B-128579, SEP. 4, 1956

B-128579, SEP. 4, 1956

TO WALTER H. EAGAN COMPANY, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 10, 1956, PROTESTING THE AWARD OF A CONTRACT TO THE AURORA PUMP DIVISION, THE NEW YORK AIR BRAKE COMPANY, FOR CIRCULATING PUMPS PURSUANT TO INVITATION FOR BIDS NO. N140- 1323-56, ISSUED APRIL 6, 1956, BY THE U.S. NAVY PURCHASING OFFICE, BROOKLYN, NEW YORK.

THE INVITATION REQUESTED BIDS--- TO BE OPENED AT 2:00 P.M. EASTERN STANDARD TIME ON APRIL 26, 1956--- FOR SHIP'S SERVICE TURBO GENERATOR CONDENSER CIRCULATING PUMPS, TOGETHER WITH REPAIR PARTS, TOOLS, DESIGN RELEASE DATA AND PRODUCTION PLANS, MANUALS, ENGINEERING SERVICES, ETC. PARAGRAPH 4 OF THE "TERMS AND CONDITIONS OF THE INVITATION FOR BIDS," PROVIDED AS FOLLOWS:

"4. LATE BIDS--- BIDS AND MODIFICATIONS OR WITHDRAWALS THEREOF RECEIVED AFTER THE TIME SET FOR OPENING WILL NOT BE CONSIDERED, UNLESS THEY ARE RECEIVED BEFORE THE AWARD IS MADE, AND IT IS DETERMINED BY THE GOVERNMENT THAT FAILURE TO ARRIVE ON TIME WAS DUE SOLELY TO DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE.'

AT THE TIME SET FOR OPENING OF BIDS IT WAS FOUND THAT 4 BIDS, INCLUDING YOUR BID, HAD BEEN RECEIVED AND THEY WERE OPENED AND RECORDED. ANOTHER BID, THAT OF THE AURORA PUMP DIVISION OF THE NEW YORK AIR BRAKE COMPANY, WAS RECEIVED AT 4:24 P.M., ON THAT SAME DATE IN AN ENVELOPE WHICH BORE A MAILING DATE OF APRIL 24, 1956, STAMPED "AIR MAIL.' IT WAS DETERMINED FROM THE APPROVED METERING DEVICE STAMP SHOWN ON THE ENVELOPE ENCLOSING THE BID AND FROM INFORMATION OBTAINED FROM THE LOCAL GOVERNMENT POST OFFICE THAT THE BID WAS MAILED IN TIME TO REACH ITS DESTINATION BEFORE THE TIME SPECIFIED FOR THE BID OPENING AND THAT THE FAILURE OF THE BID TO ARRIVE ON TIME WAS DUE SOLELY TO DELAY IN THE MAILS FOR WHICH THE BIDDER WAS IN NO WAY RESPONSIBLE. ACCORDINGLY, THE BID WAS OPENED, READ AND CONSIDERED ALONG WITH THE OTHER BIDS RECEIVED AND, IT BEING THE LOWEST BID RECEIVED AS TO PRICE, AWARD WAS MADE TO THAT BIDDER.

AS YOUR BID WAS THE LOWEST RECEIVED BEFORE RECEIPT OF THE LATE BID, YOU PROTESTED THE AWARD ON THE GROUND THAT THE LATE BID WAS NOT RECEIVED UNTIL AFTER THE TIME SET FOR OPENING OF BIDS AND SHOULD THEREFORE HAVE BEEN RETURNED UNOPENED TO THE BIDDER. ALSO, YOU CLAIM THAT NO EVIDENCE IS OF RECORD TO INDICATE THAT THE LATE BID WAS MAILED IN SUFFICIENT TIME TO BE CONSIDERED. IN SUBSTANTIATION OF YOUR PROTEST YOU STATE AS FOLLOWS:

"1. THE OPENING DATE AND TIME OF INVITATION WAS PUBLISHED AS 26 APRIL 1956 2 P.M. E. STANDARD. AT THAT TIME ALL BIDS WERE OPENED AND PUBLICLY READ IN CONFORMANCE WITH REGULATIONS. THE BID BY THE WALTER EAGAN COMPANY WAS IN THE LOW BID.

"2. ON MAY 10, 1956, THE WALTER EAGAN COMPANY WAS ADVISED THAT A BID HAD BEEN RECEIVED FROM THE AURORA PUMP COMPANY WHICH WAS LOWER IN PRICE THAN THE WALTER EAGAN BID. INTERROGATION OF OFFICIALS OF THE NAVY PURCHASING OFFICE, NEW YORK BY REPRESENTATIVES OF THE WALTER EAGAN CO., AS TO THE REASON FOR CONSIDERATION OF THIS LATE BID, AND THE ACCEPTANCE OF IT, REVEALED THAT SAID OFFICIALS CLAIMED THAT THE AURORA BID HAD BEEN MAILED IN TIME BY THE COMPANY, AND THAT THE RESPONSIBILITY FOR NON-DELIVERY, WAS THEREFORE THAT OF THE U.S. GOVERNMENT POST OFFICE DEPT. EXAMINATION OF THE MAILING ENVELOPE USED BY THE AURORA PUMP CO., TO TRANSMIT THEIR BID, REVEALED THAT POSTAGE HAS BEEN AFFIXED BY A MAILING MACHINE DEVICE, BUT THAT THERE WAS NOWHERE IN EVIDENCE ANY MARKING SUCH AS NORMALLY USED BY THE POST OFFICE DEPARTMENT TO INDICATE THE TIME AND PLACE THAT PARTICULAR PIECE OF MAIL HAS BEEN HANDLED BY THAT DEPARTMENT.

"THE USE OF A METERING DEVICE, OR ANY OTHER MACHINE USED TO AFFIX POSTAGE, IN CASES WHERE TIME OF MAILING MAY BECOME A MATTER OF TREMENDOUS PROPORTIONS, UNLESS IT CARRYS WITH ITS USE CLEAR AND DEFINITE PROOF OF THE TIME OF MAILING, MOST CERTAINLY RAISES THE QUESTION AS TO WHETHER OR NOT THE ITEMS HAD IN FACT CLEARED THROUGH THE POST OFFICE DEPARTMENT AT ANY TIME. IN THE ABSENCE OF ANY PROOF THAT THIS PARTICULAR ITEM HAD BEEN CLEARED THROUGH THE POST OFFICE, IT IS ONLY FAIR AND EQUITABLE THAT THE SAID BID BE CONSIDERED AS LATE AND UNACCEPTABLE.'

THE ENVELOPE IN WHICH THE LATE BID WAS FORWARDED TO THE U.S. NAVY PURCHASING OFFICE, BROOKLYN, NEW YORK, CONTAINS A STAMPED NOTATION SHOWING THAT IT WAS MAILED IN AURORA, ILLINOIS, ON APRIL 24, 1956. THE CONTRACTING OFFICER REPORTS THAT THE LOCAL POSTAL OFFICIALS ADVISED HIS OFFICE THAT A BID MAILED AT 11:59 P.M., ON APRIL 24, 1956, SHOULD HAVE ARRIVED AT THE NAVY PURCHASING OFFICE IN TIME FOR A BID OPENING AT 2:00 P.M., ON APRIL 26, 1956. IN ADDITION, THE DEPARTMENT OF THE NAVY HAS FURNISHED WITH THE REPORT OF THE CONTRACTING OFFICER A CERTIFICATION FROM THE SUPERINTENDENT, BUSH TERMINAL STATION IN NEW YORK "THAT A AIR MAIL LETTER OF THE NEW YORK AIR BRAKE CO. OF AURORA, ILL., MAILED AT 11:59 PM ON APRIL 24, 1956, IF MAILED AT THAT TIME ON APRIL 24, 1956, WOULD ARRIVE AT N.P.O. BROOKLYN 32, N.Y., FOR A BID OPENING AT 2:00 PM ON APRIL 26, 1956.'

YOUR CHIEF CONCERN APPEARS TO BE THAT THE ENVELOPE IN WHICH THE LATE BID WAS AIRMAILED CONTAINED NO POSTMARK IN ADDITION TO THE STAMP AFFIXED BY A METERING DEVICE. THE METERED STAMP DID SHOW THE DATE OF MAILING, HOWEVER, AND WE ARE INFORMED BY THE POST OFFICE DEPARTMENT HERE IN WASHINGTON THAT POSTAL EMPLOYEES ARE REQUIRED BY APPROPRIATE INSTRUCTIONS TO CHECK THE DATE OF MAILING ON ALL METERED MAILINGS AND TO POSTMARK THEM IF THE METERED DATE IS NOT CORRECT. THIS RAISES THE PRESUMPTION THAT THE PIECE OF MAIL HERE IN QUESTION WAS IN FACT POSTED ON APRIL 24, 1956, AS SHOWN ON THE ENVELOPE. IN SUCH CIRCUMSTANCES, WE WOULD NOT BE JUSTIFIED IN QUESTIONING THE DETERMINATION THAT THE LATE BID ON THE PUMPS WAS MAILED IN SUFFICIENT TIME TO HAVE REACHED THE DESIGNATED OFFICE BETWEEN THE HOUR AND DATE SET FOR OPENING OF BIDS IN THE ORDINARY AND USUAL COURSE OF THE MAILS AND THE CONSEQUENT CONSIDERATION OF THAT BID ALONG WITH THE OTHER BIDS RECEIVED FOR PURPOSES OF MAKING AWARD.