B-154846, DEC. 3, 1964

B-154846, DEC. 3, 1964

TO MR. K. I. DAZEY, VICE PRESIDENT, GROVE VALVE AND REGULATOR COMPANY:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF JULY 29, 1964, AND TO YOUR LETTER DATED AUGUST 3, 1964, WITH ENCLOSURES, PROTESTING THE AWARD OF A CONTRACT UNDER DEPARTMENT OF THE ARMY INVITATION NO. ENG- (NASA) -01-076- 64-54.

THE PROCUREMENT COVERS VARIOUS QUANTITIES AND TYPES OF VALVES FOR USE AS GOVERNMENT-FURNISHED MATERIAL BY SEVERAL CONSTRUCTION CONTRACTORS, IN CONNECTION WITH AN URGENT NATIONAL AERONAUTICS AND SPACE ADMINISTRATION PROJECT AT A MISSISSIPPI TEST FACILITY. EVERY PRIORITY IS BEING GIVEN BY THE DEPARTMENT OF THE ARMY TO EXPEDITE THIS PURCHASE IN ORDER THAT CONSTRUCTION AT THE SITE WILL NOT BE DELAYED BECAUSE OF FAILURE TO FURNISH THE MATERIAL AT THE SCHEDULED TIMES. THE PROCUREMENT ORIGINALLY WAS ADVERTISED ON NOVEMBER 25, 1963, UNDER INVITATION NO. ENG- (NASA) -01-076- 64-28 AND, UPON EVALUATION OF THE BIDS RECEIVED FOR LOTS 30 AND 31 OF THAT INVITATION--- COVERING THE SAME TYPE OF VALVES AS HERE INVOLVED--- IT WAS FOUND NECESSARY TO REJECT ALL BIDS RECEIVED ON THESE LOTS AS NONRESPONSIVE FOR THE REASONS THAT BID PRICES WERE NOT FIRM, FAILURE TO MEET DELIVERY REQUIREMENTS, RECEIPT OF A PARTIAL LOT BID ONLY, ETC. SUBSEQUENT TO THE REJECTION OF SUCH BIDS, THE DEPARTMENT OF THE ARMY DETERMINED, UPON A REEXAMINATION OF THE SPECIFICATIONS, THAT THE PARTS OF THE SPECIFICATIONS PERTAINING TO THE CYCLING TESTS WERE INADEQUATE AND, THEREFORE, THAT THE SPECIFICATIONS SHOULD BE REVISED TO SPECIFY SEPARATE BID ITEMS FOR SUCH TESTS. ACCORDINGLY, THE ITEMS WERE READVERTISED ON THIS BASIS BY THE U.S. ARMY ENGINEER DISTRICT, MOBILE, ALABAMA, UNDER INVITATION NO. ENG- (NASA) -01-076-64-54, DATED MAY 18, 1964, AND WERE IDENTIFIED THEREUNDER AS LOTS 13 AND 14.

IT APPEARS THAT AT THE TIME OF THE BID OPENING ON JUNE 23, 1964, UNDER THIS LATTER INVITATION, TWO BIDS WERE RECEIVED FOR THE VALVES, ETC., COVERED BY LOT 13, NAMELY, YOUR BID IN THE NET AMOUNT OF $2,753.18 AND ANOTHER IN THE NET AMOUNT OF $3,038 FROM THE HOLT COMPANY. BECAUSE OF AN ERROR IN ITS BID, THE HOLT COMPANY WAS PERMITTED TO WITHDRAW. YOUR TOTAL BID OF $395,652.05 WAS THE ONLY BID RECEIVED AT THE TIME OF THE OPENING OF BIDS FOR THE VALVES, ETC., COVERED BY LOT 14 OF THE INVITATION. ON JUNE 24, 1964, THE DAY FOLLOWING THE OPENING OF THE BIDS, A BID WAS RECEIVED FROM THE W-K-M DIVISION OF ACF INDUSTRIES, INC., HOUSTON, TEXAS, IN THE RESPECTIVE NET AMOUNTS OF $8,249.64 AND $350,369.60 FOR LOTS 13 AND 14. ULTIMATELY, HOWEVER, IT WAS DETERMINED BY THE DEPARTMENT OF THE ARMY THAT THE BID OF THE W-K-M DIVISION WAS TIMELY MAILED AND, THEREFORE, ON JULY 24, 1964, THE BID WAS ACCEPTED AS TO LOTS 13 AND 14 IN THE ESTIMATED TOTAL GROSS AMOUNT OF $365,938, THEREBY CONSUMMATING CONTRACT NO. DA-01-076-ENG- (NASA) -2597.

IT APPEARS THAT YOU ADVANCE TWO BASIC CONTENTIONS IN SUPPORT OF YOUR PROTEST. FIRST, YOU STATE THAT IT ORIGINALLY WAS CONCLUDED THAT THE BID OF THE W-K-M DIVISION OF ACF INDUSTRIES, INC., WAS NOT TIMELY POSTED WITH THE POST OFFICE INVOLVED, AND THAT IT WAS ONLY AFTER THE CONTROVERSY AROSE AS TO THE TIMELY RECEIPT OF THE BID THAT THE POST OFFICE REVERSED ITS DETERMINATION IN THIS REGARD. YOU ALSO CONTEND THAT WHERE, AS HERE, THE REGISTERED RECEIPT OF THE TIME OF MAILING SHOWS A DATE, BUT NOT THE ACTUAL HOUR OF MAILING, THE EXACT TIME OF SUCH MAILING MUST BE CONSTRUED TO HAVE BEEN 11:59 P.M. ON THE DATE SHOWN WHICH, YOU STATE, IS IN ACCORDANCE WITH PREVIOUS DECISIONS OF OUR OFFICE.

PARAGRAPH 15 (A) (I) AND (II) AND (C), LATE BIDS AND MODIFICATIONS OR WITHDRAWALS, OF THE CONTINUATION OF SCHEDULE APPEARING ON PAGE NO. 28 OF THE INVITATION AND WHICH, IN EFFECT, SETS FORTH SUBSTANTIALLY THE REQUIREMENTS OF THE ARMED SERVICES PROCUREMENT REGULATION 2-201 (A) (XXV) AND 2-303.3 (A) PROVIDES, AS FOLLOWS:

"/A) BIDS AND MODIFICATIONS OR WITHDRAWALS THEREOF RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS AFTER THE EXACT TIME SET FOR OPENING OF BIDS 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 TELEGRAM IF AUTHORIZED; AND IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO DELAY IN THE MAILS, OR DELAY BY THE TELEGRAPH COMPANY, FOR WHICH THE BIDDER WAS NOT RESPONSIBLE; * * *

"/C) THE TIME OF MAILING OF LATE BIDS 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 BIDDER FURNISHES EVIDENCE FROM THE POST OFFICE STATION OF MAILING WHICH ESTABLISHES AN EARLIER TIME. * * *"

THE DEPARTMENT OF THE ARMY REPORTS THAT A LETTER DATED JUNE 26, 1964, WAS RECEIVED FROM THE W-K-M DIVISION, ACF INDUSTRIES, INC., FORWARDING A LETTER ALSO DATED JUNE 26, 1964, FROM THE POSTMASTER, MISSOURI CITY, TEXAS, ENCLOSING A REGISTERED MAIL RECEIPT COVERING THE BID OF THE W-K-M DIVISION. THE REGISTERED RECEIPT SHOWED THAT THE BID HAD BEEN MAILED ON JUNE 22, 1964, BUT DID NOT SHOW THE EXACT HOUR OF MAILING. THE POSTMASTER'S LETTER OF JUNE 26, 1964, INDICATED, HOWEVER, THAT THE BID IN QUESTION HAD BEEN MAILED PRIOR TO THE CLOSING TIME OF THAT STATION, WHICH WAS 5 P.M. ON JUNE 22, 1964, AND THAT IT WAS DISPATCHED ON THE SAME DAY. IN OUR OPINION THE INFORMATION CONTAINED IN THE JUNE 26, 1964, LETTER FROM THE MISSOURI CITY POSTMASTER INDICATING THAT THE W-K-M DIVISION BID WAS MAILED AND DISPATCHED PRIOR TO THAT STATION'S CLOSING HOUR OF 5 P.M. ON JUNE 22, 1964, REASONABLY ESTABLISHES THAT THE HOUR OF MAILING OF THE W-K- M DIVISION BID WAS NOT LATER THAN THE 5 P.M. CLOSING TIME OF THAT STATION.

WITH RESPECT TO THE QUESTION OF THE NORMAL EXPECTED TIME REQUIRED FOR ROUTING THE BID OF THE W-K-M DIVISION, IT IS NOTED THAT ON JUNE 30, 1964, A MR. DANNENBERG OF THE UNITED STATES POST OFFICE, MOBILE, ALABAMA, ADVISED BY TELEPHONE THAT AIR MAIL--- THE CLASS OF MAIL BY WHICH THE W-K-M BID WAS FORWARDED--- MAILED AT THE MISSOURI CITY, TEXAS, POST OFFICE, A SUBURB OF HOUSTON, TEXAS, AT THE ABOVE REFERRED TO 5 P.M. HOUR ON JUNE 22, 1964, SHOULD HAVE CAUGHT THE 6:50 P.M. FLIGHT NO. 572 FROM HOUSTON AND ARRIVED AT THE MOBILE POST OFFICE AT 9:50 P.M. ON THAT DATE. IN ADDITION, A SUBSEQUENT LETTER DATED JULY 22, 1964, FROM THE POSTMASTER, UNITED STATES POST OFFICE, MOBILE, ALABAMA, STATED THAT UNDER NORMAL ROUTING SCHEDULES, THE W-K-M BID SHOULD HAVE BEEN PLACED IN THE ARMY POST OFFICE BOX AT MOBILE AT 7 A.M. ON JUNE 23, 1964. THE ARMY ADVISES IN THIS REGARD THAT IT MAINTAINS DAILY PICKUP SERVICE FROM ITS POST OFFICE BOX AND THAT ALL MAIL IN THE BOX IS PICKED UP NOT LATER THAN 10:30 A.M. AND DELIVERED TO ITS OFFICE BEFORE 11 A.M., THE BID OPENING HOUR IN THIS CASE. ALSO, BY LETTER DATED JULY 14, 1964, THE MOBILE, ALABAMA, POST OFFICE FORWARDED A COPY OF A MEMORANDUM DATED JULY 7, 1964, FROM THE UNITED STATES POST OFFICE AT HOUSTON, TEXAS, WHICH MEMORANDUM FORWARDED A SCHEDULE IDENTICAL TO THAT GIVEN THE W-K-M DIVISION BY THE POSTMASTER AT MISSOURI CITY, TEXAS. IN ADDITION TO THE FOREGOING, IT APPEARS THAT ASSURANCES WERE GIVEN THE W-K-M DIVISION BY POSTAL AUTHORITIES AT MISSOURI CITY, TEXAS, THAT AT THE TIME ITS BID WAS MAILED ON JUNE 22, 1964, THE BID WOULD REACH MOBILE BY THE BID OPENING HOUR OF 11 A.M. ON JUNE 23, 1964. THERE ARE SOME CONFLICTING STATEMENTS AS TO EXPECTED TIMES OF ARRIVAL OF THE W-K-M BID. IN LETTER DATED JULY 14, 1964, THE ASSISTANT POSTMASTER AT MOBILE ADVISED THAT AIR MAIL LEAVING THE MISSOURI CITY, TEXAS, STATION AT 5 P.M. ON JUNE 22, 1964, ARRIVED AT THE MOBILE, ALABAMA, POST OFFICE AT 11:25 A.M. ON JUNE 23, 1964. ON THE OTHER HAND IT IS STATED IN LETTER OF JULY 22, 1964, FROM THE POSTMASTER, MOBILE, ALABAMA, POST OFFICE, THAT UNDER A NORMAL ROUTING THE BID SHOULD HAVE BEEN TIMELY RECEIVED. THUS, NOTWITHSTANDING THESE DIFFERENCES IN THE RECORD AS TO WHETHER THE BID WAS OR WAS NOT TIMELY MAILED, WE BELIEVE THE PREPONDERANCE OF THE EVIDENCE BEFORE US REASONABLY ESTABLISHES THAT SUFFICIENT TIME HAD BEEN ALLOWED, UNDER NORMAL ROUTING SCHEDULES, FROM THE HOUR OF THE ACTUAL MAILING OF THE W K-M BID TO HAVE EFFECTED A TIMELY RECEIPT OF SUCH BID PRIOR TO THE BID OPENING HOUR TIME OF 11 A.M. ON JUNE 23, 1964. UNDER ALL THE CIRCUMSTANCES WE THINK THERE WAS SUCH SUBSTANTIAL COMPLIANCE WITH THE ABOVE-CITED PARAGRAPH 15 OF THE CONTINUATION SCHEDULE OF THE INVITATION TO WARRANT CONSIDERATION OF THE BID FOR AWARD AFTER ITS RECEIPT.

MOREOVER, IT SHOULD BE POINTED OUT THAT THE DEPARTMENT OF THE ARMY ADVISES THAT, AFTER A TECHNICAL REVIEW OF THE BID SUBMITTED BY YOU, IT WAS DETERMINED THAT YOUR BID ON LOT ITEM 14 WAS NOT RESPONSIVE SINCE IT OFFERED A HANDWHEEL OPERATOR ON THE 2-INCH, 2 1/2 INCH AND 3 INCH VALVES, NUMBERS VA-21, VA-31, VA-61, VA-71 AND VA-85, RATHER THAN A GEARED MANUAL OPERATOR AS REQUIRED BY THE SPECIFICATIONS.

ACCORDINGLY, WE SEE NO LEGAL OBJECTION TO THE ACCEPTANCE BY THE DEPARTMENT OF THE ARMY OF THE BID OF THE W-K-M DIVISION, ACF INDUSTRIES, INC., UNDER INVITATION NO. ENG- (NASA) -01-076-64-54 AND, THEREFORE, YOUR PROTEST IS DENIED.