B-173306, SEP 27, 1971

B-173306, SEP 27, 1971

BID PROTEST - LATE BID - DELAYS IN MAIL - NON-TAMPERED WITH BID - TERMINATION OF CONTRACT DECISION ALLOWING PROTEST BY UNITED SECURITY SERVICES, INC. (UNITED), AGAINST THE AWARD OF A CONTRACT TO AMCOR, INC., UNDER AN IFB ISSUED BY THE PROCUREMENT DIVISION, FORT BRAGG, N.C. IT IS APPARENT FROM THE RECORD THAT UNITED'S BID WAS LATE BECAUSE OF A DELAY OCCASIONED BY ERRONEOUS ROUTING BY THE POST OFFICE, AND NOT BY ANY FAULT ON UNITED'S PART. THEREFORE, THE CONTRACTING OFFICER'S REJECTION OF THE BID AS BEING LATE WAS ERRONEOUS. SINCE THE POST OFFICE DEPARTMENT'S CRIME LABORATORY REPORTS THAT UNITED'S BID HAS NOT BEEN TAMPERED WITH SINCE BEING RETURNED BY THE CONTRACTING OFFICER, THE BID MAY BE OPENED AND CONSIDERED FOR AWARD BY THE PROCURING ACTIVITY. IF UNITED MEETS THE CRITERIA FOR AWARD, THEN THE CONTRACT WITH AMCOR SHOULD BE TERMINATED AND A NEW AWARD MADE TO UNITED. FURTHER, A SETTLEMENT SHOULD BE MADE WITH AMCOR PURSUANT TO THE TERMINATION FOR CONVENIENCE CLAUSE IN THE CONTRACT.

TO MR. SECRETARY:

REFERENCE IS MADE TO A LETTER FROM YOUR ASSISTANT DEPUTY FOR PROCUREMENT, DATED JULY 23, 1971, WITH ATTACHED REPORT, CONCERNING THE PROTEST OF UNITED SECURITY SERVICES, INC. (UNITED), AGAINST THE AWARD OF A CONTRACT TO AMCOR, INC., UNDER INVITATION FOR BIDS (IFB) DABC21-71 B-0098, ISSUED MAY 10, 1971, BY THE PROCUREMENT DIVISION, FORT BRAGG, NORTH CAROLINA.

THE SUBJECT IFB SOLICITED BIDS FOR CUSTODIAL SERVICES AT VARIOUS MEDICAL FACILITIES AT THAT INSTALLATION, WITH BID OPENING SET FOR 3:00 P.M., JUNE 4, 1971. THE RECORD EVIDENCES RECEIPT, BY BID OPENING, OF EIGHT BIDS WITH AMCOR, INC., THE LOW BIDDER AT A TOTAL PRICE OF $211,611.48.

THE RECORD INDICATES THAT ON THE MORNING OF JUNE 7, 1971, THE PRESIDENT OF THE PROTESTING FIRM TELEPHONED THE SUPERVISORY PROCUREMENT AGENT AT FORT BRAGG TO INQUIRE AS TO THE SUCCESSFUL BIDDER, AND WAS INFORMED THAT A BID FROM HIS FIRM HAD NOT YET BEEN RECEIVED. IN VIEW OF HIS ADVICE THAT HE HAD MAILED A BID LOWER THAN THAT OF AMCOR, INC., HE WAS REQUESTED BY THE SUPERVISORY PROCUREMENT AGENT TO FURNISH HIS CERTIFIED MAIL RECEIPT AT THE EARLIEST POSSIBLE DATE.

A MEMORANDUM FROM THE SUPERVISORY PROCUREMENT AGENT, DATED JUNE 8, 1971, STATES THAT SHE ADVISED A SECRETARY FOR THE PROTESTANT THAT THE FORT BRAGG POST OFFICE STAMPED THE DATE OF RECEIPT OF THE BID AS JUNE 5, 1971 (NO HOUR), AND THAT IT WAS RECEIVED IN THE PROCUREMENT DIVISION AT 10:30 A.M., JUNE 7, 1971.

A LETTER FROM THE PRESIDENT OF THE PROTESTANT, DATED JUNE 9, 1971, ENCLOSED THE REFERENCED CERTIFIED MAIL RECEIPT MANIFESTING A POSTMARK OF 4:30 P.M., JUNE 3, 1971, AT WEST BAY ANNEX, JACKSONVILLE, FLORIDA. AGAIN ADVISING THAT UNITED'S BID WAS APPARENTLY LOW, THE LETTER REQUESTED THAT THE SUPERVISORY PROCUREMENT AGENT VERIFY, PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-303.3(D), THAT LATE DELIVERY WAS DUE SOLELY TO DELAY IN THE MAILS.

WITH REGARD TO THE CIRCUMSTANCES PERMITTING CONSIDERATION FOR AWARD OF A LATE MAILED BID, ASPR 2-303.3(A)(I) PROVIDES THAT SUCH A BID MAY BE CONSIDERED IF IT WAS SENT BY REGISTERED MAIL OR BY CERTIFIED MAIL FOR WHICH AN OFFICIAL DATED POSTMARK ON THE ORIGINAL RECEIPT FOR CERTIFIED MAIL HAS BEEN OBTAINED, AND IT IS DETERMINED THAT LATENESS WAS DUE SOLELY TO A DELAY IN THE MAILS. ASPR 2-303.3(D) PROVIDES THAT NORMAL TIME FOR MAIL DELIVERY SHALL BE OBTAINED BY THE PROCURING ACTIVITY FROM THE POSTMASTER OF THE POST OFFICE SERVING THAT ACTIVITY.

A MEMORANDUM BY THE SUPERVISORY PROCUREMENT AGENT, DATED JUNE 11, 1971, STATES THAT SHE CALLED MR. MCKNIGHT, SUPERINTENDENT OF MAILS, FAYETTEVILLE, NORTH CAROLINA, AND INQUIRED WHETHER A BID MAILED BY CERTIFIED, AIR MAIL, SPECIAL DELIVERY (AS WAS UNITED'S) FROM JACKSONVILLE, FLORIDA, AT 4:30 P.M., JUNE 3, 1971, COULD HAVE REACHED FORT BRAGG BY 3:00 P.M., ET, JUNE 4, 1971.

BY LETTER DATED JUNE 11, 1971, MR. MCKNIGHT STATED THAT A LETTER MAILED FROM JACKSONVILLE BY 4:30 P.M. WOULD LEAVE JACKSONVILLE AT 10:05 P.M., LEAVE ATLANTA AT 12:30 A.M., ARRIVE AT CHARLOTTE, NORTH CAROLINA, AT 1:19 A.M., LEAVE CHARLOTTE AT 5:45 A.M., ARRIVE AT FAYETTEVILLE BY BUS AT 10:30 A.M., AND LEAVE FAYETTEVILLE FOR FORT BRAGG AT 4:25 P.M.

A MEMORANDUM FROM THE PROCUREMENT AGENT AT FORT BRAGG, DATED JUNE 11, 1971, RELATES THAT MR. MCKNIGHT HAD CONTACTED THE JACKSONVILLE SUPERINTENDENT OF MAILS WHO, UPON CHECKING THE SCHEDULE, STATED THAT THE BID, MAILED AT 4:30 P.M., JUNE 3, 1971, COULD NOT HAVE REACHED FORT BRAGG BY 3:00 P.M., JUNE 4, 1971.

BASED ON THIS INFORMATION, IT WAS DETERMINED THAT UNITED'S BID WAS NOT MAILED IN SUFFICIENT TIME TO ARRIVE AT FORT BRAGG PRIOR TO DATE AND HOUR SPECIFIED FOR BID OPENING. ACCORDINGLY, THE CONTRACT WAS AWARDED TO AMCOR, INC., ON JUNE 11, 1971, AND UNITED WAS SO INFORMED BY A LETTER DATED JUNE 14, 1971, WITH RETURN OF ITS BID UNOPENED.

BY LETTERS DATED JUNE 14, 19, 21, 24 AND 25, 1971, PLUS VARIOUS INFORMAL COMMUNICATIONS, COUNSEL FOR UNITED PROTESTED THE FOREGOING ACTION TO OUR OFFICE. ALSO FORWARDED TO OUR OFFICE, BY THE LETTER DATED JUNE 19, 1971, WAS THE BID, ENCLOSED IN AN "OFFICIAL BUSINESS" BROWN ENVELOPE, ADDRESSED TO UNITED, ALLEGEDLY UNOPENED, WITH "DEPARTMENT OF THE ARMY" PRINTED IN BLACK AT THE UPPER LEFT CORNER AND THE WORDS "PROCUREMENT DIVISION, DRAWER E, FORT BRAGG, NORTH CAROLINA 28307" STAMPED IN RED INK JUST BELOW. (THE ENVELOPE WAS APPARENTLY SEALED BY THE PROCURING ACTIVITY BY THE PLACEMENT OF TWO PIECES OF CELLOPHANE TAPE ON THE TWO EDGES OF THE V-SHAPED FLAP ON THE BACK SIDE OF THE ENVELOPE.)

THE ESSENCE OF UNITED'S PROTEST, AS PRESENTED TO OUR OFFICE BY ITS COUNSEL, IS THAT THE LATENESS OF THE BID IS ATTRIBUTED SOLELY TO IMPROPER ROUTING BY THE U.S. POSTAL SERVICE IN THAT, AFTER HAVING BEEN SENT BY AIR MAIL TO ATLANTA, THE BID WAS ROUTED BY AIR MAIL TO CHARLOTTE, NORTH CAROLINA, AND THEN CARRIED BY BUS TO FAYETTEVILLE, SOME 150 MILES IN DISTANCE. THIS TRANSPORTATION BY BUS, SUBMITS UNITED'S COUNSEL, WAS CONTRARY TO THE "AIR MAIL" AND "SPECIAL DELIVERY" STATUS OF THE BID AS MAILED. IT IS CONTENDED THAT THERE WERE SUFFICIENT AIR MAIL CONNECTIONS BETWEEN ATLANTA AND FAYETTEVILLE TO ENABLE THE BID TO HAVE BEEN RECEIVED AT THE FAYETTEVILLE POST OFFICE IN TIME TO HAVE BEEN INCLUDED IN THE 11:00 A.M. DISPATCH TO FORT BRAGG, ARRIVING AT THE LATTER LOCATION AT APPROXIMATELY NOON.

COUNSEL FOR UNITED PROVIDED OUR OFFICE WITH A WRITTEN STATEMENT, DATED JULY 20, 1971, FROM THE SUPERINTENDENT, AIRPORT MAIL FACILITY, ATLANTA, GEORGIA, DECLARING THAT UNDER NORMAL CONDITIONS, AN AIR MAIL SPECIAL DELIVERY LETTER, ARRIVING FROM JACKSONVILLE ON DELTA FLIGHT 192, AT 11:13 P.M., IN A POUCH LABELLED SCF FAYETTEVILLE, NORTH CAROLINA, WOULD BE DISPATCHED TO FAYETTEVILLE, NORTH CAROLINA, ON PIEDMONT FLIGHT 72, LEAVING ATLANTA AT 7:00 A.M. IT IS ALSO STATED THAT ON JUNE 3 AND 4, 1971, THERE WAS NO INTERRUPTION OF AIR SERVICE.

ON THE BASIS OF THIS STATEMENT, WE MADE FURTHER INQUIRY RESULTING IN RECEIPT OF THE FOLLOWING:

1. A LETTER DATED JULY 23, 1971, FROM M. G. MCKNIGHT, SUPERINTENDENT OF MAILS, FAYETTEVILLE, NORTH CAROLINA, STATING THAT A SPECIAL DELIVERY, AIR MAIL LETTER ARRIVING AT THE FAYETTEVILLE, NORTH CAROLINA, POST OFFICE BY APPROXIMATELY 9:10 A.M. WOULD BE SCHEDULED FOR DISPATCH TO FORT BRAGG AT 11:00 P.M., ARRIVING AT FORT BRAGG AT APPROXIMATELY 11:30 A.M.

2. A LETTER, DATED JULY 26, 1971, FROM THE POSTMASTER, UNITED STATES POST OFFICE, JACKSONVILLE, FLORIDA, STATING THAT MAILING WOULD HAVE BEEN ROUTED TO FORT BRAGG VIA AN SCF FAYETTEVILLE, NORTH CAROLINA, POUCH VIA DELTA 192, AND BILLED TO CHARLOTTE, NORTH CAROLINA, AS REFLECTED IN THE AIR MAIL SCHEDULE FOR THE MONTH OF JUNE. THE LETTER STATES THAT THIS SCHEDULE IS PREPARED BY THE ATLANTA REGION AND THAT THE JACKSONVILLE POSTAL AUTHORITIES WERE COMPELLED TO COMPLY WITH THIS ROUTING SCHEDULE.

THE LETTER ALSO STATES THAT THE ROUTING OF THE LETTER (THROUGH CHARLOTTE) WAS IN ERROR BECAUSE CLOSE STUDY OF THE ROUTING REVEALS THAT NEXT DAY DELIVERY WOULD BE ASSURED BY ROUTING A LETTER TO ATLANTA FOR CONNECTION WITH PIEDMONT 72, DEPARTING AT 7:00 A.M. AND ARRIVING AT THE FAYETTEVILLE AIRPORT AT 8:55 A.M.

THE LETTER CONCLUDED BY STATING THAT MR. MCKNIGHT, THE FAYETTEVILLE SUPERINTENDENT OF MAILS, ADVISES THAT UNDER NORMAL CONDITIONS, MAIL ROUTED VIA PIEDMONT 72 WOULD HAVE MADE ARRIVAL AT THE FORT BRAGG BRANCH IN TIME TO BE CONSIDERED FOR BID OPENING ON JUNE 4, 1971, AT 3:00 P.M.

AFTER FURTHER INVESTIGATION BY OUR OFFICE, WE DISPATCHED THE FOLLOWING LETTER, DATED JULY 30, 1971, TO THE JACKSONVILLE POSTMASTER:

"REFERENCE IS MADE TO RECENT CORRESPONDENCE CONCERNING THE ALLEGATION OF ALBERT MILLAR, JR., ESQ., THAT A CERTIFIED, AIR MAIL, SPECIAL DELIVERY LETTER MAILED 4:30 P.M., JUNE 3, 1971, AND ADDRESSED TO FORT BRAGG, NORTH CAROLINA, SHOULD HAVE BEEN ROUTED FROM ATLANTA, GEORGIA, TO FAYETTEVILLE, NORTH CAROLINA, VIA PIEDMONT AIRLINES FLIGHT NO. 72 ON JUNE 4, 1971.

"OUR REVIEW OF THE ENCLOSURES, INCLUDING THE AIR-MAIL SCHEME DATED 06 01- 71, INDICATES THAT, UNDER NORMAL CONDITIONS, SUCH A LETTER SHOULD HAVE BEEN ROUTED THROUGH ATLANTA VIA DELTA FLIGHT 192 AND PIEDMONT FLIGHT 72 SO AS TO COMPLY WITH POST OFFICE SERVICES (DOMESTIC) REGULATION SECTION 136.2, SUBSECTION .21, REQUIRING AIR MAIL TO BE GIVEN THE MOST EXPEDITIOUS HANDLING IN BOTH DISPATCH AND DELIVERY. FURTHER, WE INTERPRET YOUR LETTER OF JULY 26 TO THIS OFFICE TO ADVISE THAT, HAD THE LETTER IN QUESTION BEEN SO ROUTED IT SHOULD HAVE ARRIVED AT FAYETTEVILLE, NORTH CAROLINA, AIRPORT AT 0855 ON JUNE 4.

"PLEASE ADVISE WHETHER YOU CONSIDER THE FOREGOING TO BE A CORRECT INTERPRETATION OF THE ENCLOSURES AT YOUR EARLIEST CONVENIENCE."

BY LETTER DATED AUGUST 3, 1971, THE JACKSONVILLE POSTMASTER REPLIED THAT THE SUMMATION IN THE SECOND PARAGRAPH OF OUR LETTER WAS A CORRECT INTERPRETATION OF THE DISPATCHES AND DELIVERY SCHEDULE SET FORTH IN THE LETTER OF THE JACKSONVILLE POSTMASTER, DATED JULY 26, 1971.

IN VIEW THEREOF, OUR OFFICE IS COMPELLED TO CONCLUDE THAT, HAD THE BID BEEN ROUTED ACCORDING TO EXISTING POSTAL SCHEDULES AND REGULATIONS, IT WOULD HAVE ARRIVED AT FORT BRAGG IN TIME TO BE PRESENT FOR THE OPENING OF BIDS; AND THAT THE LATENESS OF UNITED'S BID WAS THEREFORE DUE SOLELY TO A DELAY IN THE MAILS CAUSED BY ERRONEOUS ROUTING. ACCORDINGLY, IT IS APPARENT THAT THE ORIGINAL INFORMATION OBTAINED BY THE PROCURING ACTIVITY FROM THE POSTAL OFFICIALS, STATING THAT UNITED'S BID WAS NOT MAILED, UNDER EXISTING POSTAL SCHEDULES, IN TIME TO REACH FORT BRAGG PRIOR TO BID OPENING, WAS FACTUALLY INCORRECT.

ON THE BASIS OF THE FOREGOING, AMCOR WAS NOTIFIED BY OFFICE LETTER DATED AUGUST 13, 1971, THAT UNITED'S PROTEST MAY HAVE MERIT. INCLUDED WITH SAID LETTER, WERE COPIES OF THE CORRESPONDENCE BETWEEN OUR OFFICE AND THE VARIOUS POSTAL OFFICIALS. AMCOR WAS EXTENDED THE OPPORTUNITY TO PRESENT COMMENTS THEREON, AND DID SO BY A LETTER FROM ITS COUNSEL DATED AUGUST 24, 1971, WHICH HAVE BEEN DULY CONSIDERED.

FROM THE FOREGOING RECORD, IT IS APPARENT THAT THE REJECTION OF UNITED'S LATE BID WAS IMPROPER, SINCE IT WAS BASED UPON INFORMATION FROM THE FAYETTEVILLE, NORTH CAROLINA, POST OFFICE WHICH LATER PROVED TO BE FACTUALLY INCORRECT. HOWEVER, SINCE THE AWARD TO AMCOR APPEARS TO HAVE BEEN MADE IN GOOD FAITH, THERE REMAINS FOR RESOLUTION THE QUESTION OF WHETHER CORRECTIVE ACTION SHOULD BE TAKEN.

IN B-164826, AUGUST 29, 1968, OUR OFFICE RECOMMENDED "CANCELLATION" OF A CONTRACT AWARDED ERRONEOUSLY BUT IN GOOD FAITH, DUE TO MISTAKE OF FACTS, TO OTHER THAN THE LOW RESPONSIVE, RESPONSIBLE BIDDER. WE DECLARED THAT THIS WAS NECESSARY TO UPHOLD THE INTEGRITY OF THE COMPETITIVE BID SYSTEM, AND SPECIFICALLY THE MANDATORY REQUIREMENT THEREOF THAT AWARD BE MADE TO THE LOW BIDDER. SEE ALSO B-149466, JULY 27, 1962. WE BELIEVE A SIMILAR CONCLUSION IS NECESSARY IN THE INSTANT CASE.

IN B-170836 AND B-170940, NOVEMBER 2, 1970, 50 COMP. GEN. , OUR OFFICE MODIFIED ITS PREVIOUS POSITION THAT A LATE BID SHOULD NOT BE CONSIDERED FOR AWARD AFTER IT HAS BEEN RETURNED TO A BIDDER, EVEN WHEN THE RETURN WAS IMPROPER. IN THAT DECISION, WE WERE CONCERNED THAT ONCE A BID LEFT THE CUSTODY OF THE GOVERNMENT, THERE EXISTED THE OPPORTUNITY FOR TAMPERING THEREWITH. WE SUBMITTED THE BID ENVELOPE TO THE POST OFFICE DEPARTMENT CRIME LABORATORY FOR AN EXAMINATION TO DETERMINE WHETHER THE ENVELOPE HAD BEEN OPENED AND RESEALED. IT WAS OUR POSITION THAT:

"INASMUCH AS THE POST OFFICE IS CAPABLE OF FURNISHING REASONABLE ASSURANCES THAT A SEALED ENVELOPE HAS NOT BEEN TAMPERED WITH *** WE WILL NOT CONSIDER THAT LATE BIDS UNJUSTIFIABLY RETURNED TO BIDDERS ARE PRIMA FACIE UNACCEPTABLE."

ACCORDINGLY, WE LIKEWISE SUBMITTED UNITED'S BID ENVELOPE TO THE SAME LABORATORY FOR EXAMINATION AND RECEIVED A REPORT CONTAINING THE FOLLOWING FINDINGS:

"FINDINGS: DETAILED EXAMINATION OF THE AREA OF THE MAIN FLAP OF THE SUBMITTED ENVELOPE FAILED TO DISCLOSE EVIDENCE INDICATING THE ENVELOPE HAS BEEN TAMPERED WITH.

THE ENVELOPE DOES NOT APPEAR TO HAVE BEEN SECURED BY MOISTENING OF THE FLAP. CLOSING OF THE FLAP THEREFORE APPEARS TO HAVE BEEN ACCOMPLISHED ENTIRELY WITH THE USE OF TWO STRIPS OF CELLOPHANE TAPE PLACED OVER THE FLAP EDGES. THESE SHOW NO IRREGULARITIES INDICATING THEY WERE RAISED AND REPLACED. SOME CRUMPLING OF THE CELLOPHANE TAPE EXISTS TOWARD THE UPPER LEFT CORNER; HOWEVER, THIS IS BELIEVED TO HAVE OCCURRED IN THE REGULAR COURSE OF MAIL HANDLING."

IN VIEW OF THE FOREGOING, WE MUST CONCLUDE THAT THE ENVELOPE CONTAINING UNITED'S BID WAS NOT TAMPERED WITH BY THE PROTESTANT BEFORE TRANSMITTAL TO OUR OFFICE, AND THE BID MAY THEREFORE BE CONSIDERED FOR AWARD.

ACCORDINGLY, WE ARE ENCLOSING UNITED'S BID, WHICH SHOULD NOW BE OPENED AND, IF FOUND TO BE LOW AND OTHERWISE ACCEPTABLE, A DETERMINATION SHOULD BE MADE AS TO WHETHER UNITED IS A RESPONSIBLE BIDDER FOR PURPOSES OF PERFORMANCE OF THE WORK CONTEMPLATED BY THE IFB. IN THE EVENT SUCH DETERMINATION IS AFFIRMATIVE, IT IS RECOMMENDED THAT AMCOR'S CONTRACT BE TERMINATED PROMPTLY AND THE REMAINDER OF THE CONTRACT WORK AWARDED TO UNITED. SINCE THE AWARD TO AMCOR APPEARS TO HAVE BEEN MADE IN GOOD FAITH, IT IS FURTHER RECOMMENDED THAT A SETTLEMENT BE MADE WITH AMCOR PURSUANT TO THE TERMS OF THE TERMINATION FOR CONVENIENCE CLAUSE OF ITS CONTRACT. SEE JOHN REINER AND COMPANY V UNITED STATES, 163 CT. CLS. 381, 390 (1963).

COPIES OF THIS DECISION HAVE BEEN FORWARDED TO THE ATTORNEYS REPRESENTING BOTH UNITED AND AMCOR.

THIS PROTEST WAS THE SUBJECT OF A REPORT DATED JULY 23, 1971, FROM YOUR ASSISTANT DEPUTY FOR PROCUREMENT, AND THE FILE FORWARDED WITH THAT REPORT IS RETURNED.