B-174614, DEC 14, 1971

B-174614, DEC 14, 1971

BID PROTEST - LATE BID - DELAY IN MAILS DECISION DENYING PROTEST OF BUILDING SPRINKLER COMPANY, INC., AGAINST REJECTION OF THEIR BID UNDER AN IFB ISSUED BY THE GENERAL SERVICES ADMINISTRATION REGIONAL OFFICE, DENVER, COLORADO. BIDS WERE SCHEDULED TO BE OPENED AT GSA OFFICES IN DENVER AT 1:30 P.M. ON OCTOBER 14, 1971. PROTESTANT'S BID WAS MAILED ON OCTOBER 13, 1971, AT APPROXIMATELY 4:15 P.M. REGISTERED AIRMAIL SPECIAL DELIVERY, BUT DID NOT ARRIVE UNTIL 7:30 A.M. ON OCTOBER 15, 1971. LATE BIDS MAY BE CONSIDERED FOR AWARD ONLY WHEN TIMELY DELIVERY SHOULD HAVE BEEN MADE IN THE ORDINARY, NOT NECESSARILY THE MOST EXPEDITIOUS, COURSE OF THE MAILS. IN THE PRESENT CASE THE NORMAL PROCEDURES ADOPTED BY THE POSTAL SERVICE FOR THIS PARTICULAR TYPE OF MAIL WERE CARRIED OUT WITHIN THE TIMES CONTEMPLATED. THEREFORE, THERE WAS NO DELAY IN THE MAILS WHICH WOULD JUSTIFY CONSIDERATION OF THE LATE BID.

TO PANCRATZ, WOLD & JOHNSON:

WE HAVE BEEN FURNISHED A COPY OF YOUR LETTER OF NOVEMBER 18, 1971, TO THE GENERAL SERVICES ADMINISTRATION'S REGION 8 OFFICE, ON BEHALF OF THE BUILDING SPRINKLER COMPANY, INCORPORATED, REQUESTING RECONSIDERATION OF THEIR PROTEST AGAINST THE REJECTION OF THE BID SUBMITTED BY BUILDING SPRINKLER IN RESPONSE TO INVITATION FOR BIDS (IFB) ON PROJECT W0-55282 ISSUED BY THE GENERAL SERVICES ADMINISTRATION REGIONAL OFFICE, DENVER, COLORADO.

THE INVITATION, ISSUED SEPTEMBER 8, 1971, REQUESTED BIDS FOR THE INSTALLATION OF A DRY SPRINKLER SYSTEM, TOGETHER WITH REQUIRED CHANGES AND MODIFICATIONS TO THE ELECTRICAL AND MECHANICAL SYSTEMS, IN THE MAIL TUNNELS AT THE UNITED STATES POST OFFICE AND FEDERAL BUILDING IN FARGO.

BIDS IN RESPONSE TO THE IFB, AS AMENDED, WERE SCHEDULED TO BE OPENED AT THE GSA OFFICES IN THE DENVER FEDERAL CENTER, AT 1:30 P.M. ON OCTOBER 14, 1971. BUILDING SPRINKLER'S BID WAS DEPOSITED AT THE FARGO POST OFFICE, FARGO, NORTH DAKOTA, ON OCTOBER 13, 1971, AT APPROXIMATELY 4:15 P.M. WITH INSTRUCTIONS THAT IT BE SENT REGISTERED AIRMAIL SPECIAL DELIVERY. THE PROCUREMENT ACTIVITY RECEIVED THE BID AT 7:30 A.M. ON OCTOBER 15, 1971, THE DAY AFTER THE BID OPENING. BY LETTER DATED OCTOBER 18, 1971, BUILDING SPRINKLER WAS ADVISED THAT THE BID HAD BEEN RECEIVED LATE.

AFTER BUILDING SPRINKLER DEPOSITED ITS BID AT THE FARGO POST OFFICE ON OCTOBER 13, 1971, IT WAS DISPATCHED TO TWIN CITIES, MINNESOTA, AT 10:15 P.M. ON THE SAME DAY. IT APPEARS THAT THIS REPRESENTS THE FIRST AIR MAIL FLIGHT TO TWIN CITIES, BUT IN ANY EVENT THE ADMINISTRATIVE RECORD HAS ESTABLISHED THAT THIS DISPATCH WAS THE ONLY ONE OUT OF THE FARGO POST OFFICE FOR REGISTERED MAIL. IT HAS BEEN ASCERTAINED THAT THE AIRMAIL FROM FARGO TO DENVER IS ROUTED THROUGH TWIN CITIES, THERE BEING NO DIRECT SERVICE BETWEEN THOSE TWO POINTS. THE ONLY DISPATCH DAILY OF REGISTERED MAIL FROM TWIN CITIES TO DENVER, COLORADO IS ON NORTH CENTRAL FLIGHT 723, WHICH DEPARTED AT 12:20 P.M. ON OCTOBER 14, 1971. THIS FLIGHT ARRIVED IN DENVER AT ITS SCHEDULED TIME OF 1:20 P.M. INFORMATION FROM THE DENVER POST OFFICE DISCLOSED THAT ORDINARY AIRMAIL-SPECIAL DELIVERY RECEIVED IN DENVER WOULD BE DELIVERED TO THE AIRPORT TERMINAL ANNEX ABOUT ONE AND ONE-HALF HOURS AFTER PLANE ARRIVAL, THEREBY MAKING IT IMPOSSIBLE FOR THE BUILDING SPRINKLER BID TO REACH THE PROCURING ACTIVITY BY THE DEADLINE OF 1:30 P.M.

PARAGRAPH 7 OF THE IFB'S INSTRUCTIONS TO BIDDERS DEALING WITH LATE BIDS STATES, IN PERTINENT PART, THAT:

"(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: (1) THEY ARE RECEIVED BEFORE AWARD IS MADE; AND*** (2) 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 AND IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE; *** "

YOU CONTEND THAT THE BID WAS LATE DUE TO A DELAY IN THE MAIL FOR WHICH BUILDING SPRINKLER WAS NOT RESPONSIBLE. SPECIFICALLY, YOU QUESTION THE DELAY CAUSED BY NOT DISPATCHING THE BID FROM MINNEAPOLIS ON NORTH CENTRAL FLIGHT NO. 721 AT 7:55 A.M. ON OCTOBER 14, 1971.

UNDER THE ACCEPTED INTERPRETATION OF THE QUOTED PROVISION, LATE BIDS MAY BE CONSIDERED FOR AWARD ONLY WHEN TIMELY DELIVERY SHOULD HAVE BEEN MADE IN THE ORDINARY, NOT NECESSARILY THE MOST EXPEDITIOUS, COURSE OF THE MAILS. 49 COMP. GEN. 191 (1969). IN THIS CASE THE NORMAL PROCEDURES ADOPTED BY THE POSTAL SERVICE FOR THE PARTICULAR TYPE OF MAIL WERE CARRIED OUT WITHIN THE TIMES CONTEMPLATED. THEREFORE, THERE WAS NO DELAY IN THE MAILS WHICH WOULD JUSTIFY CONSIDERATION OF THE BID.

IN DECISION B-173559, SEPTEMBER 30, 1971, COPY ENCLOSED, WE CONSIDERED A SIMILAR SITUATION AND CONCLUDED THAT WE COULD FIND NO OBJECTION TO THE ADMINISTRATIVE DETERMINATION THAT, IN CIRCUMSTANCES SUCH AS THESE, A BID WAS INEXCUSABLY LATE AND NOT FOR CONSIDERATION. THAT DECISION STATED, IN PERTINENT PART, AS FOLLOWS:

"WE HAVE INFORMALLY ASCERTAINED FROM A RESPONSIBLE OFFICIAL OF THE UNITED STATES POSTAL SERVICE THAT FOR THE PAST SEVERAL MONTHS A NEW POSTAL PROGRAM HAS BEEN IN EFFECT WHEREBY REGISTERED AND CERTIFIED AIR MAIL LETTERS ARE CONSOLIDATED FOR DISPATCH ON CERTAIN FLIGHTS FOR WHICH GUARD SERVICE IS PROVIDED WHILE THE MAIL IS AT THE TERMINAL. IT IS OUR UNDERSTANDING THAT THIS PROGRAM WAS INSTITUTED TO REDUCE THE NUMBER OF THEFTS OF THIS TYPE OF MAIL WHICH HAVE BEEN OCCURRING AT AIRPORT TERMINALS. WE WERE FURTHER ADVISED THAT THE GENERAL PUBLIC AND MANY POSTAL EMPLOYEES HAVE NOT BEEN MADE AWARE OF THIS NEW SECURITY PROGRAM.

"IN VIEW OF THIS INFORMATION, WE ARE UNABLE TO AGREE THAT YOUR BID WAS LATE DUE TO A DELAY IN THE MAILS. RATHER IT APPEARS THAT THE BID WAS MAILED TOO LATE TO BE DELIVERED ON TIME UNDER THE SECURITY PROCEDURES RECENTLY ESTABLISHED BY THE UNITED STATES POSTAL SERVICE FOR THE HANDLING OF CERTIFIED AND REGISTERED AIRMAIL. WE, THEREFORE, CONCLUDE THAT THE HANDLING OF THIS CATEGORY OF MAIL UNDER THE NEW SECURITY PROCEDURES, THOUGH NOT OF GENERAL PUBLIC KNOWLEDGE, REPRESENTED NORMAL, ROUTINE MAIL SERVICE. HENCE, THERE WAS NOT INVOLVED HERE A DELAY IN THE MAILS WITHIN THE PURVIEW OF THE IFB LATE BID PROVISIONS AND APPLICABLE ASPR REGULATIONS, CITED ABOVE."

SEE, ALSO, DECISION B-173583, SEPTEMBER 29, 1971, COPY ENCLOSED.

ACCORDINGLY, THE PROTEST IS DENIED.