B-172022, MAY 6, 1971

B-172022, MAY 6, 1971

BID PROTEST - LATE PROPOSAL - DELAY IN MAILS DENYING PROTEST OF PULASKI CABLE TELEVISION, INC., AGAINST THE REJECTION BY THE ARMY CORPS OF ENGINEERS, KANSAS CITY, OF ITS LATE PROPOSAL SENT IN RESPONSE TO AN RFP ISSUED FOR CONSTRUCTION OF A COMMUNITY ANTENNA TELEVISION SYSTEM. THE PROPOSAL FROM PULASKI WAS NOT RECEIVED IN THE MAILROOM UNTIL 8:20 A.M. JANUARY 7, (OPENING OF PROPOSALS WAS AT 2:30 P.M. JANUARY 6,) EVEN THOUGH IT HAD BEEN SENT BY REGISTERED MAIL, SPECIAL DELIVERY FROM ROLLA, MISSOURI ON JANUARY 5. THE STATEMENT OF THE KANSAS CITY POSTMASTER TO THE EFFECT THAT SCHEDULING WAS SUCH THAT THERE WOULD NOT HAVE BEEN DELIVERY BEFORE THE 2:30 P.M. DEADLINE UNDER NORMAL OPERATING PROCEDURES IS SUFFICIENT TO PREVENT OPERATION OF CLAUSE IN THE INVITATION WHICH ALLOWS LATE PROPOSALS TO BE CONSIDERED WHEN DELAYED IN THE MAILS. THE FACT THAT BEFORE MAILING PULASKI WAS ADVISED BY THE ROLLA POST OFFICE THAT ITS PROPOSAL WOULD ARRIVE ON TIME DOES NOT CONSTITUTE A BASIS FOR CONSIDERING THE LATE PROPOSAL.

TO NORTHERN, WILLIAMS AND SMALLWOOD

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 23, 1971, WITH ENCLOSURES, PROTESTING ON BEHALF OF PULASKI CABLE TELEVISION, INC., AGAINST THE REJECTION BY THE DEPARTMENT OF THE ARMY, KANSAS CITY DISTRICT, CORPS OF ENGINEERS, OF THE CORPORATION'S LATE PROPOSAL SUBMITTED IN RESPONSE TO INVITATION FOR PROPOSALS NO. DACA41-71-B 0007.

THE INVITATION, ISSUED NOVEMBER 2, 1970, REQUESTED PROPOSALS FOR THE USE OF GOVERNMENT LAND AND FACILITIES CONTINGENT UPON THE CONSTRUCTION AND OPERATION OF A COMMERCIAL COMMUNITY ANTENNA TELEVISION SYSTEM WITHIN THE BOUNDARIES OF THE UNITED STATES ARMY TRAINING CENTER ENGINEER AND FORT LEONARD WOOD MILITARY RESERVATION, MISSOURI. AT THE TIME SCHEDULED FOR THE OPENING OF PROPOSALS, 2:30 P.M. ON JANUARY 6, 1971, ONLY ONE PROPOSAL HAD BEEN RECEIVED AND OPENED. THE PROPOSAL FROM PULASKI WAS NOT RECEIVED IN THE MAILROOM OF THE OFFICE OF THE DISTRICT ENGINEER, KANSAS CITY DISTRICT, UNTIL 8:20 A.M. ON JANUARY 7, 1971. THE PROPOSAL HAD BEEN SENT REGISTERED MAIL-SPECIAL DELIVERY FROM ROLLA, MISSOURI, ON JANUARY 5, 1971.

THE INVITATION CONTAINED A CLAUSE WHICH, IN PERTINENT PART, STATED:

" *** THOSE (PROPOSALS) RECEIVED BEFORE AWARD IS MADE BUT DELAYED IN THE MAILS BY OCCURRENCES BEYOND CONTROL OF THE OFFEROR MAY BE CONSIDERED IF WRITTEN CERTIFICATION IS FURNISHED BY AUTHORIZED POSTAL AUTHORITIES TO THAT EFFECT. *** "

PULASKI SUBMITTED TWO LETTERS FROM THE ASSISTANT POSTMASTER AT ROLLA, MISSOURI. THE FIRST LETTER DATED JANUARY 8, 1971, STATED:

"THIS IS TO INFORM YOU THAT THE MAIL SCHEDULE FROM ROLLA TO KANSAS CITY NORMALLY WOULD GIVE NEXT DAY DELIVERY FOR MAIL THAT WAS MAILED BEFORE 5 P.M. IN ROLLA."

THE SECOND LETTER DATED FEBRUARY 23, 1971, STATED:

"IN ANSWER TO YOUR INQUIRY ABOUT MAIL SCHEDULED TO KANSAS CITY PLEASE BE ADVISED THAT OUR SCHEDULE SHOWS THAT MAIL LEAVING HERE NOT LATER THAN 9 P.M. WOULD ARRIVE IN KANSAS CITY AT 3:20 A.M. THE NEXT MORNING BY SURFACE MAIL.

"HOWEVER, ON THE DATE OF JANUARY 5, 1971 WE WERE SCHEDULED TO SEND REGISTERED MAIL TO KANSAS CITY AT 4:30 P.M. THROUGH ST. LOUIS. ON THIS DATE YOUR REGISTER WAS DISPATCHED IN A POUCH LABELED ST. LOUIS DIS AND ACCORDING TO SCHEDULE WAS DUE TO ARRIVE AT THE ST. LOUIS TRUCK TERMINAL AT 7:30 P.M. WE DO NOT KNOW THE SCHEDULE FROM THE TRUCK TERMINAL ON TO THE DESTINATION. SINCE IT DID NOT ARRIVE AT KANSAS CITY FOR DELIVERY THE NEXT DAY, IT APPEARS THERE WAS A MISHANDLING OR DELAY EN ROUTE."

HOWEVER, BY LETTER DATED JANUARY 18, 1971, THE POSTMASTER AT KANSAS CITY, MISSOURI, ADVISED THE CORPS OF ENGINEERS AS FOLLOWS:

"WE HAVE CHECKED THE HANDLING OF REGISTERED LETTER #14861, MAILED BY MR. DONALD MAGGI, BOX 549, ROLLA, MISSOURI.

"THIS LETTER WAS RECEIVED AT THE ROLLA POST OFFICE ON JANUARY 5, 1971, AND DISPATCHED TO ST. LOUIS, MISSOURI, AT 4:30 PM ON JANUARY 5. THE POUCH WAS SCHEDULED TO ARRIVE AT THE ST. LOUIS TRUCK TERMINAL AT 7:30 PM ON THAT DATE.

"RECORDS INDICATE THE ITEM WAS RE-BILLED TO KANSAS CITY BY THE REGISTRY SECTION AT THE ST. LOUIS, MISSOURI, POST OFFICE AT 5:15 AM ON JANUARY 6. IT WAS THEN SCHEDULED FOR DISPATCH TO KANSAS CITY VIA AIRLIFT ON FLIGHT 23, SCHEDULED TO ARRIVE AT KANSAS CITY AT 11:47 AM ON JANUARY 6. HOWEVER, FLIGHT 23 WAS ANNULLED AND THE REGISTERED POUCH ARRIVED AT KANSAS CITY VIA TWA SHORTLY AFTER NOON ON JANUARY 6. THE POUCH ACTUALLY ARRIVED AT OUR REGISTRY SECTION AT 2:20 PM ON JANUARY 6.

"AS THE SCHEDULED REGISTERED DISPATCH FROM ST. LOUIS, MISSOURI, IS ON FLIGHT 23, EVEN IF THE POUCH HAD ARRIVED AT KANSAS CITY AS SCHEDULED AT 11:47 AM, IT WOULD HAVE BEEN IMPOSSIBLE FOR THIS PARTICULAR LETTER TO HAVE REACHED OUR REGISTRY SECTION AND BEEN DIRECTED TO THE SPECIAL DELIVERY SECTION IN TIME TO HAVE MADE DELIVERY BEFORE 2:30 PM ON JANUARY 6. THE EARLIEST POSSIBLE DELIVERY WOULD HAVE BEEN ON THE LATE AFTERNOON TRIP LEAVING THE GENERAL POST OFFICE AT 3:30 PM. THE DELAYED ARRIVAL IN KANSAS CITY ELIMINATED ANY POSSIBILITY OF PROCESSING AND DELIVERY DURING THE BUSINESS HOURS ON JANUARY 6, 1971.

"BASED ON INFORMATION SUPPLIED BY THE POSTMASTER AT ROLLA, MISSOURI, AND PROCESSING GIVEN REGISTERED MAIL, WE SEE NO WAY IN WHICH THE LETTER COULD HAVE ARRIVED IN KANSAS CITY AND BEEN DELIVERED PRIOR TO YOUR 2:30 PM OPENING TIME. WE ARE AT A LOSS AS TO WHY THE SENDER WAS TOLD THAT THE LETTER WOULD REACH YOUR OFFICE BY YOUR OPENING TIME, IN VIEW OF THE DISPATCH AND ROUTING THAT HAVE BEEN ESTABLISHED."

ALTHOUGH THE ROLLA ASSISTANT POSTMASTER CONCLUDED THAT IT "APPEARS" THAT THERE HAD BEEN MISHANDLING BY THE POST OFFICE, THE CONCLUSION IS NOT SUPPORTED BY A COMPLETE MAIL ROUTING. ON THE OTHER HAND, THE KANSAS CITY POSTMASTER TRACED THE ROUTING FROM BEGINNING TO END AND INDICATED THAT THE ONLY DELAY WAS THE CANCELLATION OF FLIGHT 23. THE KANSAS CITY POSTMASTER FURTHER STATED THAT EVEN IF THE FLIGHT HAD NOT BEEN DELAYED, THE SCHEDULING WAS SUCH THAT THERE WOULD NOT HAVE BEEN A DELIVERY BEFORE THE 2:30 P.M. OPENING TIME. IN THE CIRCUMSTANCES, THERE HAS BEEN DEMONSTRATED SOMETHING LESS THAN THE REQUIRED WRITTEN CERTIFICATION THAT THE FAILURE OF THE PULASKI PROPOSAL TO ARRIVE TIMELY WAS THE RESULT OF AN OCCURRENCE IN THE MAIL WHICH UNDULY DELAYED TRANSMISSION.

THE FACT THAT BEFORE MAILING THE PROPOSAL A PULASKI REPRESENTATIVE MAY HAVE BEEN ADVISED BY THE ROLLA POST OFFICE THAT IT SHOULD ARRIVE ON TIME AND THAT PULASKI MAY HAVE RELIED UPON SUCH ADVICE DOES NOT CONSTITUTE A BASIS FOR CONSIDERING THE LATE PROPOSAL. B-141156, NOVEMBER 12, 1959. FURTHER, THE FACT THAT PULASKI HAS RECEIVED ORDINARY MAIL FROM THE CORPS OF ENGINEERS IN KANSAS CITY IN LESS TIME THAN THE AMOUNT OF TIME THAT PULASKI PROVIDED FOR THE DELIVERY OF THE PROPOSAL IS OF NO SIGNIFICANCE SINCE CONSTRUCTIVE DELIVERY DEPENDS ON THE MAIL SCHEDULE TO THE CONTRACTING OFFICE OF THE CORPS OF ENGINEERS, NOT FROM THE CORPS OF ENGINEERS. MOREOVER, THE FACT THAT IT MIGHT HAVE BEEN SUPPOSED THAT THE CLASS OF MAIL EMPLOYED WOULD RESULT IN QUICKER DELIVERY THAN ORDINARY MAIL IS NOT CONTROLLING. WHILE THE TYPE OF MAIL SELECTED MAY NOT BE AS FAST AS MIGHT BE EXPECTED, NO BASIS EXISTS FOR PROVIDING AN EXCEPTION TO THE REQUIREMENT FOR TIMELY SUBMISSION OF PROPOSALS. 49 COMP. GEN. 191 (1969).

ACCORDINGLY, THE PROTEST IS DENIED.