B-159928, NOV. 10, 1966

B-159928, NOV. 10, 1966

TO GUARANTEED SUPPLY COMPANY:

IN YOUR LETTER OF AUGUST 18, 1966, YOU PROTESTED AGAINST THE AWARD OF A CONTRACT TO THE ARNOLD DIAMOND COMPANY UNDER REQUEST FOR PROPOSALS (RFP) 65-020-66-13. THE RFP, DATED MARCH 11, 1966, SOLICITED PROPOSALS FOR THE NECESSARY LABOR AND MATERIALS TO REPAIR CERTAIN BUILDINGS AT KINDLEY AIR FORCE BASE, BERMUDA, AND REQUIRED PROPOSALS TO BE RECEIVED AT THE BASE PROCUREMENT OFFICE OF KINDLEY AIR FORCE BASE BY 2:00 P.M. BERMUDA STANDARD TIME, MONDAY, APRIL 11, 1966. A COVER LETTER CAUTIONED OFFERORS TO MAKE SURE THAT IF THEIR PROPOSALS WERE MAILED FROM OUTSIDE BERMUDA TO USE AIRMAIL AND TO ADDRESS THE SAME TO THE BASE PROCUREMENT OFFICE, HQ. 1604 AP GP (MATS), APO NEW YORK 09856. THE REQUEST FOR PROPOSALS CONTAINED THE STANDARD "LATE PROPOSAL" CLAUSE PRESCRIBED BY ARMED SERVICES PROCUREMENT REGULATION (ASPR) 3-506 (D). THAT PROVISION READS AS FOLLOWS:

"LATE PROPOSALS (JAN. 1964) (A) PROPOSALS AND MODIFICATIONS RECEIVED AT THE OFFICE DESIGNATED IN THE REQUEST FOR PROPOSALS AFTER THE CLOSE OF BUSINESS ON THE DATE SET FOR RECEIPT THEREOF (OR AFTER THE TIME SET FOR RECEIPT IF A PARTICULAR TIME IS SPECIFIED) WILL NOT BE CONSIDERED UNLESS:

"/I) THEY ARE RECEIVED BEFORE AWARD IS MADE; AND EITHER

"/II) THEY ARE SENT BY REGISTERED MAIL, OR BY CERTIFIED MAIL FOR WHICH AN OFFICIAL DATED POST OFFICE STAMP (POSTMARK) ON THE ORIGINAL RECEIPT FOR CERTIFIED MAIL HAS BEEN OBTAINED, OR BY TELEGRAPH; AND, IT IS DETERMINED BY THE GOVERNMENT THAT LATE RECEIPT WAS DUE SOLELY TO DELAY IN THE MAILS, OR DELAY BY THE TELEGRAPH COMPANY, FOR WHICH THE OFFEROR WAS NOT RESPONSIBLE; OR

"/III) IF SUBMITTED BY MAIL OR TELEGRAM, IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION, PROVIDED, THAT TIMELY RECEIPT AT SUCH INSTALLATION IS ESTABLISHED UPON EXAMINATION OF AN APPROPRIATE DATE OR TIME STAMP (IF ANY) OF SUCH INSTALLATION, OR OF ANY OTHER DOCUMENTARY EVIDENCE OR RECEIPT AT SUCH INSTALLATION (IF READILY AVAILABLE) WITHIN THE CONTROL OF SUCH INSTALLATION OR OF THE POST OFFICE SERVING IT.

"/B) OFFERORS USING CERTIFIED MAIL ARE CAUTIONED TO OBTAIN A RECEIPT FOR CERTIFIED MAIL SHOWING A LEGIBLE, DATED POSTMARK AND TO RETAIN SUCH RECEIPT AGAINST THE CHANCE THAT IT WILL BE REQUIRED AS EVIDENCE THAT A LATE PROPOSAL WAS TIMELY MAILED.

"/C) THE TIME OF MAILING OF LATE PROPOSALS SUBMITTED BY REGISTERED OR CERTIFIED MAIL SHALL BE DEEMED TO BE THE LAST MINUTE OF THE DATE SHOWN IN THE POSTMARK ON THE REGISTERED MAIL RECEIPT OR REGISTERED MAIL WRAPPER OR ON THE RECEIPT FOR CERTIFIED MAIL UNLESS THE OFFEROR FURNISHES EVIDENCE FROM THE POST OFFICE STATION OF MAILING WHICH ESTABLISHES AN EARLIER TIME. IN THE CASE OF CERTIFIED MAIL, THE ONLY ACCEPTABLE EVIDENCE IS AS FOLLOWS: (I) WHERE THE RECEIPT FOR CERTIFIED MAIL IDENTIFIES THE POST OFFICE STATION OF MAILING EVIDENCE FURNISHED BY THE OFFEROR WHICH ESTABLISHES THAT THE BUSINESS DAY OF THAT STATION ENDED AT AN EARLIER TIME, IN WHICH CASE THE TIME OF MAILING SHALL BE DEEMED TO BE THE LAST MINUTE OF THE BUSINESS DAY OF THAT STATION; OR (II) AN ENTRY IN INK ON THE RECEIPT FOR CERTIFIED MAIL SHOWING THE TIME OF MAILING AND THE INITIALS OF THE POSTAL EMPLOYEE RECEIVING THE ITEM AND MAKING THE ENTRY, WITH APPROPRIATE WRITTEN VERIFICATION OF SUCH ENTRY FROM THE POST OFFICE STATION OF MAILING, IN WHICH CASE THE TIME OF MAILING SHALL BE THE TIME SHOWN IN THE ENTRY. IF THE POSTMARK ON THE ORIGINAL RECEIPT FOR CERTIFIED MAIL DOES NOT SHOW A DATE, THE OFFER SHALL NOT BE CONSIDERED.'

YOUR PROPOSAL SENT BY CERTIFIED MAIL FROM GREENSBORO, NORTH CAROLINA, APRIL 8, 1966, P.M., WAS NOT RECEIVED AT THE BASE PROCUREMENT OFFICE UNTIL 3:20 P.M. ON APRIL 12, 1966. IN THAT REGARD, THE RECEIPT FOR CERTIFIED MAIL BEARS A STAMPED, DATED POSTMARK WHICH SHOWS ONLY THE DATE OF APRIL 8, 1966. BY LETTER DATED APRIL 14, 1966, YOU WERE ADVISED BY THE PROCUREMENT OFFICE THAT YOUR LATE PROPOSAL WOULD NOT BE CONSIDERED FOR AWARD UNLESS CONVINCING EVIDENCE WAS FURNISHED THAT THE LATE PROPOSAL WAS TIMELY MAILED AND THAT THE DELAY WAS DUE TO CAUSES FOR WHICH YOU WERE NOT RESPONSIBLE. IN SUPPORT OF YOUR CONTENTION THAT YOUR PROPOSAL WAS AN ACCEPTABLE LATE PROPOSAL, YOU SUBMITTED A CERTIFICATE FROM THE SUPERINTENDENT OF THE SUMMIT STATION POST OFFICE IN GREENSBORO, NORTH CAROLINA, THAT YOUR PROPOSAL WAS MAILED ON APRIL 8, 1966, FROM THAT STATION, WHICH CLOSES AT 5:00 P.M. THEREFORE, PURSUANT TO ASPR 2-303.3 (B) IT WAS CORRECTLY PRESUMED BY THE PROCUREMENT AGENCY THAT YOUR PROPOSAL WAS MAILED AT 5:00 P.M. ON FRIDAY, APRIL 8. SEE ASPR 3-506 (A).

THE ENVELOPE CONTAINING YOUR PROPOSAL WAS ADDRESSED TO "BASE PROCUREMENT OFFICE, HQ. 1604 AP GP (MATS), APO NEW YORK 098.' SINCE THE PREFIX "098" APPLIES TO UNITS LOCATED IN EUROPE, THE CARRIBEAN, AND BERMUDA, THE EXACT DESTINATION OF THE ENVELOPE COULD NOT BE DETERMINED WITHOUT REFERRAL TO THE DIRECTORY SECTION OF THE U.S. ARMY MILITARY MAIL TERMINAL, NEW YORK. THAT SECTION NORMALLY CLOSES AT 4:30 P.M. ON FRIDAYS, AND DOES NOT OPEN UNTIL 8:00 A.M. MONDAYS. WE HAVE BEEN ADVISED THAT UNDER NORMAL PROCEDURES THE CORRECT APO NUMBER WAS PLACED ON YOUR ENVELOPE ON APRIL 11, 1966, AND THAT IT WAS THEREAFTER RETURNED TO THE KENNEDY AIRPORT, NEW YORK, AT EITHER 2:00 P.M. OR 6:00 P.M. ON THAT DAY. THE ONLY SCHEDULED DISPATCH FOR BERMUDA LEAVES IN THE MORNING; THEREFORE, SINCE YOUR PROPOSAL WAS NOT RETURNED TO KENNEDY AIRPORT UNTIL AT LEAST 2:00 P.M. ON APRIL 11, IT WAS NOT AVAILABLE FOR DISPATCH TO BERMUDA UNTIL THE MORNING OF APRIL 12. FURTHER, WE NOTE THAT THE PROPOSAL, DISPATCHED ON THE MORNING OF APRIL 12, DID NOT ARRIVE AT THE BASE PROCUREMENT OFFICE UNTIL 3:20 P.M., APRIL 12, WITH NO EVIDENCE OF DELAY.

IT THUS APPEARS THAT THE FAILURE OF YOUR PROPOSAL TO ARRIVE IN TIME FOR CONSIDERATION WAS YOUR IMPROPER ADDRESSING OF THE ENVELOPE, RATHER THAN BY REASON OF ANY FAULT OF THE GOVERNMENT. SEE IN THIS CONNECTION 37 COMP. GEN. 35. UNDER THE PROVISIONS OF THE RFP, YOUR LATE PROPOSAL COULD HAVE BEEN CONSIDERED FOR AWARD ONLY IF IT WAS DETERMINED THAT "LATE RECEIPT WAS DUE SOLELY TO DELAY IN THE MAILS.' SUCH DETERMINATION PROPERLY COULD NOT HAVE BEEN MADE HERE. THEREFORE, AND SINCE IT WAS YOUR RESPONSIBILITY TO SEE THAT THE PROPOSAL REACHED THE DESIGNATED OFFICE BEFORE THE TIME FIXED FOR OPENING, THE CONTRACTING OFFICE ACTED PROPERLY IN REFUSING TO CONSIDER YOUR LATE PROPOSAL.

YOUR LETTER INDICATES THAT YOU FEEL THAT THE AWARD IN THE AMOUNT OF $48,700 TO THE ARNOLD DIAMOND COMPANY WAS EXCESSIVELY HIGH IN VIEW OF YOUR PROPOSAL OF $23,460. YOUR CORRESPONDENCE ALSO STATES THAT THE GOVERNMENT'S ESTIMATE OF $64,000 WAS TOO HIGH AND "WAS NOT MADE WITH ANY SINCERITY.' WE HAVE BEEN ADVISED THAT THE GOVERNMENT HAS MADE A SUBSEQUENT DETAILED ESTIMATE, INDEPENDENT OF THE FIRST ESTIMATE. THIS WAS ACCOMPLISHED BY FIRST ESTIMATING THE SPECIFIC MATERIAL AND LABOR PRICES APPLICABLE TO EACH PART OF THE PROCUREMENT. SPECIFICALLY INCLUDED WERE THE PARTS CALLING FOR SURFACING OF THE ROOF, FLASHING REPAIRS, REPAIRS TO BLISTERS AND THE THREE PLY OVERLAY. TO THIS TOTAL WAS ADDED THE COST OF TRANSPORTATION OF THE SUPPLIES TO BERMUDA, TAR POT RENTAL, MISCELLANEOUS LABOR, ADMINISTRATION, AS WELL AS A 10 PERCENT PROFIT FIGURE. THIS NEW ESTIMATE TOTALS $52,891, AND IT DOES NOT INCLUDE COSTS THAT MAY BE INCURRED FOR PROTECTION OF OPEN ROOF AREAS DURING INCLEMENT WEATHER. SHOULD BE NOTED THAT THIS NEWLY REVISED ESTIMATE IS ALSO MORE THAN THE DIAMOND PROPOSAL. IT IS NOT WITHIN THE PROVINCE OF OUR OFFICE TO SUBSTITUTE OUR JUDGMENT FOR THAT OF THE PROCURING OFFICE IN ARRIVING AT ITS COST ESTIMATE OF THE WORK COVERED BY THE RFP.

ACCORDINGLY, UPON REVIEW, WE FIND NO LEGAL OBJECTION TO THE AWARD AS MADE.