B-139895, JUL. 8, 1959

B-139895, JUL. 8, 1959

TO THE WISE CONTRACTING COMPANY:

REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 11, 1959, PROTESTING AGAINST THE CONSIDERATION OF A BID SUBMITTED BY THE VIRGINIA ENGINEERING COMPANY, INC., NEWPORT NEWS, VIRGINIA, FOR THE CONSTRUCTION OF A UNITED STATES POST OFFICE BUILDING AT PORTSMOUTH, VIRGINIA.

WE ADVISED YOU UNDER DATE OF JUNE 22, 1959, THAT A REQUEST FOR A REPORT ON THE MATTER OF YOUR PROTEST HAD BEEN FORWARDED TO THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION. IN RESPONSE TO SUCH REQUEST THERE HAS BEEN RECEIVED FROM THE ACTING COMMISSIONER, PUBLIC BUILDINGS SERVICE, A REPORT DATED JULY 2, 1959, WHICH IS IN PERTINENT PART AS FOLLOWS:

"BY INVITATION DATED APRIL 28, 1959, BIDS WERE INVITED FOR THIS PROJECT, TO BE RECEIVED UNTIL 2 P.M., EASTERN DAYLIGHT TIME, JUNE 2, 1959. A COPY OF THE INVITATION IS ENCLOSED. BY TELEGRAM DATED MAY 28, 1959, CONFIRMED BY ADDENDUM NO. 3, DATED JUNE 1, 1959, THE BID OPENING WAS POSTPONED TO 2 P.M., EASTERN DAYLIGHT TIME, JUNE 9, 1959. A COPY OF ADDENDUM NO. 3 IS ENCLOSED.

"AT THE APPOINTED TIME, SIX BIDS HAD BEEN RECEIVED, AT 1:35 P.M., EASTERN DAYLIGHT TIME, JUNE 9, 1959, A REPRESENTATIVE OF THE VIRGINIA ENGINEERING COMPANY, INC., APPEARED AT THE BID ROOM AND SUBMITTED A "MODIFICATION TO MAILED BID FOR CONSTRUCTION OF UNITED STATES POST OFFICE, ETC., PORTSMOUTH, VIRGINIA.' THIS MODIFICATION WAS RECEIVED AND APPROPRIATELY TIME-STAMPED. THE BIDS RECEIVED PRIOR TO THE TIME SET FOR BID OPENING WERE PUBLICLY OPENED AND READ. HOWEVER, SINCE NO BID HAD BEEN RECEIVED FROM THE VIRGINIA ENGINEERING COMPANY, INC., THE ENVELOPE CONTAINING THE MODIFICATION WAS NOT OPENED, BUT WAS HELD FOR CONSIDERATION IN THE EVENT THAT AN ACCEPTABLE LATE BID WAS RECEIVED FROM THAT COMPANY.

"PARAGRAPH 7 OF THE INSTRUCTIONS TO BIDDERS, WHICH ACCOMPANIED THE INVITATION FOR BIDS, READS IN PART AS FOLLOWS:

"RECEIPT AND OPENING OF BIDS. (A) BIDS WILL BE SUBMITTED PRIOR TO THE TIME FIXED IN THE INVITATION FOR BIDS. BIDS RECEIVED AFTER THE TIME SO FIXED 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 WILL BE RECORDED. SUCH LATE BIDS WILL BE CONSIDERED, PROVIDED, THEY ARE RECEIVED BEFORE THE AWARD HAS BEEN MADE, AND PROVIDED FURTHER, 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 WILL NOT BE CONSIDERED BUT WILL 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.

"ON JUNE 10, 1959, AT 10:16 A.M., AN ENVELOPE BEARING THE RETURN ADDRESS OF THE VIRGINIA ENGINEERING COMPANY, INC., WAS RECEIVED IN THE BID OPENING ROOM MARKED "BID FOR CONSTRUCTION (EXCEPT PASSENGER ELEVATOR) OF THE UNITED STATES POST OFFICE, ETC., AT PORTSMOUTH, VIRGINIA, TO BE OPENED AT 2 P.M., EASTERN DAYLIGHT TIME, JUNE 9, 1959.' THE ENVELOPE ALSO HAD AFFIXED TO IT A STICKER GIVING INVITATION NUMBER, DATE OF OPENING, TIME OF OPENING, AND THE PROJECT DESIGNATION.

"THE ENVELOPE WAS MARKED "AIR MAIL, SPECIAL DELIVERY" AND WAS STAMPED AS HAVING BEEN MAILED AT NEWPORT NEWS, VIRGINIA, AT 12 NOON, JUNE 8, 1959. ON THE REVERSE SIDE OF THE ENVELOPE ANOTHER STAMP APPEARS, SHOWING THAT THE ENVELOPE WAS RECEIVED IN WASHINGTON, D.C. AT 9 P.M., JUNE 8, 1959, FOR SPECIAL DELIVERY. THE FRONT OF THE ENVELOPE CONTAINS ANOTHER STAMP SHOWING THAT IT WAS RECEIVED BY GSA, MAIL ROOM, AT 7 A.M., ON JUNE 10, 1959. THE ORIGINAL ENVELOPE IS ENCLOSED.

"AT APPROXIMATELY 10 A.M. ON THE SAME DAY A REPRESENTATIVE OF THE PUBLIC BUILDINGS SERVICE, WHICH SOLICITED THE BIDS, CALLED MR. EDWARDS OF THE POST OFFICE DEPARTMENT AND WAS ADVISED BY HIM THAT THE BID SHOULD HAVE BEEN RECEIVED IN THE MAIN POST OFFICE IN WASHINGTON, D.C. AT ANY TIME ON JUNE 8, 1959, AND SHOULD HAVE BEEN DELIVERED TO THE REGIONAL OFFICE BUILDING, WHERE THE BIDS WERE OPENED, ON THE FIRST MAIL ON JUNE 9, 1959. SINCE IT WAS APPARENT THAT THE LATENESS OF THE BID WAS DUE SOLELY TO DELAYS IN THE MAIL, THE PUBLIC BUILDINGS SERVICE PROCEEDED TO OPEN THE BID AND THE MODIFICATION THEREOF. COPIES OF THE BID AND THE MODIFICATION AND A TABULATION OF ALL BIDS, INCLUDING THE LATE BID AND THE MODIFICATION THEREOF ARE ENCLOSED.

"ON JUNE 15, 1959, A LETTER WAS WRITTEN TO THE ACTING POSTMASTER ASKING FOR CONFIRMATION OF THE VERBAL INFORMATION RECEIVED ON JUNE 10, 1959 AS TO THE TIME THAT THE BID OF THE VIRGINIA ENGINEERING COMPANY, INC. SHOULD HAVE BEEN RECEIVED. BY MEMORANDUM DATED JUNE 16, 1959, FROM THE ACTING POSTMASTER, HE ADVISED AS FOLLOWS:

" "IN ACCORDANCE WITH AVAILABLE SCHEDULES, SUBJECT BID, IN THE NORMAL COURSE, WOULD BE DUE TO ARRIVE AT THIS OFFICE AT 2:40 A.M. ON JUNE 9, 1959, AND DELIVERY WOULD BE EFFECTED ON THE MORNING OF THAT DATE.'

"COPIES OF THESE TWO COMMUNICATIONS ARE ALSO ENCLOSED.

"THE PROTEST OF THE WISE CONTRACTING COMPANY, INC. WHICH YOU RECEIVED IS BASED ON THE FACT THAT THE VIRGINIA ENGINEERING COMPANY'S BID WAS RECEIVED AT 7 A.M. JUNE 10, 1959, WHEREAS THE BID OPENING TIME WAS 2 P.M. JUNE 9, 1959.

"BASED ON THE FACTS STATED ABOVE, NAMELY THAT THE BID WAS MAILED FROM NEWPORT NEWS, VIRGINIA, AIR MAIL, SPECIAL DELIVERY, AT 12 NOON ON JUNE 8, 1959, AND WAS RECEIVED IN THE WASHINGTON POST OFFICE AT 9 P.M. ON THE SAME DATE, PLUS THE VERBAL AND WRITTEN STATEMENTS FROM THE POST OFFICE DEPARTMENT, WE CAN ONLY CONCLUDE THAT THE LATENESS IN THE RECEIPT OF THE BID WAS DUE SOLELY TO DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE.'

THE ONLY QUESTION FOR DETERMINATION IS WHETHER THE EVIDENCE OF RECORD ESTABLISHES THAT THE FAILURE OF THE SUBJECT BID TO ARRIVE ON TIME WAS DUE SOLELY TO A DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE. AS STATED IN THE FOREGOING REPORT THE TIME STAMPS APPEARING ON THE ENVELOPE CONTAINING THE BID SHOWS THAT THE PARCEL ARRIVED IN THE WASHINGTON POST OFFICE AT 9 P.M., JUNE 8, 1959; THAT IT WAS FIRST RECEIVED IN THE GENERAL SERVICES ADMINISTRATION AT 7 A.M., JUNE 10, 1959; AND THAT IT WAS STAMPED IN AT THE BID OPENING ROOM OF THAT AGENCY AT 10:16 A.M. ON JUNE 10, 1959. WE FIND NO BASIS FOR QUESTIONING THE CORRECTNESS OR REASONABLENESS OF THE QUOTED STATEMENT OF THE ACTING POSTMASTER AT WASHINGTON, D.C., THAT IN THE NORMAL COURSE OF THE MAIL SERVICE THE PARCEL INVOLVED WOULD HAVE BEEN DELIVERED TO THE ADDRESSEE ON THE MORNING OF JUNE 9, 1959. ACCORDINGLY, THERE DOES NOT APPEAR TO BE ANY DOUBT THAT THE DELAY OF ONE DAY IN THE DELIVERY OF THE BID SUBMITTED BY VIRGINIA ENGINEERING COMPANY, INC., WAS DUE TO THE FAILURE OF PROPER HANDLING OF THE ENVELOPE BY THE POSTAL SERVICE AND NOT IN ANY WAY ATTRIBUTABLE TO THE LOW BIDDER.

IN VIEW THEREOF WE CONCUR WITH THE FINDINGS AND CONCLUSION OF THE ADMINISTRATIVE OFFICE TO THE ..END :