B-175904, AUG 3, 1972

B-175904, AUG 3, 1972

BID PROTEST - LATE BID - MAIL DELIVERY SCHEDULES DENIAL OF PROTEST BY G. A. KARNAVAS PAINTING COMPANY AGAINST THE REFUSAL OF THE FEDERAL AVIATION ADMINISTRATION TO CONSIDER A BID SUBMITTED UNDER AN IFB ISSUED BY THE ATC-AIRPORT FACILITIES SECTION, WASHINGTON, D.C., WHERE THE BID WAS RECEIVED 36 MINUTES LATE. LATE BIDS MAY BE CONSIDERED ONLY IF THEY ARRIVE AT THE INSTALLATION IN SUFFICIENT TIME TO BE RECEIVED BY THE DESIGNATED OFFICE, BUT ARE THEN DELAYED DUE TO MISHANDLING ON THE PART OF THE GOVERNMENT. FPR 1 2.303-3. SINCE THE POSTAL SERVICE MAIL AND MESSENGER SERVICE SCHEDULE AND THE STATEMENT OF THE FAA MAILROOM SUPERVISOR ARE CONSISTENT WITH THE RECEIPT TIME STAMP ON THE BID, THE PROTEST MUST BE DENIED.

TO G. A. KARNAVAS PAINTING COMPANY:

REFERENCE IS MADE TO YOUR LETTERS OF MAY 8, MAY 10 AND JULY 8, 1972, PROTESTING THE REFUSAL OF THE FEDERAL AVIATION ADMINISTRATION (FAA) TO CONSIDER YOUR BID UNDER INVITATION FOR BIDS WA5S-2-0784B1, ISSUED APRIL 14, 1972, BY THE ATC-AIRPORT FACILITIES SECTION, WASHINGTON, D.C.

THE SUBJECT IFB REQUIRED THE CONTRACTOR TO FURNISH ALL MATERIALS, LABOR, EQUIPMENT, TOOLS AND INCIDENTALS TO REPAIR AND PAINT THE EXTERIOR OF HANGERS 8, 9, 11, AND 12 AT WASHINGTON NATIONAL AIRPORT IN ACCORDANCE WITH VARIOUS SPECIFICATIONS.

PAGE 1 OF THE BID FORM SPECIFIED 2 P.M., MAY 4, 1972, AS THE TIME FOR OPENING OF BIDS, AND REQUIRED THAT BIDS BE RECEIVED BY THAT TIME.

YOUR BID, SENT BY AIR MAIL BUT NOT BY REGISTERED OR CERTIFIED MAIL, AND BEARING A TIME STAMP OF 5 P.M., MAY 1, 1972, FROM CLEVELAND, OHIO, WAS STAMPED BY THE PROCURING ACTIVITY AS BEING RECEIVED AT 2:36 P.M., MAY 4, 1972, 36 MINUTES AFTER THE SCHEDULED OPENING OF BIDS.

THE RECORD STATES THAT THE CONTRACTING OFFICER WAS UNABLE TO DETERMINE THAT LATENESS WAS DUE SOLELY TO A DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE, NOR COULD HE CONCLUDE THAT THE LATENESS OF THE BID WAS ATTRIBUTABLE TO MISHANDLING ON THE PART OF PERSONNEL AT THE PROCURING ACTIVITY AFTER A TIMELY RECEIPT THEREOF. ACCORDINGLY, YOUR BID WAS NOT OPENED.

IT IS YOUR CONTENTION THAT YOUR BID IS THE LOWEST, AND THAT IT WAS MAILED IN SUFFICIENT TIME TO REACH ITS DESTINATION PRIOR TO THE TIME SCHEDULED FOR OPENING OF BIDS. IN SUPPORT OF YOUR ALLEGATION OF TIMELY MAILING, YOU HAVE SUBMITTED A STATEMENT DATED MAY 9, 1972, FROM THE POSTMASTER, UNITED STATES POST OFFICE, CLEVELAND, OHIO, TO THE EFFECT THAT AN AIR MAIL LETTER MAILED ABOUT 8:30 A.M. ON MAY 1, AT THE LAKEWOOD BRANCH POST OFFICE, SHOULD HAVE BEEN DELIVERED TO THE PROCURING AGENCY ON MAY 2.

HOWEVER, AS THE BASIS FOR YOUR PROTEST, YOU ALLEGE THAT YOUR BID'S LATENESS IS ATTRIBUTABLE SOLELY TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION (FAA). YOU PREDICATE THIS ALLEGATION UPON INFORMATION CONVEYED TO YOU BY THE SUPERVISOR OF THE FAA MAILROOM THAT MAIL IS DELIVERED AT 6:45 A.M., 9:30 A.M., 12:15 P.M., AND 3:15 P.M. IN VIEW THEREOF, AND SINCE THE BID WAS STAMPED AS BEING RECEIVED AT 2:36 P.M., MAY 4, 1972, YOU IMPLY THAT IT MUST HAVE BEEN RECEIVED IN THE 12:15 P.M. DELIVERY AT THE VERY LATEST, SINCE THERE WAS NO DELIVERY AFTER THAT UNTIL 3:15 P.M.

WITH REGARD TO BIDS RECEIVED BEFORE AWARD BUT AFTER THE TIME SET FOR OPENING OF BIDS, FEDERAL PROCUREMENT REGULATIONS (FPR) 1-2.303-3(A), SET FORTH BELOW AND PARAPHRASED BY ITEM 7(A) OF THE INSTRUCTIONS TO BIDDERS (STANDARD FORM 22) INCLUDED IN THE SUBJECT IFB, DELINEATES THE CONDITIONS UNDER WHICH A LATE BID MAY BE CONSIDERED FOR AWARD WHEN THE LATENESS WAS DUE TO MISHANDLING BY THE INSTALLATION WHERE THE PROCURING OFFICE IS LOCATED:

"SEC. 1-2.303-3 MAILED BIDS.

(A) CIRCUMSTANCES PERMITTING CONSIDERATION FOR AWARD OF A LATE MAILED BID. A LATE MAILED BID RECEIVED BEFORE AWARD MAY BE CONSIDERED FOR AWARD ONLY IF

(2) IT WAS RECEIVED AT THE GOVERNMENT INSTALLATION IN SUFFICIENT TIME TO BE RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION BY THE TIME SET FOR OPENING AND, EXCEPT FOR DELAY DUE TO MISHANDLING ON THE PART OF THE GOVERNMENT AT THE INSTALLATION, WOULD HAVE BEEN RECEIVED ON TIME AT THE OFFICE DESIGNATED. THE ONLY EVIDENCE ACCEPTABLE TO ESTABLISH TIMELY RECEIPT AT THE GOVERNMENT INSTALLATION IS THAT WHICH CAN BE ESTABLISHED UPON EXAMINATION OF AN APPROPRIATE DATE OR TIME STAMP (IF ANY) OF SUCH INSTALLATION, OR OF OTHER DOCUMENTARY EVIDENCE OF RECEIPT AT SUCH INSTALLATION (IF READILY AVAILABLE) WITHIN THE CONTROL OF SUCH INSTALLATION OR OF THE POST OFFICE SERVING IT."

WITH REGARD TO THE INFORMATION AS TO THE SCHEDULE OF MAIL DELIVERIES TO THE PROCURING ACTIVITY WHICH THE SUPERVISOR OF THE FAA MAILROOM IMPARTED TO YOU, AND WHICH FAILED TO QUOTE ANY SCHEDULED DELIVERY AFTER 12:15 P.M. AND BEFORE 3:15 P.M., THE SUPERINTENDENT, OFFICIAL MAIL AND MESSENGER SERVICES, POSTAL SERVICE, WASHINGTON, D.C., HAS FURNISHED THE SCHEDULE OF MAIL DELIVERIES AND COLLECTIONS FOR FAA WHICH SETS FORTH THE DEPARTURE TIMES FROM THE FAA LOADING PLATFORM. THAT SCHEDULE SHOWS A SERVICE WHEREBY THE POSTAL EMPLOYEE LEAVES THE FAA PLATFORM AT 2:45 P.M. FROM A DELIVERY-ONLY TRIP. WE BELIEVE THE FAA TIME OF RECEIPT STAMP OF 2:36 P.M. CORRESPONDS WITH THIS DELIVERY TRIP.

WE HAVE INFORMALLY CONTACTED THE SUPERVISOR OF THE FAA MAILROOM WHO REMEMBERED SPEAKING WITH YOU AND CITING THE DELIVERY SCHEDULE "OFF THE TOP OF MY HEAD." HE ADVISES THAT HE DOESN'T RECALL WHAT SPECIFIC INFORMATION HE GAVE YOU, BUT DOES ACKNOWLEDGE THE EXISTENCE OF THE 2:45 P.M. DEPARTURE TIME ON THE SCHEDULE. WHILE ANY MISUNDERSTANDING OR OVERSIGHT IN THE CITATION OF THE DELIVERY SCHEDULE WAS UNFORTUNATE, HIS CORROBORATION TO THIS OFFICE OF THE EXISTENCE OF THE 2:45 P.M. DEPARTURE AFTER DELIVERY, WHICH IS CONSISTENT WITH BOTH THE TIME STAMP OF RECEIPT AND THE POSTAL SERVICE SCHEDULE, LEAVES OUR OFFICE WITHOUT A BASIS UPON WHICH WE MAY BE PERMITTED TO INFER TIMELY RECEIPT AT THE INSTALLATION PURSUANT TO FPR 1- 2.303-3(A)(2), WITH A CONSEQUENTIAL FINDING OF GOVERNMENT MISHANDLING.

ACCORDINGLY, YOUR PROTEST MUST BE DENIED.