B-143661, AUGUST 12, 1960, 40 COMP. GEN. 91

B-143661, AUGUST 12, 1960, 40 COMP. GEN. 91

BIDS - LATE - METER POSTMARKS - EVIDENCE EVIDENCE SUBMITTED BY A LOW BIDDER, INCLUDING STATEMENTS BY EMPLOYEES OF THE BIDDER, THAT ITS LATE BID MAILED IN AN ENVELOPE WHICH BORE A METERED STAMP, BUT DID NOT BEAR A POST OFFICE CANCELLATION STAMP SHOWING THE HOUR AND DATE OF ACTUAL MAILING, WAS MAILED IN TIME TO MEET THE SCHEDULED BID OPENING DATE AND HOUR, WITHOUT SUBSTANTIATING EVIDENCE BY POST OFFICE EMPLOYEES, FROM PERSONAL KNOWLEDGE, THAT THE BID ENVELOPE WAS ACTUALLY RECEIVED FOR MAILING IN SUFFICIENT TIME TO REACH ITS DESTINATION, FALLS SHORT OF ESTABLISHING THE ACTUAL TIME OF MAILING AND, THEREFORE, THE LATE BID MAY NOT BE CONSIDERED FOR AWARD.

TO THE SECRETARY OF THE ARMY, AUGUST 12, 1960:

BY LETTER DATED AUGUST 1, 1960, WITH ENCLOSURES, THE CHIEF, CONTRACTS BRANCH, PROCUREMENT DIVISION, OFFICE OF THE DEPUTY CHIEF OF STAFF FOR LOGISTICS, REQUESTED OUR DECISION AS TO THE APPROPRIATE ACTION TO BE TAKEN WITH RESPECT TO A PROTEST BY THE ENTWISTLE MANUFACTURING CORPORATION AGAINST THE CONSIDERATION OF A LATE BID SUBMITTED BY THE FARMERS TOOL AND SUPPLY CORP. UNDER INVITATION FOR BIDS NO. SC-36-039-60-673-B4.

THE INVITATION, AS AMENDED, FIXED THE TIME OF OPENING OF BIDS AS 1:30 P.M., JUNE 2, 1960, AT THE U.S. ARMY SIGNAL SUPPLY AGENCY, PHILADELPHIA, PENNSYLVANIA. BIDS WERE RECEIVED FROM ENTWISTLE, THE ARNOLT CORPORATION, AND FARMERS TOOL AND SUPPLY. SINCE THE LATTER BIDDER SUBMITTED AN UNAUTHORIZED TELEGRAPHIC BID WITHOUT REFERENCE TO THE INVITATION ADDENDA, IT WAS REJECTED AS NONRESPONSIVE. ON JUNE 3, 1960, A BID WAS RECEIVED IN THE PROCUREMENT OFFICE FROM FARMERS TOOL AND SUPPLY. THE BID ENVELOPE, TRANSMITTED VIA AIRMAIL, BORE A METERED STAMP OF $0.88 AND THE LEGEND," DENVER JUN 1 ,60 COLO.' THE ENVELOPE, HOWEVER, DID NOT BEAR A POST OFFICE CANCELLATION STAMP SHOWING THE HOUR AND DATE OF ACTUAL MAILING. IN VIEW OF SECTION 2-303 (A) (III), ASPR, RESPECTING METERED MAIL, AND IN COMPLIANCE WITH SECTION 2-303 (B), ASPR, THE PROCUREMENT OFFICE CONTACTED THE PHILADELPHIA GENERAL POST OFFICE RELATIVE TO THE NORMAL AIRMAIL TRANSMISSION TIME FROM DENVER TO PHILADELPHIA. AN OFFICIAL OF THAT OFFICE ADVISED THAT THE BID ENVELOPE SHOULD HAVE REACHED THE PROCUREMENT OFFICE IN TIME FOR THE OPENING OF BIDS ON JUNE 2, 1960. THIS WAS VERIFIED BY ANOTHER POSTAL OFFICIAL AT THE POST OFFICE WHO ADVISED THAT AN AIRPLANE LEAVING DENVER AT 12:15 A.M. SHOULD REACH THE PHILADELPHIA AIRPORT AT 9:45 A.M., AND THAT THE TIME IN TRANSPORTING MAIL FROM THE AIRPORT TO THE POST OFFICE WOULD BE ABOUT ONE TO ONE AND A HALF HOURS. MAIL DESTINED FOR THE PROCUREMENT OFFICE IS PICKED UP AT REGULAR INTERVALS AND BROUGHT TO THE MAIL ROOM FOR SORTING AND DISTRIBUTION, ARRIVING AT THE PROCUREMENT OFFICE FROM THE POST OFFICE AT 9:10 A.M., 10:50 A.M., 1:10 P.M., AND 2:10 P.M. BASED ON THE FOREGOING INFORMATION, IT WAS ADMINISTRATIVELY DETERMINED THAT THE BID SHOULD HAVE ARRIVED ON TIME FOR BID OPENING AND, THEREFORE, WAS CONSIDERED A LATE ACCEPTABLE BID. UPON OPENING, THE BID WAS FOUND TO BE PROPER IN ALL RESPECTS AND TO BE THE LOWEST BID RECEIVED.

THE ENTWISTLE CORPORATION VERBALLY PROTESTED AGAINST THE ACCEPTANCE OF SUCH LATE BID STATING, THAT ACCORDING TO THE DENVER POST OFFICE, IT WOULD BE IMPOSSIBLE FOR SUCH A BID TO ARRIVE AT THE PROCUREMENT OFFICE IN TIME FOR THE SCHEDULED BID OPENING. ADVICE WAS SOLICITED FROM THE DENVER POST OFFICE AND THE FOLLOWING INFORMATION WAS FURNISHED:

THE FLIGHT THAT REACHED PHILADELPHIA AIRPORT AT 9:45 A.M., 2 JUNE 1960 (1FLIGHT 1-506) LEAVES THE DENVER AIRPORT AT 12:15 A.M., 2 JUNE 1960, BUT THE CUT-OFF TIME FOR MAIL FOR THIS FLIGHT IF 0:40 P.M., 1 JUNE 1960, AT THE DENVER GENERAL POST OFFICE. THEREFORE, IT WOULD HAVE BEEN IMPOSSIBLE FOR THE BID MAILED AT 12 MIDNIGHT TO BE ON THIS FLIGHT. THE EARLIEST FLIGHT AFTER 12 MIDNIGHT, 1 JUNE 1960 WOULD BE FLIGHT 1-502 LEAVING DENVER AIRPORT AT 3:15 A.M., 2 JUNE 1960 AND ARRIVING AT THE PHILADELPHIA AIRPORT AT 3:10 P.M., 2 JUNE 1960 AFTER THE SCHEDULED TIME FOR OPENING.

UPON BEING ADVISED AS TO THE FOREGOING, THE PHILADELPHIA POST OFFICE OFFICIAL REVERSED HIS PREVIOUS STATEMENT CONCERNING THE AIRMAIL FLIGHT TIME BETWEEN DENVER AND PHILADELPHIA.

THE CONTRACTING OFFICER THEN DETERMINED THAT THE BID OF FARMERS TOOL AND SUPPLY WAS A LATE BID AND PURSUANT TO SECTION 2-303.6, ASPR, FARMERS TOOL AND SUPPLY WAS ADVISED BY LETTER DATED JUNE 14, 1960, THAT ITS BID WOULD NOT BE CONSIDERED FOR AWARD "UNLESS CLEAR AND CONVINCING EVIDENCE IS SUBMITTED PROMPTLY, SHOWING THAT YOUR BID WAS ACTUALLY DEPOSITED IN THE MAILS IN SUFFICIENT TIME TO REACH THIS OFFICE BY ORDINARY COURSE OF MAILS BEFORE THE SCHEDULED TIME FOR OPENING AND THAT LATE RECEIPT WAS DUE SOLELY TO DELAY IN THE MAILS, FOR WHICH YOU WERE NOT RESPONSIBLE.'

BY LETTER DATED JUNE 20, 1960, FARMERS TOOL AND SUPPLY SUBMITTED THE FOLLOWING EVIDENCE TO SHOW THAT THEIR BID WAS MAILED IN SUFFICIENT TIME TO REACH THE PROCUREMENT OFFICE BY 1:30 P.M. ON JUNE 2, 1960.

1. A NOTARIZED STATEMENT BY MISS NANCY L. HORST--- AN EMPLOYEE--- THAT SHE DID MAIL THE BID AT 4:50 P.M. ON JUNE 1, 1960;

2. A NOTORIZED STATEMENT BY MISS RUTH M. HORST--- AN EMPLOYEE--- THAT SHE DID, ON JUNE 1, 1960, TRANSPORT MISS NANCY L. HORST TO THE THORNTON BRANCH OF THE DENVER POST OFFICE AT APPROXIMATELY :50 P.M. FOR THE PURPOSE OF MAILING THE BID;

3. A STATEMENT FROM THE SUPERINTENDENT OF THE THORNTON BRANCH THAT MAIL DEPOSITED BETWEEN 1:10 P.M. AND 5:30 P.M. IS DISPATCHED AT 5:45 P.M., TO THE TERMINAL ANNEX, DENVER, COLORADO, AND WOULD ARRIVE THERE AT 6:40 P.M.; AND

4. A STATEMENT FROM THE POST OFFICE SCHEDULE CLERK THAT MAIL RECEIVED BY 6:30 P.M. IS RECEIVED IN SUFFICIENT TIME TO BE PROCESSED AND DISPATCHED TO THE DENVER AIRPORT BY 10:30 P.M., ARRIVING IN PHILADELPHIA AT 9:45 A.M.

SUBSEQUENTLY, AN AFFIDAVIT OF THE SALES MANAGER OF FARMERS TOOL AND SUPPLY WAS FURNISHED TESTIFYING TO THE CHARACTER OF THE MISSES HORST, AND A STATEMENT OF THE ASSISTANT SUPERINTENDENT OF MAILS, DENVER POST OFFICE, SUBSTANTIALLY TO THE SAME EFFECT AS THAT REFERRED TO IN ITEM 4 ABOVE.

IT IS INCUMBENT UPON BIDDERS TO SEE THAT THEIR BIDS ARE RECEIVED ON OR BEFORE THE TIME SPECIFIED IN THE INVITATION. UNDER THE SPECIFIC TERMS OF THE INVITATION, BIDS IN ORDER TO BE CONSIDERED MUST BE RECEIVED ON OR BEFORE THE TIME SPECIFIED FOR THE OPENING OF THE BIDS. THE ONLY EXCEPTION THERETO IS THAT BIDS SENT BY MAIL WILL BE CONSIDERED IF RECEIVED PRIOR TO AWARD AND IT IS DETERMINED BY THE GOVERNMENT THAT THE FAILURE TO ARRIVE ON TIME WAS DUE SOLELY TO DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE. IN DETERMINING WHETHER A LATE BID WAS MAILED ON TIME TO HAVE BEEN RECEIVED PRIOR TO THE TIME SET FOR THE OPENING, THE DATE AND HOUR SHOWN ON THE CANCELLATION STAMP AFFIXED BY THE POST OFFICE GENERALLY HAS BEEN ACCEPTED AS FIXING THE TIME OF MAILING. SECTION 2-303.3 (III), ASPR, PROVIDES THAT WHERE THE ENVELOPE SHOWS THE DATE BUT NOT THE HOUR OF MAILING, THE TIME OF MAILING SHALL BE CONSIDERED TO BE THE LAST MINUTE (11:59 P.M.) OF THE DATE SHOWN.

WE HAVE CONSIDERED THE QUESTION WHETHER EVIDENCE SUBMITTED IN SUPPORT OF THE ACTUAL TIME OF MAILING OF A BID ENVELOPE BEARING A METERED MAIL STAMP WAS SUFFICIENT TO SUPPORT A DETERMINATION THAT THE FAILURE OF THE BID TO ARRIVE ON TIME FOR BID OPENING WAS DUE SOLELY TO DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE. IN THE DECISION B-129643, 36 COMP. GEN. 370, WE HELD THAT THERE WAS DEFINITE EVIDENCE FROM SOURCES OTHER THAN THE BIDDER HIMSELF AND FROM THE ATTENDING CIRCUMSTANCES WHICH SUPPORTED THE ALLEGED TIME OF MAILING. THERE, SUFFICIENT EVIDENCE WAS ADDUCED FROM POST OFFICE EMPLOYEES THAT THE BID ENVELOPE WAS ACTUALLY RECEIVED IN SUFFICIENT TIME TO REACH ITS DESTINATION IN THE NORMAL COURSE OF THE MAILS PRIOR TO THE TIME FIXED FOR THE OPENING OF BIDS. HOWEVER, IN 37 COMP. GEN. 750, DISTINGUISHING THE ABOVE DECISION, WE HELD THAT THE UNCERTAINTY OF THE POSTAL CLERK AS TO THE DATE HE HANDLED THE BID ENVELOPE OR EVEN WHETHER HE HANDLED THE ENVELOPE AT ALL, TOGETHER WITH THE OTHER CIRCUMSTANCES RELATING TO THE MAILING OF THE METERED ENVELOPE, REQUIRED THE CONCLUSION THAT THE BID WAS NOT TIMELY MAILED.

WE THUS HAVE TAKEN THE POSITION IN THE CASE OF LATE METERED MAIL BIDS THAT THE TIME OF ACTUAL MAILING MUST BE ESTABLISHED BY SOURCES OTHER THAN THE BIDDER HIMSELF AND THAT SELF-SERVING STATEMENTS BY EMPLOYEES OF THE BIDDER THAT THE BID ENVELOPE WAS MAILED AT A CERTAIN TIME ARE NOT SUFFICIENT TO SHOW THAT A BID SHOULD HAVE ARRIVED ON TIME IN THE NORMAL COURSE OF THE MAILS. B-135672, MAY 29, 1958; B-136670, 38 COMP. GEN. 21. IN CONSONANCE WITH THOSE DECISIONS, SECTION 2-303 (A) (VI), ASPR, PROVIDES THAT, NOTWITHSTANDING THE ENUMERATED BASES FOR DETERMINING THE TIME OF MAILING OF LATE BIDS,"IF A BIDDER DEMONSTRATES THE DATE AND HOUR OF MAILING BY CLEAR AND CONVINCING EVIDENCE WHICH INCLUDES SUBSTANTIATION BY THE POST OFFICE OF MAILING, THE DATE OR HOUR THUS DEMONSTRATED SHALL BE CONSIDERED THE TIME OF MAILING.'

WE, THEREFORE, CANNOT CONCLUDE THAT THE EVIDENCE SUBMITTED BY FARMERS TOOL AND SUPPLY, INCLUDING THE STATEMENTS OF ITS EMPLOYEES, SUFFICIENTLY SUPPORTS ITS CONTENTION THAT ITS BID WAS MAILED IN TIME TO MEET THE SCHEDULED BID OPENING DATE AND HOUR. ESSENTIALLY, THE EVIDENCE POINTS TO THE FACT THAT HAD THE BID BEEN MAILED DURING CERTAIN HOURS ON JUNE 1, 1960, IT WOULD HAVE REACHED ITS DESTINATION TIMELY. HOWEVER, THE EVIDENCE FURNISHED DOES NOT INCLUDE "SUBSTANTIATION BY THE POST OFFICE OF MAILING," THAT IS, THERE IS NO EVIDENCE OF RECORD THAT A POSTAL OFFICIAL HAS AFFIRMED, FROM PERSONAL KNOWLEDGE, THAT THE BID ENVELOPE WAS ACTUALLY RECEIVED FOR MAILING IN SUFFICIENT TIME TO REACH ITS DESTINATION ON JUNE 2, 1960.

WE, THEREFORE, FEEL THAT THE EVIDENCE OF RECORD FALLS SHORT OF ESTABLISHING THE ACTUAL TIME OF MAILING. ACCORDINGLY, THE BID OF THE FARMERS TOOL AND SUPPLY CORP. SHOULD NOT BE CONSIDERED FOR AWARD.