B-128579, DEC. 10, 1956

B-128579: Dec 10, 1956

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INC.: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 15. IT WAS HELD UNDER THE CIRCUMSTANCES THEREIN SET FORTH THAT WE WOULD NOT BE JUSTIFIED IN QUESTIONING THE ADMINISTRATIVE DETERMINATION THAT THE LATE BID OF AURORA PUMP COMPANY WAS MAILED IN SUFFICIENT TIME TO HAVE REACHED THE DESIGNATED OFFICE PRIOR TO THE TIME FIXED FOR THE OPENING OF THE BIDS IN THE ORDINARY AND USUAL COURSE OF THE MAILS. IT IS CONTENDED THAT THE DATE APPEARING ON A PIECE OF METERED MAIL CANNOT BE RELIED UPON AS SHOWING THE EXACT DATE OF MAILING. THE BID OF AURORA PUMP COMPANY SHOULD HAVE BEEN CONSIDERED AS A LATE BID AND NOT ELIGIBLE FOR AWARD. IN SUPPORT OF YOUR CONTENTION THAT IT IS POSSIBLE TO PRESTAMP ENVELOPES AND MAIL THEM AT A LATER DATE.

B-128579, DEC. 10, 1956

TO WALTER H. EAGAN CO., INC.:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 15, 1956, CONCERNING YOUR PROTEST OF THE AWARD OF THE CONTRACT TO THE AURORA PUMP COMPANY FOR CIRCULATING PUMPS PURSUANT TO INVITATION FOR BIDS NO. N140-1323-56, ISSUED BY THE U.S. NAVY PURCHASING OFFICE, BROOKLYN, NEW YORK.

IN OUR LETTER OF SEPTEMBER 4, 1956, IT WAS HELD UNDER THE CIRCUMSTANCES THEREIN SET FORTH THAT WE WOULD NOT BE JUSTIFIED IN QUESTIONING THE ADMINISTRATIVE DETERMINATION THAT THE LATE BID OF AURORA PUMP COMPANY WAS MAILED IN SUFFICIENT TIME TO HAVE REACHED THE DESIGNATED OFFICE PRIOR TO THE TIME FIXED FOR THE OPENING OF THE BIDS IN THE ORDINARY AND USUAL COURSE OF THE MAILS.

IT IS CONTENDED THAT THE DATE APPEARING ON A PIECE OF METERED MAIL CANNOT BE RELIED UPON AS SHOWING THE EXACT DATE OF MAILING, AND THAT, THEREFORE, THE BID OF AURORA PUMP COMPANY SHOULD HAVE BEEN CONSIDERED AS A LATE BID AND NOT ELIGIBLE FOR AWARD. IN SUPPORT OF YOUR CONTENTION THAT IT IS POSSIBLE TO PRESTAMP ENVELOPES AND MAIL THEM AT A LATER DATE, THERE WERE SUBMITTED CERTAIN SAMPLES WHERE YOU HAD DONE SO AND THE LETTERS WERE NOT QUESTIONED BY THE POST OFFICE DEPARTMENT. YOU DO NOT QUESTION THAT ANY SUCH CIRCUMSTANCES EXISTED IN THIS CASE, BUT IT IS CONTENDED THAT IF THE DATE APPEARING ON METERED MAIL IS ACCEPTED IT WOULD BE POSSIBLE.

PARAGRAPH 2-302 OF THE ARMED SERVICES PROCUREMENT REGULATION WITH REGARD TO THE SUBMISSION OF BIDS PROVIDES:

"TIME OF SUBMISSION. BIDS SHALL BE SUBMITTED IN SUFFICIENT TIME TO REACH THE DESIGNATED OFFICE PRIOR TO THE TIME FIXED FOR OPENING. BIDS RECEIVED AFTER THE TIME FIXED FOR OPENING ARE LATE BIDS; AND THE EXACT DATE AND HOUR OF MAILING SUCH BIDS, AS SHOWN BY THE CANCELLATION STAMP OR BY THE STAMP OF AN APPROVED METERING DEVICE SHALL BE RECORDED. SUCH LATE BIDS SHALL BE CONSIDERED PROVIDED THEY ARE RECEIVED BEFORE THE AWARD HAS BEEN MADE AND PROVIDED THE FAILURE TO ARRIVE ON TIME WAS DUE SOLELY TO A DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE; OTHERWISE, LATE BIDS SHALL NOT BE CONSIDERED BUT SHALL BE HELD UNOPENED UNTIL THE TIME OF AWARD AND THEN RETURNED TO THE BIDDER, UNLESS OTHER DISPOSITION IS REQUESTED OR AGREED TO BY THE BIDDER.'

THE NAVY PROCUREMENT DIRECTIVES IMPLEMENTING THE REGULATION PROVIDE THAT WHEN THE CANCELLATION STAMP OR THE STAMP OF AN APPROVED METERING DEVICE DOES NOT SHOW THE EXACT HOUR OF MAILING THE BID SHOULD BE CONSIDERED AS HAVING BEEN MAILED ON THE LAST MINUTE OF THE DAY INDICATED BY SUCH STAMP.

THE ADMINISTRATIVE DETERMINATION THAT THE BID INVOLVED WAS MAILED IN TIME TO HAVE BEEN RECEIVED PRIOR TO THE OPENING IN THE ORDINARY COURSE OF THE MAILS WAS MADE BY THE CONTRACTING OFFICE IN ACCORDANCE WITH THE ABOVE ADMINISTRATIVE REGULATIONS. THERE IS NOTHING OF RECORD TO INDICATE THAT THE ENVELOPE INVOLVED WAS NOT POSTMARKED IN THE ORDINARY COURSE OF BUSINESS AND THAT THE BID WAS NOT MAILED ON THE DAY INDICATED. FURTHERMORE, EVEN ASSUMING THAT IT WAS NOT, THE RECORD STILL INDICATES THAT AT THE TIME OF MAILING, THE BIDDER COULD NOT HAVE BEEN AWARE OF THE PRICES QUOTED BY THE OTHER BIDDERS SINCE IT MUST HAVE BEEN MAILED PRIOR TO THE TIME OF THE BID OPENING TO HAVE ARRIVED FROM AURORA, ILLINOIS, ONLY TWO HOURS AND 24 MINUTES LATE.

YOU ARE ADVISED THAT THE ADMINISTRATIVE REGULATIONS ARE BEING REVISED AT THE PRESENT TIME AND THAT UNDER THE NEW REGULATIONS CERTAIN ADDITIONAL REQUIREMENTS WITH RESPECT TO THE ESTABLISHMENT OF THE TIME OF MAILING OF METERED STAMPED BIDS WILL BE IMPOSED.

SINCE THE ADMINISTRATIVE DETERMINATION IN THIS CASE WAS MADE IN ACCORDANCE WITH THE REGULATIONS IN EFFECT AT THE TIME AND THERE APPEARS TO BE NO QUESTION OF FRAUD OR FAVORITISM, WE WOULD NOT BE JUSTIFIED IN QUESTIONING THE AWARD OF THE CONTRACT IN QUESTION.

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