B-174430, FEB 22, 1972, 51 COMP GEN 522

B-174430, FEB 22, 1972, 51 COMP GEN 522

BIDS - LATE - MAIL DELAY EVIDENCE - CERTIFIED MAIL THE LOW BID TO RE-ROOF SEVERAL PLANT BUILDINGS SENT BY CERTIFIED AIR MAIL WHICH WAS NOT TIMELY RECEIVED, BUT A TELEGRAM REDUCING THE BID PRICE WAS, PROPERLY WAS CONSIDERED FOR AWARD AS THE REQUIREMENTS OF SECTION 1-2.303 OF THE FEDERAL PROCUREMENT REGULATIONS WERE SATISFIED SINCE THE LATE RECEIPT OF THE BID WAS DUE SOLELY TO A DELAY IN THE MAILS, AND THE INITIALED, CERTIFIED MAIL RECEIPT ISSUED INDICATED THE BID SHOULD HAVE BEEN TIMELY RECEIVED, AND NOTWITHSTANDING THE OMISSION OF THE SYMBOL "AIR MAIL" FROM THE BID ENVELOPE. THE ENVELOPE WAS RECEIVED AS PART OF AN "AIRMAIL BUNDLE" AND SHOULD HAVE BEEN DISPATCHED AS AIRMAIL AND DELIVERED ON TIME, FOR THE OMISSION OF THE LEGEND WHERE SUFFICIENT AIRMAIL POSTAGE WAS ATTACHED DOES NOT MEAN THE ENVELOPE WAS HANDLED AS ORDINARY MAIL, FOR THE FACT THAT POSTAL REGULATIONS REQUIRE USE OF THE SYMBOL DOES NOT PRECLUDE DESIGNATING MAIL AS "AIRMAIL" BY OTHER ACTS OF THE SENDER.

TO A & H BUILDERS, INCORPORATED, FEBRUARY 22, 1972:

REFERENCE IS MADE TO YOUR TELEGRAM OF OCTOBER 4, 1971, TO THE CONTRACT ADMINISTRATOR, ATOMIC ENERGY COMMISSION, ROCKY FLATS AREA OFFICE, AND YOUR LETTERS TO OUR OFFICE OF OCTOBER 25 AND 28, 1971, REGARDING YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO SOUTHERN ROOFING AND PETROLEUM CO., INC., PURSUANT TO INVITATION NO. 292-72-1, DATED SEPTEMBER 1, 1971, BY THE U.S. ATOMIC ENERGY COMMISSION, ROCKY FLATS AREA OFFICE, GOLDEN, COLORADO.

THE SUBJECT INVITATION REQUESTED SERVICES NECESSARY TO REROOF BUILDINGS 444 AND 881, ROCKY FLATS PLANT, NEAR DENVER, COLORADO, IN ACCORDANCE WITH THE SPECIFICATIONS AND PROVISIONS THEREIN CONTAINED.

THE RECORD INDICATES THAT AT THE TIME OF BID OPENING, 2:00 P.M. ON SEPTEMBER 16, 1971, BIDS WERE RECEIVED FROM THREE FIRMS, WITH YOUR FIRM THE LOW BIDDER AT $696,200. WHILE NO BID WAS RECEIVED FROM SOUTHERN AT THE TIME OF BID OPENING, THE FILE CONTAINS A COPY OF A TELEGRAM TRANSMITTED BY SOUTHERN TO THE PROCURING ACTIVITY ON THE MORNING OF SEPTEMBER 16 BY WHICH THAT ACTIVITY WAS REQUESTED TO REDUCE SOUTHERN'S BID BY $352,302.54. THE RECORD ALSO REVEALS THAT SOUTHERN'S BASE BID OF $1,000,000 ARRIVED AT THE PROCURING ACTIVITY AT 10:30 A.M., SEPTEMBER 17.

PURSUANT TO PARAGRAPH 7(A) OF STANDARD FORM 22, INSTRUCTIONS TO BIDDERS, INCORPORATED IN THE SUBJECT INVITATION AND REFLECTING THE REQUIREMENTS OF FEDERAL PROCUREMENT REGULATIONS (FPR) 1-2.303, BIDS RECEIVED AFTER THE EXACT TIME SET FOR BID OPENING AND SENT BY REGISTERED OR CERTIFIED MAIL FOR WHICH AN OFFICIAL, DATED, POST OFFICE STAMP ON THE ORIGINAL RECEIPT FOR CERTIFIED MAIL HAS BEEN OBTAINED (AS IN THE INSTANT CASE), MAY BE CONSIDERED IF IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO A DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE.

FPR 1-2.303(D) PROVIDES THAT IN DETERMINING WHETHER THE LATENESS OF A BID IS DUE SOLELY TO A DELAY IN THE MAILS, INFORMATION AS TO THE NORMAL TIME FOR DELIVERY SHALL BE OBTAINED BY THE PROCURING ACTIVITY FROM THE POSTMASTER, SUPERINTENDENT OF MAILS, OR A DULY AUTHORIZED REPRESENTATIVE OF THE POST OFFICE SERVING THAT ACTIVITY.

PURSUANTLY, A MEMORANDUM DATED SEPTEMBER 20, 1971, REVEALS THAT THE GENERAL ENGINEER, CONSTRUCTION & FACILITIES BRANCH, ROCKY FLATS AREA OFFICE, MADE SUCH AN INQUIRY OF OFFICIALS IN THE POST OFFICES AT GOLDEN, DENVER, AND KNOXVILLE, TENNESSEE (THE PLACE OF MAILING), AND ALL AGREED THAT THE BID, FOR WHICH AN INITIALED, CERTIFIED MAIL RECEIPT INDICATED MAILING AT KNOXVILLE AT 11:55 A.M. ON SEPTEMBER 14, 1971, SHOULD HAVE REACHED THE PROCURING ACTIVITY BY 10:30 A.M. ON THE MORNING OF SEPTEMBER 16, 1971, AND THAT THERE WAS ACCORDINGLY A MISTAKE IN HANDLING BY THE POSTAL SERVICE.

IN VIEW THEREOF, IT WAS CONCLUDED THAT SOUTHERN'S BID WAS ELIGIBLE FOR CONSIDERATION UNDER THE AFOREMENTIONED PROVISIONS AND, AS THE LOW BIDDER BY VIRTUE OF ITS TIMELY TELEGRAPHIC MODIFICATION, SOUTHERN WAS AWARDED CONTRACT NO. AT(29-2)-3057 ON OCTOBER 22, 1971.

THE ESSENCE OF YOUR PROTEST IS THAT BY FAILING TO MARK ITS BID ENVELOPE "AIR MAIL," SOUTHERN'S OMISSION WAS EITHER THE SOLE OR CONTRIBUTORY CAUSE OF THE BID'S LATE ARRIVAL, AND THEREFORE SUCH BID WAS INELIGIBLE FOR CONSIDERATION SINCE ITS LATENESS COULD NOT BE ATTRIBUTED SOLELY TO A DELAY IN THE MAILS.

YOU CITE SECTION 136.6 OF THE POST OFFICE SERVICES (DOMESTIC) REGULATIONS INSTRUCTING SENDERS OF AIRMAIL TO MARK IT AS SUCH. IT IS CONTENDED THAT A FAILURE TO COMPLY WITH THIS INSTRUCTION WILL RESULT IN ROUTINE HANDLING, AS OPPOSED TO THE EXPEDITIOUS HANDLING THAT IS ACCORDED PRIORITY MAIL SUCH AS AIRMAIL OR SPECIAL DELIVERY.

THE RECORD REVEALS THAT SOUTHERN'S CERTIFIED LETTER OF SEPTEMBER 14, 1971, WAS RECEIVED BY POSTAL OFFICIALS IN KNOXVILLE AS PART OF AN "AIRMAIL BUNDLE" FROM SOUTHERN, AND THAT NORMAL DISPATCHING (VIA AIR MAIL) WOULD HAVE RESULTED IN THE LETTER'S ARRIVAL IN DENVER THAT SAME EVENING AT 9:12 P.M., AND RECEIPT AT THE GOLDEN POST OFFICE BY THE EVENING OF THE NEXT DAY, SEPTEMBER 15, OR EARLY IN THE MORNING OF SEPTEMBER 16, SUFFICIENTLY BEFORE 9:00 A.M., TO ENSURE ITS ARRIVAL AT THE PROCURING ACTIVITY BY 10:30 A.M., SEPTEMBER 16.

SUCH REPRESENTATIONS BY POSTAL OFFICIALS AS TO THE CHRONOLOGY OF A LETTER'S ROUTING UNDER NORMAL CONDITIONS MUST BE GIVEN FULL CREDENCE BY THE CONTRACTING AGENCY IN ITS DETERMINATION TO ACCEPT A LATE BID. COMP. GEN. 325, 328 (1970).

THE REMAINING ISSUE TO BE RESOLVED IS WHETHER SOUTHERN'S FAILURE TO LABEL ITS CERTIFIED MAIL ENVELOPE "AIR MAIL" CONTRIBUTED TO ITS LATE RECEIPT BY CAUSING IT TO BE TRANSMITTED AS ORDINARY MAIL.

YOU HAVE CITED SECTION 168.1 OF THE REFERENCED POSTAL REGULATIONS, WHICH PROVIDES A DESCRIPTION OF CERTIFIED MAIL AND STATES, INTER ALIA:

*** IT WILL BE DISPATCHED AND HANDLED IN TRANSIT AS ORDINARY MAIL *** .

HOWEVER, WE DO NOT NECESSARILY CONCUR WITH YOUR LOGIC THAT WITHOUT A LEGEND DENOTING EXPEDITIOUS HANDLING, CERTIFIED MAIL WILL RECEIVE NO SPECIAL TREATMENT, FOR SECTION 168.2, ALSO APPLICABLE TO CERTIFIED MAIL, PROVIDES THAT SUCH MAIL MAY BE SENT BY AIR UPON PAYMENT OF THE REQUIRED POSTAGE. IT IS NOTED, SIGNIFICANTLY, THAT THIS SECTION FAILS TO REFERENCE ANY ADDITIONAL REQUIREMENT, ABOVE AND BEYOND THE PAYMENT OF SUFFICIENT POSTAGE, IN ORDER TO QUALIFY A CERTIFIED LETTER FOR TRANSMITTAL BY AIR AS OPPOSED TO ORDINARY MAIL.

THE RECORD CONTAINS COPIES OF THE ENVELOPE FACES OF TEN AIRMAIL, CERTIFIED LETTERS TRANSMITTED BY YOUR FIRM FROM KNOXVILLE TO THE PROCURING ACTIVITY, PRESUMABLY TO VERIFY NORMAL DELIVERY PERIODS FOR SUCH LETTERS. IT IS NOTED THAT THE POSTAGE (INCLUDING CERTIFIED MAIL FEE) ON YOUR AIRMAIL CERTIFIED LETTERS IS 41 CENTS PER LETTER WHILE A COPY OF SOUTHERN'S ENVELOPE (SUBMITTED IN AN AIRMAIL BUNDLE) DEPICTS A PAID POSTAGE OF $1.27. THIS WOULD INDICATE THAT THE POSTAGE WAS FOR AIR AS OPPOSED TO ORDINARY TRANSIT. NOTHING IN THE RECORD INDICATES THAT THE POSTAL AUTHORITIES CONSIDERED THAT SUM INSUFFICIENT TO TRANSMIT THE BID BY AIRMAIL, NOR IS IT CONCLUSIVELY ESTABLISHED THAT THE BID WAS ACTUALLY DISPATCHED BY ORDINARY AS OPPOSED TO AIRMAIL.

WITH REGARD TO SOUTHERN'S FAILURE TO MARK THE ENVELOPE AS AIRMAIL, THE RECORD STATES THAT ITS BID WAS RECEIVED IN KNOXVILLE IN AN "AIRMAIL BUNDLE." IN A SIMILAR SITUATION, WHERE A LATE BID WAS SUBMITTED TO A POST OFFICE EMPLOYEE WITH INSTRUCTIONS TO TRANSMIT IT BY AIRMAIL AND WITH SUFFICIENT POSTAGE TO TRANSMIT IT BY THAT MEANS, OUR OFFICE CONCLUDED THAT THE BID SHOULD IN FACT HAVE BEEN SENT BY AIRMAIL. 46 COMP. GEN. 307, 314 (1966). IN THAT CASE, WE NOTED A PRIOR DECISION OF OUR OFFICE HOLDING THAT THE SINGLE FACT THAT A BIDDER DID NOT MARK HIS ENVELOPES FOR AIRMAIL TRANSPORTATION SHOULD NOT BE GIVEN UNDUE WEIGHT OVER OTHER MAILING FACTS THAT MIGHT BE CONSTRUED AS AN INSTRUCTION TO TRANSMIT BY AIRMAIL, THE MOST SIGNIFICANT BEING THE INSERTION OF THE BID IN AN AIRMAIL CHUTE AT THE POST OFFICE.

OUR ANALYSIS OF THE CIRCUMSTANCES PERTAINING TO THE INSTANT CASE COMPELS US TO CONCLUDE THAT THE TENDER OF THE BID IN "AN AIRMAIL BUNDLE" CANNOT BE LEGALLY DIFFERENTIATED FROM THE SUBMISSION IN AN AIRMAIL CHUTE AS REGARDS AN ACT OF THE SENDER WHICH WILL SUFFICE TO DELINEATE A BID FOR AIRMAIL IN LIEU OF A SPECIFIC MARKING AS SUCH BY THE SENDER.

ACCORDINGLY, THE EFFECT OF PRIOR DECISIONS OF OUR OFFICE IS THAT SECTION 136.6 OF THE CITED POSTAL REGULATIONS, INSTRUCTING THE SENDERS OF AIRMAIL TO PLACE THE WORD "AIRMAIL" ON THE FACE OF A LETTER, DOES NOT PRECLUDE THE DESIGNATION OF MAIL AS AIRMAIL BY OTHER ACTS OF THE SENDER. IN VIEW THEREOF, AND IN THE LIGHT OF THE CITED DECISION, SOUTHERN SUBMISSION OF ITS BID IN AN AIRMAIL BUNDLE WITH SUFFICIENT POSTAGE, COUPLED WITH THE STATEMENTS OF ALL POSTAL OFFICIALS TO WHOM INQUIRIES WERE MADE THAT UNDER NORMAL CONDITIONS THE BID SHOULD HAVE BEEN RECEIVED PRIOR TO BID OPENING, WE MUST CONCUR THAT ITS LATE RECEIPT WAS DUE SOLELY TO A DELAY IN THE MAILS FOR WHICH SOUTHERN WAS NOT RESPONSIBLE.

WHILE YOU CITE B-151607, JUNE 28, 1963, AS SUPPORT FOR YOUR POSITION, OUR PERUSAL OF THE SAME REVEALS THAT RESPONSIBILITY FOR THE DELAY IN THAT CASE WAS ATTRIBUTED TO THE BIDDER BECAUSE HE NEGLECTED TO INSTRUCT A POSTAL EMPLOYEE TO SEND THE ENVELOPE VIA AIRMAIL, AND THEN IGNORED THE EMPLOYEE'S OFFER TO RETRIEVE IT FROM THE ORDINARY MAIL IN ORDER TO DISPATCH IT AS AIRMAIL. ACCORDINGLY, WE FIND B-151607 INAPPLICABLE TO THE CIRCUMSTANCES AT HAND.

IN VIEW OF THE FOREGOING, YOUR PROTEST MUST BE DENIED.