A)(3) OF THE LATE OFFERS PROVISION.

ON APRIL 30, 1970, THE FORT MONMOUTH BRANCH OF THE RED BANK, NEW JERSEY, POST OFFICE (WHICH IS THE MAIN POST OFFICE AT FORT MONMOUTH) RECEIVED MAIL FROM THE RED BANK POST OFFICE AT 5:45 A.M., 10:25 A.M. AND 2:25 P.M. WE ARE INFORMED THAT SPECIAL DELIVERY MAIL RECEIVED IN THE FORT MONMOUTH BRANCH POST OFFICE IN THE 10:25 A.M. DELIVERY WOULD BE STAMPED "A.M.", AS WAS THE ENVELOPE CONTAINING BOXTON-BEEL'S BID.

IT IS REPORTED THAT ON APRIL 30 THE FORT MONMOUTH INSTALLATION PROCEDURES FOR MAIL DISTRIBUTION PROVIDED FOR TWICE-DAILY PICKUPS OF THE MAIL FROM THE FORT MONMOUTH BRANCH POST OFFICE BY THE INSTALLATION DRIVERS AT APPROXIMATELY 8:30 A.M. AND 1:30 P.M., AND THAT THE PROCUREMENT OFFICE MAIL WAS ACTUALLY PICKED UP BY THE DRIVER ON THAT DATE AT APPROXIMATELY 8:40 A.M. AND 1:25 P.M. THE SUPERINTENDENT OF THE FORT MONMOUTH BRANCH POST OFFICE STATED THAT THE 5:45 A.M. MAIL FROM THE RED BANK POST OFFICE WAS ALWAYS READY BY 8:30 A.M. FOR THE MORNING INSTALLATION PICKUP. THE DRIVER ALSO STATED THAT HE DID NOT LEAVE THE BRANCH POST OFFICE UNTIL APPROXIMATELY 9:00 A.M. ON APRIL 30, AFTER CHECKING TO BE SURE THAT THERE WAS NO MORE MAIL TO BE PICKED UP FOR THE STOPS ON HIS DELIVERY RUN. IT IS FURTHER REPORTED THAT THE INSTALLATION DELIVERY SCHEDULE PROVIDED FOR DELIVERY TO THE PROCUREMENT OFFICE STOP AT APPROXIMATELY 10:00 A.M. AND 2:30 P.M., AND THAT ON APRIL 30 THE MAIL WAS ACTUALLY DELIVERED TO THE PROCUREMENT OFFICE AT APPROXIMATELY 10:30 A.M. AND 2:30 P.M. THE RECORD INDICATES THAT THE PROCUREMENT OFFICE IS 5.3 MILES FROM THE BRANCH POST OFFICE, AND THAT THE DIRECT DRIVING TIME IS APPROXIMATELY 15 MINUTES.

THUS, IT APPEARS THAT THE BOXTON-BEEL BID WAS IN THE 10:25 A.M. DELIVERY FROM THE RED BANK POST OFFICE. IT IS ALSO EVIDENT THAT UNDER THE INSTALLATION'S MAIL PICKUP AND DISTRIBUTION PROCEDURES IN EFFECT ON APRIL 30, ANY BIDS RECEIVED IN THE FORT MONMOUTH BRANCH POST OFFICE AFTER THE 8:30 A.M. PICKUP WOULD NOT HAVE BEEN RECEIVED BY THE PROCUREMENT OFFICE IN TIME FOR THE 2:00 P.M. BID OPENING.

OUR OFFICE HAS INDICATED ON SEVERAL OCCASIONS THAT THE GOVERNMENT HAS A RESPONSIBILITY TO ESTABLISH REASONABLE PROCEDURES TO INSURE THAT THE TRANSMISSION OF BIDS IS ACCOMPLISHED WITHIN A REASONABLE TIME. SEE 43 COMP. GEN. 317 (1963); B-157176, AUGUST 30, 1965; 48 COMP. GEN. 765, 767 (1969); AND 50 COMP. GEN. (B-169874, NOVEMBER 5, 1970). IN 48 COMP. GEN. 765 (1969), SUPRA, WE ALSO NOTED THAT THE ABOVE REQUIREMENT WAS SPECIFICALLY APPLICABLE TO THE HANDLING OF BIDS AFTER RECEIPT AT THE GOVERNMENT INSTALLATION. TO EMPHASIZE THE DUTY OF THE GOVERNMENT IN THIS AREA, WE STATED IN B-162390, NOVEMBER 20, 1967:

" *** IT IS CLEAR THAT THE GOVERNMENT HAS AN OBLIGATION TO ESTABLISH REASONABLE PROCEDURES FOR THE PHYSICAL TRANSMISSION OF BIDS FROM THE POINT OF RECEIPT AT THE GOVERNMENT INSTALLATION TO THE DESIGNATED PLACE OF OPENING, AND TO INSURE THAT THE PROCEDURE SELECTED IS PROPERLY IMPLEMENTED. 42 COMP. GEN. 508." THAT POSITION WAS ALSO STATED BY THIS OFFICE IN 49 COMP. GEN. (B-169265, APRIL 15, 1970) IN WHICH WE HELD THAT MISHANDLING MAY BE CHARGED TO THE GOVERNMENT WHERE THE DELAY IN TRANSMISSION OF BIDS IS DUE TO THE FAILURE OF A FACILITY TO USE A TRANSMITTAL PROCEDURE THAT WOULD PERMIT THE BID TO BE DELIVERED TO THE CONTRACTING OFFICER WITHIN A REASONABLE TIME BEFORE BID OPENING.

IN ADDITION TO THE CHARGE OF MISHANDLING BY THE GOVERNMENT, BOXTON BEEL ALLEGES THAT IF ITS BID WAS IN THE 10:25 A.M. DELIVERY FROM THE RED BANK POST OFFICE, THEN CONSTRUCTIVE DELIVERY OF THE BID TO THE CONTRACTING OFFICER WAS EFFECTED AT 11:30 A.M. WHEN THE BID WAS PLACED IN THE MAILBAG DESIGNATED FOR THAT BUILDING IN WHICH THE BID ROOM WAS LOCATED. ALTHOUGH WE DO NOT AGREE WITH THE ALLEGATION THAT, BY PLACING THE BID IN THE MAILBAG DESIGNATED FOR THE BUILDING IN WHICH THE BID ROOM WAS LOCATED, THERE WAS CONSTRUCTIVE DELIVERY OF THE BID TO THE CONTRACTING OFFICER, WE ARE OF THE OPINION THAT THE INSTALLATION DID NOT USE A TRANSMITTAL PROCEDURE WHICH, IN CONJUNCTION WITH THE TIME SET FOR BID OPENING, PERMITTED BIDS TO BE DELIVERED TO THE CONTRACTING OFFICER WITHIN A REASONABLE TIME FOR THE SCHEDULED OPENING. THE PROCEDURE EMPLOYED, UNDER WHICH A BID THAT WAS RECEIVED IN THE BASE POST OFFICE AFTER THE 8:30 A.M. PICKUP (AS IS THE CASE IF THE BOXTON BEEL BID WAS RECEIVED IN THE 10:25 A.M. DELIVERY) WOULD NOT BE RECEIVED IN THE PROCUREMENT OFFICE IN TIME FOR THE 2:00 P.M. OPENING OF BIDS, SEEMS PATENTLY UNREASONABLE.

AS STATED ABOVE, THE GOVERNMENT HAD AN OBLIGATION TO ESTABLISH AND IMPLEMENT REASONABLE PROCEDURES FOR THE TRANSMISSION OF BIDS IN A TIMELY MANNER FROM THE POINT OF RECEIPT AT THE GOVERNMENT INSTALLATION TO THE PLACE DESIGNATED FOR BID OPENING. SINCE THE REGULAR MAIL RUNS AT THE INSTALLATION, WHEN RELATED TO THE TIME SET FOR BID OPENING, DID NOT PROVIDE A REASONABLE PROCEDURE TO INSURE THAT BIDS RECEIVED AT THE BASE WOULD BE DELIVERED IN TIME FOR THE OPENING, WE BELIEVE THAT BOXTON BEEL'S BID WAS "MISHANDLED" BY REASON OF THE UNDUE DELAY IN DELIVERY ATTRIBUTABLE TO THE PROCEDURES THEN EXISTING AND THAT IT SHOULD BE OPENED AND CONSIDERED FOR AWARD.

IN THIS CONNECTION, WE HAVE BEEN INFORMED THAT THE ELECTRONICS COMMAND HAS INSTITUTED A POLICY OF OPENING BIDS AFTER THE LAST INSTALLATION MAIL DELIVERY WHICH SHOULD CORRECT THE SITUATION THAT GAVE RISE TO THE SUBJECT PROTEST.

THE ENCLOSURES RECEIVED WITH THE ADMINISTRATIVE REPORTS OF OCTOBER 9 AND NOVEMBER 25 ARE RETURNED.