B-129643, NOVEMBER 2, 1956, 36 COMP. GEN. 370

B-129643, NOVEMBER 2, 1956, 36 COMP. GEN. 370

BIDS - LATE - POSTAL METERING DEVICE - PRESUMPTION OF MAILING TIME EVIDENCE SUBMITTED BY A BIDDER ESTABLISHING THE ACTUAL OR APPROXIMATE TIME OF MAILING OF A LATE BID, WHICH WAS MAILED IN AN ENVELOPE BEARING A POSTAGE METER STAMP SHOWING THE DAY BUT NOT THE ACTUAL TIME OF MAILING, WILL OVERCOME THE ADMINISTRATIVE REGULATION REQUIRING BIDS, WHICH ARE MAILED IN ENVELOPES BEARING A STAMP OF A METERING DEVICE NOT INDICATING THE EXACT HOUR OF MAILING, TO BE CONSIDERED AS HAVING BEEN MAILED ON THE LAST MINUTE OF THE DAY INDICATED ON THE STAMP.

TO THE SECRETARY OF THE NAVY, NOVEMBER 2, 1956:

REFERENCE IS MADE TO A LETTER DATED OCTOBER 26, 1956, R11.1 L4 1/L4/NT4- 12, FROM THE CHIEF, BUREAU OF SUPPLIES AND ACCOUNTS, FORWARDING THE PROTEST OF REICHHOLD CHEMICALS, INC., WHITE PLAINS, NEW YORK, AGAINST THE CONTRACTING OFFICER'S PROPOSED REJECTION OF ITS BID UNDER INVITATION NO. 383-824-57, ISSUED BY THE AVIATION SUPPLY OFFICE, PHILADELPHIA, PENNSYLVANIA, ON THE GROUND THAT THE BID WAS NOT RECEIVED IN SUFFICIENT TIME TO WARRANT ITS CONSIDERATION.

IT IS REPORTED THAT THE INVITATION FIXED THE TIME OF OPENING AS 10 A.M., SEPTEMBER 26, 1956, AND AT 9 P.M. ON THAT DATE A SEALED STANDARD FORM BID BROWN ENVELOPE MAILED BY REICHHOLD CHEMICALS, C., WAS DELIVERED TO THE AVIATION SUPPLY OFFICE. THE ENVELOPE IS MARKED " AIR MAIL" AND " SPECIAL DELIVERY.' POSTAGE WAS AFFIXED BY METERED DEVICE AND THE POSTAGE METER STAMP BEARS THE WORDS " WHITE PLAINS N.Y. SEPT. 25 -56.' THERE IS NO INDICATION ON THE ENVELOPE, HOWEVER, AS TO THE HOUR OF MAILING.

WITH REFERENCE TO THE QUESTION AS TO THE RESPONSIBILITY FOR THE DELAY IN RECEIPT OF THE BID, THE AVIATION SUPPLY OFFICE WAS ADVISED BY LETTER DATED SEPTEMBER 27, 1956, FROM THE POST OFFICE AT WHITE PLAINS, NEW YORK, THAT "ALL AM 111, FLIGHTS (NUMBER 55, 57, AND 59) WERE CANCELED OUT DUE TO LACK OF EQUIPMENT ON SEPTEMBER 25TH, 1956; " THAT " THIS FIRM ORDINARILY DELIVERS TO THIS OFFICE DURING THE EARLY AFTERNOON A QUANTITY OF AIR MAIL AND FIRST CLASS MAIL AS A MATTER OF REGULAR ROUTINE; " AND THAT " IT IS QUITE PROBABLE THE SUBJECT LETTER WAS INCLUDED THEREIN, BUT DUE TO THE CANCELLATION OF AIR MAIL FLIGHTS WAS DISPATCHED VIA SURFACE MEANS, WHICH PROBABLY ACCOUNTS FOR THE DELAY IN DELIVERY.'

REICHHOLD CHEMICALS, INC., SUBMITTED WITH ITS LETTER OF PROTEST STATEMENTS IN AFFIDAVIT FORM OF MR. P.L. SWISHER, VICE PRESIDENT AND DIRECTOR OF SALES AND ADVERTISING; MR. MATTHEW J. DUNN, CHIEF MAIL CLERK FOR REICHHOLD CHEMICALS, INC.; AND MR. CHRISTIAN FOSSDAL, PARCEL POST CLERK, U.S. POST OFFICE, WHITE PLAINS, NEW YORK. ACCORDING TO THE STATEMENT OF MR. FOSSDAL, THE BID ENVELOPE WAS RECEIVED AT APPROXIMATELY 3:30 P.M. ON THE AFTERNOON OF TUESDAY, SEPTEMBER 25, FROM MR. DUNN WHO EXPLAINED THE IMPORTANCE OF THE MAILING AND REQUESTED VERIFICATION OF THE CORRECTNESS OF THE POSTAGE WHICH HAD BEEN AFFIXED TO THE ENVELOPE TO COVER FIRST CLASS, AIRMAIL, SPECIAL DELIVERY HANDLING. ALSO, MR. FOSSDAL STATES HE SUBSEQUENTLY FOUND THAT THE AIRMAIL FLIGHTS HAD BEEN CANCELED OUT ON SEPTEMBER 25 AND THAT THE SUBJECT MAILING WAS DISPATCH VIA SURFACE MEANS DUE TO CANCELLATION OF THE AIRMAIL FLIGHTS.

UPON THE BASIS OF ADVICE RECEIVED FROM THE GENERAL POST OFFICE AT PHILADELPHIA, THE CONTRACTING OFFICER STATES THAT IF THE BID HAD BEEN MAILED AT APPROXIMATELY 3:30 P.M. ON SEPTEMBER 25, 1956, IT WOULD HAVE BEEN DELIVERED IN THE NORMAL COURSE OF THE MAILS TO THE AVIATION SUPPLY OFFICE PRIOR TO THE TIME FIXED FOR THE OPENING OF BIDS; AND THAT IF MAILED AT 11:59 P.M. ON SEPTEMBER 25, 1956, THE BID WOULD NOT HAVE BEEN DELIVERED TO THE AVIATION SUPPLY OFFICE IN PHILADELPHIA BY 10 A.M., SEPTEMBER 26, 1956.

WE ARE OF THE OPINION THAT THE EVIDENCE IS SUFFICIENT TO SHOW THAT THE BID ENVELOPE WAS MAILED IN TIME TO REACH THE AVIATION SUPPLY OFFICE IN PHILADELPHIA BEFORE THE HOUR SET FOR THE OPENING OF THE BIDS RECEIVED IN RESPONSE TO INVITATION NO. 383-824-57. ARMED SERVICES PROCUREMENT REGULATIONS 2.302 PROVIDE THAT A LATE BID MAY BE CONSIDERED IF IT IS RECEIVED PRIOR TO AWARD AND PROVIDED THAT THE FAILURE OF THE BID TO ARRIVE ON TIME HAS BEEN FOUND TO BE DUE SOLELY TO A DELAY IN THE MAILS FOR WHICH THE BIDDER IS NOT RESPONSIBLE. WE ARE ADVISED, HOWEVER, THE CONTRACTING OFFICER BELIEVES THAT THE BID OF REICHHOLD CHEMICALS, INC., SHOULD NOT BE OPENED AND CONSIDERED, IN VIEW OF THAT PART OF PARAGRAPH 64046, BUREAU OF SUPPLIES AND ACCOUNTS MANUAL, WHICH STATES THAT " WHEN THE CANCELLATION STAMP OR THE STAMP OF AN APPROVED METERING DEVICE DOES NOT SHOW THE EXACT HOUR OF MAILING, THE BID WILL BE CONSIDERED AS HAVING BEEN MAILED ON THE LAST MINUTE OF THE DAY INDICATED BY SUCH STAMP.' THIS ACCOUNTS FOR THE USE OF 11:59 P.M., SEPTEMBER 25, AS THE TIME OF MAILING IN ONE OF THE ABOVE FINDINGS OF FACT BY THE CONTRACTING OFFICER.

IF IS APPARENT THAT THE QUOTED PROVISION OF THE BUREAU MANUAL CANNOT PROPERLY BE INVOKED IN A CASE WHERE, AS HERE, THE BIDDER HAS SUBMITTED CLEAR AND CONVINCING PROOF AS TO THE ACTUAL OR APPROXIMATE TIME OF MAILING. ACCORDINGLY, WITH THE RETURN OF THE SEALED BID OF REICHHOLD CHEMICALS, INC., AND THE CORRESPONDENCE RELATING TO THAT COMPANY'S PROTEST, YOU ARE ADVISED THAT THERE IS PERCEIVED NO OBJECTION TO THE OPENING AND CONSIDERATION OF THE REICHHOLD BID WITH THE OTHER BIDS RECEIVED IN RESPONSE TO THE INVITATION.